Theft

CRIMINAL LAW NOTES BY TUAN SYAKEER BIN TUAN BESAR 2011/2012

TOPIC 10:

THEFT

(AN OFFENCE AGAINST PROPERTY)

1. Introduction to the Offence of Theft -the Offence of Theft is defined under s. 378 as;“Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking…”

-If someone is found to be with a property, he may be presumed to commit offences such as misappropriate/steal/receive a stolen property/cheat/theft/CBT (Criminal Breach of Trust) of the property-In courts, the PP has the choice to charge the Accused for all the offences/ some of the offences/ any one of the offences

-And even if the Accused has been charged for theft for example, they can be guilty of other offences against the property (based on the same facts) which he was not originally charged with.-refer to s. 72 if there is benefit, it is for the Accused where the judge will pick the lesser punishment which gives benefit to him

2. Elements to prove the Offence of Theft:

1) Intending to take dishonestly2) The subject matter must be a movable property3) Out of the possession of any person4) W/o consent of that person5) Moving out the property

-all of the above elements must be fulfilled before the Accused can be convicted for theft.


-2 Approaches of reading s. 378 to indicate the MR;

i. KL Koh & Clarkson: Read Element 1 (MR Intending to take dishonestly) only where Elements 2, ,3, 4, & 5 refer to the AR of the Accused

ii. Another Approach: The MR is from Element 1 to 4 & Element 5 is the AR

Comparison btw s. 378 of our PC & English Law under s. 1 of the Theft Act 1968

-According to English Law, the Accused must have the intention to permanently deprive the property-Our law does not underline such condition. It is sufficienty to move from the original position

3. Further Elaboration on the Elements of Theft

1) Intending to take dishonestly -What is dishonestly? -refer to s. 24 Does anything with the intention of causing wrongful gain to one person, or wrongful loss to another person, irrespective of whether the act causes actual wrongful loss or gain-must prove either wrongful gain/loss-nevertheless, most of the time both can be proven simultaneously

Problem: Whether bona fide claim of right can negative dishonest intention?- E.g. A borrowed money from B. A failed to pay so, B went to A’ house

to take A’s property as a security for the debt.

Cases:

PP v Ramaiah -Facts: the Complainant owed money to the Accused person in which he failed to pay. The Accused person’s friends had gone to the Complainant’s house & took a wooden chest for security of the payment of debt. The wooden chest was not opened at all & they only kept it. They were all charged for theft.


-The two friends raising the defence of mistake of fact believing the wooden chest to belong to the Accused person, while the Accused person argued that he had acted under a bona fide right.

HELD:-the court referred to s. 23 (wrongfully gains; a person retains/acquires wrongfully, wrongfully loses; a person is wrongfully kept out of any property/deprived of property) & s. 24 (dishonestly- causes wrongful loss/gain)of PC

Marikant Yadab -Facts: the petitioner removed a bullock from the informant because he owed him money.

HELD:-the petitioner had no dishonest intention therefore, he is not liable for theft. -bona fide claim of right is a defence. It negatives the dishonest intention on the part of the Accused person.

Lai Chang Ngiang -Facts: the Accused sold 4 kayus of cloth to the Complainant. The sale was on credit & the Complainant failed to pay. The Accused person went to the Complainant’s house to take back the 4 kayus, including one not belonging to him.

HELD:-the Accused was not liable for theft because the Accused person was of the mistaken belief that he was entitled to do so.-this case is criticized as in this case, it was a mistake of law as the Accused person thought that the law allowed him to do repossess the kayus which is not a defence, except when he did not have the means to gain knowledge of such prohibition (Koo Cheh Yew & Lim Chin Aik cases)-In brief, the decision is fair but not in accordance with the law


Sitabai Porshuttom -Facts: the Accused sold a boat to the Complainant which had been reduced the agreement into writing which says that, “the title is not passed to the buyer until fully paid & failure to do so, and the owner shall repossess the boat”. -The Accused asked his solicitor to write a letter of demand to the Complainant to pay the balance. But still the Complainant failed to pay. The Accused then, took back the boat.-the Accused person was charged for theft

HELD:-the Accused person is held not liable because when the repossessed the boat, he was exercising his right under the contract of agreement. -the Accused raised the defence of mistake & he acted with good faith. Therefore, it is his right since, he had provided the notice (took advice from lawyer to sent the letter of demand)

Munandu v PP -Facts: the Accused person had pleaded guilty to a charge of theft of a bicycle. He was partially intoxicated & when he wanted to go home, he took a bicycle not belonging to hm.

HELD:At 1 st Trial: -he pleaded guilty because he was told that it was a minor case & his job would not be affected & that he would receive a reprimand. However, he lost his job & his pension right.

On Appeal: -the Accused had been wrongly convicted. At the time he pleaded guilty, he did not know what he was pleading to. His guilty plea was unqualified, unconditional & unambiguous.-the Accused person was not liable because he did not have the dishonest intention.


R v Lim Soon Gong -Facts: the Accused was charged with committing theft of sand which belonged to the State government-Whether the sand was a movable property?

