Poyser (FMS) CJ:

Acting under the provisions of s. 53 of the Courts Enactment (Cap. 2), Howes J referred this appeal to the Court of Appeal. His reasons for so doing were that in his opinion the appeal raised an important point of law in regard to which there were conflicting decisions, viz: whether a person can be convicted of criminal breach of trust, when a chattel the subject matter of the charge, has been obtained by the accused person as a gratuitous loan. At the conclusion of the hearing we dismissed the appeal, but stated that we would give our reasons for so doing in a written judgment.

The material facts, as found by the Magistrate, are as follows. The complainant lent the gold necklace, the subject of the charge, to the accused, in order that the latter's wife might wear it at a party. The necklace was not returned to the complainant, although she frequently asked for its return, and eventually the accused admitted that he had pawned it.

Howes J was of the opinion that the transaction between the parties was of a purely civil nature, and that the criminal law should never have been invoked. In this connection he referred to one of his own decisions viz: Ng Chye Giat V. Rex in which he held that:

A loan of jewellery to another does not create any legal trust within the meaning of s. 405 of the Penal Code; even if a promise to return the same within a stated time is given. The mere pawning of the jewellery by the person to whom it is lent will not, therefore, amount to criminal breach of trust as defined in that section.

Murray Aynsley J in the case of Gan Beng v. PP 8 MLJ 314 dissented from this decision, and held that the wording of s. 405 was wide enough to include bailment, and that when a person borrowed a bicycle and misappropriated it, he was rightly convicted under this section.

The above are the conflicting decisions Howes J referred to. We agree with the principles enunciated by Murray Aynsley J and considered that the accused was rightly convicted. The essence of the offence of criminal breach of trust is the 'dishonest' misappropriation or conversion by a person of property entrusted to him. The fact that in this case the entrusting of the property was gratuitous is, in our view, immaterial; the point is, did the accused dishonestly convert to his own use the property of which he was the bailee? The evidence accepted by the Magistrate proved beyond all doubt that he did, and we fail to see, therefore, that the complainant's only remedy is a civil action.

I think it is only necessary to refer to one authority in support of this proposition viz: Regubir Kurmi, 1 UPLR p. 69 in which it was held that:

Where the accused asked for a gold Mohur from the complainant in order that he might play with a child that was weeping, using the mohur as a play thing, and subsequently misappropriated it, he was guilty of criminal breach of trust.

For the above reasons we dismissed the appeal.

Appeal dismissed.