IN THE COURT OF APPEAL OF THE REPUBLIC OF SINGAPORE

[2019] SGCA 02

Criminal Reference No 2 of 2018

Between

Ho Man Yuk
… Applicant
And

Public Prosecutor
… Respondent

GROUNDS OF DECISION

[Criminal law] —[Offences] — [Property] — [Dishonest misappropriation of

property]
[Statutory interpretation] — [Construction of statute] — [Rectifying
construction]
[Statutory interpretation] — [Construction of statute] — [Strict construction
rule]
 TABLE OF CONTENTS

INTRODUCTION............................................................................................1

FACTS...............................................................................................................3

THE PROCEEDINGS .....................................................................................7

THE TRIAL .......................................................................................................7
THE MAGISTRATE’S APPEAL ...........................................................................9
THE CRIMINAL MOTIONS................................................................................10

THE ANALYSIS ............................................................................................11

THE PROPER INTERPRETIVE APPROACH..........................................................11
SUMMARY OF THE PARTIES’ SUBMISSIONS.....................................................14
EXPLANATION OF OUR DECISION ...................................................................15
The text of the provision ...........................................................................15
Context of the provision ...........................................................................19
(1) Explanations and illustrations .....................................................20
(2) Section 404 of the Code ..............................................................23
(3) Interplay and overlap between property offences .......................25
Legislative purpose ..................................................................................32
Consideration of the authorities...............................................................39
(1) Local authorities..........................................................................39
(2) Foreign jurisprudence..................................................................44
(3) Academic authorities...................................................................52
Other interpretive canons ........................................................................55
(1) Rectifying construction ...............................................................55
(2) Strict construction rule ................................................................56

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 SUMMARY ON THE QUESTION REFERRED .......................................................57

CONCLUSION...............................................................................................57

ii
 This judgment is subject to final editorial corrections approved by the
court and/or redaction pursuant to the publisher’s duty in compliance
with the law, for publication in LawNet and/or the Singapore Law
Reports.

Ho Man Yuk
v
Public Prosecutor

[2019] SGCA 02

Court of Appeal — Criminal Reference No 2 of 2018

Sundaresh Menon CJ, Judith Prakash JA and Tay Yong Kwang JA
14 August 2018

7 January 2019

Judith Prakash JA (delivering the grounds of decision of the court):

Introduction

1 The striking feature about this criminal reference was that it was initiated
by a convicted person who candidly admitted that she was dishonest when she
first came into possession of certain monies which she was subsequently
charged with dishonestly misappropriating. Indeed, it was her contention that
she ought to have been acquitted of the charge precisely because she was
dishonest at such time of initial possession.

2 The person in question, Ho Man Yuk (“the Applicant”), was convicted

in the State Courts on one count of abetment by conspiracy to dishonestly
misappropriate monies under s 403 read with s 109 of the Penal Code (Cap 224,
2008 Rev Ed) (“the Code”). On the premise of this conviction, she was also
convicted on several counts under the Corruption, Drug Trafficking and other
Ho Man Yuk v PP [2019] SGCA 02

Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed)
(“CDSA”) for money laundering in respect of the monies which had been
misappropriated. On her appeal to the High Court, the convictions were upheld.
She thereafter applied for leave to refer certain questions of law to this Court.
At the conclusion of the leave hearing, she was given leave to refer the following
question for determination:

Whether a conviction for dishonest misappropriation under

s 403 of the [Code] can be made out only if the accused person
had an innocent or neutral state of mind when he first came
into possession of the property in question.

We will refer to this question as the “innocent possession question” or the

“question referred” as the context may require and to the offence itself as
“dishonest misappropriation”.

3 At the leave hearing, we also directed the parties to address five ancillary
questions concerning the consequences that might ensue if the question referred
was answered in the affirmative. These consequences included the possibility
of alternative charges based on the same facts and an exploration of the Court’s
powers and conduct in that regard.

4 In this reference, the Applicant argued that the question referred should
be answered in the affirmative. According to her, an essential element of the
offence of dishonest misappropriation was that the misappropriating person had
to have come into possession of the relevant property in an innocent or neutral
manner. In her case, however, she had known from the outset that she was not
entitled to receive the monies. She was therefore dishonest, rather than innocent
or neutral, at the time of initial possession. Accordingly, the convictions under
the Code and the CDSA should be set aside. The Prosecution took the opposing

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position and argued that the question referred should be answered in the
negative.

5 At the end of the hearing of this reference on 14 August 2018, we

answered the question referred in the negative. In our judgment, it is not
necessary, in order to make out a conviction under s 403 of the Code, to
establish that the accused person had an innocent or neutral state of mind when
he or she first came into possession of the property in question. Accordingly,
we affirmed the convictions. We now provide our full grounds of decision.

Facts

6 The Applicant is a Chinese national. She committed the offences with

two co-offenders:

(a) Shaikh Farid, a male Indian national, who was convicted of one
similar charge under s 403 of the Code and 26 counts of money
laundering under the CDSA; and

(b) Shaikh Shabana Bi, a female Indian national, who was convicted
of one similar charge under s 403 of the Code and three counts of money
laundering under s 47(1)(b) of the CDSA.

7 We will refer to the two co-offenders as the “Co-Offenders”, and the

three offenders collectively as “the Offenders”.

8 The Offenders were members of a rewards programme at the Marina

Bay Sands (“MBS”) casino. As members, they were eligible to participate in
MBS’ marketing promotions. One such promotion was the “Sands Bonus
Dollars Rewards” promotion, under which eligible members were entitled to a

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limited number of Sands Bonus Dollars (“SBDs”) that could be redeemed for
an equivalent number of Free Play Credits (“FPCs”) at electronic kiosks situated
in the casino. The FPCs had no monetary value in themselves, but could be used
for gambling at the gaming machines located in the premises. For this purpose,
each EPC was credited with a value of $1.

9 On 13 April 2014, the Applicant swiped her membership card at a kiosk

in the casino and selected the “Sands Bonus Dollars Rewards” icon. The kiosk
screen showed “You are eligible for $100 of Free Play Offer! Redeem offer
now?” The Applicant selected “Yes, Redeem Now” and entered her personal
identification number. An error message appeared which showed: “Sorry,
service seems to be unavailable. Please try after sometime”. She exited the
screen showing the error message, and tried to swipe her card several more
times, but the same error message continued to appear. Thereafter, she left the
casino.

10 The next day, 14 April 2014, the Applicant returned to the casino. She
swiped her card at a kiosk and discovered that $800 worth of FPCs had been
credited into her account. Apparently, on the previous day, even though an error
message had showed each time the Applicant tried to redeem her FPCs,
100 FPCs were in fact credited to her account on every such occasion. Using
these FPCs, the Applicant gambled at electronic roulette machines in the MBS
casino. At the end of each game, she was given a paper slip stating her winnings
which she then encashed at “Ticket In, Ticket Out” (“TITO”) machines.

11 Later that same day, the Applicant called the Co-Offenders and asked
them to join her at the casino. On their arrival, the Applicant told them about
what she had done that afternoon. The Offenders then repeated numerous cycles

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of swiping, gambling, and encashing their winnings using the Applicant’s

membership card.

12 In total, the Applicant’s membership card was swiped 10,293 times

during the seven-day period from 14 to 20 April 2014 leading to 1,029,300 FPCs
being credited to the card. These FPCs were utilised for games at various
electronic roulette machines at the casino, netting the Offenders winnings which
they were able to encash at the TITO machines. In total, the Offenders obtained
$875,133.56 (“the Monies”) from the TITO machines.

13 On 20 April 2014, the Applicant was detained by the police. She

managed to message the Co-Offenders that the “police [were] coming”. The
Co-Offenders then, on their own accord, took $500,000 of the Monies to the
casino at Resorts World Sentosa (“RWS”) where they converted the sum into
casino gambling chips and expended them on table games. The winnings from
these plays were then transferred to a third party. The Co-Offenders were
subsequently arrested at RWS.

14 Based on evidence given in the trial, the precise number of FPCs that a
member was eligible to redeem depended on various factors such as the
frequency of his casino visits and his value to the MBS casino, and it was to be
solely determined by MBS. The Applicant was supposed to be given only
100 FPCs. The Applicant obtained more FPCs than were due because of a
system error at the kiosks which went undetected by MBS until 20 April 2014.

15 Arising from the facts above, one charge for abetment by conspiracy to
commit dishonest misappropriation, under s 403 read with s 109 of the Code,

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was brought against each of the Offenders. The charges were worded similarly
as follows:

… you, sometime in April 2014, at [MBS] Casino located at

No. 10 Bayfront Avenue, Singapore, did abet by engaging in a
conspiracy with [the Co-Offenders] to commit dishonest
misappropriation of property, and in pursuance of the
conspiracy and in order to the doing of that thing, an act took
place, to wit, between 14 April 2014 and 20 April 2014, you,
together with [the Co-Offenders] did dishonestly misappropriate
cash from [MBS] Casino amounting to S$875,133.56 using
[FPCs] which [the Applicant] was not entitled to obtain, and you
have thereby committed an offence under Section 403 read with
Section 109 of the [Code].

16 Furthermore, as the Offenders had remitted part of the Monies overseas,

transferred some to third parties, and converted some into gambling chips and
credits at MBS and RWS, several charges of conversion of property
representing the benefits of criminal conduct under s 47(1)(b) of the CDSA,
punishable under s 47(6)(a) of the same Act, were also brought against each of
them. These charges broadly read as follows:

… you, on or about 14 April 2014, in Singapore, did convert

property, namely cash sum of S$3,500, which property in whole
directly represented your benefits from criminal conduct,
namely, Dishonest Misappropriation of Property under
Section 403 read with Section 109 of the [Code] committed
between 14 and 20 April 2014, in Singapore, to wit, by
converting the aforesaid property into gambling chips at the
[MBS] Casino, Singapore, and you have thereby committed an
offence under Section 47(1)(b) of the [CDSA], and punishable
under s 47(6)(a) of the [CDSA].

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17 In summary, the Applicant was convicted on a total of 21 charges and

sentenced to a 21-month aggregate imprisonment term, the details of which may
be tabulated as follows:

Charges Counts Abbreviation Sentence

Abetment by conspiracy to 1 “the DM 13 months

dishonestly misappropriate Charge”
the Monies under s 403 read
with s 109 of the Code

Money laundering under 16 “the CDSA Ranging from

s 47(1)(b) of the CDSA Charges” two weeks to
eight months
Money laundering with 3 depending on
common intention under the amount
s 47(1)(b) of the CDSA read stated in the
with s 34 of the Code relevant charge.

