Theft

Sec. 378: 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’.
- Goo Kian: 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.
In order to establish the offence of theft, there are five elements that must be fulfilled:
Intention to take dishonestly:
- Sec. 24: ‘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.
- Sec. 23:
- ‘Wrongful gain’: Gain by unlawful means of property
- ‘Wrongful loss’: When a person is wrongfully kept out or deprived of property

- Packeer Ally v Savarimuthu: 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.
- Munandu: 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.

- However, in Ramiah: Three accused were charged for house breaking and theft
for removing a trunk in the complainant’s possession. It was argued that the
complainant owed one of them money and the trunk was removed because
they thought keeping it would make the complainant pay the debt.
Nevertheless, the court found them guilty for theft.
- Sri Churn Chungo: A creditor, who by force or otherwise takes the goods of his
debtor out of his possession against his will in order to put pressure on him to
compel him to pay his debt, is guilty of theft.
 - Suvvari Sanayasi Apparao: 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.
- Lim Soong Gong: Property may be taken under a bona fide though mistaken
belief of right or in the bona fide though mistaken belief that it belongs to no
one or has been abandoned. The circumstances must be such as to show or
raise a presumption that the person intended to do something which he knew
or should have known was wrongful.
The property must be movable:
- Sec. 22: ‘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.

- Che Man Che Mud: 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 Sec. 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 are 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 Sec. 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.
- Sec. 27: 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.
 - Theft involves the deprivation of the person in possession of his property.
- 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.

- Ward: 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.

- Pyarelal v State of Rajasthan: 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 Sec. 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.
- Mehra: The absence of the person’s consent at the time of moving the property is an
essential ingredient to the offence.
- Troylukho Nath Chowdy: 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 effect the taking:
- Raja Mohamed: 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 effect such taking, and it is not
necessary to move that property out of the possession of another.
Punishment
- Sec. 379: For theft – 7 years imprisonment or fine, or both
- Sec. 379A: Theft of a motor vehicle
- Sec. 380: Theft in a dwelling house
- Sec. 381: Theft by a clerk or servant of property in possession of master
- Sec. 382: Theft after preparation is made for causing death or hurt to commit theft
Extortion
Sec. 383: Intentionally putting any person in fear of any injury to him or herself or any other
person, and thereby dishonestly inducing the person in fear to deliver to another any
property or valuable security.
Threat of injury:
- Sec. 44: ‘Injury’ is any harm illegally caused to any person, in body, mind, reputation
or property.
- Sec. 43: ‘Illegal’ is applicable to everything which is an offence, prohibited by law or
furnishes ground for a civil action.

- There must exist fear of injury to himself or another inducing the delivery.
- The fear of injury must be communicated through an act.
- Arjan Singh: The recipient received letters from the appellant demanding
payment of $5000 and containing threats. The recipient took the letter to the
police. The appellant was charged for extortion. Held: The gist of the offence
is to put another person in fear of an injury. As this was absent in this case,
there can be no extortion.

- The fear of injury may be conveyed by express threats: Illustration (a), (b), (c)
- Words which appear innocent, but when construed by the victim shows that some
form of injury may be caused unless certain demands are met, can constitute an
implied threat.
- Beh Tuck Seng: Where the appellant’s words were construed by the
complainant as a threat to which he feared that if he did not pay, he would be
beaten up, extortion was established.
- All that is necessary is that a person should be intentionally put in fear
of any injury and thereby dishonesty induced to delivery property. It
was clear in this case that the complainant was put in fear and was
thereby induced to hand over the money.

