MASTER OF ENFORCEMENT LAW

CRIMINAL LAW - LAW 780

OCTOBER 2022 – FEBRUARY 2023
GROUP ASSIGNMENT ONE

Mek was having tea with Abe at the Stabak foyer. She placed her handbag on the
floor beside the armchair on which she was sitting. While Mek was talking to Abe,
Kiki, an unemployed man, grabbed her handbag. As soon as Mek realised what was
happening, she tried to retrieve her handbag from Kiki, but he was too fast and was
no match to Mek. Kiki then ran off with the handbag which contained several
valuable pieces of jewelleries. Later that day, Kiki brought the said jewelleries to a
pawn shop and offered to sell them for RM10,000 to Tokei, the pawn shop owner.
Tokei eventually bargained him down to RM5,000 which Kiki accepted. In fact, Tokei
knew that all the jewelleries were worth about RM20,000. Suspecting something
amiss, Tokei wanted to ask for further clarification from Kiki, but he later shrugged
the idea off because all that matters to him was making good profits.

Explain the possible actions that may be brought against Kiki and Tokei in
these circumstances.
Mek was a victim of a theft who lost his handbag in the Stabak foyer.
Abe was a witness who saw the theft of Mek's handbag at the scene.
Kiki is a thief who takes Mek's handbag and sells the jewelry inside it.
Tokei is a jewelry buyer whom he knows is stolen from Kiki.
Wether Kiki has commited the theft of Mek’s Handbag full of jewelry under Section
378 of the Penal Code?
Under Act 574 Penal Code Section 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.
In determaining wether kiki guilty or not we have to full fill five elements :
1. Intention To Take Dishonestly
2. The Property Must Be Moveable
3. It Should Be Taken Out Of Posession Of Another Person
4. It Should Be Taken Without Consent Of That Person
5. There Must Be A Moving Of The Property In Order To Effect The Taking

- Intention to take dishonestly, section 24 of Penal Code: ‘Dishonestly’ is doing

anything with the intention of causing wrongful gain or loss to another person,
regardless of whether it causes actual wrongful gain or loss. Section 23 of
Penal Code ‘Wrongful gain’ gain by unlawful means of property ‘Wrongful
loss’ when a person is wrongfully kept out or deprived of property.
Illustrate from case Packeer Ally v Savarimuthu (1916) 2 CWR 216, the intention to
cause wrongful gain or loss must exist in the mind of the accused at the time of
moving the property. It cannot be an offence of theft if there is no intention at the
time of taking. In case Munandu v PP, although the accused pleaded guilty to theft of
a bicycle, he claimed that he was drunk at the time of the incident and took the
bicycle by mistake, thinking it was his.
Held: If the accused, in good faith and really believing the bicycle to be his property,
had taken it out of the owner’s possession, then he did not take it dishonestly and
thus, did not commit theft. The taking of another’s property as security for a debt,
Kadirawail v Kader Meedin, the accused, a creditor, took some jewellery from a
deceased woman, who was his debtor, and made it clear that he intended to retain
the jewellery only as a form of security for the debt.
Held: A dishonest intention had not been proven and thus, theft was not committed.
Manikant Yadav, when a person takes another man’s property believing under a
mistake of fact and in ignorance of law that he has the right to take it and retain it
until compensated, he may not be held guilty of theft as there is no dishonest
intention even though he may cause wrongful loss.

