Unit 11 Offences Against Property

lecture/Tutorial
Miss E. Siang’andu
Learning Outcomes
1. You should be able to define and evaluate elements
of the offences against property ;
11.1 Theft
11.2 False Pretences
11.3 Robbery & Extortion
11.4 Burglary & House breaking
11.5 Receiving/Handling stolen property/ unlawfully
obtained
2. Know the distinction between offences of being found
in possession of stolen goods and receiving stolen goods
11.1 Theft - I
Basic requirement of the offence is that there should
be a thing, the thing whatever its nature or value must
be capable of being stolen(see S264 PC Cap 87 list things which
are capable of being stolen)
Definition of theft
S.265(i) - A person who fraudulently & without claim of right
takes anything capable of being stolen or fraudulently
converts to the use of any person other than the general or
special owner thereof anything capable of being stolen, is said
to steal that thing’

S265(2) A person who takes anything…..capable of being

stolen is deemed to do so fraudulently if it does it with….
(a) An intent to permanently deprive the general or special
owner of thing of it
S.265(5) a person is not be deemed to take a thing unless if he
moves it or causes it to move
Theft - II
Fraudulently mean dishonest, the taking must be
intentional, without mistake & with knowledge that the
thing being taken belongs to another person
Summary of Provisions S.265 identifies five elements of
theft
(i) There must be something capable of being stolen
(ii) The thing must belong to another person
(iii) The A must take & move the thing
(iv) The A must intend to permanently deprive another
person of the thing
(v) A must act fraudulently (dishonestly)
Theft - III
Theft is a felony
Person convicted is liable to an imprisonment term which range
between five - fifteen years – (S 272, 275, 275A, 276, 8)
Sentence will depend on nature of thing stolen
Actus reus of Theft – Taking & moving a thing that belongs to
another
5 elements which defines theft have been identified;
1. Taking & moving
2. Must be a thing capable of being stolen
3. Belonging to another
4. Fraudulent intent
5. Intention to permanently deprivation
Actus reus of Theft
 Taking & moving
Ordinary meaning applies to the act of taking & moving
Implied that there is an absence of consent or knowledge of the
owner of the thing taken & moved
Must be a thing capable of being stolen
S.264 is seeks to define what property is (thing capable if being
stolen)
So basically property could include animals,
Money
Property
Intangible property ( non physical property) – cheque, copyright,
trademark & shares
Actus reus of Theft cont.
Belonging to another
Phrase not contained under s264/5
However is said to mean the same thing as ‘which is
property of any person’
Property capable being stolen must belong to someone
other that the person being accused of having stolen
The thief does not necessary have to steal the thing
from the owner it could be from the person in charge
or in possession of the thing
Mens rea of Theft
Elements of Mens rea of Theft
1. Fraudulent intent
2. Intention to permanently deprivation
MR refers to state of mind at the time of the commission
Absence of definition of Fraudulent in PC
Natural meaning is applies dishonest
s.265(2) – when the A intents to;
 Permanently deprive
 Use thing as pledge or security
 Part with it
 Deal with it in a manner that it is not returned to its original condition
 In case of money intent to use it
Intention to permanently deprivation
Must be an Intention to permanently deprive
S265(2) (a) ‘intent permanently deprive’ not defined
Need to be an intention to permanently deprive
No need for proof of actual permanent deprivation
 if this were there would be no charge of theft in a
situation where the goods are recovered & returned to
the owner
Still there is theft
Intent to deprive – hidden intention which
accompanies the AR
Mwachilama v. The People (1972) ZR 287
Crt of Appeal
Appellant (A) was convicted in High Crt of stock theft
Stole one Ox & five cows
A defence the six cattle had strayed onto his land & eaten his maize
A knew that the cattle were not his but he did not know the owner
A argued he had the right to keep the cows or sell them because they
ate his maize
Judge argued they may be an honest belief that the taker believed he
had a right to the property or he may have an honest belief that he
had a claim of right against another & honestly believed he had a
right to enforce his claim against the other person’s property.
No need for claim to be valid, or reasonable belief only needs to be
honest.
Mwachilama v. The People cont
Therefore the defence of a bona fide claim of right
made in good faith extents to when the accused has a
bona fide belief that he has the right to keep or deal
with somebody else’s property.
Note: 8. A person is not criminally responsible in
respect of an offence relating to property, if the act
done or omitted to be done by him with respect to the
property was done in the exercise of an honest claim of
right and without intention to defraud. Bona fide claim
of right
Muzyamba v. The People (1975) ZR 83 SC