- The threat of injury can also be implied from the appearance and expression of the
accused.
- Tan Cheng Kooi: The appellants had mooted the idea of forming a partnership
to produce pornographic films. When the complainant decided not to
participate, one of the appellants demanded some money for traveling
expenses. The first appellant did not appear happy in making the demand and
said that he would not befriend the complainant anymore. The complainant
allegedly became frightened as he took the appellant’s words to mean a
threat. Held: So long as the injury came within the ambit of Sec. 44, the threat
can be an implied one in order for the offence of extortion to be made out.
 - A threat is not confined only to physical injury. It can take the form of using influences
of power, whether real or supposed, to the detriment of the complainant.
- Meer Abbas Ali v Omed Ali: The victim, Omed Ali gave 2 rupees to Abbas Ali
through fear that if he did not give time, he would lose his position as peadan
in the Small Case Court Judges establishment. Held: Abbas Ali, a man disliked
and feared by the establishment, was found guilty of extortion, as he made use
of his influence to induce its members to give him money.

- Where there is no threat of injury inducing the person in fear to pay or delivery
property, there can be no offence of extortion.
- Mohamed Taufik: There was no extortion where there was no threat as the
accused had solicited and received money in return for refraining from taking
action against the complainant.

- There is no fear of injury to induce delivery if the accused were to forcibly take the
property from the victim.
- Jadunandan Singh: The accused assaulted the victims and forcibly took their
thumb impressions on blank pieces of paper, which could be converted into a
valuable security. Held: The accused was acquitted of extortion, and instead
convicted for using criminal force.
Delivery of property:
- Isa bin Johnit: The offence of extortion is in the actual delivery of possession of the
property by the person put in fear and the offence is incomplete before such delivery.

- There may be no dishonest inducement to deliver property if the offender thinks he

has a right to demand payment.
- Abdul Ka’der Valad Ba’la A’Buji: The accused was granted the right of carrying
any firewood he might find in certain parts of the jungle during the year. He
misconstrued the extent of the right thinking that he had the sole right of
removing wood to the exclusion of others. Believing himself to be entitled to
all the wood, he demanded payment from the complainants for the wood they
had collected. When they declined, he refused to let them go. Held: There was
no fear of injury as in the definition of extortion. As the accused believed in
good faith that his right to the wood excluded others, he could not have
dishonestly induced the complainants into giving the wood.
Punishment
- Sec. 384: For extortion – 10 years imprisonment, with either fine or whipping
- Sec. 385: Putting person in fear of injury in order to commit extortion
- Sec. 386: Commits extortion by putting a person in fear of death or grievous hurt
- Sec. 387: Putting person in fear of death or grievous hurt in order to commit extortion
- Sec. 388: Commits extortion by threat of accusation of offence punishable with death
- Sec. 389: Putting person in fear of accusation of offence in order to commit extortion
Robbery
Sec. 390(1): In all robbery, there is either theft or extortion.
Sec. 390(2): Theft is robbery if, in order to commit theft, the offender, for that end, voluntarily
causes death, hurt, wrong restraint, or fear of instant death, wrongful hurt or restraint.
- Wong Kon Poh v New India Assurance Co Ltd: Robbery involves the taking of
something from the owner, in his presence, with his knowledge and consent given
through fear or violence, whereas theft is carried out surreptitiously (sneakily)
- Theft is robbery if the offender, in the presence of the victim, voluntarily causes or
attempts to cause to any person death, hurt, wrongful restraint, or fear of instant
death, wrongful hurt, or wrongful restraint.

- In robbery, the violence caused is for the ends of the theft, either in order to, in
committing, in carrying away, or attempting to carry away the proceeds of theft.
- Nga Po Thet v Emperor: The essence of robbery is that the offender uses
violence in his attempt to commit theft. The use of violence to escape while
abandoning the property is not a robbery. Such violence would not be in the
commission of the theft.
- Kalio Kerio: Where an accused abandoned the property obtained by theft and
threw stones at his pursuer to deter him from continuing the pursuit, he was
found guilty of theft and not robbery.

- Karuppa Goundan: The hurt contemplated must be a conscious and voluntary act for
the purpose of overpowering resistance on the part of the victim, quite separate and
distinct from the act of theft itself.
- E.g: Snatch-theft is robbery as there is a voluntary contemplation of hurt to
overcome resistance on the part of the victim – Illustration (e) of Sec. 390
- Teekhai Bheer: An accidental infliction of injury will not convert theft into
robbery.

