Wong Seng Kwan v Public Prosecutor

Steven Chong J:

[1] Are finders keepers? One could be forgiven for thinking that the law on such a simple question is relatively settled. However, as demonstrated in this case, a finder can in certain circumstances attract criminal liability.

[2] It is important to recognise that civil liability for property claims has a direct bearing on criminal liability in respect of offences under Chapter XVII of the Penal Code (Cap 224, 2008 Rev Ed), collectively known as “Offences Against Property”. Therefore, an understanding of the scope and content of property rights in civil law is essential for a proper interpretation of criminal law provisions relating to property offences. As fittingly observed by Lord Macaulay in his book, Speeches and Poems, with the Report and Notes on the Indian Penal Code (Riverside Press, 1867) at p 432:

[3] The appellant, Wong Seng Kwan, was convicted in the court below of dishonest misappropriation of the cash taken from a wallet which he found on the floor of the Marina Bay Sands Casino (“the Casino”). He was sentenced to a fine of $2,000 and in default two weeks’ imprisonment. He appealed against the conviction and after hearing the parties, I was satisfied that the conviction was safe and dismissed the appeal. However, as the appeal had raised an interesting issue of public interest, I decided to issue my detailed grounds to provide some clarity on the rights and obligations of a finder against the backdrop of the offence of dishonest misappropriation of property under s 403 of the Penal Code (“s 403”). This judgment will explain what steps, if any, a finder of lost property in a public place should take in order to avoid or minimise the risk of criminal liability. On my direction, both the Prosecution and counsel for the Defence, Mr Manoj Nandwani (“Mr Nandwani”) filed further submissions to assist the court in providing my detailed grounds. I would like to record my appreciation to both counsel for their clear and concise submissions.

[4] This appeal arose from the decision of the trial judge (“the Judge”) in Public Prosecutor v Wong Seng Kwan [2011] SGDC 197. The appellant, Wong Seng Kwan, was tried on the following amended charge:

[5] The facts of this case were relatively uncomplicated because the Prosecution and the Defence tendered an Agreed Statement of Facts, which stated, inter alia, that:

[6] The Prosecution adduced the security tapes of the Casino (“CCTV recording”) to establish the facts stated in the Agreed Statement of Facts. The main issue at the trial below was whether the confession was voluntarily made by the appellant to the police (“the Long Statement”). After conducting a voir dire, the Judge found that the Long Statement was made voluntarily without any threat, inducement, promise or any form of oppressive conduct and admitted it in evidence. The Long Statement contained the following confessions:

In addition, the Judge accepted the evidence of the police investigation officers that the appellant made an oral confession that he had removed the cash from the wallet, when he was shown the CCTV recording.

[7] At the trial below, the complainant, Ms Sun Yan Li (“Ms Sun”), testified that when she went to the Casino on 10 June 2010, her wallet contained, inter alia, about S$200 in cash, a RMB10 banknote, her China identification card, a Singapore credit card and a China bank card.

[8] Although the appellant admitted to picking up the wallet, at the trial, he vehemently denied taking the cash from the wallet. The appellant also denied that he saw any identification documents (eg, Ms Sun’s China identification card) in the wallet. However, after hearing all the evidence, the Judge disbelieved his defence. The Judge held at [45] that:

[9] The Long Statement, which was admitted in evidence by the Judge, corroborated the above finding. Consequently, the Judge, after a seven-day trial, convicted the appellant of the offence of dishonest misappropriation of property under s 403 and sentenced him to a fine of $2,000 and in default two weeks’ imprisonment.

[10] Mr Nandwani raised the following grounds on appeal:

(a) that there was no good Samaritan law mandating the appellant to return an item that he stumbled upon;

(b) that the appellant had no intention to cause any wrongful gain or wrongful loss;

(c) that the Judge failed to consider that the appellant could not have taken the money from the wallet because none of the other items alleged to be in the wallet were found on the appellant;

(d) that the Judge gave undue weight to the Long Statement because based on contemporaneous evidence, there were factual inconsistencies in the Long Statement, and any doubt should have been resolved in the favour of the appellant; and

(e) that objective evidence adduced at trial was sufficient to raise a reasonable doubt to justify the appellant’s acquittal.

