NURUL IMAN BINTI KHAIRUL ANWAR

THEFT

Provision for theft – s.378

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.

ELEMENTS (according to the colours marked in the provision above)

1. Mens rea – Intention to dishonestly take the property

▪ ‘dishonestly’ is explained in s.24 - intentionally causing wrongful gain/loss to
another
▪ The intention MUST be proved
Cases:
Lai Chan Ngiang v. PP [1930]
The accused takes/moves the property in the plaintiff’s store that was scheduled
but was not payed yet by the plaintiff.
HELD: Dishonest intention cannot be assumed; it MUST be proved.
Tsen En Fook v. R [1953]
The accused stole 8 Nibong tree trunks. He was said to have cut down the tree
without the owner’s consent.
Held: He was released because he had genuine belief that he had rights towards
the tree.
▪ When does the intention exist?
▪ Ketika mengambil – illustations (f)
“A finds a ring belonging to Z on a table in the house which he occupies.
Here the ring is in Z’s possession, and if A dishonestly removes it, A
commits theft.”
▪ Ketika menggerakkan – illustrations (h)
“A sees a ring belonging to Z lying on a table in Z’s house. Not venturing
to misappropriate the ring immediately for fear of search and detection, A
hides the ring in a place where it is highly improbable that it will ever be
found by Z, with the intention of taking the ring from the hiding place and
selling it when the loss is forgotten. Here A, at the time of first moving the
ring, commits theft.”
NURUL IMAN BINTI KHAIRUL ANWAR

Cases:
Ismail bin Mahad v. PP [1999]
The accused was charged under s 379 for stealing a necklace that belonged
to a lady. The accused said that the necklace fell off to his hands.
The court of appeal held that: whether the necklace was pulled or fell of
itself was irrelevant. What was important is the intention when the necklace
was taken out of possession. If at that time the intention was to deprive the
owner of the possession, mens rea has been established.

2. Actus Reus
2.1 The Property must be a movable property
▪ ONLY movable property
▪ Meaning of ‘movable property’ in s 22
“The words “movable property” are intended to include corporeal property
of every description, except land and things attached to the earth, or
permanently fastened to anything which is attached to the earth.”
Illustrations - Writings, relating to real or personal property or rights, are
movable property.
▪ An immovable property can be a movable property if it can be
moved/removed.
S 378 – Explanation 1
“A thing so long as it is attached to the earth, not being movable property,
is not the subject of theft; but it becomes capable of being the subject of
theft as soon as it is severed from the earth.”
R v. Lim Soon Gong [1930]
The argument used was that sand was part of land/earth, so it is not a
movable propery.
Held: Once the sand is lifted, it is severed from the earth making it a
movable property.
NURUL IMAN BINTI KHAIRUL ANWAR

2.2 Taking the property out of a person’s possession

▪ A person who possesses the property does not necessarily mean that he is
the rightful owner. Theft is an offence against POSESSION not
ownership. (Who is the ‘person’ is in s 27 – wife, clerk, servant, employer)
Illustration (j)
“If A owes money to Z for repairing the watch, and if Z retains the watch
lawfully as a security for the debt, and A takes the watch out of Z’s
possession, with the intention of depriving Z of the property as a security
for his debt, he commits theft, inasmuch as he takes it dishonestly.”
Illustration (k)
“Again, if A having pawned his watch to Z, takes it out of Z’s possession
without Z’s consent, not having paid what he borrowed on the watch, he
commits theft, though the watch is his own property, inasmuch as he takes
it dishonestly”
Case:
PP v Hong Ah Huad [1971]

2.3 Taking without the person’s consent

▪ Meaning of ‘consent’
S 378 – Explanation 5
“The consent mentioned in the definition 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.”

Illustration (m) – example of implied consent

“A, being on friendly terms with Z, goes into Z’s library in Z’s absence and
takes away a book, without Z’s express consent, for the purpose merely of
reading it, and with the intention of returning it. Here, it is probable that A
may have conceived that he had Z’s implied consent to use Z’s book. If this
was A’s impression, A has not committed theft.”
NURUL IMAN BINTI KHAIRUL ANWAR

Illustration (n) – impression that the person has authority to give consent
“A asks charity from Z’s wife. She gives A money, food and clothes, which
A, knows to belong to Z, her husband. Here it is probable that A may
conceive that Z’s wife is authorized to give away alms. If this was A’s
impression, A has not committed theft.”