Attempted money 1
laundering with common
intention under s 47(1)(b) of
the CDSA read with ss 511
and 34 of the Code

Global sentence for 21 months’ imprisonment,

21 charges
(the sentences for the DM Charge and one of
the CDSA Charges to run consecutively)

The proceedings

The trial

18 The Offenders were jointly tried, convicted, and sentenced in the State
Courts by the learned District Judge, whose decision was reported in Public
Prosecutor v Ho Mun Yuk and others [2017] SGDC 23 (“SC GD”). In regard to
the DM Charges, the District Judge relied on Wong Seng Kwan v Public

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Prosecutor [2012] 3 SLR 12 (“Wong Seng Kwan”) at [19] for the proposition
that the three elements of a dishonest misappropriation charge under s 403 of
the Code are:

(a) the movable property must belong to some person other than the
accused person;

(b) there must be an act of misappropriation or conversion to the

accused’s own use; and

(c) the accused person must possess a dishonest intention.

19 On the facts, the elements of dishonest misappropriation were found to

have been made out. The subject matter of the charges was the Monies and not
the disputed FPCs (SC GD at [45]). Since the Applicant was not entitled to more
than 100 FPCs, the Offenders had no entitlement to the Monies which belonged
to MBS at all times (SC GD at [49]). Through “a whole series of detailed and
calculated steps, an astronomical number of FPCs were downloaded into [the
Applicant’s] membership card” which the Offenders then encashed (SC GD at
[52]). Each of the Offenders possessed the requisite dishonest intention as each
had knowingly exploited a system error and used the electronic roulette
machines to convert FPCs to which they were not entitled into “winnings”
which they could encash (SC GD at [54]). Further, the evidence also showed
that the Offenders had committed dishonest misappropriation pursuant to a plan
or agreement between them (SC GD at [68]). Thus, the District Judge found
“abundant evidence … which established the guilt of the [Offenders] in a
conspiracy to commit [dishonest] misappropriation” (SC GD at [71]).

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20 The CDSA Charges were also found to have been made out, with the
DM Charge forming the predicate charge since one requirement under
s 47(1)(b) of the CDSA is that the property in question must “directly or
indirectly, represent[] his benefits from criminal conduct” (SC GD at [74]).

The Magistrate’s Appeal

21 Each of the Offenders appealed against both conviction and sentence in

respect of all the charges. The matter was heard by the learned High Court judge
(“the Judge”). On 29 September 2017, the Judge dismissed the appeals in their
entirety. His judgment is published as Shaikh Farid v Public Prosecutor and
other appeals [2017] 5 SLR 1081 (“HC GD”).

22 In relation to the DM Charge, the Defence raised several arguments, one

of which was that innocent possession is a requirement for a conviction under
s 403 of the Code. The Defence argued that even if the District Judge’s findings
of fact were accepted, the DM Charge could not be made out because the
Monies did not come into the Offenders’ possession innocently or in a neutral
manner – the Applicant had swiped her membership card at the redemption
kiosks at MBS with the knowledge that there was a system error.

23 The Judge considered the argument on the merits even though it was
being raised for the first time on appeal, and held that there was no rule, in order
to fall within the scope of s 403 of the Code, that a dishonest intention must
come into existence only after (but not before or at the time) the accused came
into possession of the property in question. For this and other reasons, the Judge
affirmed the convictions on the DM and the CDSA Charges, as well as the
sentences imposed by the District Judge (see HC GD at [47]–[53]).

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The criminal motions

24 The Offenders applied to this Court by three separate criminal motions

for leave to refer a total of 16 purported questions of law of public interest for
determination. At the initial hearing on 6 March 2018, the Co-Offenders sought
and obtained leave to withdraw their applications. After some consideration the
Applicant decided to proceed with her criminal motion. Subsequently, we
dismissed the Applicant’s application except in so far as it related to the issue
of innocent possession under s 403 of the Code. We also directed the parties to
address the Court on five ancillary questions which related to consequential
matters that would follow if the Court returned an affirmative answer to the
question referred.

25 On 24 May 2018, the Applicant filed this application, seeking our

determination of the question referred and the five ancillary questions. At the
hearing on 14 August 2018, we were much assisted by the submissions of
counsel for the Applicant and the Public Prosecutor. At the end of the hearing,
we gave a brief oral judgment in the following terms:

This is our decision. Insofar as the main question before us is

concerned, we answer that in the negative. In other words, to
make out a conviction under s 403 of the [Code], it is not
necessary to establish that the accused person had an innocent
or neutral state of mind when he or she first came into
possession of the property in question. It is clear to us from the
drafting history that the drafters set out to cover a particular
category of property offences. But even if that category was not
specifically the felonious taking of the property in the
possession of another, which would typically be covered by the
offence of theft, the drafters chose to frame the offence in
general terms. Those general terms simply did not require proof
that the offender did not have a guilty mind at the time the
property was taken into possession. As we put it to [counsel for
the Applicant] in the course of the arguments, in our judgment,
the real point of s 403 of the [Code] is to make it an offence even
if the offender took the property innocently and only

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subsequently formed a guilty intention. But this simply does

not mean that the offence is made out only if the property was
taken innocently. This view is also reflected in the Sri Lankan
case of Walgamage v The Attorney General [2000] 3 Sri LR 1
which we find persuasive, and it is more in keeping with the
plain language of s 403 of the [Code].
[emphasis in original]

The analysis

The proper interpretive approach

26 We were faced with the question of the proper interpretation of s 403 of

the Code. Before we go into the discussion it might be helpful if we set out how
we approached this issue. We followed the principles laid down in the minority
judgment in Attorney-General v Ting Choon Meng and another appeal [2017]
1 SLR 373 at [59] and affirmed by a 5-judge coram of this Court in Tan Cheng
Bock v Attorney-General [2017] 2 SLR 850 (“Tan Cheng Bock”) at [37] which
guide the court in its task of giving a purposive interpretation to legislation as
required by s 9A(1) of the Interpretation Act (Cap 1, 2002 Rev Ed) (“IA”).
These principles direct the court to:

(a) First, ascertain the possible interpretations of the provision,

having regard not just to the text of the provision but also to the context
of that provision within the written law as a whole.

(b) Secondly, ascertain the legislative purpose or object of the

statute in which the provision is contained.

(c) Thirdly, compare the possible interpretations of the text against

the purposes or objects of the statute.

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27 When applying these principles, we considered the legislative history

and intent of s 403 as well as the cases which interpreted the section. We also
had regard to both academic and case authority from India and Sri Lanka since
their penal codes contain similar provisions on dishonest misappropriation.

28 As a reference point for the discussion, we set out here the full text of
s 403 and its illustrations:

Dishonest misappropriation of property

403. Whoever dishonestly misappropriates or converts to his
own use movable property, shall be punished with
imprisonment for a term which may extend to 2 years, or with
fine, or with both.

Illustrations
(a) A takes property belonging to Z out of Z’s possession in
good faith believing, at the time when he takes it, that the
property belongs to himself. A is not guilty of theft; but if A,
after discovering his mistake, dishonesty appropriates the
property to his own use, he is guilty of an offence under this
section.
(b) A, being on friendly terms with Z, goes into Z’s house in
Z’s absence and takes away a book without Z’s express consent.
Here, if A was under the impression that he had Z’s implied
consent to take the book for the purpose of reading it, A has not
committed theft. But if A afterwards sells the book for his own
benefit, he is guilty of an offence under this section.
(c) A and B being joint owners of a horse, A takes the horse
out of B’s possession, intending to use it. Here, as A has a right
to use the horse, he does not dishonestly misappropriate it. But
if A sells the horse and appropriates the whole proceeds to his
own use, he is guilty of an offence under this section.
Explanation 1. — A dishonest misappropriation for a time only
is a misappropriation within the meaning of this section.
Illustration
A finds a Government promissory note belonging to Z, bearing
a blank endorsement. A, knowing that the note belongs to Z,
pledges it with a banker as a security for a loan, intending at a

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future time to restore it to Z. A has committed an offence under

this section.
Explanation 2. — A person who finds property not in the
possession of any other person, and takes such property for the
purpose of protecting it for, or of restoring it to the owner, does
not take or misappropriate it dishonestly, and is not guilty of
an offence; but he is guilty of the offence above defined, if he
appropriates it to his own use, when he knows or has the means
of discovering the owner, or before he has used reasonable
means to discover and give notice to the owner, and has kept
the property a reasonable time to enable the owner to claim it.
What are reasonable means, or what is a reasonable
time in such a case, is a question of fact.
It is not necessary that the finder should know who is
the owner of the property, or that any particular person is the
owner of it; it is sufficient if, at the time of appropriating it, he
does not believe it to be his own property, or in good faith believe
that the real owner cannot be found.

Illustrations
(a) A finds a dollar on the high road, not knowing to whom
the dollar belongs. A picks up the dollar. Here A has not
committed the offence defined in this section.
(b) A finds a letter on the high road, containing a bank note.
From the direction and contents of the letter he learns to whom
the note belongs. He appropriates the note. He is guilty of an
offence under this section.
(c) A finds a cheque payable to bearer. He can form no
conjecture as to the person who has lost the cheque. But the
name of the person who has drawn the cheque appears. A
knows that this person can direct him to the person in whose
favour the cheque was drawn. A appropriates the cheque
without attempting to discover the owner. He is guilty of an
offence under this section.
(d) A sees Z drop his purse with money in it. A picks up the
purse with the intention of restoring it to Z, but afterwards
appropriates it to his own use. A has committed an offence
under this section.
(e) A finds a purse with money, not knowing to whom it
belongs; he afterwards discovers that it belongs to Z, and
appropriates it to his own use. A is guilty of an offence under
this section.

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(f) A finds a valuable ring, not knowing to whom it belongs.

A sells it immediately without attempting to discover the owner.
A is guilty of an offence under this section.

