larceny, embezzlement, swindlingpolice.govmu.org/english/documents/larceny embezzlement...
TRANSCRIPT
MISS ANUSHA RAWOAH
STATE COUNSEL
OFFICE OF THE DPP14TH OCTOBER 2015
LARCENY,
EMBEZZLEMENT,
SWINDLING
WHY SHOULD YOU KNOW ABOUT THESE 3 OFFENCES?
For enquiry – gather relevant evidence
Confusion??
Larceny vs Embezzlement vs Swindling
Gather evidence to prove each element
Help us decide on which offence to prosecute
TWO BROAD CATEGORIES OF OFFENCES IN
CRIMINAL CODE
Offences Offences
against against
PERSONS PROPERTY
(A) OFFENCES AGAINST THE PERSONS
AFFECTS THE PERSON
(physically or mentally)
Assault
Threat
Murder
Manslaughter
Sexual offences
(B) OFFENCES AGAINST PROPERTY
AFFECTS THE PROPERTY OF A PERSON
Larceny
Embezzlement
Swindling
Forgery
Damaging property
LARCENY, EMBEZZLEMENT,SWINDLING
Similarity
Offences against the
property;
The perpetrator takes
away the property from
owner.
Difference
The manner in which the
offences are committed.
Concept of ‘remise’
LARCENY
SECTION 301(1) OF CRIMINAL CODE
Larceny
“(1) Any person who fraudulently abstracts anything
not belonging to himself shall commit larceny and
be liable on conviction to imprisonment, and to a
fine not exceeding 100,000 rupees.”
ELEMENTS OF LARCENY
1) Abstraction of property (Actus Reus)
2) Not belonging to the offender
3) Fraudulently (Mens Rea)
4) Nature of property – moveable
(1) ABSTRACTION OF PROPERTY
The physical act of taking away the property of
someone else.
‘L’enlevement, le deplacement de la chose.’
Property is taken ‘a l’insu et contre le gre du
proprietaire’.
CAN THERE BE LARCENY IF PROPERTY GIVEN AWAY BY
OWNER?
NO !
Give away = Consent
BUT
Abstraction = No consent = Property not given away by owner
Exception
‘REMISE’
(Soustraction Juridique)
There can still be larceny where there is ‘remise’ by the owner.
ABSTRACTION VS REMISE
ABSTRACTION
Act of taking away
property without owner’s
consent
REMISE
Act of owner to give his
property
Volontaire Involontaire
REMISE INVOLONTAIRE VS REMISE VOLONTAIRE
Remise Involontaire/ Forcee
Owner gives away
the property
but involuntarily
E.G:
By violence, threat, drunkenness, insane
Remise volontaire
Owner voluntarily gives away his property but does notintend to part away with
possession.
REMISE REMISE
NECESSAIRE PAR
ERREUR
Remise Necessaire:
Owner gives his property to someone for inspection – No intention to part with possession
Procureur General vs District Court of Port Louis and Nagoo :Buyer wants to check good – shopkeeper gives him goods to check-he runs away
Remise per erreur
Owner gives his property by mistake
E.g: Shopkeeper returns more money.
SCENARIOS OF LARCENY
X goes in a clothing shop:
X takes clothing and rans away : ABSTRACTION (also applies for self-service shops)
X asks to check the clothing material – owner gives him – X takes and runs away: REMISE VOLONTAIRE (NECESSAIRE)
X threatens owner with knife – owner gives clothing – X takes and runs away: REMISE INVOLONTAIRE
X buys clothes – owner puts surplus clothes – X knows but keeps silent and goes: REMISE VOLONTAIRE (PAR ERREUR)
2. NOT BELONGING TO THE PERSON
The property does not belong to the perpetrator.
One cannot steal his own property.
Note:
No larceny between husband and wife (sect.
301(2) of CC)
3. FRAUDULENTLY (MENS REA)
2 elements
(Rima vs R):
1. The offender knows that he is taking away a property against the will of the owner;
AND
2. He has the intention of taking away the property
4. NATURE OF PROPERTY – MOVEABLE
Something which can be physically moved.
