Chapter I
Nature of Public Property
Public Property is assets owned or controlled by the government or local
authorities. Offences against public property are legal violations involving the
misappropriation, theft, mischief, breach of trust, or unauthorized possession of public
property. Unlike private crimes, these are considered as 'crimes against society' and
affects communal resources. They are typically defined by willful intent to cause
wrongful loss to the state, with punishments often including imprisonment and fines.
1.1 Meaning of Public Property
Public property refers to assets, land, or resources that are owned by the state
(national, regional, or local government) and are held in trust for the collective use
and benefit of the citizens.
Public property means any store or equipment or any other property whatsoever
belonging to, or consigned to, or intended for the use of the army, naval or air forces
serving in the Union of Burma or belonging to, or consigned to, or intended for the
use of, the Government of the Union of Burma or any local authority constituted
under any law.1
Public property is property that is dedicated to public use. The term may be used
either to describe the use to which the property is put, or to describe the character of
its ownership (owned collectively by the population of a state).2
1
Section 2 (i) of the Public Property Protection Act, 1947.
2
[Link]
2
Public property can be divided into two main groups based on its physical nature,
immoveable property and moveable property. Immovable property includes Land and
Natural Resources (state-owned lands not under private title, and state forests),
Infrastructure (roads and bridges, stores, government buildings, parks, and stadiums),
and Public Utilities (water supply pipelines, and electrical transmission towers).
While moveable property includes Transportation and Machinery (buses, train, and
government-owned ships), Office and Operational Equipment (computers, furniture,
electrical cables, and technological tools), and Cultural and Historical Heritage
(artifacts, artworks, and state-owned treasures).3
The offences such as mischief and damage, criminal trespass, and illegal
occupation may commit upon immoveable property. On the movable property, theft,
misappropriation, breach of trust may commit.4
The offences against public property constitute a "prejudicial act" against the
Union. It means any willful negligence, mismanagement, or default by a person
entrusted with the custody or control of public property, which leads directly or
indirectly to its loss, damage, or destruction.5
The offenders who committed against public property are especially public
servants, an authorized contractor, or other persons. The legal consequences vary
based on their specific duty to the state. For a public servant, the offense is often
framed as a 'breach of fiduciary duty', as they have an inherent oath to protect the
resources they manage. An authorized person, such as a government contractor, faces
liability rooted in both criminal law and breach of contract often for fraud or
professional negligence. Meanwhile, other persons are typically held accountable for
physical acts like vandalism or theft.6
The legal framework of Myanmar, public property is granted a higher degree
of protection than private property. The Penal Code provides general definitions for
offences such as theft and misappropriation, criminal breach of trust and specialized
legislation provided for offences such as the Public Property Protection Act. The
specialized legislation imposes stricter enforcement measures and heavier penalties.
3
[Link]
4
[Link]
5
Section 2 (ii) (d) of the Public Property Protection Act, 1947.
6
[Link]
3
This is because the misappropriation or theft of public property not only harms
individuals but also poses a significant threat to national development and the
economic stability of the State.
1.2 Matters which Committed against Public Property
The matters which committed against public property are serious offences
which intended to cause ‘prejudicial act’ against the state. They are included
misappropriation of public property, theft of public property, mischief of public
property, and unauthorized possession of public property.
1.2.1 Misappropriation of Public Property
Misappropriation of public property refers to the act of dishonestly using or
converting state-owned assets for personal gain. It involves taking property out of the
government’s possession without consent and abusing public trust to divert assets for
personal use or other unauthorized purposes.
Misappropriation often begins with the offender having lawful possession or
control over the property, followed by a dishonest intent to misapply it. 7
Misappropriation means the application of other`s property or money dishonestly to
one`s own use.8
For example, A, being employed in the capacity of a clerk or servant at a
government office, is provided with specialized equipment for official duties. If A
afterwards takes that equipment for his own benefit without authority, he is guilty of
misappropriation of property.
There are three essential elements to constitute the offense of criminal
misappropriation include the property must be moveable (the offense specifically
targets assets like government funds, stores, or equipment), dishonest intention (there
must be an intention to cause wrongful gain to oneself or wrongful loss to the State),
and conversion for own use (the offender must convert the public property to their
own use or dispose of it in violation of legal directions).9
7
HarperCollins. (1992). Collins English Mini Dictionary. 1st edition. p.353.
8
Bryan A. Garner. (2000). Black's Law Dictionary. 7th edition. p.811.