Summary of the parties’ submissions

29 The Applicant, in contending that the court must read a requirement of

innocent possession into s 403 such that dishonest misappropriation could not
be established unless the initial receipt of the subject property was with an
innocent or neutral state of mind, relied on the following arguments and
authorities:

(a) illustrations to s 403 which show the clear intention of the

drafters of the Code to require initial innocent possession;

(b) certain observations of Steven Chong J (as he then was) in the

High Court in Wong Seng Kwan;

(c) that each offence under Chapter XVII of the Code is “distinct
and it is readily clear when the dishonest intention must be formed”;

(d) two Indian cases that support the existence of the innocent
possession requirement; and

(e) the principles that any lacuna in the law should be filled by
Parliament and that any ambiguity in the interpretation of s 403 as a
penal provision should be resolved in favour of the Applicant.

30 The Prosecution based its submission that the question referred should
be answered in the negative on the argument that dishonest misappropriation
was the “most general of the property offences” and was not “concerned with

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the circumstances under which the offender came into possession of the
property”. It relied on the following authorities and arguments:

(a) a textual reading of s 403;

(b) that the explanations and illustrations of s 403 are not exhaustive
of the scope of the provision; indeed, Explanation 2 to s 403 “implicitly
suggests that initial innocent possession is not a necessary ingredient [of
dishonest misappropriation]”;

(c) that reading s 403 in the context of s 404 of the Code makes clear
that there is no requirement for innocent possession;

(d) that there is no difficulty with some degree of overlap between

property offences in the Code;

(e) the legislative history of s 403 of the Code; and

(f) case law from India and Sri Lanka that has considered the
innocent possession question.

Explanation of our decision

The text of the provision

31 We started by examining the plain text of s 403. The material part of this
section is the phrase “[w]hoever dishonestly misappropriates or converts to his
own use movable property …”.

32 The Prosecution made two main submissions in this regard. First, it

emphasised that there is no express mention in s 403 of any requirement as to
the accused person’s state of mind at the time he first obtains possession of the

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subject property. Therefore, imposing a requirement that the initial possession

be innocent would be tantamount to adding a further ingredient to the offence
which is not permissible. Second, it would also give rise to an absurdity in so
far as it would make a criminal of one who is only subsequently dishonest, but
would let off one who had been dishonest from the outset.

33 The Prosecution’s arguments needed further exploration. On the first

point, it is correct that a plain reading of s 403 suggests that there is no
requirement that the accused person must have had an innocent or neutral state
of mind at the time the subject property first came into his possession. Indeed,
there is also no requirement that the accused person must have been dishonest
at that specific time. Although dishonesty is a requirement for conviction under
the section, by the concurrence principle between actus reus and mens rea, the
focus is only on whether the accused is dishonest at the time he misappropriates
or converts the subject property to his own use, and not at the time that he first
comes into possession of it. On a plain reading of s 403, therefore, the accused
person’s state of mind at the time of initial possession – whether innocent,
neutral, or dishonest – is irrelevant to a conviction under that provision.

34 There is, however, one possible argument that a plain reading of s 403
is not sufficiently probative of its ingredients because the text of the provision
is not indicative of the comprehensive scope of the provision. This argument is
derived from the analysis in Wong Seng Kwan.

35 In that case, the accused had picked up a wallet from the ground and
kept the cash in it for himself before disposing of the wallet and the rest of its
contents. The question was whether the accused was guilty of dishonest
misappropriation under s 403 of the Code. Chong J held that in order to establish

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the offence under s 403, the Prosecution had to prove three elements beyond a
reasonable doubt (at [19]):

(a) the movable property must belong to some person other than the
accused person;

(b) there must be an act of misappropriation or conversion to the

accused’s own use; and

(c) the accused person must possess a dishonest intention.

36 Applying the elements to the facts, Chong J found the offender liable for
dishonest misappropriation under s 403. If Chong J’s formulation is correct,
then it is clear that s 403 cannot be construed strictly by its plain text because
the first requirement identified by Chong J – that the movable property must
belong to some person other than the accused person – is itself also not a
requirement that appears on the face of s 403.

37 It is, however, possible to question whether this “not owned by the

accused person” requirement is indeed a separate requirement for a conviction
under s 403. In our view, this requirement may instead be conceived of as being
encompassed within the third requirement, ie, that the accused person possessed
the requisite dishonest intention. This is because in certain, admittedly limited,
circumstances an owner of property may dishonestly misappropriate it. For
instance, if person A owns a bicycle and rents it to person B for a specified
period of time, and before the expiry of this period, A sees the bicycle parked
by the side of the road and takes it away and sells it without the consent of B,
thus depriving B of its use for the entire period of hire, it would appear that A
could well be liable under s 403 even though he may be the owner of the bicycle.

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There is also Illustration (c) to the main text of s 403 which makes it clear that
in certain circumstances a joint owner of property may be guilty of dishonest
misappropriation of property which he co-owns. In both the situations
described, the misappropriating party, albeit the owner, was not entitled to the
immediate and exclusive possession of the property. Indeed, in
misappropriating the property, he may have caused wrongful loss to the person
so entitled to it. Thus, the first requirement may be rephrased as “the accused
person was not entitled to immediate and exclusive possession of the movable
property in question”, and once it is so rephrased it is apparent that this is but
one aspect of the inquiry into dishonesty, rather than a distinct emphasis on or
a separate requirement of ownership.

38 In our judgment, the essential elements of an offence under s 403 of the

Code, therefore, are:

(a) that the thing in question constitutes movable property;

(b) that the accused person has misappropriated or converted such

property to his own use; and

(c) that the accused person, not being a person entitled to immediate
and exclusive possession of such property, possessed a dishonest intent
at the time of such misappropriation or conversion.

All three elements appear on the face of the section. Once they are met, there
will be an offence of dishonest misappropriation notwithstanding the ownership
of the movable property concerned, as illustrated by the examples we gave
earlier.

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39 As far as the Prosecution’s second argument was concerned – that of

absurdity if an innocent possession requirement was in fact read into s 403 – we
found this more difficult to accept in the form that it was presented to us. The
Prosecution’s point was that it cannot rationally be held that a person who is
initially innocent but subsequently becomes dishonest is a criminal, but one who
had all along been dishonest escapes criminal liability. The strength of this
submission, however, was premised on the false assumption that dishonest
misappropriation under s 403 is the only relevant property offence and that the
other property offences do not even enter the picture. The interplay of property
offences is something that we deal with below. We also elaborate below on a
slightly different form of absurdity that may arise should the innocent
possession requirement be adopted in s 403.

40 In our view, a plain reading of s 403 assisted the Prosecution. As we

mentioned above at [26], however, the proper interpretation of a provision
involves a consideration of more than just its plain text, and it is to these other
considerations that we now turn.

Context of the provision

41 As s 9A(2) of the IA makes clear, the context of the provision under

consideration in the written law as a whole must also be taken into account. In
this regard, three factors are relevant:

(a) the explanations and illustrations to s 403;

(b) section 404 of the Code; and

(c) the interplay of and overlap between various property offences

set out in the Code.

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(1) Explanations and illustrations

42 The explanations and illustrations to s 403 are extensive, and they have
been reproduced above in full (at [28]).

43 The Applicant argued that the illustrations to s 403 clearly show that the
draftsmen “envisaged a situation where an accused person comes into
possession of the property innocently but subsequently formed a dishonest
intention to misappropriate the property”. Her counsel submitted that these
illustrations are useful notwithstanding s 7A of the IA. In fact, in Basudeb Putra
v Kanai Lul Haldar (1949) Cri LJ 382 (“Basudeb”), the Calcutta High Court
opined (at [4]) that the illustrations to s 403 are “rather statements of principle
than mere illustrations”.

44 The Prosecution conceded that the illustrations to s 403 are compatible

with an innocent possession requirement, but argued that pursuant to s 7A of
the IA, they “should not be seen as exhaustive in respect of the scope of s 403”.
In fact, as the Judge had reasoned in the HC GD at [26]–[28], Explanation 2 to
s 403 and Illustration (d) thereto “implicitly suggest[]” that innocent possession
is not an element of dishonest misappropriation.

45 We agreed with the Prosecution that the illustrations to s 403 of the Code
may not show the full scope of the provision, but we disagreed that
Explanation 2 (or Illustration (d) to Explanation 2) has any value in disproving
or supporting the innocent possession requirement.

46 Section 7A of the IA states, without providing for any exception, that

illustrations are not exhaustive and cannot trump the provision itself:

Examples and illustrations

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Ho Man Yuk v PP [2019] SGCA 02

7A. Where an Act includes an example or illustration of the

operation of a provision —
(a) the example or illustration shall not be taken to
be exhaustive; and
(b) if the example or illustration is inconsistent with
the provision, the provision prevails.

47 Section 7A of the IA clearly applies to the illustrations to s 403. In

particular, reliance solely on the illustrations to read an innocent possession
requirement into s 403 would contravene s 7A(a) of the IA which mandates that
illustrations not be taken as exhaustive of the scope of a provision. Therefore,
little if any weight can be given to the argument that the illustrations to s 403
are uniformly consistent with the existence of a requirement for innocent
possession, even if the argument is taken to be correct.

48 Basudeb did not assist the Applicant in arguing the contrary. First, as
foreign judicial authority, it cannot displace the operation of s 7A of the IA.
Second, the observation in Basudeb that the illustrations to s 403 are “statements
of principle” rather than mere illustrations was obiter. In Basudeb, the accused
borrowed gold ornaments from the complainant for his wedding but thereafter
refused to return them. The accused argued that he should be convicted and
sentenced under s 403 of the Indian Penal Code for dishonest misappropriation,
rather than for criminal breach of trust under s 405. The Calcutta High Court
disagreed and opined as follows (at [4]):

On the broad question raised, namely, the difference between

Section 403 and 405, [of the Indian] Penal Code the answer is
clear. The illustrations to Section 403, which are rather
statements of principle than mere illustrations, clearly show that
the essence of criminal misappropriation of property is that the
property comes into the possession of the accused in some
neutral manner, whereas the illustrations to section 405 show
equally clearly that the property comes into the possession of
the accused either by an express entrus[t]ment or by some

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process placing the accused in a position of trust … On the facts

of the p[re]sent case, which as I have said are not, open to
question at this stage, it is quite clear that the ornaments were
handed over to the petitioner by the beneficial owner in the
confidence that they would be returned to the beneficial owner
in due time after having been used for the purpose for which
they were handed over. If this is not an entrustment, it is
impossible to conceive what can be an entrustment.
[emphasis added]

49 Therefore, the issue before the court was whether criminal breach of
trust was made out on the facts, and the court decided in the affirmative. This
conclusion was not affected by the characterisation of the illustrations to s 403
of the Code, which the court did not need to opine on, and which was in any
event an observation without apparent substantiation. We would point out,
additionally, that the observation does not appear to have been necessary as the
fact that the accused might have committed dishonest misappropriation under
s 403 would not mean that he had not also committed criminal breach of trust
under s 405 if he misappropriated property that had been entrusted to him. We
deal with overlapping of property offences below.

