Under the meaning of “dominion” in the context

Under Section 405, entrustment or
dominion is the first ingredient needed to be proven. For the meaning of “dominion” in the
context of criminal breach of trust; in Sinnathamby v PP1,
Thompson J held that Section 408 of the Penal Code applies not merely in cases
where the exercise of possession of dominion over property is one of the legal
incidents of the contract of service but in every case where by virtue of the
existence of the contract of service the accused person is in fact in a
position to exercise dominion. The facts of the case show that the money was
entrusted to the appellant and this is incontrovertible evidence because the
Appellant herself admitted that she had received the said sum. Furthermore, in
general, “property” refers to moveable and immoveable property and it
is settled law that the former includes money as recognized by a number of
Malaysian court cases relating to the offence of criminal breach of trust.

The mens rea
required under this section is dishonesty. It is defined under Section 24 of
the Penal Code which means whoever does anything with the intention of causing
wrongful gain to one person, or wrongful loss to another person, irrespective
of whether the act causes actual loss or gain, is said to do that thing ‘dishonestly’.
Section 23 of the same Code defines “Wrongful Gain” and “Wrongful Loss”. A
person is said to gain wrongfully when such person retains wrongfully, as well
as when such person acquires wrongfully. A person is said to lose wrongfully
when such person is wrongfully kept out of any property, as well as when such
person is wrongfully deprived of property. Applying the definition to the facts
of this case, this court finds that the Appellant had indeed committed an act
of dishonesty as her explanation on why she had used up the money was not
reasonable, when taking into consideration the facts and surrounding
circumstances of the case.

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