409.—(1) Whoever, being in any manner entrusted with property, or with any dominion over property —| (a) | in his capacity as a public servant; | | (b) | in the way of his trade, profession or business as a banker, a merchant, a factor, a broker, an attorney or an agent; | | (c) | in his professional capacity (other than by way of a trade, profession or business mentioned in paragraph (b)); | | (d) | in his capacity as a director of a corporation; | | (e) | in his capacity as an officer of an unincorporated association; | | (f) | in his capacity as a partner in a partnership; | | (g) | in his capacity as a key executive of a corporation, an unincorporated association or a partnership; or | | (h) | in his capacity as a fiduciary, |
| commits criminal breach of trust in respect of that property, shall be punished with imprisonment for a term which may extend to 20 years, and shall also be liable to fine. |
[15/2019] (2) In this section —“director” includes —| (a) | any person occupying the position of director of a corporation by whatever name called, and includes a person in accordance with whose directions or instructions the directors or the majority of the directors of a corporation are accustomed to act, and an alternate or substitute director; or | | (b) | a member of a corporation in the case where the affairs of the corporation are managed by its members, and includes a person in accordance with whose directions or instructions the members or the majority of the members of such corporation are accustomed to act, and an alternate or substitute member; |
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| “fiduciary” means a person who has undertaken to act for or on behalf of another person in a matter in circumstances which give rise to a relationship of trust, confidence and loyalty, and includes but is not limited to an executor, an administrator, a liquidator, a receiver and a trustee (other than the trustee of an implied, a constructive or a resulting trust); |
| “key executive” means a person who, whether or not an employee of the corporation, unincorporated association or partnership, and whether acting alone or together with any other person, has general control and management of the administration of that corporation, unincorporated association or partnership; |
“officer”, in relation to an unincorporated association (other than a partnership), means the president, the secretary or any member of the committee of the unincorporated association, and includes —| (a) | any person holding a position analogous to that of president, secretary or member of a committee of the unincorporated association; | | (b) | a person in accordance with whose directions or instructions the president, secretary or member of a committee of the unincorporated association or a majority of such persons are accustomed to act; and | | (c) | any person purporting to act in any such capacity; |
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| “partner” includes a person purporting to act as a partner; |
| “partnership” includes a limited partnership and a limited liability partnership within the meaning of section 2(1) of the Limited Liability Partnerships Act 2005. [15/2019] |
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(3) For the purposes of this section and to avoid doubt —| (a) | a person may be a director of a corporation, officer of an unincorporated association, partner in a partnership, key executive of a corporation, unincorporated association or partnership even though that person does not receive any salary or other remuneration from that corporation, unincorporated association or partnership, as the case may be; and | | (b) | a person may be a fiduciary even though it is stated in a contract or an agreement between the parties that a fiduciary relationship does not arise. [15/2019] |
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