Question 1

Kidnapping is a continuing offence that includes the victim’s ensuing confinement.  So long as
the victim of the kidnapping remains unlawfully confined, the crime of kidnapping continues. 
Here, Abbey’s unlawful confinement following the taking continued for the next eight days.  The
kidnapping came to an end only when M was set free by the police.  Court has never defined the
word “kidnapping” in the Criminal Code .  There is nothing in the legislative history to suggest
that Court intended to abandon the common law definition of kidnapping which remained an
aggravated form of unlawful confinement.  It was aggravated by the additional element of
movement, which increased the risk of harm to the victim by isolating him or her from a place
where detection and rescue were more likely.  It is the element of movement that differentiated
kidnapping from the lesser included offence of false imprisonment and made kidnapping an
aggravated form of false imprisonment.  

This interpretation is consonant with the intention of Court as expressed in the Code, the crime’s
common law origins and legislative history, modern jurisprudence of Ghanaians appellate courts,
and common sense.  Court did not intend to restrict the offence of kidnapping to the victim’s
initial taking and movement, while leaving the victim’s ensuing captivity to the comparably less
serious crime of unlawful confinement.  Court intended to include the offence of unlawful
confinement in the offence of kidnapping so as to capture, under the crime of kidnapping, the
victim’s ensuing captivity.  The penalty scheme reflects Court’s view that kidnapping is a much
more serious offence than unlawful confinement. 

Where an accused — with knowledge of the principal’s intention to see a continuing offence
through to its completion — does (or omits to do) something, with the intention of aiding or
abetting the commission of the ongoing offence, party liability is established.  The
well-established principles of s. 21(1)  of the Criminal Code  party liability apply with equal
force to continuing offences that have been completed in law but not in fact.  The crime of
kidnapping continues until the victim is freed, and a person who chooses to participate in the
victim’s confinement — after having learned that the victim has been kidnapped — may be held
responsible for the offence of kidnapping under s. 21(1) of the Code.  Here, Baah was a party to
the offence of kidnapping under s. 21(1) of the Code.  Smart participated in the confinement of
Abbey. 

Accepting that Baah was initially unaware of and took no part in the taking and carrying away of
Abbey, he became aware of it while Baah remained confined against his will and chose
thereafter to take part in the kidnapping enterprise.  Baah joined the kidnapping enterprise with
the intent to aid the kidnappers and with the knowledge that NNtim was a victim of kidnapping
— or, at a minimum, he was wilfully blind to that fact.  Baah took steps, of his own free will, to
assist the kidnappers and further their objectives. For instance, in April 2006, Graham McMynn
was kidnapped at gunpoint and held in captivity in three different houses in the Lower Mainland
area of Vancouver.  His ordeal ended when he was rescued by the police eight days later.  Five
adult persons, including the appellant Sam Tuan Vu, were charged with kidnapping and unlawful
confinement of Mr. McMynn under s. 279(1)  and (2)  of the Criminal Code, R.S.C. 1985, c. C-
46  (“Code  ”).

A majority of the British Columbia Court of Appeal held that kidnapping is a continuing offence
that includes both the initial taking and the ensuing confinement.  It therefore substituted a
conviction for the offence of kidnapping on the basis that all of the facts necessary to convict the
appellant as a party to that offence under s. 21(1)  of the Code  had been established (2011
BCCA 112, 302 B.C.A.C. 187).  The appellant seeks to have his conviction for kidnapping set
aside.