- The property must be movable Section 22 of Penal Code, ‘Movable property’

includes corporeal property (tangible property) of every description, except
land and things attached to the earth, or permanently fastened to anything
which is attached to the earth. Re Rahman Din, a corpse is not movable
property. Avtar Singh, electricity is not movable property.
In the case Che Man Che Mud v PP, the appellant, an advocate and solicitor of Che
Man & Partners, was involved with Harun, a clerk of Bank Negara Malaysia, to
defraud BNM of RM22.2 million. BNM received a cheque for RM22.2 million from
BSN for a subscription for Government Securities. Through forgery, Harun was able
to remit the money to the appellant’s account at a branch of Bank Bumiputra, where
it was credited into the account of Che Man & Partners and subsequently paid out on
cheques issued by the appellant. Harun and the appellant were charged under the
offence of theft.
Held: Under Section. 378, the subject of theft must be movable property, thus, there
cannot be theft of incorporeal property. An offence of theft is completed the moment
the movable property is moved. In this case, the movable property stated in the
charge was the RM22.2 million. On the facts, the only possible movable property is
the BNM cheque and the currency notes. It cannot be the cheque, as the charge
would have said so. Further, Harun did not move the currency notes as it left the
possession of Bank Bumiputra with Bank Bumiputra’s consent for the money to be
paid out. Where the movable property can neither be the BNM cheque nor the
currency notes, the RM22.2 million stated in the charge can only be a notional
amount or sum which is owing to somebody and that is not movable property. Thus,
Harun and the appellant did not commit the offence of theft as in Section. 378.

- It should be taken out of possession of another person, possession may be

actual or constructive possession. The person has a legal right to the property
but may not have control or custody. Section 27 of Penal Code, where
property is in the possession of a person’s wife, clerk or servant, on account
of that person, it is considered to be in that person’s possession. E.g:
Possession by a master through his servant.
In case Ward v PP, the appellants were convicted of theft of certain articles. It was
their contention that although they admitted to taking the articles, they did not take
them with any criminal intention, and further, that the owner had only been deprived
of them for a short time. Held: Although the taker did not intend to entirely deprive
the owner of the goods, it is still theft where the goods are taken out of the
possession of the owner for any period of time. Theft involves the deprivation of the
person in possession of his property.
According case Queen-Empress v Sri Churn Chungo, whoever moves property in
order to take it with the intention of keeping the person entitled to possession out of
the possession of it though he did not intend to deprive him permanently of it, is said
to commit theft. Intention to temporarily deprive the owner of his possession of goods
is sufficient. Based on the case Pyarelal v State of Rajasthan AIR 1963 SC 1094,
one need not take movable property permanently out of the possession of another
with the intention of not returning it. It is sufficient if he took any movable property
even though he intended to return it later.

- It should be taken without the consent of that person, explanation 5 to Section

378, Consent may be express or implied, and may be given either by the
person in possession or by any person having for that purpose authority either
express or implied. The absence of the person’s consent at the time of
moving the property is an essential ingredient to the offence.
In case Troylukho Nath Chowdy, the defendant sought the aid of one Cummins with
the intention of committing theft of the property of Cummin’s Master. Theft had not
been committed where the property was removed with the knowledge of the master.

- There must be a moving of the property in order to give effect the taking, Raja
Mohamed v R (1963) MLJ 339, the appellant was charged with theft of
property in the possession of his employer. It was argued that although two
dozen glasses were removed from the ground floor to the first floor, it was not
proved that they had been removed out of the possession of the company.
Held: It is sufficient if the person who formed such dishonest intention moves that
property in order to give effect such taking, and it is not necessary to move that
property out of the possession of another. Whoever intending to take dishonestly any
movable property out of the possession of any person without that person’s consent
is said to commit ‘theft’. In case PP v Goo Kian (1039) MLJ 291, the ingredients of
the offence are the taking away of movable property in the possession of someone
out of that person’s possession without his consent with intent to cause wrongful
gain or loss.
According case Boddepalli Lakshminarayana v Suvvari Sanyasi Appa Rao (1958)
AIR 1959 AP 530, the position is different if a bona fide claim of right exists. A mere
assertion of right does not constitute a valid claim of right. The claim must be
supported by proof or circumstances which indicate some truth in the statement. All
that is required to be proved in order to establish that the person doing the act was
doing it dishonestly is, that by that act he is gaining by unlawful means of property to
which he is not legally entitled to gain, or that any person is losing property by
reason of that act which the person losing is legally entitled.
In conclusion with the argument above