Illustration (o) – example of no consent

“A is the paramour (aka scandal) of Z’s wife. She gives A valuable property,
which A knows to belong to her husband Z, and to be such property as she
has no authority from Z to give. If A takes the property dishonestly, he
commits theft.”

2.4 The act of moving the property itself

▪ Just by moving the property from its original position is an offence when it
is proved.
▪ Moving the property for a short period of time is also theft
Mehra v State of Rajashtan
A pilot trainee was flying a jet owned by the Indian air force, to Pakistan. In
his defence argument, it was said that he just flew the jet for a short time
and planned to bring it back to the base.
Held: even though the act of moving the jet was for a short while, it is still
theft.
▪ What if the property was moved in good faith?
Meaning that the person took the property because he in good faith thought
that the property was his.
Test of good faith is in s 52
“Nothing is said to be done or believed in good faith which is done or
believed without due care and attention.”

▪ Moving or causing an animal to removed is theft

Explanation 4 s378 - A person, who by any means causes an animal to move,
is said to move that animal, and to move everything which in consequence
of the motion so caused is moved by that animal.
NURUL IMAN BINTI KHAIRUL ANWAR

Illustration (b)
A puts a bait for dogs in his pocket, and thus induces Z’s dog to follow it.
Here, if A’s intention be dishonestly to take the dog out of Z’s possession
without Z’s consent, A has committed theft as soon as Z’s dog has begun to
follow A.

Illustration (c)
A meets a bullock carrying a box of treasure. He drives the bullock in a
certain direction, in order that he may dishonestly take the treasure. As soon
as the bullock begins to move, A has committed theft of the treasure.

▪ Cases
Raja Mohamed v. R [1963]
The accused was an employee in a company and was accused of stealing a
glass. He moved the glass from the store room to the top level and argued
that he did not commit an offence since he did not bring the glass out of the
building. He just moved it to the level above.
Held: It was an act of theft when he moved the property for him to take it
later, and when he moved it, it was said that he has taken it dishonestly.
For offences under s 378, it is not necessary for the property to be taken
out of the building, even though the property was still within the
company’s premise, the act of theft has already been established when
he moves the property with dishonest intention.

Thiangiah v. PP [1971]
The accused was accused of stealing fertilisers. The fertilisers were brought
to his car but was still within the region of the farm. The prosecutors failed
to prove the accused’s dishonest intention when he taken the property and
moved it. In addition, transporting the fertilizers were part of his job.
NURUL IMAN BINTI KHAIRUL ANWAR

Talha v. PP [1971]
The accused was convicted of stealing rubber milk from the complainant’s
rubber plantation.
Held: the farm was still under the name of the complainant (as the owner
registered), but not the actual owner with interest, because the complainant
was only a trustee.

PUNISHMENT FOR THEFT

S.379 -general punishment for theft

• imprisonment up to 7 years or fine or both

• For second or subsequent offence, imprisonment or fine or whipping.

S.379A – for theft of motor vehicle

• The act of stealing a motor vehicle or any component parts (tyre, accessory, equipment)
of the vehicle
• Imprisonment for 1-7 years and also liable for fine.
• Cases:
PP v Wong Chack Heng [1985]
PP v. Toh Kee Huat [1965]
PP v. Ahmad Yusof (posmen curi surat saham)

S.380 – theft in dwelling house

• The punishment is heavier for theft committed in building, tent or vessels that are used
as a human dwelling, or for the custody of property.
• Imprisonment up to 10 years, also liable for fine
• For a 2nd or more offence, imprisonment, fine or whipping.
NURUL IMAN BINTI KHAIRUL ANWAR

S.381 – theft by clerk or servants of property under master’s possession

• Imprisonment up to 7 years and fine.

• Must be identify who is the employer and in who’s possession was the property in
during that time.
• Prosecutor must prove that the property was taken without the consent of the property’s
possessor.
Vijayaratnam v. PP [1962].

S.382 – theft after preparation for causing death or hurt in order to commit theft

• Illustrations (a) and (b)

“A commits theft of property in Z’s possession; and, while committing this theft, he has
a loaded pistol under his garment, having provided this pistol for the purpose of hurting
Z in case Z should resist. A has committed the offence defined in this section.”
“A picks Z’s pocket, having posted several of his companions near him, in order that
they may restrain Z, if Z should perceive what is passing and should resist, or should
attempt to apprehend A. A has committed the offence defined in this section.”
• Imprisonment up to 10 years and also liable for fine or whipping