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LAW 555 CRIMINAL LAW II

ASSIGNMENT 1 : DECEMBER 2014 PART B Q2

Prepared by :
UMI KALSYUM BINTI ABDULLAH PANI 2015675608
NUUR IZZATI FITRI BINTI NORDIN 2015656064
ARISSA AZREEN BINTI ISMAWI 2015675736

LWB04A

Prepared For :
MR. ASHRAN BIN HJ IDRIS

a) Tom claimed that he had been wrongly arrested by the police. He argued that
nothing was found in his possession during his arrest and that Jaga, the security
guard had allowed him entrance. Advise Tom whether he could be exonerated
from any criminal liability. (10 marks)

The issue is whether Tom can be held liable for criminal offence of theft under
Section 378 of Penal Code.

Section 378 provide that whoever, intending to take dishonestly any movable property
out of the possession of any person without that persons consent, moves that property
in order to such taking, is said to commit theft.

In establishing theft, there are some elements that need to be satisfied.The first
element is that there is intention or mens rea. In offence of theft, the mens rea in is to
take the property in dishonest manner. Section 24 of Penal Code explain that
dishonestly is whoever does anything with the intention of causing wrongful gain to one
person, or wrongful loss to another person, irrespective of whether the act causes
actual wrongful loss or gain. Meanwhile Sec 23 of the code stated that wrongful gain is
gain by unlawful means of property to which the person gaining is not legally entitled
and wrongful loss is the loss by unlawful means of property to which the person losing it
is legally entitled. In Munandu v Public Prosecutor [1984] 2 MLJ 82, 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 that was his. The court held that the
accused at in his good faith and believing that the bicycle was his, had taken it out of
the owners possession,hence did not commit theft.

In Manikant Yadav 159 [1980] 27 BLJR, it was held that taking of anothers
property as security for a debt is not a theft. However in Malaysian court, that is not the
case.In Public Prosecutor v Ramiah [1959] MLJ 204, three accused were prosecuted
for housebreaking in the committing of the offence of theft where the three accused
broke into the living room of the complainant and removed a trunk containing a large
quantity of property. Some days later the trunk with its contents intact was found in the
possession of one of them. As the defense, first accused stated that the complainant
owed him money and that he had removed the property because he thought if he kept it
for a few days the complainant would pay the debts.The defence for the other two
accused was that they thought the property was that of the first accused and that they
had assisted him to remove it.The court held on appeal that there were guilty. In
applying this element,Tom had cause dishonest act of taking away a bag full of gold
bars belongs to Gold Investment company. The way of Tom obtained the bag of gold is
a wrongful gain as he is not legally entitled for them and had caused Gold Investment to
suffer wrongful loss as they had losing the bag of gold that they legally entitled. Tom is
completely sober during the time of his act hence the ruling in Munandu is not
applicable. Also, not such debtor-creditor relationship shared between him and the
company. Therefore, this element is satisfied.

The second element is that the property involve must be a moveable


property. Sec 22 of Penal Code provide that a movable property 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. In Che Mad Che Mud,
the court held that there cannot be theft of incorporeal property such as a cheque. In
this question, the property involve is a moveable property which is a bag of gold, hence
this element is satisfied.

Next, the property must be taken out of possession of any person. Sec 27 of
Penal Code stated that property in a persons possession meaning to say is property in
possession of a persons wife, clerk or servant on account of that person. Here, it does
not not necessarily means ownership.The person has a legal right to the property but
may not have control or custody. In Sri Churn Chungo [1895] 1 LR 22 Cal 1017, it was
stated that 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. In applying to the situation, Gold
Investment is the person in possession of the bag of gold which they hold the property
in the storage. The act of Tom moving the bag of gold out of the storage is the act of
taking out the possession of the bag of gold from Gold Investment. Hence, this element
is satisfied.
Besides, there must be a moving of the property in order to such taking out of
all area within the control of the complainant.In the case of Raja Mohamed v R [1963]
MLJ 339, the appellant removed boxes containing two dozen glasses from the
companys ground floor storeroom.The appellant, who was a chemist of the company
was charged with theft of property in the possession of his employer under Section 381
of the Penal Code. The Court held that the appellant was liable for theft because he
moved property in order to such taking, without the owners consent. In defining move,
it may include severing and skinning a tree. Applying to the question, there is a
movement done by Tom as he grabbed the bag of gold, bring it with him into his jeep
and dove away. The fact that he had threw the bag out of his jeep and that the bag is
not found to be with him during the time of arrest is irrelevant. This is because there is a
movement done by him from the bag original place. Whether the property is with him or
not is not an element of the offence of theft. Hence, this element is also fulfilled.