9
[Link]
4
In the case of Maung Thaung Pe v. Union of Myanmar10, the appellant,
Maung Thaung Pe, was working as a shopkeeper at the Yenang Ma Public Shop under
the Trade Department of Min Hla Township. On 19 November 1964, Maung Thaung
Pe was transferred to Min Hla Township and had to hand over his duties to Maung
Wan Maung. When he was handed over, he sent to his home 30 flannel sheets, 240
cans of milk, 20 kg of rice and 4 pounds of sago seeds that were in excess. When the
inspection was carried out, it was found that 270 bags of Nga Sein rice and 51 bags of
Ziyar rice were missing. In this regard, Maung Thaung Pe was charged under Section
3 of the Public Property Protection Law, 1963, at the Thayet Township Second
Special Judge’s Office. The trial judge found that Maung Thaung Pe guilty under such
section and sentenced him to 10 years imprisonment with hard labor.
The court also held that "When a person who has been entrusted with the
custody of certain property is unable to produce a satisfactory account of said
property, or if the account presented is found to be untrustworthy or fraudulent, the
court may, under Section 114 of the Evidence Act, presume facts that are adverse to
that person's interest."
In the case of The Union of Myanmar v. Daw Nu Nu and two others 11, Daw
Nu Nu transferred and sold the electricity meter that she had been allowed to install in
her house to U Thein Tan for 25,000 kyats. It was found that electrical worker U San
Tun and deputy assistant engineer U Khin Lay Maung from the Township Electricity
Authority assisted in the transfer and installation. A complaint was filed against Daw
Nu Nu, U Khin Lay Maung, U San Tun and U Thein Tan under Section 6 (1) of the
Public Property Protection Act.
The court held that ‘‘It is certain that an electric meter is public property.
Therefore, moving and reinstalling an electric meter without authorization must be
scrutinized to determine if it constitutes an illegal misappropriation of public property.
By moving and installing the meter from one's own residence to another house, the
individual has wrongfully exercised their rights. Although the person claimed they
acted in good faith, they went as far as altering and falsifying official government
documents in order to obtain the right to move and install it. It is analyzed that this is
10
1969, B.L.R. (C.C.) p.48.
11
1993, B.L.R. p.77.
5
not merely a violation of departmental regulations, but also involves dishonest and
fraudulent actions". Therefore, the individual is held responsible for the offense. Then
Daw Nu Nu be convicted under Section 6(1) of the Public Property Protection Act,
and U Khin Lay Maung be convicted under Section 6(1) and Section 9 of the Public
Property Protection Act, sentencing each of them to serve six months of imprisonment
with hard labor’’.
To constitute of the criminal misappropriation of public property, it must be
dishonestly misappropriation and conversion to own use any moveable property. In
the cases, the offenders made by dishonestly misappropriation and conversion to their
own use the public property. So, these cases constituted of misappropriation. The gist
of the offence is dishonest intention.
1.2.2 Theft of Public Property
Theft of public property is a serious offense that involves the unauthorized
taking, use of assets belonging to a government entity. Theft of public property is a
serious issue that affects every citizen of the state.
Whoever intending to take dishonestly any moveable 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. 12 Theft is the dishonest appropriation of
property belonging to someone else with the intention of keeping it permanently.13
To constitute the theft of public property, the prosecution must typically
establish several elements, which often general theft requirements but are elevated
due to the nature of the owner that is the state or public. The essential elements to
constitute theft of public property include dishonest intention, moving movable
property, belonging to public entity, without consent and unlawful taking.14
In the case of U Thein Aye, U Kyi Soe v. The Union of Myanmar 15, the
original case stated that departmental property, specifically cold rolled steel sheets,
went missing from the Tire and Rubber Factory compound in Mayangone Township.
Investigations revealed that while the keys were entrusted to U Tun Aung, the
12
Section 378 of Penal Code, 1861
13
A.S. Hornby. (2005). Oxford Dictionary. 7th edition. p.359.
14
[Link]
15
2000, B.L.R. p.167.
6
property was removed in collaboration with U Kyi Soe and U Thein Win. Then the
Mayangone Police Station initiated legal action against seven defendants, including
the appellants U Kyi Soe and U Thein Aye, under Section 408 of the Penal Code.
Subsequently, after obtaining official sanction from the Ministry of Home Affairs, the
seven defendants, including U Tun Aung, were prosecuted under Section 3 of the
Public Property Protection law, [Link] appeal for U Thein Aye submitted that the
appellant was a departmental driver who transported the steel sheets during working
time only upon the summons and orders of his superior.
