larceny, embezzlement, swindlingpolice.govmu.org/english/documents/larceny embezzlement...

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