- Khong Soh: The court upheld the conviction for robbery where four men herded the
workers of a kongsi house into a room and kept guard over them while another party
filled sacks with tin ore from a store-room at the rear of the kongsi.

- Bishambhar Nath: An altercation ensued at a carnival between the applicants and the
manager, followed by a scuffle. The applicants then removed a cash box containing
money from the table. Held: The assault and beating had no relation whatsoever to
the commission of theft, even though it was committed at the same time or
immediately afterwards. The violence was not used to facilitate the theft.

Sec. 392: Punishment for robbery – 14 years imprisonment with fine or whipping
Gang-robbery
Sec. 391: When two or more persons conjointly commit or attempt to commit robbery, every
person so committing, attempting, or aiding, is said to commit gang-robbery.
- ‘Conjointly’ is not defined in the Penal Code.
- Dhambaru Dhar Injal: The word ‘conjointly’ refers to united or concerted action of the
persons participating. The mere presence of the accused amongst the robbers is not
sufficient. The accused must be shown to have conjointly committed robbery or aided
such commission.
- Ibrahim: Where the accused was left in a boat 5 or 6 miles away from the robbery
when it took place, his action did not come within the definition as he was not present
though he might have been aiding the commission of robbery.
Sec. 395: Punishment for gang-robbery – 20 years imprisonment with whipping

Gang-robbery with murder

Sec. 396: If any one of two or more persons, who are conjointly committing gang-robbery,
commits murder in so committing gang-robbery, every one of those persons shall be punished
with death or imprisonment for a term which may extend to 30 years with whipping.
- Awang Kamaluddin: Sec. 396 requires the prosecution to prove:
- There was a robbery
- It was a gang-robbery as defined in Sec. 391
- One of those jointly committing gang-robbery committed murder in the
course of the robbery

- Prasong Bunsom: The second appellant merely drove the van and did not partake in
the murder. Held: He was found guilty as he had gone there to assist the robbery. It is
not necessary that a person has to participate in the murder to be convicted under
Sec. 396, as long as he assisted in the robbery. Hence, there is no need to prove
intention to bring about the result of death.
- If murder is committed by a person who is conjointly committing gang-robbery
with others during the course of gang-robbery, everyone who is conjointly
committing the gang-robbery is liable to punished under Sec. 396.
- Liability will be imputed to all the members of the gang.

- Punjab Singh v Emperor: It is not necessary that murder should have been within the
contemplation of all the members when the gang-robbery was planned.
- Samunder Singh: Not all members must be present at the scene of the murder.
- Teja: It is immaterial whether the murder was committed inside or outside the house
where the robbery took place as long as the murder was committed in the commission
of the robbery.
- Sanli bin Sunggoh: The defendants were convicted under Sec. 396 as one of the
members stabbed a boy eleven times while another assaulted the boy’s father in the
commission of the gang-robbery. Neither of the members gave the father nor the son
a chance to surrender the property in their possession. Hence, there was an intention
to kill in committing the theft.

- Shivappa: The death need not be proved against any particular member of the gang.
So long as death is the cumulative result of violence used by the gang, it is sufficient.

- However, it may be necessary to ascertain whether the murder that took place was so
separated by time and space so as to form part of the gang-robbery or not.
- Sakharam Khandu: While retreating, one of the gang members shot and killed
one of its pursuers. Held: As murder was committed in effecting a safe retreat,
there was no separation by time or space from the gang-robbery. The retreat
was an essential part of the common criminal purpose. Hence, the murder was
committed in continuation of the gang-robbery.

- The murder must be committed in the commission of the offence of gang-robbery.

- Sheo Ratan: Where the deceased was beaten in order to diminish evidence
that might appear against them as the deceased had identified them, it was
held that the violence used by the thieves would not convert the theft into a
robbery as it was not done in continuation to the crime.