Francis s/o Kitana v. R., Crim. App. 918-M-66, 31/3/67, Platt, J.

Francis s/o Kitana v. R., Crim. App. 918-M-66, 31/3/67, Platt, J.

Accused, a teacher in a secondary school, was convicted of stealing and theft by public servant. (P.C. ss. 265, 270.) Under the authorized procedure for paying school fees, the students were to pay the fees directly to the appropriate government officials, and accused was merely to record their receipt in the school register. However there was evidence that, contrary to this procedure, accused himself had received fees from the students and had failed to account for them.

            Held: (1) Accused was acting as the agent of the students in receiving the fees and not as the agent of the government officials. He had not duty or authority to collect the fees and, therefore, did not receive the money by virtue of his employment. The conviction of theft by public servant was quashed. (2) Accused could have been charged with theft by agent contrary to section 273 (b) of the Penal Code. However, a conviction under this section cannot be substituted on appeal because it is not a lesser offence included within the offence of theft by public servant.