of Zambia
Issue of dishonesty & claim of rights was considered.
A bull had strayed & was found amongst the appellant’s herd
In his defence ist claimed it was his bull then later justified his claim
by arguing that the bull had destroyed some of his maize & he was
keeping the Bull until he got compensation from the owner
He appealed against conviction for stock-theft on the grounds that
he had a bona fide claim of right on the bull until he got
compensation for the maize the bull destroyed.
Appeal was dismissed on the basis that the appellant had not
honestly believed that he had a to deal with the bull to the crt ‘s
satisfaction because Appellant had insisted that the bull was his &
went to the extent of producing one of his cows claiming that she
was the mother of the bull.
Summary of offence of theft
Theft is committed when D takes or converts
A thing (property) capable of being stolen
Belonging to another
Fraudulently (dishonestly) &
With intent to permanently deprive owner of the
property
11.2 False Pretences
Covers offences of obtaining something by false pretences
A must by false pretence or representation by obtain as a
matter of law or fact, anything capable of being stolen
(s309)
Or any pecuniary advantage (s309a)
Obtaining execution of a security (s.310)
Obtaining anything capable of being stolen by trick or
device (s.311)
Obtaining credit or delivery of any charge on property
(s.312)
The Law on False Pretences
False Pretences is defined S308 PC
S308 – representation made by words or conduct, of a
matter of fact or law, either past or present, including
a representation as to the present intentions of the
person making the representation or of any other
person, which representation is false in fact, & which
the person making it knows to be false or does not
believe to be true, is a false pretence.
Elements of False pretence
the prosecution can only succeed to secure a conviction for
obtaining something by false pretences after establishing
that;
• Existence of representation made either by words, conduct or
in writing
• Conduct – a person can imply something by their conduct i.e.
If a person checks into a hotel, there is a presumption that
he/she intends to pay for the room (Harris (1976) 62 Cr. App.
R. 28.
• If someone issues a cheque (representation) presumption is
that cheque is presented for payment will be honoured
(Gilmartain (1983) 1 ALL EA 829, CA
• Representation must be a matter of fact or of law
• Fact – clear
• Person making the representation must know it to be
false or did not believe it to be true
• Must be intend to defraud
• Change of ownership must be induced by false
pretence.
Obtaining goods by false pretences
s309 prosecution needs to prove false pretence &
intent to defraud
Actus reus
False Pretences
 Accused must obtain
 A thing capable of being stolen
 That thing must belong to another person &
 Through false presence & intent to defraud
Mens rea s.309
Mens rea of obtaining property by false pretence &
intent to defraud is that;
 A must have planned or recklessly acted in a manner
which constitutes false pretence with intent to defraud
 Actual obtaining of property must be fraudulence or
dishonesty
 Obtaining must be with intention to permanently
deprive the victim of their property.
Punishment - False Pretences
A who is convicted would be liable to maximum of
three years imprisonment
Offences false pretences are considered to be less
serious
Example: False Pretences
Wilson Makasa Kapasa v. The People (1980) ZR 114
A was convicted on two counts of obtaining money by false pretences
He had obtained K10 by falsely pretending that he could show someone
the person who wanted to kill him when in fact he wasn't able to do so.
A obtained the money with the promise that the money would be
returned to them after his had performed his magic
This implied that the owners of the money did not intend to part with
the ownership of money. Therefore the act of taking the money by the A
was theft
The charge of false pretence was set aside and substituted for theft
under S265 PC
The sentence of 30 months imprisonment with hard labour stood
Appeal against sentence dismissed
Therefore
Theft – the owner of the thing stolen has no intention
to part with his property
False pretences –The owner does intend to part with
his property but it is obtained from him by fraud ( as
identified in R v. Chungu (1954) 5 NRLR 681 High
Crt of Northern Rhodesia).
Summary Elements of False Pretences
A must make a false representation
As a result of the representation, A must
obtain a thing (property, credit).
A’s false pretence (or deception) must cause
the obtaining of the thing (credit) &
A must act fraudulently (dishonest).
Obtaining pecuniary advantage by false pretence (s.309 A)
pecuniary advantage refers to monetary advantage or
benefit
Specific situations which could lead to a person
obtaining a pecuniary advantage are highlighted e.g.;
No need to prove that the A did actually obtain a
pecuniary advantage
No need for the victim to have suffered a financial loss
Obtaining pecuniary advantage by false pretence Actus Reus – under s.309A