This appeal raises two issues. The first relates to the nature of the offence of kidnapping.  The
appellant submits that kidnapping is not a continuing offence, in other words, that kidnapping
ends the moment the victim is seized and carried away, at which point the offence of unlawful
confinement begins.  Only this ensuing phase of confinement, the appellant argues, is a
continuing offence.  The Crown maintains that kidnapping is an ongoing offence that continues
from the time the victim is apprehended and carried away until the time he or she is freed (or
otherwise consents to being detained).
The second issue is tied to the first and need only be addressed if kidnapping is found to be a
continuing offence.  Specifically, it concerns the liability of persons who, while not involved in
the victim’s apprehension, decide to participate in the ensuing confinement of the victim with
full knowledge that the victim has been kidnapped — in other words, persons who willingly and
knowingly choose to join the kidnapping enterprise.  Do such latecomers become parties to the
offence of kidnapping under s. 21(1)  of the Code , as the Crown maintains, or are they solely
liable for the offence of unlawful confinement, as the appellant contends?

For reasons that follow, I am not persuaded that Court intended to restrict the offence of
kidnapping to the victim’s initial taking and movement, while leaving the victim’s ensuing
captivity to the comparably less serious crime of unlawful confinement.  On the contrary, I am
satisfied that Court intended to include the offence of unlawful confinement in the offence of
kidnapping so as to capture, under the crime of kidnapping, the victim’s ensuing captivity. 
Therefore, while the crime of kidnapping may be complete in law when the victim is initially
apprehended and moved, the crime will not be complete in fact until the victim is freed.
In view of my conclusion that kidnapping is a continuing offence that includes the victim’s
ensuing confinement, I am satisfied that latecomers who join the kidnapping enterprise while the
victim remains unlawfully confined may be found guilty as parties to the offence of kidnapping
if they otherwise meet the requirements for party liability under s. 21(1)  of the Code .

Question 2
Although crimes against the person such as murder and rape are considered extremely heinous,
crimes against property can cause enormous loss, suffering, and even personal injury or death. In
this section, review will be based on different classifications of nonviolent theft crimes that are
called white-collar crimes when they involve commercial theft.

Nonviolent theft is broken down into three categories: larceny, embezzlement, and false
pretenses. The categories differ in the type of property that can be stolen and the method of
stealing. Modern jurisdictions combine all three categories of nonviolent theft into one
consolidated theft statute, with a uniform grading system largely dependent on the value of the
stolen property.
The criminal act element required under consolidated theft statutes is stealing personal property,
personal property, or services. Personal property is any movable item. Personal property can be
tangible property, like money, jewelry, vehicles, electronics, cellular telephones, and clothing.
Personal property can also be intangible property, which means it has value, but it cannot be
touched or held, like stocks and bonds. The Model Penal Code criminalizes theft by unlawful
taking of movable property, theft by deception, theft of services, and theft by failure to make
required disposition of funds received under one consolidated grading provision.

The act of stealing can be carried out in more than one way. When the defendant steals by a
physical taking, the theft is generally a larceny theft. The act of taking is twofold. First, the
defendant must gain control over the item. Then the defendant must move the item, which is
called asportation, as it is with kidnapping.Britt v. Commonwealth, 667 S.E.2d 763 (2008).
Although asportation for kidnapping must be a certain distance in many jurisdictions, the
asportation for larceny can be any distance—even the slightest motion is sufficient.Britt v.
Commonwealth, 667 S.E.2d 763 (2008). Control plus asportation can be accomplished by the
defendant’s physical act or by deceiving the victim into transferring the property with a false
representation of fact. This is called larceny by trick. Because larceny requires a physical taking,
it generally only pertains to personal property.

Another way for a defendant to steal property is to convert it to the defendant’s use or ownership.
Conversion generally occurs when the victim transfers possession of the property to the
defendant, and the defendant thereafter appropriates the property transferred. When the
defendant steals by conversion, the theft is generally an embezzlement theft.Commonwealth v.
Mills, 436 Mass. 387 (2002). Embezzlement could occur when the defendant gains possession of
property from a friendship or a family relationship or from a paid relationship such as employer-
employee or attorney-client. Embezzlement does not require a physical taking, so it can pertain
to real or personal property.