The court held that removing state-owned steel sheets valued at hundreds of
thousands from a warehouse and selling them externally constitutes the offense of
theft. The trial court’s decision to sentence each defendant to ten years of
imprisonment under Section 3 of the Public Property Protection Law contains no
irregularity or error in the application of the law.
Moreover, in the case of Maung Soe Thein and four others v. The Union of
Myanmar16, Maung Soe Thein and four other Appellants were found liable by the
Magistrate of Maubin for the theft and subsequent sale of paper belonging to the
Maubin Trade Office. Then the Magistrate imposed a fine of 150 Kyats each under
Section 6(1) of the Public Property Protection Act. The original trial court’s finding
that the appellant had committed an offence under Section 6(1) of the Public Property
Protection Act, 1947 was factually correct, but the imposition of a fine, not a prison
sentence, was not consistent with the offence under that section. The case was
remanded for review of the illegal sentence. The Bench that opened the revision case
observed that the offense under Section 6(1) of the Public Property Protection Act is
an offense punishable by imprisonment. Although the law mandates a compulsory
term of imprisonment and does not permit a fine as the sole penalty, the lower court
erred by imposing only a fine. While the finding of guilt regarding the commission of
the offense was found to be correct and sustainable, the Court held that the sentence
was improper. Therefore, the Court passed an order remanding the case for retrial to
ensure that a sentence in accordance with the law.
Thus, the unauthorized taking may constitute to the theft of public property.
And it is observed that offenses involving the theft of public property are treated with
16
1972, B.L.R. p.15.
7
significant action. Although a final judgment and sentence have already been passed,
the court decided retrial the case due to it is founded that a mere fine was insufficient.
This is because the subject matter involves public property.
1.2.3 Mischief of Public Property
Public property means property that belongs to the government and is used by
the public. It includes roads, bridges, schools, parks, government buildings, buses,
railways and streetlights. When someone destroys, damages, or changes public
property with bad intention, it is called mischief of public property.
Mischief is the injury or damage caused by a specific person or thing (the
vandals were convicted of criminal mischief).17 Mischief is the intentional damage to
property belonging to another person is an act comparable to vandalism.18
Whoever, with intent to cause, or knowing that he is likely to cause, wrongful
loss or damage to the public or to any person, causes the destruction of any property,
or any such change in any property pr in the situation there of as destroys or
diminishes in value or utility, or affects it injuriously, commits "mischief".19
Mischief to public property is the intentional or reckless destruction, damage
or defacement of assets owned by the government or local authorities. To prove an act
of mischief to public property, it requires willfull action or reckless behaviour that
causes damage to property belonging to the government or property used for public
services.20
In the case of Dr. Aye Zan, U Myint Thein and 1 other, U Kyaw Kyaw Soe (b)
U El Lin v. The Union of Myanmar 21, In February 1996, Dr. Aye Zan, of Kyaikto
Township, Mon State, paid U Myint Thein, the acting land registry officer of the
Kyaikto Township Land Registry Department, and U Kyaw Than, the land surveyor,
30,000 kyats to fraudulently obtain the right to cultivate (30.05) acres of land in the
state-owned eucalyptus plantation near Kin Moon Chaung Village, Kyaikto Township.
After that, with the help of his friend U Kyaw Kyaw Soe (b) U El Lin, he cut down
17
Bryan A. Garner. (2000). Black's Law Dictionary. 7th edition. p.811.
18
[Link]
19
Section 425 of Penal Code, 1861.
20
[Link]
21
1999, Criminal special appeal No.43,44,45. (Yangon).
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and destroyed state-owned eucalyptus trees worth 44,856 kyats. The investigation
revealed that Dr. Aye Zan, U Myint Thein, U Kyaw Than and U Kyaw Kyaw Soe (b)
U El Lin were charged under Section 3 of the Public Property Protection Law, 1963
and Section 109 of the Penal Code.
The court held that their actions did not violate Section 3 of the Public
Property Protection Law, 1963, but rather Section 6(1) of the Public Property
Protection Act. The appellants were sentenced to five (5) years imprisonment and
hard labour under Section 6(1) of the Public Property Protection Act, 1947.
