Malaysian Law - Theft and Section 378 of the Penal Code

by saraawil99gmailcom (student)

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 stealing some used tires. He appealed, claiming that he was not being dishonest because other employees did the same thing and that he felt he was authorized to do so. However, his work contract had a stipulation prohibiting him from collecting used stuff. The Court of Appeal overturned his conviction. Under the exceptions in Section 2(1) Theft Act 1968, the question of dishonesty is decided purely subjectively. What counts is the defendant's perception, not what he was actually allowed or barred to do. This illustrates the illustration on the mens rea of the doer during the undertaking.

The second element— moveable property was defined under Section 22 of the PC. It states that the term "movable property" refers to all physical property, with the exception of land and items permanently attached to the earth or permanently affixed to anything attached to the earth. As long as it attached to the earth, it’s not subjected to theft but once they were removed from their attachment, it can be stolen thus this action will constitutes as a theft. This can be illustrated further on the case of R v Lim Soon Gong (1939), where the respondent had been acquitted of stealing of sand from the foreshore. The trial judge examined Section 22 and held that land means an area of earth’s surface and does not mean a sod cut from the land.

The third element— out of the possession of any person brings out a clear meaning which one may be not the owner or in the title ownership of the property to raise the claim of theft. It is acceptable if the claim was brought up by the person that have a possession of that property. This can be seen in the case of Raja Mohamed v Regina (1963), where the accused was a chemical mixer in the company of Singapore Glass Manufacturers Co. Ltd. He was charged with theft of property in the possession of his employer 381 of the Penal Code. He was allegedly committed theft by removing two dozen drinking glasses from the possession of the company. The appellant argued that it was not proved that they had been removed out of the possession of the company even though he indeed removes them from its original place. It was held that the offence of theft was committed as soon as the accused moved the property in order to the dishonest taking even though not yet out from the owner’s possession. In the same circumstances, it can be seen in the case of Robert Bosch (M) Sdn. Bhd v Gunalan A/L Murugiah (2006), which adding a bit of information to relate to this element, the court held that it is not essential for movable goods to be taken out of the custody of another permanently with the goal of not returning it to him at any point to constitute theft. Even a brief deprivation of possession would be considered as theft.

The fourth element is without that person’s consent. In this context, the term ‘person’ referring to the owner or someone that has the possession over the property. Following the Explanation 5 provided under Section 378 of the PC, consent can either be impliedly or expressly. But this consent must be given by the person in possession of the property or the third party that has given the authority to give consent by the original owner. This can be seen in the case of Packeer Ally v Savarimuttu (1916), where the accused had approached the storekeeper (hereinafter referred as SK) on a rubber plantation and suggested that they should joint hand and steal some rubber. Which the accused tried to lure the SK by saying that they are going to share the proceeds of its sale. Realizing that this action was wrong in law, the SK did not wish to take part and told the estate superintendent of the accused’s intention. Taking the bait by identifying the prospective purchaser, the superintendent directed the SK to give the accused some rubber. The accused argued that he cannot be charged with theft as it was not under his command that the SK had given him the rubber. Also, he said that the superintendent which was the party that has the authority of consenting had consented him taking the rubber. The Court, however, held that the dominant feature of theft is the intention of the accused rather than the consent given by other person other than the person from whom the property was taken.

The last element to prove is that moving the property, the word move in Section 378 is vividly explained in Explanation 2 and 4 of this section.

The first issue in this question is whether Eric’s act of stealing due to starvation is an offence under Section 378 of the Penal Code and can be charged under Section 379 of the Penal Code. Looking onto all 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. In this case, Eric fulfilled all the elements which may allow Inspector Seth Tan to charge him with theft. This can be seen in the case of Munandu v PP (1984), where in this case the accused had pleaded guilty to the charge against him— theft of a bicycle. The learned magistrate accepts his plea due to the statement made by the accused that he took the bicycle by mistake because he was drunk at that time. It was held that the accused in a good faith and believing the bicycle to be his property and had taken it out from the owner’s possession. This shows that he did not take it dishonestly and therefore did not commit theft. Refer back to the case of Eric, he may argue later on that he never has dishonest intent but stealing only to cease down his starvation. But this do not do him any favor, due to he fulfilled all the elements of theft. As for the second element, in the case of Eric, food and also money that he steals due to his starvation is also consider as a moveable property where it was not attached permanently to the person or the earth.

As for the second issue, whether Eric’s act of stealing electricity to power up his sleeping area is an offence under Section 378 of the Penal Code and can be charged under Section 379 of the Penal Code. This was straight out a no if referring to the Code but a yes if referred to Section 86(3)(a) of Electricty Act 1948. This is because electricity itself is not a moveable property that can be touch or cut by a person physically. This term of ‘property’ brings a wide meaning and most objects will fall within the scope of it. Obviously, property includes money and all property, real or personal, including things in action and other intangible property. The incorporation of the words ‘things in action’ and ‘intangible objects’ extend to the meaning of property to cover rights such as those provided by shares or copyright. Even though there are various of types of property that may be can be the victim of theft, electricity is not one of it under the Code. Thus, Inspector Seth Tan cannot charge Eric with stealing of electricity under the Code.

The third issue underlaying in this question is whether Eric’s act of taking a handbag from a dump area and took away the money after getting shout from the owner of the handbag is an offence under Section 378 of the Code and can be charged under Section 379 of the Code. To answer this issue, let’s first look on the statement made by the judge in the case of R v Lim Soon Gong (1939), where he states that one’s property may be taken under bona fide though it was mistaken belief that it belongs to no one or has been abandoned. The circumstances to prove in this situation or to raise a presumption that the person intended to do something wrongful, is a mens rea of that person. It was also important to note the judgment in the case of of Munandu v PP (1984), where the judge held that the accused was not guilty due to the fact that he took it by mistake and have the intention to return it back to the original owner after realized from the intoxication. In this case, Eric may not have the dishonest intention at the first place when he found the handbag at dump area, however the dishonest intention form up after the act of him running away from the person that claims the handbag was hers. Thus, Eric is liable for theft and can be charged under Section 379 of the Code.

Malaysian Law - Theft and Section 378 of the Penal Code

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