29 April, 2012

 

Legal News & Analysis – Asia Pacific – Singapore – Dispute Resolution

 

The recent decision of the Singapore High Court (“the Court”) in the appeal of Wong Seng Kwan v Public Prosecutor [2012] SGHC 81 (“Wong”) clarifies the law relating to the obligations of a person who finds lost property (“a Finder”). It provides guidance on how the common law rights of a Finder of lost property/chattel may have a bearing on criminal liability in respect of property-related offences under the Penal Code.

 
The facts of the case were that the victim was gambling at the Marina Bay Sands Casino, when unknown to her, she dropped her wallet. Within two minutes, the accused had found her wallet, picked it up and went to visit the restroom. Five minutes later, the accused emerged from the restroom, without the wallet and was then detained by the security staff of the Casino. The Trial Judge convicted the accused of dishonest misappropriation of property. The accused subsequently
appealed.
 
In Wong the Court clarified the nature of the criminal liability that could be imposed against a person in relation to property-related offences. It emphasised that the critical distinction between all the different types of property offences lies in the manner in which the accused person initially comes across the movable property. An accused person commits theft if the property was originally in the possession of some other person and the accused person moves the property with a dishonest intention to take it.
 
However, in criminal misappropriation, the accused person initially comes across the property in a legally neutral manner. This means that there is no wrongdoing associated with the accused person coming into possession of the property, for example by finding property that has been lost. However, he will face criminal sanctions, if, after having come into possession of the property, the accused person subsequently forms a dishonest intention to deal with the property in a manner that is inconsistent with the rights of the true owner (for example by keeping it for himself or by selling it). 
 
Where a person is entrusted with property or dominion over property by another person, right from the outset, and he dishonestly uses or disposes of that property in abuse of trust, he commits criminal breach of trust; whereas for cheatingthe possession of the property is voluntarily handed over to the accused person as a result of his deceitful or fraudulent misrepresentation. 
 
Insofar as dishonest misappropriation is concerned, the Court underscored the point that it is essential for a Finder of property to realise that although the initial taking of the property is neutral (i.e. because he has found it), his continued possession of the property may subsequently become criminally wrongful.
 
This dichotomy between ownership and possession of property arises from the common law, which distinguishes these two concepts. Normally, possession of a chattel is an outward sign of ownership. However a Finder is in a unique situation because the true owner is presumed to have lost possession, but not ownership of the property. The Finder has a legal right to possess the lost property as soon as he finds it. This would entitle him to certain legal rights in respect of that
property.
 
A difficulty however arises because the true owner did not intend to divest his right of ownership but a finder can rely on a legal right to assert that he is the owner of the lost property, as he is the one in possession of it.
 
The Court in Wong described this situation as a Gordian knot and clarified that the difficulty could be resolved by applying the concept of relativity of title. Under the common law the adage ‘finders keepers’ essentially means that a Finder of a lost property acquires good title against everyone except the true owner.
 
Accordingly, since the Finder has good title against the whole world except the true owner, criminal liability of the Finder would only attach where the true owner can be ascertained and / or identified by the Finder. If the Finder can ascertain or identify the true owner with reasonable means, but fails to do so and instead decides to retain possession of the property for himself, then this could be construed as dishonesty, with its attendant consequences in a criminal court.
 
The reasonable steps that a Finder would have to take only becomes a relevant consideration, when the Finder decides to assert possession of the property. If, after having stumbled on the lost property, the Finder chooses to ignore the property and walk away, there is no duty to take reasonable steps to locate the true owner. What reasonable steps have to be taken is a question of fact and is largely dependent on the circumstances of each case. The Court stated that the crucial question to ask in every situation is whether the Finder can be reasonably expected to discover and give notice to the owner, bearing in mind the following factors:
 
(a) The place where the lost chattel was found. For example, the true owner of a chattel found in a vacated hotel room could be easily be identified by the Finder after inquiries were made to the hotel to ascertain the identity of the guest, as opposed to property found in a public area in shopping mall.
(b) The nature and value of a lost chattel. The Court opined that there must be some
proportionality between the value of the lost chattel and the steps that a Finder is required to take to find the owner
(c) The nature of the identifying features on the lost chattel. Where there are clearly identification marks on the lost chattel (such as an ID card found in a wallet), the true owner can easily be discovered and contacted, albeit sometimes with the assistance of the police or other authorities. 
 
Further, the Court also ruled that apart from taking the 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. The Court opined that a Finder who found a valuable item with no apparent identification marks and proceeded to sell it immediately would also be criminally liable for dishonest misappropriation.
 
On the facts of Wong, whilst the accused alleged that he had not taken any of the cash out of the victim’s wallet and had left the wallet in the restroom, the Court disbelieved this and found that the accused had taken cash out of the wallet and kept it as his own. The Court also accepted that the wallet contained victim’s identification card but the accused had disposed of this together with the wallet. The
Court therefore, had little hesitation in dismissing the accused’s appeal and allowing the conviction for dishonest misappropriation to stand. The accused was sentenced to pay a fine of S$2,000/- and in default, two weeks imprisonment.
 

 

For further information, please contact:

 

Navin Joseph Lobo, Partner, ATMD Bird & Bird

[email protected]

 

 

 

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