Another element to be fulfilled is that the movement done without consent of


person in control of that property. Explanation 5 of Sec 378 stated that 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. In Troylukho Nath Chowdry [1878] 4 Cal 366, the defendant sought the aid
of one Cummins with the intention of committing theft of property of the Cummins
master.The Cummins, with the knowledge and consent from his master, for the purpose
of procuring the defendant's punishment, aided the defendant in carrying out the theft.
The court held that theft had not been committed as the property had been removed
with the knowledge of the master even though the defendant was liable for abetment of
theft.In the question above, the person in possession is Gold Investment company.
There is no such consent either express or implied obtained by Tom in moving the bag
of gold. Plus, the rule in Troylukho Nath Chowdry cannot be apply here as Jaga, the
security guard on duty, the servant of Gold Investment had given the consent to Tom to
take the bag of gold without the knowledge of Gold Investment therefore satisfied this
element.
In conclusion, Tom is liable for the offence of theft. This is because he had
fulfilled all the requirement needed in establishing the offence of theft.
b) Discuss Jeris criminal liability
(7.5 marks)

The issue is whether the act of Jeri taking the gold bars and giving one to Boboi
constitute the offence of dishonest misappropriation of property under section 403 of
Penal Code.

Dishonest misappropriation is when whoever dishonestly misappropriates, or


converts to his own use, or causes any other person to dispose of, any property.
Section 403 concerns on the offence of dishonestly misappropriates or converts the
property to own use. Explanation 2 of the section states that a person will be guilty if he
misappropriates to his own use when he knows or has the means of discovering the
owner, or before he has used reasonable means to discover and give notice to the
owner, and has kept the property a reasonable time to enable the owner to claim it. It is
not necessary that the finder should know who is the owner of the property, or that any
particular person is the owner of it; it is sufficient if, at the time of appropriating it, he
does not believe it to be his own property, or in good faith believes that the real owner
cannot be found. In the context of this question, the most suitable illustration would be
illustration (f) of Explanation 2.

However, if the value of the property is so small that it would be reasonable to


think that the owner will not come back for it, or that the property was so general that it
can be claimed by anyone, according to illustration (a) of Explanation 2, it is not an
offence of dishonest misappropriation.

In proving this offence, it must be shown that there existed element of dishonesty
and misappropriation. Dishonesty under this section will look on whether there is
intention to cause wrongful gain and sufficient effort made to trace the rightful owner
and allowed the goods to be claimed before disposing them. In the case of Parker v
British Airways Board [1982] 2 WLR 503, finders may be liable of criminal offence if
he thinks that he is not liable to return the property to the owner. In the case of Yeow
Fook Yuen v R [1965] 2 MLJ 80, it was held that dishonesty is to be assessed at the
time of alleged misappropriation. It must be shown that at time of misappropriation, the
accused had the intention to benefit from something not of his ownership.

Misappropriation can be interpreted as dealing with another persons property


without right as if it is your own, according to the case of Durugappa v State of Mysore
1965 Cri LJ 630. It must be shown beyond reasonable doubt that the accused had
misappropriated the property as in the case of Hj Maamor bin Hj Abdul Manap v PP
[2002] 6 MLJ 688. In this case, there was insufficient evidence of misappropriation, so
that the presumption could not apply. Another case that we can see is Tuan Puteh v
Dragon (1876) 3 Ky 86. Even though the cheque had not been cashed as it required
the owners endorsement, the act of the accused took to the bank to cash it out after
found it was sufficient to constitute a misappropriation.

In applying to the above situation, as Jeri found the bag of gold bars by the
roadside, he knew that it was not his property. Looking at the content of the bag which
were gold bars and imitation gun, Jeri could have known that an offence of stealing had
been committed. The value of gold bars were very high that it was reasonable to think
that people would use guns in order to get such valuable things as gold bars. Jeri had
acted dishonestly when he did not made any attempt to find the owner or have it
reported to the authority. The high value of the gold bars did not render the right to Jeri
to take it. Applying illustration (a) and (f) of Explanation 2, as he picked up such
valuable things as gold bars and took it home without finding the owner first, he has
committed the offence of section 403 following the dishonest intention and
misappropriation.

It can be said that Jeri had intention to gain benefit from the gold bars as he took
it home and did not make any attempt to return it to the owner. Applying Explanation 2,
as Jeri found the gold bars not in the possession of any other person, appropriated it to
his own use by taking it home and gave one to Boboi, when he had means to discover
the owner by having it reported to the authority, Jeri had committed the offence.
It was a dishonest act applying the case of Parker as Jeri believed he did not
have to return to its owner. At the moment he took it to his home while suspecting the
gold bars had been obtained through an offence, applying Yeows case, Jeri had the
intention to be dishonest. If he was acting honestly, he would not have bring it to his
home, but a police station instead. The act of taking it home constitute the intention to
benefit. Plus, from the situation, Jeri only gave one gold bar to Boboi which means he
had intention of keeping the rest. Jeri had intention to benefit from the rest of gold bars
he had in possession.

