Che Man Che Mud [1994] 4 CLJ 823

Facts
The appellant is an advocate and solicitor under Che Man & Partner. He was involved in a plan
to defraud Bank Negara. The plan was successful - on 2nd July 1988, RM22.2 million belonging
to Bank Simpanan Nasional (BSN) went into the account of Che Man & Partners which the
appellant had opened on 1st July 1988.

Harun is a former clerk of Bank Negara. He supposedly should have credit the amount into the
Advance Subscription account and recredit the amount to the Accountant General’s account,
while preparing debt voucher and credit slips in the process. Harun’s superior officers were
supposed to sign the debt voucher and credit slips, but Harun forged their signatures. By doing
so, Harun was able to credit the RM22.2 million to the account of Che Man & Partners instead
of the Accountant General’s account. The appellant signed and issued 5 open cheques of
RM22.2 million against the law firm’s account at Dayabumi branch. On 8th July 1988,
RM333,000 was credited from Che Man & Partner’s account in Dayabumi branch to account of
the firm at Kota Baru.

In the Sessions court, Harun was charged with criminal breach of trust and two alternative
charges of cheating and theft by clerk under S.409, S.420 and S.381 of the Penal Code. Harun
was sentenced to 5 years imprisonment after pleading guilty to the second alternative charge of
theft. The appellant faced the principle charge and two alternative charges of abetting the
offences alleged against Harun. Appellant claimed trial on all three charges but was convicted
on the alternative charge of abetment of theft. He was sentenced to 4 years imprisonment and
ordered to pay Bank Negara RM333,000. The appellant appealed

Judgment
In order to establish theft, the court needs to identify what is movable property under s.378. The
court states that an RM100 note is a movable property, so is the bank deposit book for when the
money is deposited or the cheque. However, the statement in the bank book shows that the
money in the bank belonging to the person is not a movable property. In this case, the court
held that the bank statement that was transferred from Bank Simpanan Nasional to Bank
Bumiputra and subsequently deposited into Che Man’s company account was not a movable
property under s.22 of the PC. Hence, this transaction did not amount to theft. Appeal allowed.

Analysis
From this judgment of this case we can see the strict interpretation of s.378 of the Penal
Code and the scope of theft under the same provision.

S.378 states that 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, is said to commit theft
To define movable property the court referred to S.22 which stated that immovable property
includes corporeal property of every description, except land and things attached to the earth, or
permanently fastened to anything which is attached to the earth. Thus, the court emphasised
that ‘movable property’ must be corporeal property, property consisting or in the form of a
material object, and can be perceived by the senses.

So from this judgment we can see that the scope of theft under s.378 is limited to physical
objects only. Non physical theft of money or property (online) is not covered under s.378 of the
PC. Any form of non physical theft, for example digital money, data, information, etc is not
covered under s.378 of the PC.

Thus, the subject of theft under S.378 must be ‘movable property’ and cannot be theft of
incorporeal property. In the abetment charge against the appellant, the movable property of
alleged theft by Harun is the subject, ‘Malaysian Ringgit Twenty-Two Million Two Hundred
Thousand’. The only possible corporeal things in this case are the Bank Simpanan Nasional
cheque for RM22.2 million and currency notes totalling RM22.2 million that the Dayabumi
branch paid out. However, both things are not to be taken as corporal things relevant to the
alleged theft: it cannot be the cheque, as if so the charge would have said so. Neither can it be
the currency notes paid out because Harun did not move them and they left the possession of
Bank Bumiputra with Bank Bumiputra's consent. There was no theft by Harun of those currency
notes within the definition of S.378. If it is neither the cheque nor the money paid out, the
subject as stated in the charge can only be a notional amount or sum of what is owing to
somebody, and that is not movable property.

Other than that another important point we should note is in page 28 the court stated that
Under s.378 the intended property must be the same property that have to be moved
To constitute theft there must be a dishonest intention to take a movable property out of its
rightful possession coupled with the act of moving that property. The movable property intended
to be taken must be the one and the same movable property that is actually moved. This
creates a higher requirement, as not only must the final result (theft) be proven, it has to be
shown that the intended object that the accused was planning to steal was the same object that
was actually moved.
The court held that it was ‘understandable’ why the charge does not state a specific object that
represents the sum of RM22.2 million. It is impossible to point to the movable property that
Harun intended to take out of the possession of Bank Negara was the same movable property
that he moved with that intention. Harun technically did not move property with the intention of
taking the same property, but to manipulate things by making the bank indebted to another
bank, and the other bank was indebted to the account that the appellant created. Cleverly, no
cash money passed from Bank Negara to Bank Bumiputra.

The word possession does no mean ownership

Pendakwa Raya v Isa bin Johnit [1994] 3 MLJ 218

Facts :
The respondents were charged under S.348 of the Penal Code for wrongfully confining a child
to extort his father. The first respondent dragged the child into a car and brought him to a hotel
with other respondents. According to the first respondent, he asked the child to go back but the
child refused. Thus, the first respondent stayed with him at hotels and took care of his daily
necessities. The child did not request to go home - he had at least five to eleven chances to run
away but he did not do so. The first respondent allegedly invested RM345,000 in the father’s
get-rich-quick scheme, and the father made some business mistakes - and many people wanted
to claim their money back. The magistrate acquitted and discharged the respondents and the
public prosecutor has appealed.