False pretence
Accused person obtains for himself or another person
Pecuniary advantage
According to s. 309 Pecuniary advantage would
include situations where the
(i) Accused borrows by way of overdraft (s.309A (b)
(ii) Being allowed to take out insurance policy on the
basis of false pretence
(iii) Accused is given an opportunity to earn
remuneration or to win money by betting
Obtaining pecuniary advantage by false pretence Mens rea - s.309A

Deliberation or recklessness (false pretence)

Dishonesty relation to obtaining
Examples of offences which are prohibited under s.310
-317 PC
Intent to deceive
Cheating
Obtaining credit by false pretence
Obtaining registration by false pretence
False declaration for passport etc
Punishment s. 309A
S309A – misdemeanour
Imprisonment maximum five years
11.3 Robbery & Extortion
Robbery threat intensified by assault
Robbery combination of theft with violence
Violence could be threat or use of force
Assault – ‘technical’ assault & physical assault (battery)
To establish Robbery:
Theft must be established.
Violence/force
(i) Robbery
(ii) Aggravated robbery
The law on Robbery & Extortion - S. 292
S292 several elements of robbery are mentioned i.e.
There must be theft
Theft must be accompanied with use or threat to use actual
violence
The use or threat to use actual violence must occur at or
immediately after the time of stealing
Use of or actual threat to use force must be directed to any
person or property
Use of violence or threat to commit theft
To obtain or retain property stolen or
To prevent or overcome resistance of it being stolen or retained
The law on Robbery & Extortion - II
Accused (A) convicted under s.292 is liable to fourteen years
imprisonment
What must be proved in order to secure a conviction for
robbery?
What would be the implication in the absence of AR for
robbery?
MR for robbery includes mental element required in the
offence of theft
Violence must be applied intentionally or recklessly
Knowledge – A must prove that he was aware that he had used
or threatened to use violence to any person or any property.
The Law on Aggravated Robbery- I
S294 PC – entitled Aggravated Robbery criminalises
robbery which is aggravated by the use of ‘any offensive
weapon or instrument’
A conviction of the A can be secured under S294 if-
Elements of theft must be established
Element of robbery (s292) must be proved beyond
reasonable doubt
A must be armed with any offensive weapon or instrument
A convicted under s 294 is liable to life imprisonment
However crt must sentence the A to not less than 15 years
imprisonment (s.294).
The Law on Aggravated Robbery- II
Where offensive weapons or instrument used is a firearm or
grievous harm – penalty of aggravated robbery is a mandatory
death sentence (s.294(2).
But there are defences available to A. A would have to prove by
evidence to the satisfaction of the crt that
(i) A was not armed with a firearm
(ii) A was not aware that any of the other persons involved in
committing the offence was armed
(iii) That A disassociated himself/herself from the offence
immediately on becoming aware
(iv) A neither anticipated nor could reasonable have anticipated that
grievous harm might be inflicted in the course of the offence
John Timothy & Feston Mwamba v. The People (1977) ZR
394
Supreme Crt held