HELD:-sand is a movable property & the Accused was held not liable because he had no dishonest intention.

2) SM is a movable property -What is a “movable property”?-“…Any corporeal property of every description, except land & things attached to

the earth/permanently fastened to anything which is attached to the earth.”-Corporeal Something that can be moved/ a real object/ has existence/ forms/ not tangible-Exp. 1 to s. 378; Land Not a theft if involves anything attached to the land (immovable), unless it is severed -Exp. 2 to s. 378 A moving, effected by the same act which affects the severance is a theft

Cases:

Afta Singh (India)

-the Accused committed theft of electricity & was charged under the Electricity Act.

Talha

-the Accused committed theft of latex (in the bulk of rubber tree), once taken away (process of severance), it became a theft.

Issue: Duration of taking?

– Duration is irrelevant (temporary/permanent taking)

Ward v PP -Principle: the duration of taking is irrelevant.

Pyarelal v State of Rajasthan AIR


-Facts: the Accused was a clerk working at a government department & had taken home the file of tender to show it to a 3rd party. He was charged for theft.-The Accused argued that it was only taken for a short period thus, he should not be liable for theft.

HELD:-the Accused person was held liable for taking away the file as he had deprived the employer’s right to that property (file- government tender)

Mehra v State of Rajasthan AIR -Facts: the Accused was charged for theft of an aeroplane. He was a cadet to a Royal Airforce in India. One day, he went to the airport with a friend who had been dismissed earlier on to take a plane which had never been used in training to fly to Pakistan which in fact, they fled.

HELD:-the Accused had the dishonest intention & caused wrongful loss to the employer.-the size of the SM does not matter so long as it can be taken away by any means whatsoever.

3) Out of possession of any person -S. 378 is an offence of theft against possession rather than ownership-does not need to prove the person is the owner of the property-SEE Illustrations (d) – a servant took plate from Z to take care of the plate, (n) – the wife gave charity to A belonging to H (o) – paramour (j) – the owner can be liable for theft to deprive the Complainant of what he is entitled to (k) – similar to (j)Illustrations (j) & (k) are when the owner took back the property pawned/for repair purposes without paying

-If Illustration (d) where a person in possession, how can he be liable for theft? And similarly in Illustration (o) where A wife gave property of her husband to her lover which was in her possession – Based on these illustrations, can a person be liable for theft if he/she had the property in possession? (


-the Answer lies in s. 27 of PC which is a deeming provision: Property in possession of wife/clerk/servant to be in possession of the

husband/employer/master The property is deemed to be in the husband/employer/master’s

possession The wife/clerk/servant only had the de facto/mere physical possession The husband/employer/master had the de jure/real possession/possession

in law possession though he was not present If the husband gave the possession of the wife’s ring to his gf. According to s. 27, shows the clear intention of the legislation that says

about about “wife” & not “spouse”, not the husband which is rather sexist, & should be amended.

Pyarelal v State of Rajasthan -the clerk only had the de facto possession while the actual or de jure possession of the tender is in the hands of the government. Therefore, he was liable for theft.

-the Accused must be conscious of the possession of the property which must be proven by him.

PP v Hong Ah Huat -“the word possession implies a physical capacity to deal with a thing as we like to the exclusion of everyone & a determination to exercise that

physical power on one’s own behalf. It implies dominion & consciousness in the mind of the person having dominion over the object. Possession must be conscious & intelligent possession & not merely the physical presence of the Accused in proximity or even in close proximity

to the object.”-when someone has the right to a property over any other person, the possession must be one of conscious & intelligent (aware)

-Possession offences Firearms & drugs; Illustrations (f) to (h)-What if the property is abandoned? A Q of fact.

4) W/o consent of that person in possession -if there is consent, the Accused person is not liable


-if thought that there is consent, the Accused person is not liable.-Illustration (m) of s. 378 – borrowing book to merely read with intention to return the book from Z’s library (not a theft).-where there is consent for the taking, the AR of theft is not committed.-And the consent may be express/implied.

Case:

Mehra v State of Rajasthan AIR -Facts: Even though the plane was never been used for practice, but the person in possession does not give his consent-when the authority found out that the plane was not at the base, they called the Accused through the radio & the Accused already fled to Pakistan-It showed that the Complainant did not consent to such taking as they reported the matter to the authority

HELD:-the Accused was held liable since he had the dishonest intention & had caused wrongful gain of the aeroplane & caused wrongful loss of the owner of the aeroplane.

5) Moving out property by that person


-Illustration (h)- the Accused hid the ring found at the table so the owner forgets about it then, he may be able to sell it

Case:

Raja Mohamad -Facts: the Accused was a chemical mixer in a glass factory. He moved 2000 glasses from 1 floor to another. -He argued that he did not take out the property.

HELD:-he already committed theft the moment he moved the glasses from one place to another. -it showed the dishonest intention on the part of the Accused person & plus for the fact that his job was not moving the glasses-the Accused was held liable for the theft of the glasses.