CRIMINAL LAW TUTORIAL 5

Burglary

Question 1

Ah Lian and her husband Sean live at a terrace house in Shah Alam. Both are working in Kuala
Lumpur. Hence, they leave their house very early in the morning to avoid the traffic and are
usually back at home at about 9.30pm.

On an eventful day, when they reached home, they were shocked to see the electric gate half-
opened, and it was malfunctioning. Sean found that the box covering the gate motors was broken
and the gate motors were left uncovered. Ah Lian quickly got down from the car and went into
the house. The grill and the wooden door were closed. However, the padlock which was used to
lock the grill was cut. The handle of the wooden door was also damaged. To her utter shock, the
living space and bedrooms were in a mess. All doors to the rooms and cupboards were left open.
The safe filing cabinet with a digital lock was also broken. The jewelries, cash, watches
amounting to about RM95,000 were all gone.

The couple went to make a police report. After a week or so, the police arrested Nick based on
the fingerprints the forensic department collected at Ah Lian’s house as well as the
identifications made by Ah Lian’s neighours.

Besides that, the police also found that Nick was involved in another crime. A few days before
he went to Ah Lian’s house, Nick quarreled with his girlfriend, Connie. The couple had been
cohabiting. After the squabble, Connie left for her family house. Nick was extremely unhappy
with that. The relationship between Nick and Connie’s parents had turned sour long ago as the
latter thought that Nick who was lazy and without a permanent job would not be able to make a
living, let alone take good care of Connie. He was never welcomed by Connie’s parents. So, he
thought this time Connie was instigated by her parents to leave him for good. He wanted to teach
them a lesson. He got a baseball bat and went to Connie’s family's house. Fortunately, before he
could do anything, he was held down by Connie’s siblings at their car porch. (attempt?)

Discuss liabilities of Nick.

First issue: whether nick can be held under section 453 of the penal code for committing the
offence of housebreaking. (section 445 of penal code)

Laws:
 - If the facts however show that the defendant had entered the house and the entry of the
house falls within the meaning of S445 which is house-breaking, then the prosecution
would prove house-breaking and invoke S453.
- He who commits house-trespass if he affects his entrance into the house or any part of it
in any of the six ways hereinafter described; or if being in the house or any part of it for
the purpose of committing an offence, or having committed an offence therein, he quits
the house or any part of it in any of such six ways
- (d) if he enters or quits by opening any lock in order to commit the house trespass, or in
order to quit the house after a house-trespass;

- Section 453: Punishment for lurking house-trespass or housebreaking, imprisonment for a

term which may extend to three years, and shall also be liable to fine, and for every
second or subsequent offence shall be punished with imprisonment and shall also be
liable to fine or to whipping

- Actus reus:
a) Entry into or upon property in the possession of another
b) The property was a building, tent, or vessel used as a human dwelling, place of
worship, or place for the custody of property
c) Effects his entry into the house OR quits the house in one of the six ways
specified
- Muhamad Ridoan & Anor v PP [2013] 5 CLJ 904

- Mens rea: Intention – to commit an offence/ to intimidate, insult or annoy

- Case: T Ponnamalam v PP [1948] MLJ 76: “Intention” – Accused must be proven to
have an intention when entering or unlawfully remaining on such property
- Faqira v State: where the intention is said to be a conscious state of one’s mind in which
an action is carried out deliberately to be directed towards a particular object

Second issue: whether nick can be held liable under section 448 of the penal code for
committing the offence of house trespass against Connie’s parent.

Laws:
- If the facts show that the defendant has trespassed the property and this property falls
within the meaning of S442 then the prosecution will prove house trespass.
- 442: Whoever commits criminal trespass by entering into or remaining in any building,
tent, or vessel used as a human dwelling or any building used as a place for worship, or as
a place for the custody of property, is said to commit "house-trespass".
- S.448: Punishment for house-trespass - imprisonment for a term which may extend to
three years or with a fine which may extend to five thousand ringgit or with both
- Actus reus:
a) Entry into or upon property in the possession of another;
b) The property was a building, tent, or vessel used as a human dwelling, place of
worship, or place for the custody of property

- Mens rea: Intention – to commit an offence/ to intimidate, insult or annoy

- T Ponnamalam v PP [1948] MLJ 76: “Intention” – Accused must be proven to have an
intention when entering or unlawfully remaining on such property