Repaying after charges does not undo misappropriation

In Il-Pulizija vs B.J., the Court of Criminal Appeal (Inferior Jurisdiction) on 23 July 2026 dismissed an appeal by a public officer convicted of misappropriation, fraud and forgery over payments meant for a building contractor. Madam Justice Consuelo Scerri Herrera held that the evidence supported the findings of guilt. She also held that a 39-month prison term was neither wrong in principle nor manifestly excessive.

The facts

The owners of a construction project appointed B.J. to supervise it and to act as the link with the contractor. He passed the contractor's bills to the owners and received their payments to hand on. The contractor and the owners each complained to the police that some payments never reached the contractor.

The contractor also said that cheques drawn on his account carried a signature that was not his. On 15 January 2024 the Court of Magistrates (Malta), sitting as a Court of Criminal Judicature, convicted B.J. on five of seven charges. It jailed him for 39 months, ordered him to pay €1,172.64 in expert costs and imposed perpetual general interdiction under articles 10 and 190 of the Criminal Code (Chapter 9 of the Laws of Malta).

What the court held

B.J. argued that the prosecution had not proved an intention to make a gain. He submitted that the contractor had allowed him to fill in cheques and issue invoices, that he held back VAT because of a dispute, and that he had paid everything back. The court rejected each point.

On forgery, the court relied on the court-appointed handwriting expert. The expert found that the signature and writing on six cheques payable to B.J., worth €8,980 in all, matched B.J.'s handwriting and not the contractor's. The court found that no one else could have forged them and that B.J. was guilty under article 187, which punishes forgery of a private writing.

It agreed with the first court on fraud under article 308. B.J. produced no power of attorney to show he could sign for the contractor, and holding the contractor's logo did not entitle him to issue invoices in the contractor's name. Two witnesses confirmed that B.J. was a public officer when the offences took place.

On misappropriation, the court applied articles 293 and 294. Cheques drawn in B.J.'s name on his own instructions came to €18,307, including €7,258 in VAT. His explanations shifted.

In his police statement he said the owners were unhappy with the works. At trial he called the money an advance payment, a version the court noted he raised for the first time on the witness stand.

The court believed the owner and the contractor, who both denied any complaint about the works. Repayment did not help him: “Il-flus ġew imroddijin lura biss wara li nfetħu dawn il-proċeduri.” (The money was returned only after these proceedings were opened.)

On sentence, the court held that it changes a first court's penalty only if the penalty is wrong in principle or manifestly excessive: “Din il-Qorti ma tinterferix ma pieni li ma jkunux jidhru li huma żbaljati fil-prinċipju, għalkemm ikunu jidhru li huma pieni ħorox għal xi Ġudikanti.” (This court does not interfere with penalties that do not appear wrong in principle, even if some judges would find them harsh.) The appeal application had described B.J. as a man with a clean record.

The court found he had earlier convictions, including one for fraud, and called the claim an attempt to mislead it. It held that the sum involved, about €20,000, was not small, and that his government post carried great responsibility. The first court had already weighed the repayment, and the victims remained hurt.

Why it matters

Defence lawyers should check the criminal record before telling an appeal court that a client is a first offender, because the court treated a wrong claim as an attempt to mislead it. A person who says he was allowed to sign for someone else needs proof of that authority, such as a power of attorney. Repayment made only after proceedings begin is weighed at sentence but does not answer the charge.

Where it sits

The judgment applies the classic line between misappropriation and fraud. For misappropriation, the court held that the key element is not deceit used to obtain the thing but the reversal of the title under which the accused holds what the owner handed over freely.

For fraud, it relied on the Court of Criminal Appeal (30 December 2004), which adopted the Court of Criminal Appeal (12 February 1999): there must be deceit that leads the victim to act to his loss, with a gain to the accused.

On sentence appeals, the court followed the Court of Criminal Appeal (Superior Jurisdiction) (25 August 2005), the Court of Criminal Appeal (Superior Jurisdiction) (15 December 2005) and the Court of Criminal Appeal sitting as a bench of three (26 February 2009).

It distinguished the Court of Criminal Appeal (14 May 2020), where the appellant had admitted the charges and had a clean record, and cited the Court of Criminal Appeal (29 October 2025) for the view that comparisons between cases are odious.

Source

Court of Criminal Appeal (Inferior Jurisdiction), 60/2021/1, 23 July 2026: 60/2021/1