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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)]
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.
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)