One cannot steal an immoveable property.
E.g:
jewels, money, car, clothing
AT WHAT TIME IS THE LARCENY COMPLETE?
Concomittance entre la soustraction et l’intention frauduleuse
Abstraction + Intention (same time)
Look at the circumstances
Was abstraction complete when intention was formed?
EXAMPLES
When someone just holds an article of
someone else – No larceny
If he removes from original place and takes it
with him – larceny
Take articles out of its original place e.g out of
house - larceny
RIMA VS R (1975)
Facts:
X staying in a rented bungalow -Y, the owner asked X to vacate and asked for the keys -X refused -Y took away the bunch of keys from X, thinking that it was the bungalow’s keys.
X ran after Y and told Y that the keys contained X’s keys too. Y heard but went away with keys.
Larceny complete? Concomittance?
HELD:
If X had not informed Y – no larceny because only abstraction, no intention.
But X informed Y but still Y took keys – Larceny
Abstraction Concomitant with intention
DANGEOT VS R (1960)
FACTS:
Dangeot employed to supervise works in premises of workshop – in charge of iron bars
Loaded lorry with iron bars – to go out
Lorry stopped at entrance of premises
Larceny complete?
HELD
Larceny would be complete if bars were removed OUT of premises
AGGRAVATED LARCENY
AGGRAVATED LARCENY
SIMPLE LARCENY (sect. 301(1) of CC)
PLUS
AGGRAVATED CIRCUMSTANCES
(Modes of committing offence)
Effect of aggravated larceny – Higher penalties
1. SECT 301A CC
While committing larceny, offender:
Was masked
OR
Used offensive weapon which caused injury
OR
Possessed firearm
2. SECT 303 CC – LARCENY WITH WOUNDING
While committing larceny
Wounds a person with offensive weapon or
instrument
3. SECT 304 CC
LARCENY WITH VIOLENCE BY NIGHT BREAKING
Larceny at night
AND
Breaking to enter house
AND
Assaults person in house or Wounds, beats person
WITH INTENT TO KILL
SECT. 305 CC:
LARCENY WITH OTHER AGGRAVATED CIRCUMSTANCES
Armed with offensive weapon
OR
Assault a person to rob
OR
Committed by 2 or more individuals
OR
Beats a person/ used ANY violence whatever
OR
Committed in a house by threatening person in house
OR
On a public road
WHAT IS VIOLENCE UNDER SECT. 305 CC?
The DPP vs Dauguet 1976 MR 21
Whether the mere snatching of something from somebody's hand is simple larceny or larceny by violence?
Is there violence the moment there is ‘a voie de fait’?
(Voie des faits – Porter atteinte a une personne)
French Law – YES, any voie des faits amounts to violence
But
Our law – NO
DEGREE OF VIOLENCE
It is not necessary to beat or to strike the victim.
Not any voie de fait constitutes violence.
Violence = where victim resists, and some force is
used to overpower him
Snatching does not involve ‘violence’– Simple
Larceny
5. SECT 306 CC
LARCENY BY NIGHT BREAKING
Larceny
and
At Night
and
Breaking
6. SECT 309 CC
LARCENY WITH BREAKING / LARCENY BY SERVANT
By breaking
OR
Use of false keys
OR
Offender is servant , employee (relationship of trust)
OR
Offender worked in house/ shop of master
OR
Offender is hotelkeeper, boatman
7. SECT 310 CC – LARCENY WITH VIOLENCE
Assaults with intent to commit larceny
OR
Threatens/ uses force to demand something with
intent to steal
VIOLENCE
Sect 305(1)(c)
Use of ANY violence whatever
Not assault;
But violence to overpower victim
(Abstraction)
Sect 310 CC
Assaults with intent to commit larceny
OR
Threatens/ uses force to demand something with
intent to steal
(Remise involontaire)
EMBEZZLEMENT
SECTION 333(1) OF CC:
“Any person who embezzles, squanders away or destroys or attempts to embezzle, squander away or destroy to the prejudice of the owner, possessor or holder, any goods, money, valuables, security, bill, acquittance or other document containing or creating an obligation or discharge, which has been delivered to such person merely in pursuance of any lease or hiring (‘louage’), deposit (‘dépôt’), agency (‘mandat’), pledge (‘nantissement’), loan for use (‘prêt à usage’), or for any work with or without a promise of remuneration with the condition that the same be returned or produced or be used or employed for a specific purpose, shall be punished by imprisonment and a fine not exceeding 100,000 rupees.”