 toestablish an offence under s294(2) the

prosecution must prove that the weapon
used was a firearm within the meaning of
the firearms’ Act
Mugala v. The People (1975) ZR 282 (SC)
In order for aggravated robbery to be established, it is necessary for the
prosecution to show that the violence was used in order to obtain or retain
the thing stolen ( proper interpretation of s. 294(1) – Mr Kapumpa)
In instance case the action of the A were said not to constitute an
aggravated robbery.
A was convicted of aggravated robbery on basis that he attacked a night
watchman with an iron bar, broke some windows & stole six curtains &
two mattresses
A argued at trial that he had been an employee of the owner of the farm
who despite several requests to pay him half a month’s wages he failed
Watchman had given evidence in regards to the assault claiming that he
had hit him because his bwana had not paid him as per appellant.
Conviction was quashed & sentence set aside- was substituted with a
conviction of assault occasioning actual bodily harm contrary to s. 248.
Haonga & Others v. The People (1976) ZR
200
A were convicted of murder of a farmer who was shot & killed during a
robbery carried out by five men
In case Common purpose had to be established in order to secure a
conviction of murder for all five men however there was no evidence
one of the robbers was known by others to be armed
There was no evidence that other members of the gang, whoever they
were knew that a firearm was being carried by one of them
In case there was absence of sufficient evidence to establish a common
design or purpose & there was no satisfactory evidence as to which of
the appellants fired the fatal shots therefore the conviction for murder
could not stand
Appeal of three appellants was allowed conviction for murder &
sentences of death set aside substituted with convictions for aggravated
robbery.
Francis Chongo, Peter Ngosa Makola v. The
People SCZ 1998
Appellants were charged & convicted with armed robbery & sentenced to
life imprisonment
They broke into the victim’s house at night according to the victim they
were armed & had threatened to shoot her
Supreme crt took a role in correcting the errors of law that had been made
by lower crt in charging as well as sentencing.
A were charged with armed robbery but there was no evidence that the
gun was used
Crt clarified that in Zambia the law on extenuating circumstances was
introduced in extreme offences of murder. It was only intended for
offences of murder.
To invoke the principles of extenuating circumstances in sentencing of the
accused in an armed robbery offence rather than murder is not only wrong
in principle but wrong in law
11.4 Burglary & House breaking
Offence which relates to criminal violation of the
sacredness of the home or other buildings such as
factories, shops or places of worship.
PC differentiates between house breaking & burglary
House breaking – Committed during the day
Burglary – committed during the night
The Law on Burglary & House breaking
S300 stipulates circumstances which can amount to the
offence of house breaking & burglary
Sections makes it clear that entry does not necessary mean that
the A should enter the building physically
S300(2) – person is deemed to have entered the building once
any part of his body or instrument used by A is within the
building
Therefore Burglary & House breaking can be committed by
(i) by breaking or entering the building or part of the building Or
(ii) As a trespasser with intent to commit a felony i.e. rape, theft
etc (s.306, 301).
Elements of offences of Burglary & House breaking
Actus Reus
Entry (s300, 301,304).
knowingly or recklessly
Building or part of the building
Mens rea
With intent to commit a felony at the time of entry/ or
whilst in the building
Penalty of Burglary & House breaking
Housebreaking (committed during the day) penalty is
seven years imprisonment (s301)
Burglary ( committed during the night) D if convicted
is liable to ten years imprisonment
Offences that fall under s.303 – seven years
imprisonment (building & committing a felony)
S.304 – 5 years (building with intent to commit a
felony) treated in same way as offence of theft.
11.5 The Law on Receiving/Handling stolen property/ unlawfully obtained

S.318 – receiving stolen property

Receives or retains
Knowledge – must know or have reasonable cause to
believe that the goods were stolen goods
S318 (2) deals with receiving property unlawfully
obtained by means of false pretence or fraudulent means
S319 deals with situation where the A is found in
possession of property suspected to have been stolen
Crt grants A an opportunity to give an explanation as to
how the property came to be in their possession.
AR of Receiving/Handling stolen property/
unlawfully obtained - I
AR identified on the basis of s.318
(i) Receiving & retaining goods
• receiving implies that the A must have acquired control
or possession over the stolen goods from another
• Possession needs to be established hence ;
• it must be shown that that the goods are either in the
A’s immediate custody
• or located at a place which the A has control over
• Must be intention by the A to possess the goods
AR of Receiving/Handling stolen property/
unlawfully obtained - II
Retaining – keep possession of or continuing to have
goods

(ii) The goods must be stolen

• Stolen goods would be any property that comes into
the control or possession of the A as a consequence of
robbery or burglary is deemed to be stolen property
• Meaning of stolen extends to include situation were
goods are obtained by false pretence (s.300)
MR of offence of Receiving/Handling stolen
property/ unlawfully obtained