Therefore, in the above case, to be guilty of an offence under Section 3 of the
Public Property Protection Law, the accused must have committed theft,
misappropriation, or fraud in relation to public property. Since the state-owned
eucalyptus plantation is an immovable property, the sentence was reduced from 10
years to 5 years because it was only a case of damage under Section 6(1) of the Public
Property Protection Act. However, since it was a case of mischief to public property, it
was the effective action.
In the case of Maung Aye Thaung v. The Union of Myanmar 22, the
applicant, Maung Aye Thaung, and his companion, Maung Than Lwin, were fighting
each other about 10 feet away from a public telephone booth in the northwest corner
of Bandula Park, Yangon. During the fight, whether by accident or on purpose, the
glass installed in the telephone booth was broken. Then Maung Aye Thaung and
Maung Than Lwin were charged under Section 6 (1) of the Public Property Protection
Act. The original judge was convicted of both defendants and fined 100 kyats each.
Unable to pay, he was sentenced to four months in prison with hard labour.
Dissatisfied with the order and the order, Maung Aye Thaung applied for the appeal.
The appeal court held that the applicant, Maung Aye Thaung was not intended
to commit mischief to public telephone under the evidence. Therefore, the trial judge
erred in finding that Maung Aye Thaung had committed damage to public property
and in finding him guilty under Section 6(1) of the Public Property Protection Act.
Therefore, the intent to cause mischief is important and to commit mischief
the defendant must have the intent to cause damage to the property.
22
1968, B.L.R. p.170.
9
1.2.4 Unauthorized Possession of Public Property
Unauthorized possession is the unlawful occupation, use, or holding of land,
buildings, or equipment belonging to the government without legal title, permission or
authority. It means a person has control over public property without lawful right. The
property can be any item or asset owned by the government such as money, vehicles,
equipment or other public goods.
Whoever is in possession of public property without authorization, or commits
theft, misappropriation, or mischief in relation to any public property, shall be deemed
to have committed an offense under Section 6(1) of the Public Property Protection
Act.23 In any prosecution under sub-section (1), the burden of proving that the
possession is authorized shall lie on the person in whose possession any such public
property is found.24
The essential elements of unauthorized possession of public property are the
property must belong to the public or the government, the person must have taken or
possessed it and the possession must be without legal authorization or consent.25
In the case of Aung Thu Ya v. The Union of Myanmar26, the appellant, Aung
Thu Ya, was stopped by authorities during a nighttime inspection at the entrance gate
of Paungde. Upon searching the vehicle he was driving, discovered that it was loaded
with illegal teak. According to the Public Property Protection Law, 1963 the timber is
legally classified as "public property.", Aung Thu Ya was charged with the theft and
misappropriation of public property under Section 3 of the Public Property Protection
Law, 1963, because he was the person driving the vehicle and actively transporting
teak without legal authorization. The defendant's defence that he was merely a hired
driver and was only performing a job for a transport fee.
The court decided that anyone who takes an active part in the illegal
transportation of public property is held responsible. The court emphasized that the
driver's intent or employment status does not provide an exemption from guilt. The
Supreme Court reviewed the case and upheld the original decision to sentence Aung
Thu Ya to 10 years in prison under Section 3 of the Public Property Protection Law,
23
Section 6 (1) of the Public Property Protection Act, 1947.
24
Section 6 (2) of the Public Property Protection Act, 1947.
25
[Link]
26
2002, Criminal special appeal No.2. (Yangon).
10
1963. The court’s reasoned that he was caught while driving the vehicle full of stolen
timber, there was clear, direct evidence of his involvement in the case.
In the case of The Union of Myanmar v. U San Win 27, The iron bars found
in the yard of U San Win’s house were iron bars issued by the department for the
construction of the Ayeyarwady Bridge (Yadanabon).The defendant U San Win’s
lawyer questioned the facts and stated that in 2004, U San Win’s house, which was
uninhabited, was moved to be used as a warehouse to prevent damage to property due
to the Ayeyarwady River flood and to facilitate the work. It was stated that he had
requested permission from his superiors to use his house as a warehouse, but the
plaintiff’s statements and evidence did not show this, so he was taken action to court
under section 6 (1) of the Public Property Protection Act, 1974.
Therefore, the unauthorized possession may constitute to the crime against the
state. If the offenders commit this act, they may be enforced under section 6 (1) of the
Public Property Protection Act, 1974 and section 3 of the Public Property Protection
Law, 1963 and the publishment is more than the general offences.
27
2010, Criminal special appeal No.14. (Mandalay).