Goods Given to Sell on the Owner's Account: Misappropriation, Not a Civil Debt คำพิพากษาฎีกาที่ 4181/2542: มอบสินค้าให้ไปจำหน่ายแทนเจ้าของ เบียดบังเป็นยักยอก ไม่ใช่หนี้ทางแพ่ง

SUPREME COURT DECISION No. 4181/2542
Year: 1999 (B.E. 2542)
Relevant Code Sections: Criminal Code, Section 352 paragraph 1

SUMMARY
The defendant took 28 items of the employer's stock to sell to customers, then pawned and sold them for himself. He argued that he was paid only by commission and so was not an employee, and that his failure to account was at most a civil breach of contract. The Supreme Court rejected both arguments and affirmed the conviction for misappropriation under Section 352 paragraph 1. The trial court imposed 3 years, reduced by a third to 2 years, with restitution of 240,347 baht, and the Court of Appeal Region 1 and the Supreme Court both affirmed.

FACTS OF THE CASE
The defendant took 28 items of the employer's stock to sell to customers and hand over the proceeds. Instead he pawned some of the goods and sold others outright, keeping the money.

COURT'S HOLDING
Where an employer hands goods to a person to sell on the employer's account, that person is in possession of the employer's property, and dishonestly converting it is misappropriation under Penal Code Section 352 paragraph 1. Whether that person is an employee in the civil law sense is immaterial: the offence turns on possession and dishonest conversion, not on the form of the working relationship. Nor is the conduct a mere civil breach. The goods were entrusted for sale on the employer's behalf, not sold to the defendant on credit, so ownership never passed to him and failing to hand over the proceeds is not simply non payment of a debt.

LEGAL ANALYSIS
The case is useful for two boundary questions rather than for anything about the timing of intent.

The first is the irrelevance of employment status. The defendant's argument was that commission only remuneration meant he was not an employee under the Civil and Commercial Code. The Court did not resolve that question because it did not need to: possession of another's property plus dishonest conversion completes the offence in Section 352 paragraph 1 whatever the label on the relationship.

The second is the line between crime and civil debt, which is the argument that matters commercially. If goods are sold to a distributor on credit, ownership passes and a failure to pay is a civil claim. If goods are handed over to be sold on the owner's account, ownership stays with the owner, the holder is in possession of another's property, and conversion is criminal. The finding that the employer had given the goods to the defendant to sell to customers, and had not sold them to him, is what put the case on the criminal side of that line.

PRACTICAL NOTE
The document that decides whether this is a crime or a debt is the one that says what the goods were handed over for. Goods released to an agent to sell on the owner's account stay the owner's property, so converting them is misappropriation under Section 352 paragraph 1. Goods sold to a dealer on credit belong to the dealer, and non payment is a civil claim and nothing more. Write the arrangement down in those terms before stock leaves your warehouse. Note too that the label on the relationship does not help: arguing that a commission only salesperson is not an employee changes nothing, because the offense turns on possession and dishonest conversion.