Knowing or having reasonable cause to believe the

goods were stolen or
- s318 requires that there is this knowledge at the time or
receiving or retaining
Fraudulently or dishonestly obtained
Punishment
Penalty ranges for receiving and retaining stolen goods
ranges from three – seven years
Circumstances in which the goods/property was stolen
are also taken into account.
Receiving Stolen Property
Chizema v. The people (1972) ZR 7 HC
Appellant was convicted of the offence of being in possession of
property reasonable suspected to have been stolen contrary to ten
s.287(a)PC.
A pleaded guilty to the charge arguing he received the goods knowing
they were stolen. (286)
Trial magistrate argued that on proper construction this was a plea to
receiving stolen property & should not be accepted to the offence of
being in possession of property reasonable suspected of having been
stolen.
No provision in our law which states that if a man is charged with the
offence of being in possession of property contrary to S319 should be
convicted of the offence of receiving stolen property under s. S.318 –
receiving stolen property
Stephen Manda v. The People (1980) ZR 116
HC
A was a customs & excise officer employed in a distillery.
He was charged with theft of a bottle of whisky
However there was no evidence of the corpus delicti thus there was no
evidence of any deficiency in the stock of the distillery or any evidence
that the particular bottle & its contents had been stolen from the
distillery.
Appeal was allowed A acquitted on the basis that the offence of being in
possession of stolen goods requires the person charged with such an
offence to give a satisfactory account for the possession. In instance
case it was the bar manager & not the appellant was found in possession
Crt held one cannot go tracing goods back through half a dozen hands
for the purpose of showing each person guilty of an offence unless if he
can account satisfactory for the possession.
Retaining stolen Property
Attorney- General’s Reference (No. 1 of 1974) [1994] QB 744 CA –
It was a reference to the Crt by an Attorney on the point of law
Facts;
Police officer found an unlocked car, unattended car containing packages of
new clothing which he suspected & were proved subsequently to be stolen
Officer removed the rotor from the vehicle in order to immobilise it & kept
observation
After 10 mins accused appeared was questioned & eventually arrested upon
failure of giving a reasonable explanation.
A was charged 1. For selling the woollen goods & new clothing found at
back of the car
2. Receiving goods knowing they were stolen
Trial J ruled there was no evidence to support the first charge
Attorney- General’s Reference (No. 1 of
1974) [1994] -II
Issue there was a submission by counsel for the respondent who
argued that there was no case on the basis of S24(3) Theft Act,
1968- which provides that
No goods shall be regarded as having continued to be stolen goods
after they have been restored to the person from whom they were
stolen or other lawful possession or custody ……
Therefore, his argument was that goods had already been restored
to the lawful possession or custody namely the possession of the
police officer before the respondent appeared on the scene &
sought to drive the car away.
If this was the case, it would imply that they would be no case to
answer as the goods would no longer be stolen goods as would be
restored to lawful possession.
Attorney- General’s Reference (No. 1 of
1974) [1994] -III
Upon hearing the submission, the Trial Judge accepted the
submission. Hence AG raised the issue by way of referring the case
to the court of appeal on the point of law.
Crt also had to consider whether the actions of the officer amounted
to taking possession of the goods in the car.
Crt held that the term ‘restore’ meant restoration of goods to the true
owner. The verb could not be extended to engaged if one was
referring to the police stumbling upon stolen goods & taking them
into lawful custody or possession.
Judgement would depend on the intentions of the officer
If the officer upon seeing the goods at the back of the car had made
up his mind that he would take them into custody then he would
reduce them into his possession or control.
Attorney- General’s Reference (No. 1 of
1974) [1994] -IV
Therefore he would be taking charge of them so that they could not
be removed
On that basis it would have been proper to conclude that the officer
had taken possession of the goods.
On the other hand, the truth of the matter is that he was not sure at
that stage whether to take the goods or not.
Instead he stood to wait for the driver so that he could ask certain
questions as to the nature of the goods & why there were there.
There was no reason to suggest that he had taken the goods into his
control or possession
Conclusion at this stage, it was not the intention of the officer to
take possession of the goods but to ensure that the driver of the car
could not get away without answering questions.
Additional Notes
Stolen Property- Doctrine of Recent
Possession
The People v. Chabala (1969) ZR 66 (HC)
Accused (A) was convicted of theft of a blouse & sentenced to two
years imprisonment with hard labour
Accused was convicted in the absence of direct evidence indicating
that A was seen taking the blouse from Jeune Boutique store
The only evidence against the A was that he was found in possession
of the blouse.
Basis of prosecution was on the doctrine of recent possession
Accordingly where an A is found in possession of property proved to
have been recently stolen the inference that the accused is the thief
may be drawn.
In instance case the conviction & sentence was quashed due to the
absence of evidence as to when the blouse was stolen from the store.
Lazarous Kantukomwe v. The People (1981)
ZR 125 SC
Appellant was found in possession of a recent stolen
vehicle as a result was convicted of receiving stolen
property and sentenced to four years imprisonment
with hard labour.
Tutorial 11
1. Name and explain the five elements that need to be
established to secure a conviction for the offence of
theft
2. Differentiate using examples to illustrate points
between offences of being found in possession of
stolen goods and receiving stolen goods
3. Attorney- General’s Reference (No. 1 of 1974)
[1994] QB 744 CA – ‘Good are not deemed to be
stolen if they have been restored to the person from
whom they were stolen from or to other lawful
possession or custody’. Discuss