50 However, contrary to the Prosecution’s submission, we see no probative

value in Explanation 2 to s 403 of the Code, the relevant part of which reads as
follows:

Explanation 2.—A person who finds property not in the

possession of any other person, and takes such property for the
purpose of protecting it for, or of restoring it to the owner, does
not take or misappropriate it dishonestly, and is not guilty of
an offence; but he is guilty of the offence above defined, if he
appropriates it to his own use, when he knows or has the means
of discovering the owner, or before he has used reasonable
means to discover and give notice to the owner, and has kept
the property a reasonable time to enable the owner to claim it.
…

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51 The Prosecution asserted that the second part of Explanation 2 means

that “when a person finds property not in possession of any other person, if that
person knew the owner or had means of discovering the owner, but decided to
appropriate the property to his own use nonetheless, he would be guilty of the
offence under s 403 of the [Code]” [emphasis added; original emphasis
omitted]. This proposition does not bear scrutiny. The innocent possession
question is, in essence, a question about the time at which a dishonest intent
must be formed by the accused. The second part of Explanation 2 states “… but
he is guilty of the offence above defined, if he appropriates it to his own use,
when he knows or has the means of discovering the owner …” [emphasis
added]. This wording was present in Explanation 2 from its enactment. The
dishonesty that the second part of Explanation 2 actually envisages is thus one
that is present at the time of appropriation, and not at the time of initial taking,
which the Prosecution’s inaccurate rephrasing of Explanation 2 might at first
glance suggest.

52 On balance, therefore, the illustrations and explanations to s 403 neither

support nor deny the existence of the requirement for initial innocent possession
under s 403. In our view, the fact that many of them deal with situations where
the movable property has been found (presumably, with the finder having an
innocent or neutral state of mind at the time of taking the property into
possession) was rather, as we discuss below, a response to the state of English
law at the time s 403 was first formulated.

(2) Section 404 of the Code

53 As another contextual point, the Prosecution submitted that s 404 of the

Code makes clear that there is no requirement for initial innocent possession

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under s 403 of the Code. The Applicant did not address this issue in her written
submissions.

54 Section 404 of the Code provides as follows:

Dishonest misappropriation of property possessed by a

deceased person at the time of his death
404. Whoever dishonestly misappropriates or converts to his
own use property, knowing that such property was in the
possession of a deceased person at the time of that person’s
decease, and has not since been in the possession of any person
legally entitled to such possession, shall be punished with
imprisonment for a term which may extend to 3 years, and shall
also be liable to fine; and if the offender at the time of such
person’s decease was employed by him as a clerk or servant,
the imprisonment may extend to 7 years.
Illustration
Z dies in possession of furniture and money. His servant A,
before the money comes into the possession of any person
entitled to such possession, dishonestly misappropriates it. A
has committed the offence defined in this section.

55 The Prosecution argued that both the text and illustration of s 404 of the
Code suggest that there is no requirement of initial innocent possession,
because:

(a) it is “possible” for property to be misappropriated under s 404 of

the Code where the accused has a dishonest state of mind from the
outset; and

(b) it is “entirely plausible” under the Illustration to s 404 that the

servant could have had a dishonest intention before the misappropriation
or conversion.

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56 In our view, s 404 is neutral on the requirement of initial innocent

possession. The mental element of s 404, that is, “… knowing that …”, could
be construed as having reference to the preceding phrase, “Whoever dishonestly
misappropriates or converts to his own use property …”, such that the requisite
dishonesty, again, is to be assessed at the time of misappropriation or conversion
rather than the time of taking possession of the property in question since such
taking could be with an innocent intention, for example, to safe-keep the
property until the person entitled to possession comes to claim it. In that sense,
s 404 does not positively support the existence of an innocent possession
requirement. Nor does it, as the Prosecution appeared to argue, make clear that
there is no requirement of initial innocent possession under s 403 of the Code.

(3) Interplay and overlap between property offences

57 The third contextual point related to the interplay and overlap between
the various property offences legislated under the Code. A brief tabulation of
the most salient property offences is provided as follows:

Name of offence Defining provision in the Maximum

Penal Code imprisonment
term

Theft 378. Whoever, intending to take 3 years (s 379)

dishonestly any movable property
out of the possession of any person
without that person’s consent,
moves that property in order to such
taking, is said to commit theft.

Dishonest 403. Whoever dishonestly 2 years (s 403)

misappropriation misappropriates or converts to his
of property own use movable property, shall be
punished with imprisonment for a
term which may extend to 2 years,

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or with fine, or with both.

Criminal breach of 405. Whoever, being in any manner 7 years (s 406)

trust (simpliciter) entrusted with property, or with any
dominion over property, dishonestly
misappropriates or converts to his
own use that property, or
dishonestly uses or disposes of that
property in violation of any
direction of law prescribing the
mode in which such trust is to be
discharged, or of any legal contract,
express or implied, which he has
made touching the discharge of
such trust, or wilfully suffers any
other person to do so, commits
“criminal breach of trust”.

Cheating 415. Whoever, by deceiving any 3 years (s 417)

(simpliciter) person, whether or not such
deception was the sole or main
inducement, fraudulently or
dishonestly induces the person so
deceived to deliver any property to
any person, or to consent that any
person shall retain any property, or
intentionally induces the person so
deceived to do or omit to do
anything which he would not do or
omit to do if he were not so
deceived, and which act or omission
causes or is likely to cause damage
or harm to any person in body,
mind, reputation or property, is said
to “cheat”.

58 The Applicant asserted that “[e]ach offence under Chapter XVII of the
[Code] is distinct …”. Thus, an innocent possession requirement must be read
into s 403 of the Code for dishonest misappropriation, in order to distinguish it

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from theft under s 378 of the Code under which the dishonest intent must exist
at the time of initial possession.

59 The Prosecution countered that there is no issue with overlapping

property offences under the Code. Further, there is no canon of interpretation
that penal provisions should be construed such that no overlap will exist.

60 We agreed with the Prosecution in this regard. The Applicant provided

no authority, whether by way of legislation or case law, for her assertion to the
contrary. Nor did she give any good reason why an overlap was not permitted.
Thus, a requirement of innocent possession could not be justified merely on the
basis that it distinguishes between theft and dishonest misappropriation.

61 Indeed, we went further than the Prosecution’s defensive argument and

were of the view that the interplay between the property offences positively
suggests that it cannot be the proper construction of the provision. Indeed, it
could not have been the legislative intent underlying the provision, that innocent
possession be an implicit requirement of s 403 of the Code. We say so for three
reasons.

62 First, making innocent possession a requirement would be unusual in

that it would require the offender to not possess a particular mental state at a
particular point in time. As far as we could ascertain, there is no other property
offence, or indeed any offence at all, which imposes a similar “negative” or
exonerative mens rea requirement. In that light, not only is an innocent
possession requirement unusual, it invites the question – why would a
presumptively exonerative fact be made an element of a criminal (or property)
offence? Furthermore, the golden thread across all property offences in the Code

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is the need for dishonesty, in the sense that the element of dishonesty is common
to all property offences (Wong Seng Kwan at [15]). Consequently, the statutory
provisions uniformly focus on defining the circumstances and time at which
dishonesty must exist. No other provision provides for the putative offender’s
mental state at any other point in time or examines any other mental state apart
from dishonesty.

63 Therefore, the innocent possession requirement is one that does not sit
well with the context of s 403 as one species of the genus of property offences
in the Code. While it is not impossible that innocent possession is uniquely
required for s 403 but not for other property offences such as criminal breach of
trust, it is more natural to construe the property offences consistently and to
“begin by presuming that the statute is a coherent whole” (Tan Cheng Bock at
[40], original emphasis omitted).

64 Secondly, it was not clear what the precise contours of the definition of
“innocent possession” were. The Applicant perhaps assumed that the term is
self-evident and means an innocent or neutral state of mind at the time of the
accused came into possession of the property in question. But what is “neutral”
and how is that different from “innocent”? More importantly, what is
“innocence”, and does it mean a “freedom from guile or cunning” or a “lack in
knowledge” in the conventional sense of the term, or does it simply mean “not
dishonest” which is in turn defined in s 24 of the Code? In that context, how do
“innocence” and “dishonesty” interact on the spectrum of mental states that an
accused can possess?

65 This question of the interaction between “innocence” and “dishonesty”

is important because, depending on the answer, there might be a lacuna in the

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law on property offences arising from the imposition of the requirement for
innocent possession under s 403. The Applicant’s assumption is that an innocent
possession requirement would neatly distinguish theft and dishonest
misappropriation – if dishonesty is present at the time of initial possession, theft
is made out; if the offender was initially “innocent” but subsequently dishonest,
dishonest misappropriation is made out. But, unless “innocence” is defined as
simply “not dishonest”, there would be a lacuna in the sense that an offender
who is initially neither “innocent” nor “dishonest” will escape criminal
liability for both theft and dishonest misappropriation even if he becomes
dishonest subsequently and does in fact misappropriate the property.

66 To illustrate, consider an offender who picks up a wallet, not intending

then to keep it for his own use, but knowing it to be likely that he would
eventually keep it for his own use. He subsequently crystallises his dishonest
intention and converts the wallet to his own use. In this hypothetical, the
offender would not have committed theft as he did not have an initial intention
to keep the wallet and thus was not “dishonest” (within the meaning of s 24 of
the Code) at the time of initial possession. But nor was he initially “innocent”
in the conventional sense of the term, since he knew it to be likely that he would
subsequently convert the wallet to his own use. Thus, he would also not be liable
for dishonest misappropriation (assuming innocent possession is required).

67 This demonstrates that if “innocent possession” is made a requirement

of s 403, then so long as there is a situation where one may be said to be neither
“innocent” nor “dishonest”, there would be a possibility that neither theft nor
dishonest misappropriation is made out, even though the putative offender
clearly misappropriated the property and was dishonest at the time of
misappropriation (although not at the time of initial possession).

