Malaysian Law - Theft and Section 378 of the Penal Code

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The definition for theft was provided in Section 378 of the Malaysian Penal Code along with five explanation and various of illustrations. This section state on “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”. Understanding this, it can be separate into two— Actus reus and mens rea in which referring to the above rules, the words dishonestly and intending can be taken as a mens rea of the accuse while, words such as movable property out of the possession and without the person’s consent shows the Actus reus of that person. In an easy word, theft is the illegal taking of another's property, the intentional and wrongful taking of another's assets without his consent with the purpose to deprive him permanently. The definition provided under the Common Law is not far different from our Penal Code (hereinafter referred as the Code). The definition was first introduced through Larceny Act 1961, where it was defined as willful and wrongful taking away of goods of other, against his consent with intention to deprive him permanently. The definition provided in this act however was replace in a consolidation with 1968 Theft Act.

After discussing all of these definition and types of property, it is appropriate to discuss on the elements of theft as provided in Section 378 of the PC. There are five elements— intending to take dishonesty, moveable property, out of the possession of any person, without that person’s consent and moving the property to any other place from the original position. The first element— intending to take dishonestly, the word dishonest is defined in Section 24 of PC. It is stated in this section that anyone who does something with the goal of inflicting unjust gain or loss to one person, regardless of whether the act creates real wrongful loss or gain, is said to be acting dishonestly. While the words ‘wrongful’ in this section was defined clearly under Section 23 of PC. This intention must exist at the time of moving the property from its original position. By concluding this to more comprehend version, the wrongfulness of the taking must consist of when the accused knew that property belong to others or even if the property belongs to him, he knows that other person has the right of retention. Obviously, this element was fall under the category of proving the actus reus— when there is an act done, thus one may convict with theft. This can be seen in the case of Robert Bosch (M) Sdn. Bhd v Gunalan A/L Murugiah (2006), where in this case, the claimant was the employee in the respondent’s company. On 23rd December 2002, his colleagues had taken inventory of the finished products of 3 sets of Santa Monica radio which later were placed in a box duly marked and kept in the progress area in the Production Line (hereinafter referred as PL). However, on the next day, 2 sets of the radio are missing. Later, he argued that he found the radio in a “scrap” box behind the PL on 24th Dec. He picked the radio and kept on his locker because he thought he could later approach his manager for permission to use this radio for the factory’s temple annual prayer on 25th Dec. After evaluating the evidence in the inquiry notes, the Court held that there is a prima facie case of theft as charged. This is due to the fact that deprivation of possession for temporary period is also constitute as a theft. As long as it was removed from its original position without any lawful justification, thus it is a theft.

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As far as the first element mention that “intending to take dishonestly” may constitutes as the actus reus of the doer, it will also relate to the mens rea of the doer. The words intention itself refer to the internal wrong which one has plot the scenario in their head. Under several illustrations provided in the Code, suggest that what’s important was that whether the accused have the intention to take the property with or without consent of the person. In the case of R v Holden (1991), where Kwikfit was the appellant's employer. He was found guilty of ...

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