[11] In response, the Prosecution made the following submissions that the decision of the Judge should be upheld:

(a) the Judge found that the confession in the Long Statement was made voluntarily and the appellant was not a truthful witness;

(b) although the appellant could easily have ascertained the identity of the wallet’s owner; or alternatively, handed over the wallet to the security personnel of the Casino, he did not do so;

(c) Ms Sun’s testimony in court was reliable and the Judge was correct to hold that there were sufficient identification documents in the wallet to enable the appellant to locate its owner; and

(d) the facts of the present case fell squarely within Explanation 2 and Illustration (e) to Explanation 2 of s 403.

[12] The above arguments essentially concerned two key issues which were dispositive of the appeal:

(a) whether the appellant had dishonestly misappropriated the cash from the wallet; and

(b) whether the appellant had reasonable means to ascertain the identity of the owner of the wallet.

[13] Although both issues are largely factual in nature, their determination involved an examination of the rights of the appellant as finder of the wallet and the steps which he was required to take on finding the lost property. Before doing so, it is perhaps useful to provide some overview of the property offences under the Penal Code and to explain how they differ from each other.

[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, 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 (Law Publishers (India) Pvt Ltd, 11th Ed, 2011) (“Gour”) at p 3918:

[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.

[18] I believe it would be useful to set out s 403 in its entirety as the Explanations and Illustrations are of assistance in its interpretation.

[19] In order to make out the offence under s 403, the Prosecution must prove the following elements beyond reasonable doubt:

(a) the movable property (“lost chattel”) must belong to some person other than the accused person;

(b) there must be an act of misappropriation or conversion to his own use; and

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

[20] I shall examine each ingredient separately, discuss the issues arising thereunder and apply the law to the facts of this appeal. I shall also make some general observations to alert members of the public as to what they should do when they come across lost chattel. It should be made clear that finders are but one species of persons who could be criminally liable for misappropriation or conversion under s 403. This judgment, however, will focus principally on the position of a finder like the appellant in this case, with specific reference to Explanation 2 and Illustrations (a) to (f) thereunder.

[21] The significance of this ingredient is that the offence does not arise if the lost chattel has been abandoned since in such a case there is really no owner to speak of. In this case, there can be no suggestion that Ms Sun had abandoned her wallet. Whether a lost chattel has been abandoned is essentially a question of fact to be inferred from the surrounding circumstances. Factors such as (a) the place where the chattel was found; (b) the nature of the chattel; and (c) the value of the chattel are relevant considerations to determine whether the owner had intended to abandon the chattel. It is ultimately an exercise of common sense. The higher the value of the lost chattel, the less likely it has been abandoned by the owner.

[22] The topic of abandonment of property was recently comprehensively surveyed by Associate Professor Saw Cheng Lim in The Law of Abandonment and the Passing of Property in Trash (2011) 23 SAcLJ 145, where the learned author explained at p 167 that the circumstances surrounding the discarding of chattels should raise the irresistible inference that the original owners had clearly abandoned them – both possession and ownership. Associate Professor Saw concluded at p 173 that given that it is difficult to predict with any certainty how much proof is required to establish a specific and unequivocal intention on the part of the original owner to abandon the property in question, the courts should be slow to make any finding of abandonment except in the clearest of cases. I agree with the view expressed by Associate Professor Saw.

[23] In understanding the relevance of this issue, it is necessary to note that finders do acquire certain rights to lost chattel found by them. However, where the finder is able to locate the owner but fails to do so, he may be convicted of the offence under s 403. As such, it is particularly pertinent to discuss the rights of the finder and the reasonable steps that the finder is obliged to take to avoid criminal liability.