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68 This brings us to our third point – that even if “innocence” is defined as

“not dishonest” which assists the alignment of theft and dishonest
misappropriation, the rest of the definition of the two provisions does not appear
to be complementary and might nevertheless give rise to a lacuna in the law if
initial innocent possession is made a requirement of s 403.

69 Theft is defined under s 378 of the Code as follows:

378. Whoever, intending to take dishonestly any movable

property out of the possession of any person without that
person’s consent, moves that property in order to such taking,
is said to commit theft.

70 Dishonest misappropriation is defined as follows under s 403:

403. Whoever dishonestly misappropriates or converts to his

own use movable property, shall be punished with
imprisonment for a term which may extend to 2 years, or with
fine, or with both.

71 Apart from the possible requirement of an initial innocence, the other

difference between the two provisions appears to be that theft requires the
subject property to be taken out of the possession of a person. Therefore, if a
person picks up a wallet that has been lying on the ground for some time, it
would probably not qualify as “theft” even if that person had a dishonest
intention from the outset. Nor would that be dishonest misappropriation since
the person was not “initially innocent”.

72 The foregoing illustrates a clear lacuna and absurdity in the law if the
requirement of innocent possession is upheld in relation to s 403:

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(a) An “innocent finder” who subsequently dishonestly

misappropriates the property can be held liable for dishonest
misappropriation, as was found to be the case in Wong Seng Kwan.

(b) But a “dishonest finder”, that is, one who finds property that is
not in the possession of any person and dishonestly intends to keep it
from the outset, cannot be held liable for theft or dishonest
misappropriation.

(c) And further, a “seeker”, in the sense of one who actively seeks
opportunities to appropriate items which others misplace or lose with
the intent to thereafter keep them for his own use, is also not liable for
theft or dishonest misappropriation.

73 We add three points on the issue of lacunae and absurdity:

(a) First, none of the other property offences in the Code (including
cheating, criminal breach of trust, and extortion) appear to be applicable
in the situations (b) and (c) identified above. Therefore, in considering
whether the requirement of innocent possession would give rise to
lacunae and absurdity in the law, it is correct to focus on the interaction
between the offences of theft and dishonest misappropriation.

(b) Second, it might be possible to “cure” some of the absurdity by

broadly construing the term “possession” in s 378. If so, the broader
scope of theft might ameliorate some issues arising from a narrowed
scope of dishonest misappropriation (given the need for initial
innocence). But this is speculative and it is not likely, however broadly

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“possession” is construed, that theft and dishonest misappropriation will

be defined in a perfectly coincident manner.

(c) Third, the Applicant argued that “any lacunae in the law should
be filled by Parliamentary intervention”. That statement is one of broad
principle but has no application in this case. This is not a situation where
the court is asked to read words into a statute in order to cure a perceived
lacuna or policy deficiency; this is also not a situation where the court is
asked to stretch the meaning of statutory terms to fit the facts at hand.
Instead, this is a situation where the court is asked to read words into the
statute which would precisely give rise to an absurd state of the law.
Deference to Parliament operates here against the Applicant.

74 To summarise, the context of s 403 of the Code suggested that initial

innocent possession is not a requirement for dishonest misappropriation. First,
such a requirement is highly unusual as a negative or exonerative mental
element. Second, as we elaborated above, the imposition of such a requirement
would likely give rise to lacunae and absurdity in the law of property offences,
given the structure and construction of these other offences under the Code.

Legislative purpose

75 A proper construction of a statutory provision also requires the court to

take into account “the purpose or object underlying the written law”. In relation
to s 403 of the Code, this can only be gleaned from the history of the enactment
of the provision, which in turn requires reliance on extraneous materials.

76 The Applicant did not raise any argument based on the legislative history
of s 403 of the Code.

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77 The Prosecution’s position was that the extraneous materials relating to

the legislative history of s 403 of the Code confirm that initial innocent
possession is not a requirement. This is because the drafters of the Indian Penal
Code, from which s 403 of the Code was derived, clearly disagreed with the old
English common law position under which initial innocent possession
absolutely absolved one of criminal liability even if he subsequently dishonestly
misappropriated or converted the property.

78 What follows is a brief legislative history of s 403 of the Code:

(a) At the beginning of the nineteenth century, the English common

law required that to constitute larceny or theft at common law there
should be a felonious “taking,” which was understood to mean a “taking
out of the possession of some person entitled to [the property]”. Thus,
misappropriation of property was not a crime so long as the taker had
not taken the property out of its owner’s possession dishonestly but had
originally acquired it honestly (Sir James Fitzjames Stephen, A History
of the Criminal Law of England vol III (Macmillan and Co, 1883) at
pp 150–151 and 158). This remained the law in England until the
mid-twentieth century, and appears to have been unaffected by the
passage of the Embezzlement Act in 1812 and the Larceny Act 1827
which statutorily enshrined exceptions relating to embezzlements by
agents (see Public Prosecutor v Lam Leng Hung and others [2018] 1
SLR 659 at [178]–[181]).

(b) In India, the first draft of the Indian Penal Code was submitted
by the Law Commission of India under the chairmanship of Lord
Thomas Macaulay (“the ILC”) to the Governor-General of India in
1837. This first draft contained provisions criminalising dishonest

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misappropriation, and aggravated dishonest misappropriation (of

property taken from deceased persons, as per s 404 of the Code) (“the
Draft IPC”). The relevant provisions read as follows:

OF CRIMINAL MISAPPROPRIATION OF PROPERTY NOT

IN POSSESSION
383. Whoever fraudulently takes into his possession
any property which is in no person’s possession, is said
to, except in the case hereinafter excepted, “criminally
to misappropriate property not in possession.”
Exception. If the person taking the property into his
possession neither knows, nor has reason to believe,
that any particular party has a better right than himself
to the property, or that any particular person can direct
him to any such party, he is not guilty of the offence
above defined.
Illustrations.
(a) A finds a rupee on the high road, not knowing,
nor having reason to believe, that the rupee belongs to
any particular party, or that any particular person can
direct him to the party to whom the rupee belongs. A
takes the rupee. Here, A has not committed the offence
defined in this Clause.
(b) A finds a letter on the road containing a bank
note. From the direction and the contents of the letter
he learns to whom the note belongs. He appropriates the
note. Here, he criminally misappropriates property not
in possession.
(c) A finds a cheque payable to bearer. He can form
no conjecture as to the person who has lost the cheque.
But the name of the person who has drawn the cheque
appears. A knows that this person can direct him to the
party in whose favour the cheque was drawn. A
appropriates the cheque. Here, he criminally
misappropriates property not in possession.
…
385. Whoever criminally misappropriates property
not in possession, knowing that such property was in
the possession of a deceased person at the time of that
person’s decease, and has not since been in the
possession of any person legally entitled to such

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possession, shall be punished with imprisonment either

description for a term which may extend to three years
and must not be less than six months, and shall also be
liable to fine.
Illustration.
Z dies in possession of furniture and money. His
servant, A, before the money comes into the possession
of any person entitled to such possession, fraudulently
takes possession of it. A has committed the offence
defined in this Clause.
[emphasis added]

It would appear from the plain language of the proposed ss 383 and 385
and their illustrations that the offence of dishonest misappropriation was
directed primarily at a finder of movable property lost by its owner who
dishonestly converted the same to his own use. Legal possession of the
property was the distinction between criminal misappropriation and
theft, both in English law and in the Draft IPC. The ILC explained that
it wanted to maintain a “reasonable and expedient” line between theft
and criminal misappropriation because in theft the intention of the
offender was always to take property in another’s possession out of that
person’s possession.

(c) At the same time, in England, a similar codification effort of the

criminal law was underway. The Commissioners on the Criminal Law
of England (“the ELC”) released reports in 1839 and 1843 containing a
draft digest of the proposed criminal laws (“the Digest”). The Digest
was never enacted into law. In regard to theft, it was different from the
Draft IPC in that it defined the offence of theft as being “a wrongful
taking and removal” of the property of another without the necessity of
it being in the possession of that other. It also stated in Art 14 that
“[w]here the taking is upon a finding or other casualty, the quality of the

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act depends on the intention of the party at the time; and it is not theft
unless he took with the intention to despoil the owner and fraudulently
to appropriate the thing taken, although the owner be unknown”
[emphasis added]. Thus, Art 14 made it the crime of theft if a finder, at
the time he found the property, had the dishonest intention of taking it
for himself. Article 14 did not cover situations in which the original
taking was innocent and the dishonest intention arose later. No proposed
article appeared to cover those situations.

(d) In 1846, the ILC was tasked to review the Draft IPC against the
Digest to detect any omission or imperfection that might have existed in
the Draft IPC. In a Special Report issued in 1847, the Indian Law
Commissioners noted at para 461 that because the offence of theft under
the Draft IPC was the taking of property which was in another’s
possession out of that person’s possession, it was “necessary” to
introduce separate provisions under the head of “Criminal
misappropriation of property not in possession”.

(e) Between 1854 and 1856, several changes were made to the Draft
IPC, the reasons for which were documented in a final report put
together in 1856 by the ILC led by Sir Barnes Peacock (“the Peacock
Report”). Unfortunately, there appears to be no surviving copy of the
Peacock Report. As far as s 383 was concerned, by the time of the
Second Reading of the Indian Penal Code Bill in 1857, its language had
been altered considerably to read:

Fraudulent misappropriation of property

Whoever fraudulently misappropriates or converts to his
own use any moveable property, shall be punished with

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Ho Man Yuk v PP [2019] SGCA 02

imprisonment of either description for a term which may

extend to two years, or with fine, or with both.

As can be seen, the ILC had amended the dishonest misappropriation

offence to almost its current wording except for the use of the word
“fraudulently” in place of “dishonestly” and had removed the explicit
requirement that the property misappropriated was “not in possession”.

(f) The Indian Penal Code containing s 403 in its present form was
subsequently passed by the Legislative Council of India. On 31 March
1869, the Indian Penal Code was received into Singapore with no
changes to s 403. It was then brought into force in Singapore by the
Legislative Council of the Straits Settlement in 1872 as Ordinance 4 of
1871. Section 403 of the Code has remained materially unchanged since
then.

