Funds in a bank account are 'chose in action' and not tangible property, thus charges under Section 37(1) of the Minor Offences Ordinance cannot stand.

Wong Siong Tung J:

Introduction

[1] The appellant, Ezreen Nasuha Binti Razuli, is appealing against her conviction and sentence imposed by the Magistrate Court for an offence under s 37(1) of the Minor Offence Ordinance 1958. She pleaded guilty to the offence on 11 December 2023, and was consequently fined RM500.00, in default, imprisonment of 7 days.

[2] The offence with which the Appellant was charged is as follows:

"That you on 26 August 2023 at Lot 424 Jalan Sentosa Salim, in the district of Sibu, in the State of Sarawak, was found in possession of RM1200.00 (Ringgit Malaysia One Thousand and Two Hundred) which is unlawfully obtained in your CIMB personal account bearing the account number 7033133654 and you have failed to an account satisfactorily of how you came by such thing, thereby you had committed an offence under s 37(1) of Minor Offences Ordinance Sarawak and punishable under the same section."

[3] The grounds of the Appellant's appeal can be summarised into two main points as follows:

(a) The charge against the appellant is defective, as it involves monies in a bank account, which are considered a "chose in action" and not tangible property under s 37(1) of the Minor Offence Ordinance 1958; and

(b) Non-compliance with s 173(b) of the Criminal Procedure Code , as the learned Magistrate failed to properly explain the nature and consequences of the guilty plea. This misled the appellant into pleading guilty, thereby causing prejudice and resulting in a miscarriage of justice.

Defective Charge

[4] The offence directed at the RM1,200.00 found in the Appellant's bank account, which was allegedly obtained unlawfully and for which the Appellant failed to provide a satisfactory explanation for how the funds got into her account.

[5] Relying on the case as decided in Harpajan Kaur Delib Singh v. PP ; [2021] 7 MLJ 678; 2020 MarsdenLR 1832 , the learned counsel for the Appellant submitted that the charge against the Appellant is defective and the facts as stated therein are not capable of constituting an offence under s 37(1) of the Minor Offences Ordinance (Sarawak Cap 56) because the monies in the bank account are considered "chose in action" and not tangible property. It is contended that the monies found in the Appellant's bank account does not fall under the definition of "anything' in s 37(1) of the (Sarawak Cap 56).

[6] The learned counsel for the Appellant also submitted that the charge did not state that the monies had been withdrawn, meaning the Appellant did not have possession of the monies.

[7] The learned DPP on the other hand, submitted that the words "anything" and "thing" in s 37(1) of the Minor Offences Ordinance (Sarawak Cap 56) includes both tangible and intangible property such as monies in the bank account rely on the case of Mok Chee Cheong v. PP ; 2022 MarsdenLR 133 and the case of Pendakwa Raya lwn. Linges Ragunathan & Kes Yang Lain; [2024] 8 CLJ 71 .

[8] All these cases relied on by the learned Appellant's counsel and the learned DPP are decided by the High Court upon interpretation of 29(1) of the Minor Offences Act 1955 which are similarly worded as s 37(1) of the Minor Offences Ordinance (Sarawak Cap 56)

[9] In Harpajan Kaur Delib Singh v. PP ; [2021] 7 MLJ 678; 2020 MarsdenLR 1832 , the High Court ruled that funds in a bank account are "chose in action" and not physical property. As the bank acts as a debtor, an account holder does not possess these funds. The Court held that possession under s 29(1) of the Minor Offences Act 1955 applies only to tangible, movable property, excluding intangible assets like bank funds. Therefore, such funds do not qualify as "property" under the Act, rendering any charges based on their possession invalid. It was also decided that such defective charges cannot be cured by application of the ss 156 or 422 of the Criminal Procedure Code .

[10] The ruling in Harpajan Kaur Delib Singh v. PP (supra) was followed by the High Court in Pendakwa