[24] This issue is part of the critical path in determining whether the offence under s 403 is made out. As pointed out at [19] above, the first ingredient of the offence under s 403 is that the lost chattel must belong to someone other than the accused person. That being the case, the inquiry must be examined in the context of the rights, if any, of a finder such as the appellant and the means by which the true owner of a lost chattel can be ascertained and/or identified.

[25] The common law distinguishes between the concept of ownership and possession. In the normal state of affairs, possession of a chattel is the outward expression of ownership. Ownership is the highest possible right in a thing that exists, and the person with the best possible right to a thing is the owner: see Duncan Sheehan, The Principles of Personal Property Law (Hart Publishing, 2011) at pp 4–18.

[26] However, a finder is in an anomalous situation because the true owner of a lost chattel is presumed to have lost possession, but not ownership, of the lost chattel. The rights of a finder arise by virtue of finding a lost chattel and asserting possession over it. The act of asserting possession allows the finder to acquire certain rights over the lost chattel. So long as a finder of the lost chattel acts within his legal entitlement, he would not have caused any “wrongful gain” and/or “wrongful loss” and consequently cannot be said to have acted dishonestly to attract criminal liability. I will be returning to the issue of “wrongfulness” at [52] below.

[27] It is clear that a finder has the right to possess the lost chattel from the moment of finding it. Therefore, for the purposes of s 403, the fact of finding and asserting possession cannot per se constitute an offence. Indeed, the Penal Code expressly provides for the above situation in Illustration (a) to Explanation 2 of s 403:

[28] However, since the true owner has never intended to divest his right to ownership (this assumes that he did not abandon the chattel), it would not be possible for the finder to acquire an ownership right over the lost chattel. In such a case, what right(s), if any, does a finder acquire after he asserts possession over the lost chattel? A finder merely obtains a right to possess and not a right to ownership by virtue of his find and being the first to assert possession over the lost chattel. Yet, paradoxically, as noted at [25] above, there is a presumption that the person in possession is the owner. How does the law resolve this seemingly irreconcilable conundrum?

[29] The Gordian knot described above can be resolved by applying the concept of relativity of title. The finder has good title as against the whole world except the true owner: see Armory v Delamirie (1722) 1 Str 505 (“Armory”). Professors F H Lawson and Bernard Rudden explained in The Law of Property (Oxford University Press, 3rd Ed, 2002) at p 65 that:

[30] In Armory, the plaintiff, a chimney sweeper’s boy, found a jewel and took it to a goldsmith’s shop to find out what it was. An apprentice from the shop took out the stones from the jewel and refused to return the stones to the boy. Pratt CJ held at [1]:

[31] The position in Singapore as regards the rights of finders of lost chattel is similar to the position in England. According to Gary Chan Kok Yew and Lee Pey Woan, The Law of Torts in Singapore (Academy Publishing, 2011) at p 422:

[32] Since the finder has good title to the lost chattel as against the whole world except the true owner, criminal liability, if any, of the finder would depend on, inter alia, whether the true owner can be ascertained and/or identified by the finder.

[33] As the finder’s title is good against the whole world except the true owner, retention of the lost chattel might be construed as dishonest if the finder is able to locate the true owner using reasonable means but fails to do so and decides to retain possession for himself.

[34] It is important to note that the question as to what reasonable steps should be taken to locate the owner only arises for consideration if the person who finds the chattel decides to take possession of it. When the person stumbles upon a lost chattel, he has three options: he could choose to ignore it and walk away; or having picked it up decides to leave it behind; or he could assert possession over it. It is only if the person chooses to retain the lost chattel in his possession that he becomes a finder with the attendant rights and obligations.

[35] Where a person finds and decides to take possession of a lost chattel of which from its nature, there must be an owner, the law requires the finder to take reasonable steps to discover and give notice to the owner, and keep the lost chattel for a reasonable time to allow the owner to claim it: see Explanation 2 to s 403. Explanation 2 also clearly states that what are reasonable means, or what is a reasonable time in such a case, is a question of fact. The finder is not obliged to undertake extraordinary steps or incur disproportionate expenses in order to locate the true owner of the lost chattel.