79 The Peacock Report was not available to explain the reasons for the
material changes in structure of the provision on dishonest misappropriation
between that in the Draft IPC, and that eventually found in the Indian Penal
Code Bill. In the absence of such explanation, any attempt to discern the actual
intent of the draftsmen would be speculative and contrary to the previous
guidance of this Court that extraneous materials relied upon must be “clear” (see
Tan Cheng Bock at [54(c)(iv)]). Greater weight must thus be placed on the text
and context of the provision.

80 The Prosecution’s main point was that the ILC had expressly disagreed
with the view of the ELC that taking property which had been found did not
amount to theft unless it was accompanied by a dishonest (or fraudulent)
intention at the outset. Therefore, the Draft IPC must be taken to have expanded
on what was already covered under the English law on theft. As it would not

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have been logical for the ILC to design a lacuna while filling another lacuna,
s 385 of the Draft IPC must be taken to apply to both situations: initial innocent
possession, and initial dishonest possession.

81 We were not persuaded by this argument. The ILC’s Special Report

accompanying the Draft IPC indicates that in proposing to create a distinct
offence of dishonest misappropriation (in addition to theft), the ILC’s primary
intent was to avoid the problems with the intricate concepts of ownership and
possession that underlay the then-existing English common law on theft. Thus,
in the Draft IPC, the ILC defined the offence of theft clearly and singularly
against the concept of possession; the ILC’s position was that “possession by
the proprietor of the article stolen is not essential to the offence [of theft]”.
However, because theft was then defined as the taking of property out of the
possession of someone, a distinct offence of dishonest misappropriation had to
be created in order to deal with the misappropriation of property “which is in no
person’s possession” (see the text of s 383 at [78(b)] above).

82 The Prosecution also cited one part of Lord Macaulay’s comments in the
notes to the Draft IPC:

One offence which it may be thought that we ought to have

placed amongst thefts is the pillaging of property during the
interval which elapses between the time when the possessor of
the property dies, and the time when it comes into the
possession of some other person authorized to take charge of it.
This crime, in our classification, falls under the head, not of
theft, but of misappropriation of property not in possession.

83 The Prosecution submitted that this passage shows that the ILC had
“intended for the offence to apply to situations where dishonesty had been
formed from the outset”. We agreed that this was a reasonable inference and
provided some indication of the thinking of the ILC. The Peacock Report was

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not available to confirm that that remained the thinking when s 383 was recast.
However, as the history of the legislation did show plainly that the intention of
the drafters was that initial innocent possession would not prevent a subsequent
dishonest misappropriation or conversion from constituting an offence, it would
seem incongruous to infer an intention to also make initial innocent possession
an ingredient of the offence.

Consideration of the authorities

84 We turned next to examine case and academic authorities on the

interpretation of the section.

(1) Local authorities

85 This issue of innocent possession and s 403 of the Code did not appear
to have posed a problem in the local courts until fairly recently. Thus, there were
only two judgments which dealt with the issue.

86 The first was the HC GD, in which the Judge held that innocent
possession was not a requirement under s 403 of the Code (HC GD at [30]):

… [I]t is … not incorrect as a matter of general principle to say

that s 403 … would ordinarily apply where an accused person
had originally been legitimately or innocently in possession of
property, or where he had initially acquired it lawfully or in a
legally neutral manner, and the dishonest intention is only
formed subsequently. … [Section] 403 is intended to apply
where the accused person does not commit theft or some other
criminal offence in order to obtain possession of the property;
in other words, he does not obtain possession of the property
wrongfully by removing it from the possession of another. …
[T]here is no requirement that the dishonest intent to
misappropriate the property must have been formed only
subsequently; instead, a person who harbours dishonest intent
before or at the time he “finds property not in the possession of

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any other person and takes such property” … is no less guilty

of a s 403 offence.
[emphasis omitted]

87 The Judge’s reasons were as follows:

(a) A plain reading of s 403 of the Code did not support the
proposition that innocent possession was a requisite element of the
offence (HC GD at [23]).

(b) The illustrations and explanations to s 403 “can arguably be

read” as supporting the innocent possession requirement, but their role
is only illustrative and they cannot alter the scope of a substantive
provision (HC GD at [25]).

(c) The innocent possession argument “appear[ed] at first blush” to

be consistent with Chong J’s decision in Wong Seng Kwan (HC GD at
[20]), but Chong J was merely referring to the archetypal s 403 scenario
rather than imposing a requirement for all s 403 cases (HC GD at [22]).

(d) The local text – Stanley Yeo, Neil Morgan & Chan Wing
Cheong, Criminal Law in Malaysia and Singapore (LexisNexis, 2nd Ed,
2012) (“YMC Criminal Law”) – also stated that dishonest
misappropriation would “mainly” and “often” (but not always) cover
cases of initial innocent possession (HC GD at [22]).

(e) The 2007 edition of Ratanlal & Dhirajlal’s Law of Crimes: A

Commentary on the Indian Penal Code, 1860 vol 2 (C K Thakker & M C
Thakker eds) (Bharat Law House, 26th Ed, 2007) (“Ratanlal”) further
noted at p 2268, citing a 19th century Indian authority, that the retention
of money paid by mistake where the recipient determines to appropriate

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the property at the time of receipt, knowing it was a mistaken payment,

can amount to criminal appropriation, which supported the absence of
an innocent possession requirement (HC GD at [28]).

88 The Judge’s reasons for rejecting the innocent possession requirement

were sound and generally accorded with our views.

89 The second local decision was Wong Seng Kwan. This case involved a
“traditional” factual situation involving a finder-turn-keeper. In his grounds,
Chong J opined that “it is perhaps useful to provide some overview of the
property offences under the [Code] and to explain how they differ from each
other” (at [13]). Thereafter, Chong J explained as follows:

14 The distinction between criminal misappropriation and

other property offences such as theft, cheating and criminal
breach of trust may not be immediately apparent to a layperson.
They all involve property and an element of dishonesty but the
punishment provisions are somewhat different.
15 While the element of dishonesty is common to all
property offences, the critical distinction between criminal
misappropriation, theft, cheating and criminal breach of trust
lies in the manner in which the accused person initially comes
across the movable property. An accused person commits theft
if the movable property was originally in the possession of some
other person and the accused person moves the property with
a dishonest intention to take it. For criminal misappropriation,
the accused person initially comes across the movable property
in a legally neutral manner (eg, by finding), and he subsequently
forms a dishonest intention to deal with the movable property in
a manner that is inconsistent with the rights of the true owner.
As for criminal breach of trust, the accused person is entrusted
with property or dominion over the property at the outset by
another person, and he dishonestly uses or disposes of that
property in abuse of trust while for cheating, the possession of
the property is voluntarily handed over to the accused person
as a result of his deceitful or fraudulent misrepresentation.
16 The fact that an accused person charged with the offence
of criminal misappropriation would usually have come across
the movable property in a legally neutral manner is significant,

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because while civil rights and liabilities would attach at the

moment when the accused person asserts possession over the
property, criminal liability would only attach when the accused
person forms a dishonest intention. According to Dr Hari Singh
Gour, Penal Law of India vol 4 (Law Publishers (India) Pvt Ltd,
11th Ed, 2011) at pp 3918–3919:
6. What is criminal misappropriation? …
The illustrations to Sec. 403, which are rather
statements of principle than mere illustrations, clearly
show that the essence of criminal misappropriation of
property is that the property comes into the possession
of the accused in some neutral manner, whereas the
illustrations in Sec. 405 show equally clearly that the
property comes into the possession of the accused either
by an express entrustment or by some process placing
the accused in a position of trust …
The question whether the act is theft or
misappropriation depends upon when the dishonesty
began — was it before or after the thing came into
possession. This is a point of division as much between
the two offences — theft and criminal misappropriation
in the Code … In theft the initial taking is wrongful, in
criminal misappropriation it is indifferent and may even
be innocent, but it becomes wrongful by a subsequent
change of intention, or from knowledge of some new fact
with which the party was not previously acquainted
[Bhagiram v Ahar Dome ILR 15 Cal 388 at 400]. …
17 Given that the distinction between theft and dishonest
misappropriation of movable property depends on whether the
initial taking is wrongful, and that criminal liability might still
attach on a subsequent change in intention, it is important for a
finder to know when the taking of the movable property, though
initially neutral, may nonetheless subsequently become
wrongful.
[original emphasis omitted; emphasis in italics and italics bold
added]

90 The Judge sought to reconcile his decision with Wong Seng Kwan by
characterising the reference in Wong Seng Kwan to innocent possession as
merely referring to the archetypal s 403 scenario, rather than imposing a

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requirement for all s 403 cases (HC GD at [22]). In particular, the Judge pointed
out Chong J’s use of the word “usually” in [16] of Wong Seng Kwan.

91 With respect, we find it difficult to reconcile the two local decisions.

Wong Seng Kwan took the view that dishonest misappropriation, unlike theft,
required innocent possession. Tellingly, after citing the 2011 edition of an
Indian text at [16], Chong J went on to conclude at [17] that “the distinction
between theft and dishonest misappropriation of movable property depends on
whether the initial taking is wrongful” and questioned when “the taking of the
movable property, though initially neutral, may nonetheless subsequently
become wrongful” [emphases added]. Subsequently, as part of the factual
analysis, Chong J observed that “[i]n the present appeal there can be no dispute
that in picking up the wallet, the [accused] had committed an act of
appropriation. At that stage, his act of appropriation was still neutral. However,
his intention will become dishonest if he removed the cash …” [emphasis
added] (at [55]). If Chong J had been of the view that innocent possession was
not a strict requirement of s 403, there would have been little reason for him to
make these comments about neutral or innocent possession.

92 The discussion on innocent possession in Wong Seng Kwan was,

however, obiter and made without the benefit of full argument. Chong J did not
need to make a finding on innocent possession in that case and therefore counsel
did not present him with the materials that were put before us nor with a full
analysis of this aspect of the offence. The Judge, however, was faced squarely
with the issue and as a result dealt with it in depth in the HC GD. Accordingly,
with respect, we find Wong Seng Kwan to be less persuasive on this aspect of
s 403.

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(2) Foreign jurisprudence

93 The foreign jurisprudence cited to us consisted of case law from Sri

Lanka and India, unsurprisingly, as their provisions on dishonest
misappropriation could also be traced to the Draft IPC.