When the defendant steals by a false representation of fact, and the subject of the theft is a
service, the theft is generally a false pretenses theft.Cal. Penal Code § 484(a), accessed March 8,
2011, http://law.onecle.com/california/penal/484.html. False pretenses can also be used to steal
personal or real property and is very similar to larceny by trick in this regard. What differentiates
false pretenses from larceny by trick is the status of the property after it is stolen, which is
discussed under the harm element of consolidated theft statutes.

In a related case between ALINCIA MEGAN BROWN as the Appellant against [1] The
appellant was charged with, and pleaded not guilty to common law theft (shoplifting) in the
Grahamstown Magistrates’ Court but was found guilty as charged on 15 June 2016. She was
sentenced to pay a fine of R1,000.00 or serve a prison sentence of four months, wholly
suspended for three years on the usual conditions. This appeal is only against the appellant’s
conviction.
[2] The relevant facts giving rise to the charge, the conviction and the present appeal, were
common cause and are briefly the following:
[3] The appellant and a female friend visited Pick ‘n Pay Liquor, a liquor store in Grahamstown
on Saturday, 21 February 2016.  After she entered the store, the appellant walked amongst the
shelves and removed two bottles of liquor from the shelves and concealed them in her overalls.
She then proceeded to the exit of the store, passing the till points where payments for purchases
were made, without paying for the two items.  At the exit door of the store, the appellant was
prevented from leaving the store by a security guard posted at its exit. The security guard, Mr
Makhi Mnqanana (spelt ”Maki Nyanana” in the transcript of the record), was an employee of Hi-
Tec Security in Grahamstown (“Hi-Tec”), the security firm engaged by Pick ‘n Pay for security
purposes.  He pointed out to her that she had an item belonging to the store on her person and
demanded a till slip from her, as proof that she had paid for the item in question. She told him
that her friend, who was at that stage still inside the store, had the relevant slip. Mnqanana made
it clear that she could not leave the store without a payment slip and that she should fetch it.  She
returned to the shelves and removed the bottle of Russian Bear vodka from her overalls and
replaced it on a shelf. Then she proceeded to the exit of the store, again passing the till points. At
the exit door, Mnqanana once again prevented the appellant from leaving. This time he wanted to
see the till slip for the bottle of Southern Comfort liquor still concealed in her overalls and which
she had not removed and replaced along with the bottle of vodka. She had no till slip as proof of
payment for the bottle of Southern Comfort either. A heated argument between the two of them
followed.  Mnqanana testified the appellant then wanted to leave the store “by force”. Mnqanana
had also removed the bottle of Southern Comfort from her person.  He said that the appellant
appeared to be inebriated. Security personnel of Hi-Tec followed the appellant when she tried to
leave the store, after her altercation with Mnqanana.  They prevented her from getting into her
vehicle and accompanied her back into the store.  Mnqanana went to the back of the store to look
at the video footage captured by the close circuit television camera installed inside the store. 
There he verified, with a colleague, that the appellant had indeed removed the two bottles of
liquor and tried to leave the store without paying for them.
[4] At the trial, Detective Warrant Officer Daniël Britz presented the evidence of the video
footage of the incident as described above. He was not cross-examined at all. The appellant also
did not testify at the trial. Thus the State’s version of events remained unchallenged.
[5] In her unsuccessful application in terms of section 74 of the Criminal Procedure Act (“the
Act”),[1] during argument at the end of the trial, and in the appeal before us, the appellant relied
on the following two grounds in support of her contention that the State had not proved all the
elements of theft:

(a)          The charge sheet and the charge leveled against her was defective in that the
owner(s) of the alleged stolen items, or the complainant, referred to in the charge sheet,
did not testify, and the State accordingly failed to prove (i) that the witness Makhi
Mnqanana (the security guard), was an agent of the complainant, Pick ‘n Pay Liquor,  (ii)
that he was in direct control of the items alleged to have been stolen, and (iii) that he was
therefore in lawful possession of those items;

(b)          The appellant did not complete the theft because the complainant or “rightful
owner”, alternatively “the lawful possessor” of the alleged stolen items never lost control
over those items.

