THEFT

Nurul Asyikeen Hj Abdul

Jabar
DBML MSU

INTRODUCTION
S.378
S.379
Punishment for the offence of theft imprisonment which may extend to 7 years
OR with fine OR with both.
Interpretative Problems
The offence of theft in s 378 is not drafted clearly as to its mens rea and actus
reus. Therefore, it is open to two interpretations, namely:
First view:
AR the Accused moved Victims moveable property
MR that Accused dishonestly intended to take the property out of Victims
possession without Victims consent

Second view
AR that Accused moved Victims moveable property out of Victims possession, without
Victims consent
MR that Accused was dishonest
It is proposed to adopt the first interpretation consistent with several leading cases.
The language of s 378 requires the first interpretation to be adopted. The Code asked
Whether the accused intended to takemoveable property out of the others possession
without that person consent.
And NOT
Whether such a taking has actually occurred.
Besides, the first interpretation is favour because:
Illustration (a), (b), (h) and (m) clearly reflect this interpretation.
While, Illustration (d) and (l) are expressed in a terms of the accused person have physically
moved an item out of the victims possession without consent, but they both involve
scenarios where the intent to do this would also have been present.

Dishonesty
Dishonesty requires the intention to cause wrongful gain or wrongful
loss.
This intention must exist at the time of moving the property [refer to
Illustration (h) and (i)].
There is no dishonest intention is a person takes his friends book, which was
carelessly left in a restaurant, intending to return it after he has read it.
However, if he subsequently forms the dishonest intention not to return it he
may be liable for criminal misappropriation of property under s 403.
It is not theft as there is no dishonest intention at the time of taking.
The wrongfulness of the taking consists of:Knowing that the property belong to another person, or
If the property belong to him, he knows the other person has right of
retention [Illustration (j)]
If a person takes loss property there is no dishonest intention in the taking but
there may be criminal misappropriation [refer to Illustration (g)]

Issue: Property as security for debt

Whether the taking of property of another as a security for debt
constitutes theft under s 379?
Manikant Yadav (1980)
The petitioner removed a bullock from the informant because he
owed him money.
The court held that the petitioner had no dishonest intention. He
said:
When a person takes another mans property believing under a
mistake of fact and in ignorance of law that he has the right to
take it committing an offence and to retain until compensated, he
may not be held guilty of theft is as much as there is no dishonest
intention even though he may cause wrongful gain within the
meaning of the Penal Code.

MR: Intention to take without consent

The mens rea of theft also includes an intention to take property of another
without his consent.
Lim Soon Gong (1939)
Mens rea is essential to theft and illustration (m) and (a) show this.
Illustration (l) and (o) deal with the question of consent and the element of
dishonestly in theft.
Refer to Explanation 5 and Illustration (e), (m), (n) and (o). The provision under s
90 (consent) also applies in this context.
The wording of s 378, as amplified in Illustration (m), (n) and (o) suggests that
the question is whether the accused intended to take property with or
without consent of the person rather than whether or not that person is
in fact did consent.
If the accused conceived that the person would have consented to the taking
because he was on friendly terms with him, there is no theft, even though it
turned out that the person would not have consented [refer to Illustration (m)
and (n)].

Issue: Bona fide claim of right

Refer to Illustration (p)
A in good faith, believing property belonging to Z to be As own property, takes that
property out of Bs possession. Here, as A does not take dishonestly, he does not commit
theft.
This is a right to possession as against the person in whose possession the article is.
This right may be claimed on either 3 grounds:
Because the claimant is the owner of the article and he has not parted with the right of
possession involved in ownership in favour of another.
Because he bona fide believes himself to be the owner of the article, who has not parted
with his possessory rights.
Because another is the owner of the article or the claimant in good faith believes
another to be the owner and he claims possession on the others behalf.
Mere assentation of right does not constitute a valid claim of right.
Thus, mere plea by the accused that the property with theft is his own property,
unsupported by proof is insufficient.
The claim must be tried and determined by the Court and must be proved by evidence.

Mere doubt as to ones right is insufficient; the doubt must be shown to be reasonable as where the
ownership of the property alleged to have been stolen is shown to be the subject of bona fide dispute
between the parties.
The claim must be one in good faith i.e. must be honestly made and if not so made as where it is a
mere pretence, it will be of no avail.
S 52 defined good faith. Good faith is not equated with honesty. Because the test under s 52 is
objective as due care and attention is required.
Whereas under EL, test of honesty could be subjective; a claim of right is recognised if a person asserts
what he believes to be lawful, even though it may be unfounded in law or fact.
MR: Absence of claim of right
MR of theft an intention to cause wrongful gain and wrongful loss.
If a bona fide believes himself to be the owner of the article, who has not parted with his possessory
rights, he does not intend to take dishonestly.
The absence of bona fide claim of right is an elements in the MR of theft.
Lim Soon Gong (1939)
The respondents were charged with committing theft of sand from the foreshore.
One of the issue was whether they has a dishonest intention. The court held that:
Property may be taken under bona fide though mistaken belief of right or in the bona fide though
mistaken belief that it belong to no one or has been abandoned. The circumstances must be such as to
show or to raise a presumption that the person intended too do something which he knew or should
have known was wrongful. Mens rea is essential to theft and illustration (m), (n) and (p) show this.