94 The Prosecution relied on the decision of the Sri Lankan Supreme Court
(which is the apex court of the land) in Walgamage v The Attorney-General
[2000] 3 Sri LR 1 (“Walgamage”). The Applicant did not raise or discuss this
case in her written submissions. In our view, Walgamage is persuasive authority
against the requirement of initial innocent possession.

95 There, the accused was a bank manager who was supposed to hand a
certain sum of money entrusted to him in his capacity as manager to another
person, but in fact kept the sum for himself. He was convicted of criminal breach
of trust. Special leave to appeal to the apex court was granted to determine the
question of “whether to constitute the offence of criminal misappropriation or
criminal breach of trust it is essential that the initial taking be innocent”. The
lower courts’ decisions on this issue had not been consistent. The statutory
provision on dishonest misappropriation in Sri Lanka (that is, s 386 of the Sri
Lankan Penal Code (“SLPC”)) was in material part the same as s 403 of the
Code: “whoever dishonestly misappropriates or converts to his own use such
movable property …”.

96 Counsel for the accused argued, in Walgamage, that even though s 386
of the SLPC did not on its face impose a requirement for initial innocent
possession, such a requirement nevertheless existed because:

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(a) In respect of property offences, there were “clear lines of

demarcation in the [SLPC] between those where the victim is in
possession at the time the offence is committed (such as theft and
cheating) and those where the victim is out of possession the offender
being already in possession (such as [dishonest] misappropriation and
breach of trust)” (at 6). These offences were intended to be “self-
contained without any overlapping, so the same act could not constitute
both cheating and [dishonest] appropriation” (at 6).

(b) The Indian courts had consistently taken the view that innocent
possession was a requirement for dishonest misappropriation (at 6–7).

(c) The cursus curiae (ie, the practice of the court) in Sri Lanka had
been to regard innocent initial taking as an indispensable ingredient of
dishonest misappropriation, except for a brief period of ten years
between two conflicting decisions (at 8).

97 The Sri Lankan Supreme Court unanimously held that innocent

possession was not a requirement under s 386 of the SLPC. The court’s main
reasons were as follows:

(a) There is no principle under the SLPC or any other statute that
there can be no overlap in offences under the SLPC (at 8).

(b) The principle that penal statutes are to be strictly construed does
not apply where a statute is clear and unambiguous (at 8).

(c) Although the Indian Penal Code was enacted at a time when
larceny in English law did not include cases where property was taken
without a dishonest intention, “probably the offence of [dishonest]

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misappropriation was intended to cover such cases” and “the definition

actually adopted to give effect to that intention covers not only such
cases, but extends also to cases where a dishonest intention existed at
the outset” [original emphasis omitted] (at 9).

(d) Illustrations (b), (c) and (f) to Explanation 2 to s 386 of the SLPC
run contrary to the requirement for innocent possession, “for they show
that a person who finds property not in possession of any one, and
immediately misappropriates it is guilty of that offence” (at 9).

(e) Upon surveying the academic texts and case law, the court
concluded that the Indian position was by no means consistent (at 9–13).

(f) The cursus curiae in India and Sri Lanka did not reveal “an
emphatic and uniform insistence on such a requirement” of innocent
possession (at 14).

(g) In relation to criminal breach of trust, the absence of a

requirement for innocent possession was “even plainer” since this
offence requires an ingredient of entrustment “which is anterior to and
distinct from the dishonest misappropriation … which is another
ingredient” (at 14).

98 In our judgment, Walgamage is salient and persuasive authority, save

that the court’s reliance on the illustrations to Explanation 2 to s 386 of the
SLPC appeared to be misplaced in so far each of these illustrations still appeared
to show situations of initial innocent possession with only subsequent
dishonesty, even though the time gap between the two states of mind might have
been very short.

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99 As for the Indian authorities, they span the spectrum of possibilities and
there appeared to have been no authoritative decision by the Indian Supreme
Court to date.

100 The Applicant relied on the following Indian decisions:

(a) Mohammad Ali v State of Madhya Pradesh [2006] Cri LJ 1368

(“Mohammad Ali”), where it was stated at [8] that:

Criminal misappropriation takes place where the

possession has been innocently come by, but where, by
a subsequent change of intention, on or from the
knowledge of some new fact with which the accused was
not previously acquainted, the retaining becomes wrong
and fraudulent. The essence of the offence of criminal
misappropriation is that the property of another person
comes into the possession of the accused in some
neutral manner and is misappropriated or converted to
his own use by the accused.

(b) Parshottam Mahadev Patharphod v State of ILR (1962) Bom

755 (“Parshottam”), in which the Bombay High Court purportedly
stated at [5(a)]:

In theft the property is taken without the consent of the

owner and the dishonest intention to take property
exists at the time of such taking. In criminal
misappropriation the property is innocently acquired,
often casually and by chance, but by a subsequent
change of intention the retention becomes unlawful and
fraudulent. …

101 With respect, these authorities did not bear much weight.

(a) In Mohammad Ali, the court’s statement on innocent possession

was clearly obiter. This is because that case involved an accused who
denied an allegation of dishonest misappropriation of electric wires by
arguing that he had actually purchased those wires from a shop. The

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Madhya Pradesh High Court quashed the charge on the basis that there
was no evidence to show that the electric wires were not the property of
the accused. It was in that context that the court opined that dishonest
misappropriation “takes place when the possession has been innocently
come by …” (at [8]), before stating the three elements of the charge one
of which was that “[t]he property must belong to a person other than the
accused” (at [8]). Applying the three elements to the facts, the court
concluded that “… there is nothing on record in order to show that the
impugned electric wire belong[ed] to any other person other than the
accused” (at [8]). Read in context, the part of the judgment on innocent
possession relied on by the Applicant was unnecessary for the disposal
of the case, and was written without analysis or authority.

(b) For Parshottam, the quotation cited by the Applicant was in fact
a direct quotation from Dr Hari Singh Gour, Penal Law of India (Law
Publishers (India) Pvt Ltd, 1962 Ed) (“Gour”) which was reproduced in
the section of the judgment summarising the parties’ arguments. Indeed,
one paragraph down in the judgment, the Bombay High Court had
expressly declined to decide on the legal question of innocent possession
(at [6]):

On these arguments the two material questions that

arise for consideration are--(i) Whether there can be
criminal misappropriation in respect of the property
obtained by cheating, and (2) Whether in all cases of
criminal misappropriation the initial possession must
be innocent, i.e. the person concerned cannot be
convicted for such possession. -- These points, that are
urged, seem to be arguable. We, however, think that it
is unnecessary to decide these questions in this appeal,
as, in our opinion, in this case for reasons recorded
below there can be no doubt that the property in
question can be held to be stolen property.

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The Bombay High Court went on to dispose of the matter on the

evidence. Thus, this case was not authority for or against the innocent
possession requirement.

102 The Prosecution relied on two other Indian authorities:

(a) The Indian Supreme Court decision in Ramaswamy Nadar v The

State of Madras AIR 1958 SC 56, where the court laid down elements
of dishonest misappropriation under s 403 which did not refer to any
need for initial innocent possession:

In order to prove an offence under s. 403, Indian Penal

Code, the prosecution has to prove that the property, in
this case, the net amount of ninety six thousand odd
rupees, was the property of the prosecution witnesses 1
to 3 and others, and … that the accused
misappropriated that sum or converted it to his own
use, and … that he did so dishonestly.

Unfortunately, the court here did not specifically consider the innocent
possession question, and so little weight can be placed on its dictum.

(b) The High Court of Allahabad decision of Rajendra Singh and

another v State of Uttar Pradesh AIR 1960 All 398 (“Rajendra”), where
the accused persons induced a goldsmith to hand them a necklace on a
false representation that they would return it that evening, but they
subsequently refused to do so. It was argued that the facts could not
establish criminal breach of trust under s 406 of the Indian Penal Code,
but instead amounted to cheating under s 420 of the same Code. The
court held that a charge under s 420 could not be substituted, but that the
original charge under s 406 should be substituted with one under s 403
of the Indian Penal Code for dishonest misappropriation, opining as
follows (at [19] and [21]):

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19. …
The offence of Section 403 is a minor offence in
comparison to that of Section 406 inasmuch as it is
constituted by some of the facts mentioned in the
charge. No entrustment is proved and, therefore, no
offence under Section 406 is made out against the
applicants, but it is proved that they obtained delivery
of the necklace and that they dishonestly
misappropriated it. They, are, therefore, guilty under
Section 403, I. P. C., and can be convicted of it under
Section 238(1). It has also been proved that they are
guilty of Section 420 by dishonestly inducing [the
goldsmith] by misrepresentations to deliver the necklace
to them, but neither were the necessary facts set out in
the charge nor were they charged with Section 420.
…
21. I do not accept the contention of the applicants
that they are not guilty even under section 403, I. P. C.,
because they had a dishonest intention at the time when
they took possession of the necklace from [the
goldsmith]. As far as [the goldsmith] is concerned the
possession of the applicants was valid and they
afterwards misappropriated it. If they had no dishonest
intention at the time of taking possession, they would
undoubtedly be guilty under Section 403; they did not
cease to be so guilty merely because they had a
dishonest intention at that moment. Even if they had a
dishonest intention at the moment of taking possession,
they could return the necklace; they were not bound to
misappropriate it.
When they misappropriated it they certainly committed
some additional offence and it could not be any other
than that punishable under Section 403, I. P. C. I do not
accept the argument that criminal misappropriation
cannot be committed if the accused had a dishonest
intention at the time of taking possession of the article.
The complaint has the choice; if he thinks that he can
make out a case of dishonest intention while taking
delivery of the article he can charge the accused with
cheating; otherwise he is entitled to charge him with
criminal misappropriation.
The offence of criminal misappropriation made out by
the prosecution can be reduced to a minor offence on
account of some fact proved by the accused in defence
but I doubt if it can change its nature altogether. If the

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prosecution proves a case of Section 403, I. P. C., the

accused by proving that he had a dishonest intention at
the time of taking delivery of the article cannot change
the nature of the offence to that of cheating. … He could
not plead that he was prejudiced by his own act of
proving that he committed the offence, and not that
charged with I, therefore, hold that the applicants are
guilty under Section 403, I. P. C., and that I can alter
their conviction.
[emphasis added]

The discussion of innocent possession in Rajendra could not be

considered obiter. The court reasoned that if the accused peresons had
honestly meant to return the necklace at the time of receipt and then
changed their mind, they would have been guilty of criminal
misappropriation. In the court’s view, the fact that the accused persons’
intention from the outset was to keep the necklace could not negate the
act of misappropriation which was the act of keeping something to
which they were not entitled. We agreed. While the court did not give
many reasons for its decision to reject the requirement of innocent
possession, in our view the decision accords with common sense and the
language of the Indian Penal Code permits it.