[36] There is a wide spectrum of circumstances that may give rise to different consequences. In one extreme, a person who finds a dollar note on the street would ordinarily not be expected to take any step to locate the owner because identification of the true owner would be practically impossible. At the other extreme, the finder might have actual knowledge of the identity of the owner. For example, the finder might have witnessed the owner dropping his wallet; or he might know the owner personally and had previously seen the owner use the particular item that he just found. In such cases, the finder is required to restore the lost chattel to its owner without unreasonable delay.

[37] However, in between these two extreme examples is a wide spectrum of circumstances where the position may not be entirely clear. For example, a person may find an expensive watch that carries a serial number or a diamond ring with a laser identification number or mark that is not easily visible to the naked eye. While an expert or a collector may know where to look and who to contact to trace the identity of the owner, the layperson who finds such items may not even notice the serial number, let alone appreciate its significance. What should such a finder do in cases like these to avoid the risk of criminal liability?

[38] The crucial question to ask in every situation is whether the finder can reasonably be expected to discover and give notice to the owner. In my opinion, what amounts to reasonable steps would always depend on all the circumstances of the case, including the following factors:

(a) The place where the lost chattel was found. If, for example, the lost chattel is found in a vacated hotel room, it is likely that the owner can be located as opposed to an item found in a public area of a shopping mall. If, instead, the lost chattel was found in a shop in a shopping mall, it would be reasonable to expect the owner to retrace his footsteps back to the shop after realising that he had lost the chattel. In such a situation, in order to avoid criminal liability, it would be prudent for the finder to leave his contact details with the shop owner to discharge his duty of taking reasonable means to give notice to the owner. The finder may only deal with the lost chattel as his own after the owner has failed to claim it in spite of the lapse of a reasonable time. Alternatively, he could leave it behind with the shop owner.

(b) The nature and value of the lost chattel. Finding cash in a public area may pose a greater problem for the finder to locate the owner as opposed to finding a wallet in a hotel lobby. Given the fungible nature of cash, it would usually be practically impossible to locate the owner of lost cash unless the cash was found together with other identifying items (see (c) below) or if there are special facts that could potentially lead to the identification of the owner. In this regard, there must be some proportionality between the value of the lost chattel and the steps that a finder is required to take in order to locate the owner.

(c) The nature of identifying features on the lost chattel. Where there are clear identification marks, such as the address of the owner or a telephone number, the owner of the lost chattel can be easily discovered and contacted. For other identification marks such as names, NRIC numbers, bank account numbers, membership numbers or serial numbers, the finder would usually require the assistance of the police or the issuing body in locating the owner.

[39] Each of the above factors would assist the finder to identify the true owner and will therefore be relevant to ascertain whether the finder has in fact taken reasonable steps. Of the six Illustrations to Explanation 2, five of them would attract criminal liability under s 403 because in each of them, the finder did not take reasonable steps to locate the owner.

[40] It should not be overlooked that apart from taking reasonable steps to locate the owner, the finder should also keep the lost chattel for a reasonable time to enable the owner to claim it, before dealing with it as explained in Illustration (f). In other words, on finding a valuable item with no apparent identification, if the finder sells it immediately thereby preventing the true owner from ever claiming it back, he would also have committed the offence. What amounts to keeping the lost chattel for a reasonable time would, again, depend on the circumstances of each case. To illustrate the above principles, the consequences of a finder’s failure to take reasonable steps can be seen in the decision of Chan Sek Keong CJ in Public Prosecutor v Neo Boon Seng [2008] 4 SLR(R) 216 where the sentence of the finder was enhanced from a fine of $6,000 to a term of imprisonment of three weeks. In that case, the accused person was a taxi driver. His passenger boarded the taxi at Changi Airport but left behind some items valued at $11,661.05 in the front passenger seat of the taxi when he alighted at his residence. The accused person did not take any step to return the items to the passenger even though he knew where that passenger lived. Chan CJ held at [10] that:

[41] It is difficult to exhaustively state what a finder should do in any given circumstance owing to the diverse situations. However, what is clear is that when a person finds a lost chattel which he knows has not been abandoned, which is of some value and where the true owner can possibly be identified and located, the prudent course of action would simply be to report the lost chattel to the police, not because the finder is legally obliged to do so, but because it is the best and most pragmatic way for the finder to discharge his duty in taking reasonable steps to locate the owner, and to avoid a finding of dishonesty that attracts criminal liability under s 403.

[42] There are two distinct limbs under s 403, viz the misappropriation limb and the conversion limb. As a matter of statutory interpretation, both limbs are not intended to have an identical meaning since it is presumed that Parliament does nothing in vain, and the court must endeavour to give significance to every word of an enactment: see Bennion on Statutory Interpretation: A Code (5th Ed, LexisNexis, 2008) at p 1157.

[43] The meaning of “to appropriate” (from which misappropriate derives its meaning) was discussed in the Indian case of Sohan Lal v Emperor 1915 AIR All 380, where Piggot J held at 381 that:

[44] Conversion, on the other hand, refers to an act in dealing with the chattel in a manner inconsistent with the rights of the true owner. A helpful definition can be found in the decision of Supreme Court of Queensland in R v Angus [2000] QCA 29, where Pincus JA held at [15] to [16] that:

[45] The meaning of “conversion” under s 403 is consistent with civil liability for conversion. As can be seen from the Court of Appeal’s decision in Tat Seng Machine Movers Pte Ltd v Orix Leasing Singapore Ltd [2009] 4 SLR(R) 1101, “inconsistency is the gist of the action” for conversion. VK Rajah JA at [45] held that:

[46] The effect of the above distinction is that conversion is a subset of misappropriation with the result that a person who has committed conversion would have also committed criminal misappropriation but not necessarily the other way round. The act of either misappropriation or conversion constitutes the actus reus of the offence under s 403. Unlike misappropriation, conversion requires the additional element of acting in a manner inconsistent with the rights of the true owner, and usage is one way of acting inconsistently. Mere possession is not sufficient to make out the element of conversion.

[47] The distinction was helpfully illustrated by the Prosecution’s reference to Tuan Puteh v Dragon (1876) 3 Ky 86. There, the accused person found a cheque payable to one Captain Strong. He attempted to encash the cheque but could not do so owing to the absence of Captain Strong’s endorsement. The court found that although there was no conversion since he did not manage to encash the cheque, he clearly misappropriated the cheque when he dishonestly attempted to encash it.

“To his own use”

[48] The appellant was charged with and convicted of dishonestly misappropriating to his own use a wallet, which he knew to be the property of a person other than himself. During the appeal before me, I invited the Prosecution to clarify whether the words “to his own use” in s 403 qualified both the misappropriation limb and the conversion limb or just the latter. In response, the Prosecution submitted that it should only govern the conversion limb and applied to amend the Charge to delete the words “to his own use” pursuant to s 256(b)(ii) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”). The Prosecution cited Garmaz s/o Pakhar and another v Public Prosecutor [1996] 1 SLR(R) 95, where the Court of Appeal held at [28] and [29] that:

[49] I am persuaded that under s 256(b)(ii) of the CPC, I have an implied power to amend the Charge in the manner proposed by the Prosecution. Keeping in mind the potential prejudice of the amendment to the appellant, the proposed amended Charge was read and explained to the appellant, who thereafter informed the court through Mr Nandwani that his defence remained unchanged notwithstanding the amendment to the Charge. As I was satisfied that the amendment did not affect the substance of the Charge, I allowed the amendment. The amendment was made and allowed without the benefit of substantive submissions from both parties. Since then, the further submissions by both parties have indeed confirmed that the words “to his own use” only qualify the conversion limb. Let me elaborate.