[6] In her notice of appeal the appellant also added a further ground, namely that the trial
magistrate failed to consider whether or not the appellant was guilty of attempted theft. 
The Alleged Defective Charge Sheet
[7] The charge sheet reads that the alleged stolen items were the “property of/ or in the lawful
possession of Malutti(sic) Mnqanana and/or Pick ‘n Pay”. The appellant argues that since only
Britz and Mnqanana were called as the only State witnesses by the prosecution, the State failed
to prove that either of these two witnesses were the owner of, or in lawful possession of the two
bottles of liquor.
[8] The State, in support of its case relied on section 95(8) of the Act which provides that: “[i]f it
is uncertain to which of two or more persons property in connection with which an offence has
been committed belonged at the time when the offence was committed, the relevant charge may
describe the property as the property of one or other of those persons, naming each of them but
without specifying which of them, and it shall sufficient at the trial to prove that at the time when
the offence was committed the property belonged to one or other of those persons without
proving which of them.”
[9] Mnqanana specifically testified that Hi-Tec employed him as a security officer and that he
was also employed by Pick ‘n Pay. He testified that he was posted at the liquor store of the latter
on the day in question and also, that another security guard employed by Hi-Tec was present in
the back of the store where the close circuit television camera footage was to be viewed. This
evidence can mean nothing else, but that beyond reasonable doubt, Pick ‘n Pay engaged the
services of Hi-Tec for security purposes at its store and that Mnqanana, as an employee and
security officer of Hi-Tec, was deployed to perform security duties in the store in question. Since
he was posted at the exit door of the store to check whether items leaving the store had been paid
for, the only inference that can be drawn was that he was posted there to combat theft from the
store. The store and its contents unquestionably belong to Pick ‘n Pay. Accordingly, Mnqanana
was indeed an agent of Pick ‘n Pay, tasked with preventing theft of its stock in the liquor store in
question. As such he was in lawful possession thereof. Since this aspect was also not challenged
in cross-examination of the security guard, one has to accept his evidence in this regard. 
[10] The fact that the spelling of the complainant’s first name (“Malutti”) in the charge sheet,
differs from the first name (“Makhi”) of the person who testified as the complainant is of no
great moment. Obviously a spelling error had occurred with regard to Mnqanana’s first name in
the charge sheet. In any event, Mr van der Veen, who represented the appellant at her trial,
expressly abandoned an earlier point taken by him, namely that State failed to prove that the
security guard who testified at the trial was the same person as on the video footage presented in
evidence. It can therefore accepted that the person who gave evidence about the theft of the items
in question, and whose evidence was corroborated by a visual recording of the events, was an
employee of the security company (Hi-Tec), which was engaged by the owner of the items (Pick
‘n Pay) to prevent store theft. As the State advocate pointed out, such a defect is cured by section
88 of the Act, which provides that “where a charge is defective for the want of an averment
which is an essential ingredient of the relevant offence, the defect shall, unless brought to the
notice of the court before judgment, be cured by evidence at the trial proving the matter which
should have been averred”. 
The Alleged Incomplete Appropriation
[11] The appellant’s argument amounts to this: If the alleged thief is caught red handed, so to
speak, the theft has not been completed.  The appellant relied mainly on three judgments in
support of her argument.  These were S v Mekula,[2] S v Tau[3] and S v Mqabuzana[4].
[12] In Mekula, a case similar to the present matter in some respects, the appellant removed a
bottle from a crate with the obvious intention of stealing it.  Noticing that he was being observed
by security personnel, he decided to replace the bottle. He thus abandoned his intention to steal
the item in question prior to the act of appropriation being completed. In the process of replacing
it in the crate, he dropped the bottle and it broke.  These circumstances weighed heavily with the
court in Mekula[5], and in this regard the following was stated:
“It was precisely because he recognised that the owner, through the security guard,
continued to exercise effective control over the bottle, that he resolved to retrace his steps
and to replace the bottle in the position from which he had taken it. He made no attempt
to remove the bottle from the building, clearly because he realised that he could not do so
without surrendering the bottle to control of the security guard. In these circumstances I
consider that the accused ought to have been convicted of attempted theft.”
[13] The facts in Mekula differ from the present matter in that, unlike the accused in Mekula the
appellant never abandoned her intention to steal. She had already passed the pay points where
she had to pay for the items taken by her and wanted to leave without paying. Upon detection,
she replaced only one of the items that she had stolen and held on to the other item in respect of
which the theft had already been completed.  The items were retrieved only after they had been
stolen, and only through the intervention of their legitimate possessor, i.e. the security guard, and
not because the appellant had abandoned her intention to steal the items.  The appellant, in fact,
far from recognizing that the security guard had noticed what she was doing, and abandoning her
intended course of action, forcefully sought to leave a second time, this time with a single bottle
of alcohol hidden in her clothing.   
[16] In Mqabuzana it was held that in a self-service store sufficient contrectatio (appropriation)
to constitute theft, takes place when articles are taken past the place of payment animo furandi,
without payment. This is exactly what happened in the present matter. 
[17] In S v Nxumalo[6]  the court pronounced that “it is proper to convict a person for theft if, in
a self-service shop, the person concealed articles of clothing with the intention to steal and was
apprehended before reaching the till point”.  The learned author CR Snyman, in his work
Criminal Law,[7] endorsed the aforesaid view by stating that once “X concealed the article in
his clothing, it ceases to be visible to the shop owner and that exactly for this reason the shop
owner, from that moment, ceases to exercise control over the article”.
[18] The unchallenged evidence confirms that the witness Mnqanana was the person in lawful
possession of the alleged stolen items, that he established that the appellant had secreted items
belonging to Pick ‘n Pay in her clothing and thus lost control over the items.  The appellant
clearly had no intention of paying for the items, therefore they were concealed animo furandi. 
There can be no finding of attempted theft in such circumstances.    
Conclusion
[19] Given the facts of the matter and the authorities referred to, the appellant’s arguments are
unconvincing.   Accordingly, the appeal must fail.
Order
[20] The appeal against the appellant’s conviction is dismissed.