Judgment :
Extortion under S.348 was not proved because the respondents wanted to meet with the father
to ask for their money back and not to extort him. Where the respondents had honestly believed
the father to take money belonging to them, an attempt to recover the money cannot be said to
be with the intention of causing wrongful loss to the father.

Analysis :
The main element in extortion is that inducement must be dishonest. When we read s.383 it
provides that (Whoever intentionally puts any person in fear of any injury to that person or to
any other, and thereby dishonestly induces the person so put in fear to deliver to any person
any property or valuable security, or anything signed or sealed which may be converted into a
valuable security, commits “extortion”.)

In the current case the respondents had honestly believed the father to take money belonging to
them, an attempt to recover the money cannot be said to be with the intention of causing
wrongful loss to the father. There was no dishonesty here. They were just trying to get back the
money which they believed rightfully belongs to them.

The court also referred to

Ratanlal & Dhirajlal's
Law of Crimes:

The chief element in the offence of extortion is that the inducement must be dishonest. It is not
sufficient that there should be wrongful loss caused to an individual but the person putting that
individual in fear of injury must have the intention that wrongful loss should be caused. Where
the accused honestly believes that the complainant had taken the money belonging to him (the
accused), an attempt to get it back cannot be said to be with the intention of causing wrongful
loss to him
Ang Eng Beng v PP [1990] 3 MLJ 321

Facts :
The applicant was tried and convicted with two others for jointly committing robbery. While the
robbery took place, Toh Guan Chin voluntarily caused hurt to Wong Frankie by fisting him in the
face - thus committing an offence for voluntarily causing hurt in committing robbery underS.394
of the Penal Code. The High Court dismissed the applicant’s appeal. The applicant claimed that
there was no common intention between applicant and Toh in committing the robbery, and
hence the conviction of the appellant under S.394 was wrong. The High Court allowed the
applicant to reserve a question of law to be determined in the Court of Appeal.

Issue:
Whether when a person is charged jointly with another in committing robbery under S.394, and
the other person in committing robbery causes hurt, the prosecution has to prove common
intention to commit the robbery between the person charged and the person who caused hurt.

Judgement:
1. S.394 deals with group liability of robbers one or more of whose number causes hurt.The
guilty act of one robber who causes hurt is imported to all the others who are ‘jointly concerned’
in commission of the robbery.
2. A person chargeable under S.37 who co-operates by doing one of several acts constituting
an offence is considered jointly concerned with the commission of robbery.
3. According to case law, common intention was not necessary in relation to other charges.
There is no need to prove common intention.
4. The conviction and sentence of the applicant remained.

Analysis
Common intention is not a required element under s.394 of the PC

S.394 does not in terms provide ‘in furtherance of the common intention of them all’, but it was
read into the code by the court. Hence, it can be said that the guilty act of a robber who causes
hurt in committing the robbery is imported to all the others who are ‘jointly concerned’ in the
commission of the robbery. The court said that S.394 has two categories: first, those who cause
the hurt; second, those who did not, but are ‘jointly concerned’ in the commission of the
robbery.Note that the hurt must be caused voluntarily for the end of the robbery.

The robbery was not a necessary ingredient that the prosecution had to prove before that other
person could be convicted of an offence under s.394. S.394 shows that it deals with group
liability of robbery one or more of whose number causes or causes hurt. It does not in terms
provide ‘in furtherance of the common intention of them all’, but it was read into the code by the
court. Under it, the guilty act of a robber who causes hurt in committing the robbery is imported
to all the others who are ‘jointly concerned’ in the commission of the robbery. Therefore,
common intention is not required.
Held:
● The court said that S.394 has two categories: first, those who cause the hurt; second,
those who did not, but are ‘jointly concerned’ in the commission of the robbery.Note that
the hurt must be caused voluntarily for the end of the robbery.

2. The applicant submitted that group criminal liability attaches to a person for the act of another
in only three situations under the Code. He includes whether other person did the act in
furtherance of common intention between them within S.34 of the code.However, the court
rejected it.
● The court claimed that the applicant did not deal with joint criminal liability of persons
who did acts constituting offense under S.37
● It is necessary to do so, as the court said that a person made liable under S.37 of the
Code is a person 'jointly concerned' with the commission of robbery if it is an offence
under S.394
● Section 37 of the Code reads: 'When an offence is committed by means of several acts,
whoever intentionally co-operates in the commission of that offence by doing any one of
those acts, either singly or jointly with any other person, commits that offence.' Such a
person made liable under s 37 of the Code, in our view, is a person 'jointly concerned'
with the commission of robbery if it is an offence under s 394 of the Code.
● The court cited R v Yeo Kim Watt that states that there is no need to refer to S.34 while
considering S.394.
● The court also cited Wong Kim Wah v PP which dealt with S.396 on gang robbery with
murder that states common intention is not necessary.The two cases did not directly
deal with S.394, but the court said that the same principles of statutory interpretation
apply to S.394