[50] The learned authors of Stanley Yeo, Neil Morgan and Chan Wing Cheong, Criminal Law in Malaysia and Singapore (LexisNexis, 2nd Ed, 2012) explained at p 431 that:

[51] I agree with the learned authors that to read the requirement of “to his own use” into the misappropriation limb would render the conversion limb otiose, with the result that there would be no instance involving conversion that does not also fall within the meaning of misappropriation. The learned authors of Criminal Law in Malaysia and Singapore explain insightfully at p 432 that:

[52] I now come to the mens rea requirement of the offence under s 403. The mens rea of the offence is dishonesty. “Dishonestly” is defined under s 24 of the Penal Code as follows:

[53] The definition of “dishonestly” in turn makes reference to “wrongful gain” and “wrongful loss” which are defined under s 23 of the Penal Code as follows:

[54] As the verb “misappropriates” itself conveys an element of wrongfulness, as opposed to the neutral verb “appropriates”, it seems to be tautologous to qualify it with the word “dishonestly”. As Yong Pung How CJ observed in Tan Tze Chye v Public Prosecutor [1997] 1 SLR(R) 876 at [37]:

[55] In the present appeal, there can be no dispute that in picking up the wallet, the appellant had committed an act of appropriation. At that stage, his act of appropriation was still neutral. However, his intention would become dishonest if he removed the cash from the wallet and kept it as his own. No usage is necessary. The essence of the appellant’s defence was directed at the alleged subsequent change of intention. He claimed that although he admitted to picking up the wallet, he left it behind in the toilet and did not remove the cash of $150 from the wallet. The appellant urged the court to acquit him on the basis that all the cash that was found in his possession when he was arrested had been properly accounted for and therefore the critical ingredient of dishonest misappropriation of the cash from the wallet was not made out.

[56] The appellant claimed that he withdrew $3,500 in cash from his account with the Casino and had a balance sum of $3,200 (inclusive of casino chips) at the time of his arrest. He alleged that the difference of $300 was lost on the poker table and since all the monies were accounted for, it must follow that he did not take the cash from the wallet. The force of the argument was misconceived because there was no evidence that he lost $300 on the poker table. In fact, the evidence was to the contrary as the appellant conceded in cross-examination that he played other games as well and had won some monies in those games. In any event, this defence was completely contradicted by the appellant’s Long Statement and his oral confession where he admitted to taking the cash from the wallet.

[57] The Judge accepted the evidence of Ms Sun that her wallet contained her identification card. I saw no reason to disturb her finding. In the circumstances, by taking the cash from the wallet, and disposing of the wallet with the identifying documents, the appellant had clearly intended to cause wrongful gain to himself and/or wrongful loss to the true owner, Ms Sun.

[58] The present appeal is therefore a clear case of criminal misappropriation on its facts. It may not be so clear where, for example, the finder picks up a wallet containing cash and the owner’s identification but chooses to leave it in his home without using it because he could not be bothered to return it to the owner or to report his find to the police. In such a case, is the offence made out? Perhaps so, since such an act would have caused a wrongful loss to the true owner. In such situations, it is always prudent to report the find to the police. This is not an exhortation to act in a morally upright manner. Instead, it is a cautionary step to take to avoid criminal liability. As explained at [34] above, the finder can choose to either ignore the lost chattel or leave it behind after picking it up to avoid criminal liability. In such a situation, the finder does not attract any criminal liability because there is no act of appropriation to begin with. However once he decides to assert possession, the rights and obligations attach at that point in time.

[59] In the result, the decision of the Judge is affirmed and the appeal is consequently dismissed.

[60] It is hoped that this decision has provided some useful guidelines for persons who through no initial fault of theirs come across lost chattel. Finders are not always keepers, and a finder who dishonestly keeps his find may instead “find” himself in violation of the law.