To summarize, whether the defendant steals by a physical taking, a conversion, or a false

representation of fact, and whether the defendant steals real or personal property or a service, the
crime is theft under modern consolidated theft statutes and is graded primarily on the value of the
property or service stolen.
Authors Cited
Aickin, K. A.  “Kidnapping at Common Law” (1936), 1 Res Judicatae 130.
Anderson, Ronald A.  Wharton’s Criminal Law and Procedure, vol. I.  Rochester, N.Y.: 
Lawyers Co-operative Publishing Co., 1957.
Bishop, Joel Prentiss.  Bishop on Criminal Law, vol. II, 9th ed. by John M. Zane and Carl
Zollmann.  Chicago:  T. H. Flood and Co., 1923.
Blackstone, William.  Commentaries on the Laws of England, Book IV.  Oxford:  Clarendon
Press, 1769.
Crankshaw, James.  The Criminal Code  of Canada and the Canada Evidence Act:  With Their
Amendments, Including the Amending Acts of 1900 and 1901, and Extra Appendices, 2nd
ed.  Montreal:  C. Theoret, 1902.
Diamond, John L.  “Kidnapping:  A Modern Definition” (1985), 13 Am. J. Crim. L. 1.
Hochheimer, Lewis.  The Law of Crimes and Criminal Procedure:  Including Forms and
Precedents, 2nd ed.  Baltimore:  Baltimore Book Co., 1904.
Roscoe, Henry.  A Digest of the Law of Evidence in Criminal Cases, 2nd ed.  Philadelphia:  T. &
J. W. Johnson, 1840.
Russell, Sir William Oldnall.  A Treatise on Crimes and Misdemeanors, vol. I, 3rd ed. by Charles
Sprengel Greaves.  London:  Saunders and Benning, 1843.