EMBEZZLEMENT
MATERIAL ACT: Embezzles
PROPERTY: Goods, money, valuables..
REMISE: Delivered
UNDER : ONE of 6 contracts
CONDITION : That property be returned or
used for specific purpose
ELEMENTS OF EMBEZZLEMENT
1. Material act of embezzlement
2. Prejudice to owner
3. Property
4. Delivery of property (Remise volontaire)
5. Delivery made under one of the 6 contracts
6. Fraudulent Intent
1. MATERIAL ACT OF EMBEZZLEMENT
Offender takes away the property;
He acts as if he is the owner of the property;
Remise volontaire.
Property can be remitted to accused through third party.
2. PREJUDICE TO OWNER
Prejudice must be caused to the owner, holder
or possessor of the articles embezzled.
Need to prove prejudice (physical or moral):
Dawoonauth v. The State [2005] SCJ 285
3. PROPERTY
Moveable property
Goods
Money
Valuables
Security
Bill, Acquittance
Documents containing or creating an obligation or
discharge (documents having monetary value)
4. DELIVERY OF PROPERTY
Remise volontaire
No abstraction (compared to Larceny)
The owner has delivered the property voluntarily to the person.
BUT
On condition: that the property be :
- returned
- produced
- used or employed for a specific purpose
5. DELIVERY MADE UNDER ONE OF THE 6
CONTRACTS
SIX specific contracts ONLY
i. Lease or hiring (louage)
ii. Deposit (dépôt)
iii. Agency (mandat)
iv. Pledge (nantissement)
v. Loan for use (prêt à usage)
Vi Work with or without promise of
remuneration
I. LEASE OR HIRING (LOUAGE)
The property has been leased or hired.
Not return the property.
Moveable property
Art 1709 Code Civil Mauricien:
Obligation of lessee – to return property after the period.
E.G:
Somebody hires his car – the person takes away the car
II. DEPOSIT (DÉPÔT)
Owner gives property as a deposit.
Art 1915 Code Civil Mauricien:
“le dépôt, en général, est un acte par lequel on reçoit la chose d'autrui, à la charge de la garder et
de la restituer en nature.”
Condition – keep and return later
SUZANNE VS R
Accused was a watchman – to keep an eye on coal.
But sold the coal to someone else and took money.
Embezzlement? Deposit?
NO– Owner did not give accused the coal to ‘garder
et restituer’ – only keep an eye
Larceny?
YES – abstraction against will of owner and intention
III. AGENCY (MANDAT)
Owner gives someone the power to do something with property but person embezzles it.
Art 1984 Code Civil Mauricien:
« Le mandat ou procuration est un acte par lequelune personne donne à une autre le pouvoir de faire
quelque chose pour le mandant et en son nom. »
E.G:
Travel agents
Mandat/Agency
To do ‘un Acte Juridique’
Specific terms
Victim must state specifically the tasks mandated
NILMONY VS R (2007)
Sam gave money to Nilmony to prepare a deed for her. Nilmony took the money for herself.
Was the money given under a contract of agency OR for work with/without remuneration?
HELD:
Victim could not explain exactly for what purpose she gave money – Not a mandat
Work with/without remuneration – offender had to do a work for victim(no acte juridique)
BUT
Agency – acte juridique
PRAYAG VS R
Accused agreed to drive passenger to a destination for a price. Passenger gave driver money for petrol. Driver did not return the change.
Prosecuted for embezzlement – contract of agency
What contract?