AR: 1) Taking out of possession

Theft is complete as soon as there is movement of moveable property and there is no need for
the property to be removed from the other persons possession.
Temporary deprivation of possession of property would suffice to constitute theft.
Refer to the case of Ward v PP.
Ward v PP (1953)
The 2 appellant were convicted of theft of certain articles. The main issue argued by the
appellant was that although they admitted taking the articles, they did not take them with
criminal intention.
The idea at that time of taking the articles was that in due course they would get the consent
from the owner and when he required the articles they would return them to him.
Held: dismissed the appeal on the ground that to take goods in order to keep the person entitled
to the possession of them out of possession of them for a time, although the taker did not
intend to himself appropriate them or to entirely deprive the owner of them, it should be theft.

2) Property in possession of another

Theft is an offence against possession not ownership.
Thus, the person who files the complaint that theft has been committed need not establish that he is the
owner of the property.
What is relevant is that HE MUST BE IN POSSESSION OF IT.
Raja Mohamed v R (1963)
The accused had moved 2 dozen glasses from the ground floor storeroom of his employers premises to a
box on the first floor.
Ambrose J held that constitute to theft if the person who has formed a dishonest intention moves that
property in order to such taking; and it is not necessary for him to move that property out of the
possession of the other person.
Queen-Empress v Venkatasami (1890)
A postal sorted secreted 2 letters that he intended to share the money with a third person and he was
convicted of theft.

Wallis v Lane (1962)

A delivery truck driver moves some goods around inside his truck with a view to taking them for his
own use latter.
He was convicted of stealing on the basis that there have been sufficient asportation coupled with the
requisite intent.
However, it is difficult to prove a dishonest intent in cases where there has been limited movement of
this sort.
Particularly in cases of alleged shoplifting because shoppers having initially selected an item from the
shelves, may change their mind about a purchase prior to leaving a store.
Therefore, suspected of shoplifters are generally not apprehended until they leave without paying.
Bisakhi v Emperor (1917)
The accused had cut the string of the victims necklace and in an ensuing struggle, the necklace had
fallen onto a bed.
It was held that there had been sufficient movement of the necklace.

3) Moveable property
S 22 defined moveable property.
Explanation 1 and 2 explain this further.
Although things that are attached to the earth are not subject of theft but they can be stolen by
severance from the earth. Refer to Illustration (a).
E.g.: the harvesting crops or the cutting down of a tree.
R v Lim Soon Gong & Ors
The respondents had been acquitted at their trial of stealing of sand from the foreshore.
However, the prosecution appeal was upheld. The trial judge examined s 22 and held that land
means an area of earths surface and does not mean a sod cut from the land.
Term corporeal property can extend to animals and to inanimate things.
Refer to Illustration (b) stealing a pet by using bait.
PC does not provide guidance on precisely when an animal can become the subject of theft.
Therefore, general common law principles will apply.
This means that pet can be stolen and not wild animal unless they are in sufficient state of
captivity.
E.g.: a pet goldfish, crabs sitting waiting to be eaten in a tank in a restaurant, fish or shellfish that
are being reared for food but wild fish swimming in a free state in a river cannot be subject of
theft.

4. No consent to taking
Explanation 5 consent can either be implied or express and may involve either the person in possession
or another person who has express or implied authority to give consent.
Where a person did consent, the fact that the accused thought there was no consent is irrelevant because no
theft is committed.
S 90 consent will not be real if given under fear of injury, under misconception of fact or by a person who
was incompetent to give consent due to insanity, intoxication or age.
What if there is a de facto consent as in entrapment cases where for example, a master is suspecting his
servant to be dishonest in conspiring with another to remove the property, facilitates the theft?
Packeer Ally v Savarimuttu (1916)
The accused had approached the storekeeper on a rubber plantation and suggested that they should steal
some rubber and share in the proceeds of its sale.
The storekeeper did not wish to take part and told the estate superintendent of the accuseds intention. The
superintendent keen to identify to identify the prospective purchaser, directed the storekeeper to give the
accused some rubber.
The accused argued that this could not constitute theft because the superintendent had consented to him
taking the rubber.
However, the court held that the predominant feature of theft is the intention of the accused rather than the
consent or otherwise of the person from whom the property was taken.
5. Moving the property out of possession
Refer to Explanation 2 to 4 and Illustration (a), (b) and (c) to s 378.
Case: Raja Mohamed v R (1963)