103 The Prosecution also dealt with the contrary authority of Bhagiram
Dome v Abar Dome and another (1888) ILR 15 Cal 388 which had been cited
in Wong Seng Kwan. There, the High Court of Calcutta held at [10] that
“[c]riminal misappropriation takes place when the possession has been
innocently come by, but where, by a subsequent change of intention or from the
knowledge of some new fact with which the party was not previously
acquainted, the retaining becomes wrongful and fraudulent”. The Prosecution
submitted that little weight could be placed on this case as it was largely
unreasoned and the authority which it cited, being John Mayne, Commentaries

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on the Indian Penal Code (Act XLV of 1860) (1878, 10th Ed), did not itself
appear to stand on solid authority or reasoning. We agreed with this submission.

104 From the authorities cited by both sides it appeared that the Indian cases
were, with respect, not persuasive precedents as (a) they were not consistent;
and (b) none of the cases appeared to have seriously or thoroughly considered
the innocent possession question.

(3) Academic authorities

105 We were unable to derive much assistance from the academic

authorities. The leading local text, YMC Criminal Law, did not specifically
consider the innocent possession question while the Indian texts expressed
differing views.

106 The position taken in the 2013 edition of Ratanlal (“Ratanlal 2013”)
appeared to be that innocent possession is required for dishonest
misappropriation, and it is this requirement which distinguishes theft from
dishonest misappropriation (see p 2546 under the heading “Scope”). The
requirement for innocent possession is buttressed by the section titled “English
law and Indian law” (Ratanlal 2013 at pp 2546-2547):

… According to the English law only the intention of the

accused at the time of obtaining the possession of property is
taken into account. In India, on the other hand if a change of
intention occurs, viz. from honest to dishonest, the offence of
criminal misappropriation is committed.

In a subsequent section titled “Theft and criminal misappropriation”, the authors

of Ratanlal 2013 explained the distinction between the two property offences
as follows (at p 2547):

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In theft the object of the offender always is to take property

which is in the possession of a person out of that person’s
possession; and the offence is complete as soon as the offender
has moved the property in order to a dishonest taking of it. In
criminal misappropriation, there is not necessarily an invasion
of the possession of another person by an attempt to take from
him that which he possesses. The offender is already in
possession of the property; and is either lawfully in possession
of it, because either he has found it or is a just owner of it, or
his possession, if not strictly lawful, is not punishable as an
offence because he has acquired it under some mistaken notion
of right in himself or of consent given by another.

107 On the other hand, the 1996 edition of Gour (“Gour 1996”) suggested
that innocent possession is not a requirement for dishonest misappropriation. In
the 2011 edition of Gour (“Gour 2011”) (which was the edition relied on in
Wong Seng Kwan), however, the authors took a contrary position in clear
support of a requirement of innocent possession. This position was not
maintained for very long as by the 2015 edition of Gour (“Gour 2015”), the
requirement of innocent possession was rejected. At p 3923 of this 2015 text,
the authors stated:

8. Accused having dishonest intention at the moment

of taking possession.
The argument that criminal misappropriation cannot be
committed if the accused had dishonest intention at the time of
taking possession of the article, cannot be accepted. The
complainant has the choice; if he thinks that he can make out
a case of dishonest intention while taking delivery of the article
he can charge the accused with cheating; otherwise he is
entitled to charge him with criminal misappropriation. If the
prosecution proves a case of Sec. 403, I.P.C., the accused by
proving that he had a dishonest intention at the time of taking
delivery of the article cannot change the nature of the offence
to that of cheating. …

108 This reading of Gour 2015 was buttressed by the discussion in the same
text titled “Theft distinguished”, under which instead of concluding definitively
as to the requirement of innocent possession, the authors opined that dishonest

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misappropriation is “indifferent” to the wrongfulness of the initial taking (at

p 3919):

The question whether the act is theft or misappropriation

depends upon when the dishonesty began – was it before or
after the thing came into possession. This is a point of division
as much between the two offences – theft and criminal
misappropriation in the Code – as between criminal
misappropriation and a civil wrong under English law. … In
theft the initial taking is wrongful, in criminal misappropriation
it is indifferent and may even be innocent, but it becomes
wrongful by a subsequent change of intention, or from
knowledge of some new fact with which the party was not
previously acquainted. …

109 That said, there are parts of Gour 2015 which did not sit well with its
stated proposition that innocent possession is not required for dishonest
misappropriation. For instance, Gour 2015 also asserted that the “illustrations
to Sec. 403, which are rather statements of principle than mere illustrations,
clearly show that the essence of criminal misappropriation of property is that
the property comes into the possession of the accused in some neutral manner
…” (at p 3918). Perhaps the phrase “the essence was” was intended to suggest
that innocent possession is merely the archetypal example of dishonest
misappropriation (as the Judge had reasoned), but the proposition that the
illustrations to s 403 are statements of principle is a clear reference to Basudeb
which is contrary to s 7A of the IA (see [48] above).

110 In any event, the present conclusion in Gour 2015 ran contrary to the
other leading Indian text of Ratanlal 2013.

111 As the academic texts had not come to a consistent or conclusive landing
on the innocent possession question, we considered it safer not to place reliance
on them.

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Other interpretive canons

112 Finally, there were other canons of interpretation which are permissible
as tools to aid the court’s effort in determining the proper interpretation of a
provision (Tan Cheng Bock at [38]). For present purposes only two of these
have any relevance.

(1) Rectifying construction

113 Rectifying construction “involves the addition or substitution of words

to give effect to Parliament’s manifest intentions” (Nam Hong Construction &
Engineering Pte Ltd v Kori Construction (S) Pte Ltd [2016] 4 SLR 604 (“Nam
Hong”) at [54]). It is possible to invoke this method in the Applicant’s favour
so as to circumvent the absence of an express reference to innocent possession
on the face of s 403 of the Code. If so invoked, the words which may be added
to s 403 of the Code are as set out in bold in the following re-wording of the
section:

403. Whoever, having obtained possession of any movable

property without a dishonest intention, thereafter
dishonestly misappropriates or converts to his own use movable
property, shall be punished with imprisonment for a term which
may extend to 2 years, or with fine, or with both.

114 In principle, a rectifying construction is not excluded for penal

legislation (see Oliver Jones, Bennion on Statutory Interpretation (LexisNexis,
7th Ed, 2017) at section 15.3):

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15.3 Although a court may, as a matter of principle be

cautious about applying a rectifying construction to penal
legislation or other onerous enactments, this caution will not
prevent it from applying such a construction in suitable cases.

115 In our judgment, a rectifying construction could not be applied to assist

the Applicant in the present case. This was because our primary conclusion was
that innocent possession is not a requirement under s 403 of the Code, and so
there was nothing to rectify.

(2) Strict construction rule

116 The other potentially relevant canon of construction is the “strict

construction rule”, also known as the “principle against doubtful penalisation”.
According to VK Rajah JA in Public Prosecutor v Low Kok Heng [2007] 4
SLR(R) 183 at [30]–[38], this is a “tool of last resort” to which recourse may be
had only if there is genuine ambiguity in the meaning of the provision even after
the courts have attempted to interpret the statute purposively. If the meaning of
the provision is sufficiently clear after the ordinary rules of construction have
been applied, then there is no room for the application of this rule (see also Nam
Hong at [28]).

117 In our judgment, even though the plain text, history, and purpose of the
provision are not entirely helpful, the context of s 403 of the Code sufficiently
demonstrates that innocent possession could not have been an intended element
of dishonest misappropriation. In those circumstances, there is no room for the
strict construction rule to apply.

118 In this regard, we add that in Walgamage, the Sri Lankan Supreme Court
also rejected the argument that an innocent possession requirement should be

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read into s 386 of the SLPC on the basis that a criminal statute should be strictly
construed in favour of the offender (at 8–9):

The principle that penal statutes are to be strictly construed

does not apply where a statute is clear and unambiguous. I am
therefore of the view that the suggested principles of
interpretation cannot be applied so as to introduce an
additional ingredient into the definition of an offence. It is
unnecessary to consider when and how those principles could
be utilised to resolve an ambiguity, because we are here
concerned not with an ambiguity but with the imposition of an
additional ingredient through interpretation. …

We agreed with these observations.

Summary on the question referred

119 In summary, initial innocent possession is not a requirement for

conviction under s 403 of the Code. First, the context of s 403 sufficiently
demonstrated that innocent possession could not have been an intended element
of dishonest misappropriation. Such a requirement as to “negative” mental state
would be highly unusual and would likely give rise to lacunae and absurdity in
the law of property offences. Second, while no part of the extraneous evidence
as to the legislative history of s 403 was in itself conclusive, they collectively
pointed sufficiently towards an absence of Parliamentary intention to
distinguish between the offender’s states of mind at the time of initial
possession. Third, the absence of such a requirement was also supported by
persuasive authority from the Sri Lankan Supreme Court.

Conclusion

120 As we have answered the main question in the negative, we need not
deal with the ancillary questions. While the parties’ submissions on the

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questions were helpful, we would prefer to address the important and difficult
issues they pose if and when the appropriate facts are before us.

121 Finally, we note that while the Co-Offenders initially filed separate
criminal motions for leave to refer purported questions of law of public interest
to this Court, they subsequently withdrew their applications while the Applicant
chose to proceed with hers (see [24] above). Strictly speaking therefore, this
criminal reference related only to the Applicant. In any event, as the question
referred was answered in the negative, there were no grounds and no reasons
apparent to us why the convictions and sentences of the Co-Offenders should
be disturbed.

Sundaresh Menon Judith Prakash Tay Yong Kwang

Chief Justice Judge of Appeal Judge of Appeal

Ragbir Singh Bajwa (instructed) (Bajwa & Co),

Kertar Singh s/o Guljar Singh and Lee Wei Liang
(Kertar & Sandhu LLC) for the applicant; and
Leong Wing Tuck, Jiang Ke-Yue, Kelvin Chong, Ang Siok Chen and
Jocelyn Teo (Attorney-General’s Chambers) for the respondent.

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