No agency – a contrat d’echange
Money given and he had to return change
I. PLEDGE (NANTISSEMENT)
Owner pledges his property with somebody – A GUARANTEE
After payment he must be returned the property.
Article 2071 Code Civil Mauricien:
« Le nantissement est un contrat par lequel un débiteur remet une chose à son créancier pour
sûreté de la dette… »
SOOKUR VS STATE (2015)
Complainant took loan from accused – condition – kept car as guarantee
Complainant pays loan – accused not returned car – already disposed
Prosecuted for embezzling a private car delivered to him merely in pursuance of a contract of deposit.
Deposit or Pledge?
Held:
Deposit - offender receives property on condition of keeping it and returning it
BUT
Pledge – offender receives as guarantee
Therefore, pledge.
V. LOAN FOR USE (PRÊT À USAGE)
Owner lends his property to someone for use.
Borrower has obligation to return.
Article 1875 Civil Code:
“… un contrat par lequel l'une des parties livre
une chose à l'autre pour s'en servir, à la charge
par le preneur de la rendre après s'en être servi.”
DOES PRET A USAGE INCLUDE LENDING OF
MONEY?
NO
Lending of money NOT covered by embezzlement
X lends Y money. Y does not return.
No embezzlement – Civil Suit or Borrower’s Protection Act
VI. WORK WITH OR WITHOUT PROMISE OF
REMUNERATION
Owner gives property to a person to do a
particular work.
To do ‘un travail materiel’
The person can be remunerated or not.
DOES IT INCLUDE TO CONTRACT OF EMPLOYMENT?
NO
David v. The State (2003) SCJ 242
Worker obtains wages to do his job – takes money and not do job
Not embezzlement but breach of contract of employment
WORK VS MANDAT
Not to be confused with mandat
MANDAT
Accused agrees to do ‘acte juridique’ for victim
Acts on behalf and in the name of victim.
WORK
Accused agrees to do a work for victim, not in the name of victim.
E.G: X asks Y to buy his goods from shop
6. FRAUDULENT INTENT
The offender knows that:
He has been given the property for particular purpose, But
He takes it for himself
Immaterial whether accused benefitted from the act.
E.g: Even if accused embezzles property but gives to someone else – fraudulent intent (Antoo vs R 1981).
CONTRACT OF SALE??
If X sells articles to Y. Y does not pay and takes
articles.
Embezzlement??
No, because money is given under a contract of
sale (civil action)
Embezzlement does not cover contract of sale
EMBEZZLEMENT
Only if property remitted under
ONE of 6 contracts
SWINDLING
(Escroquerie)
SECT 330(1) CC:
“Any person who, by using a fictitious name, or assuming a false character, or by employing fraudulent pretences, to establish the belief of the existence of any fictitious operation or of any imaginary power or credit, or to create the expectation or apprehension of any success, accident or other chimerical event, or who, by means of a cheque drawn on any banker in Mauritius to the order of any person or to bearer, for the payment of which there is insufficient provision at the time of the presentment thereof, obtains the remittance or delivery of any funds, movable property, obligation, condition, bill, acknowledgement, acquittance or discharge, and by any such means as aforesaid, swindles another person out of the whole or of a part of his property shall be punished by penal servitude for a term not exceeding 20 years, and by a fine not exceeding 150,000 rupees.”
SWINDLING
MODE
Fictitious name OR False character OR Fraudulent pretences
PURPOSE
To establish belief of existence of fictitious operation or imaginary power or credit;
OR
To create the expectation or apprehension of any success, accident or other chimerical event
EFFECT
Delivery
WHAT PROPERTY?
Funds, movable property, obligation, condition, bill, acknowledgement, acquittance or discharge
ELEMENTS OF SWINDLING
1. Property
2. Delivery or remittance of property
3. One of means provided by law
4. Fraudulent intention
1. PROPERTY
What property can be swindled?
- Funds
- Movable property
- Obligation
- Condition
- Bill
- Acknowledgement
- Acquittance
- Discharge
2. DELIVERY OR REMITTANCE OF PROPERTY
The offender obtains delivery or remittance of property.
Through ONE of the modes.
Fictitious name OR false character OR fraudulent pretences
CAUSED
Delivery of property
3. ONE OF MODES PROVIDED BY LAW
THE MODES
Using a fictitious name,
or
Assuming a false character,
or
Employing fraudulent pretences
(lie and mise en scene)
THE MODES
(1) Using a fictitious name
The offender used a fictitious name to introduce
himself to victim.
He duped victim by giving fake name.
2. Assuming a false character
The offender usurps the character of someone
else.
E.g
He presents himself as the PS of a Minister when
he is not.
3. EMPLOYING FRAUDULENT PRETENCES
A LIE
Accused tells a ‘mensonge’
to dupe victim
A ‘MISE EN SCENE’
- Intervention of third party
- OR
- Show documents
- To make the lie sound real
EXAMPLE
Offender tells a lies + backs up the lie with a
‘mise en scene’
E.G:
Accused lies that he is a travel agent + he shows
fake documents of his company
THE PURPOSE OF USING THE MEANS
EITHER
To establish the belief of the existence of:
any fictitious operation or
any imaginary power or credit
To make the victim:
believe in an operation that does not exist;
believe that he has a power to do something
OR
To create the expectation or apprehension of any success, accident or other chimerical event
To give victim a hope that an event will happen
4. FRAUDULENT INTENTION
The person knew that he did not have a right on
the property;
He intentionally used one of the modes to dupe
owner;
To obtain property.
LARCENY
SIMPLE LARCENY
ELEMENTS
Abstraction of property (Actus Reus)
Not belonging to the person
Fraudulently (Mens Rea)
Nature of property – moveable
AGGRAVATED LARCENY
SIMPLE LARCENY + AGGRAVATED CIRCUMSTANCES
Sect 301A CC – mask, weapon
Sect 303 CC – Larceny with wounding
Sect 304 CC – Larceny with violence
by night breaking
Sect. 305 CC: Larceny with other aggravated circumstances
Sect 306 CC – Larceny by night breaking
Sect 309 CC- Larceny with breaking / Larceny by servant
Sect 310 CC – Larceny with violence
AGGRAVATED LARCENYSect 301A CC Sect 303
Larceny with
wounding
Sect 304
Larceny
with
violence by
night
breaking
Sect. 305
Larceny with other
aggravated
circumstances
Sect 306
Larceny by
night
breaking
Sect 309
Larceny with
breaking /
Larceny by
servant
Sect 310
Larceny with
violence
Masked
OR
offensive
weapon
which
caused
injury
OR
Possessed
firearm
Wounds a
person
with
offensive
weapon or
instrument
At night
AND
Breaking to
enter
house
AND
Assault
person in
house
WITH
INTENT TO
KILL
Armed with
offensive weapon
OR
Assault person to
rob
OR
Committed by 2 or
more individuals
OR
Beats / used ANY
violence
OR
Committed in a
house by
threatening
person
OR
On a public road
Larceny
AND
At Night
AND
Breaking
By breaking
OR
Use of false
keys
OR
Offender is
servant ,
employee
OR
Offender
worked in
house/ shop
of master OR
Offender
hotelkeeper,
boatman
Assaults
with intent
to commit
larceny
OR
Threatens
/ uses
force to
demand
something
with intent
to steal
EMBEZZLEMENT
EMBEZZLEMENT
LARCENY VS EMBEZZLEMENT VS SWINDLING
LARCENY
Abstraction
But
Exceptionally- REMISE
EMBEZZLEMENT &
SWINDLING
REMISE VOLONTAIRE
EMBEZZLEMENT VS SWINDLING
EMBEZZLEMENT
One of the 6 contracts
Lease or hiring (louage)
Deposit (dépôt)
Agency (mandat)
Pledge (nantissement)
Loan for use (prêt à usage)
Work with or without promise of
remuneration
SWINDLING
One of the 3 modes
Fictitious name
OR
False Character
OR
Fraudulent Pretences