The misappropriation was when Jeri, having no right and authority over the gold
bar, treated it as if it was his, by taking it home and giving one to Boboi. He had caused
the disposal of the property not of his own. Applying definition of misappropriation in
Durugappa, Jeri dealt with another persons property without right. The evidence of
misappropriation can be shown by the act of giving one to Boboi. Even if Jeri only keep
it to himself, applying Tuan Puteh, the act of taking it home was sufficient to constitute
misappropriation.

Thus, it can be said that Jerri has committed the offence of dishonest
misappropriation of property under section 403 of Penal Code.
c) Advise Boboi whether he has committed any offence (7.5 marks)

The issue is Whether Boboi is criminally liable for the offence relating to stolen
property under Section 411 of the penal code.

The general rule provided under Section 411 of the penal code is a person who
dishonestly receives or retains any stolen property and has a knowledge and believes
that property is a stolen property shall be punished with imprisonment for a term which
may extend to five years, or with fine, or both.

In order to prove that Boboi is criminally liable for the offence Section 411 of the
penal code, there are 4 requirements that has to be fulfilled.

The first element is the goldbar was a stolen property. It is however unnecessary
to prove that Boboi had committed the offences under Section 410 (1) to consider the
goldbar to be stolen. Section 410 (1) of the penal code defines stolen property as a
property which the possession has been transferred by theft, extortion, or robbery, and
property which has been criminally misappropriated or in respect of which criminal
breach of trust or cheating has been committed. To add, under Section 410 (2), it
extends the definition of stolen property including any property which has been
converted or exchanged.

In the case of Ajendranath v State of Madhya Pradesh Air (1964) SC 170, it


was held that it is not necessary to prove a person to be convicted for receiving stolen
property, convicting the offence of theft. Here, the prosecutor only need to establish that
the property recovered is a stolen property and the accused held in its concealment or
disposal. This judgement is also similar as in the case of Li Huabo v Public
Prosecutor [2014] SGHC 133.

However, if the property is not obtained by any of the offences under Section
410(1), the property would not be a stolen property.
In a Malaysian case, these is explained in the case of Goh Khiok Phiong v
Regina [1954] 1 MLJ 223, it was held that if the property is not obtained by any of the
offences stated in section 410, or the absence of evidence that the property is stolen,
the property would not be stolen property.

The second element is Boboi has received or retained the goldbar. In the case of
PP v Hong Ah Huat [1971] 1 MLJ 52, the accused had purchased stolen property from
the thief. The property were found in his possession. Possession here were held as a
physical capacity to deal with the stolen property. It must be a conscious and intelligent
possession and not merely the physical presence of the accused in the proximity or
even close proximity of the property.

In the case of Varia & Anor v Public Prosecutor [1948] 1 MLJ 3, two
appellants were convicted of dishonestly retaining flour knowing the same to be stolen
property as in section 411 of the Penal Code. The two appellants were found on the
deck of a tongkang in which the Police found 13 bags of flour in circumstances which
indicated that they were intended to be concealed. However, it was proved that it was
customary, for members of the crew to sleep ashore nearby the tongkang. It was held
that proof of possession is essential and in this case there was no such proof in and the
convictions must be quashed.

Moving on, in the case of Tang Kee Poh v. Public Prosecutor [1993] 2 CLJ
490, the appellant did not mentioned that he had concealed or kept the stolen properties
but he merely led the police to places where the said properties were recovered. It was
proven that the stolen properties were recovered from places not exclusively occupied
by the appellant where it is accessible to other people. However, this is not sufficient to
prove possession even though the property may be concealed, because any other
person would do the same as accused and might have merely knowledge of it.

The mere knowledge that stolen property is lying hidden somewhere is not
incriminating circumstance for the offence of theft or receiving stolen property. Hence,
such knowledge cannot by itself raise a presumption of possession.
Thirdly, Boboi has received or retained the property dishonestly. Section 24 of
the penal code defines Dishonestly as doing something with the intention of causing
wrongful gain or loss to another person. It is immaterial whether it causes actual
wrongful gain or loss. In the case of Najiballah Khan [1884] PR No. 10 of 1884, it was
held that to constitute dishonest retention, a change of mental element of possession
must be involved. In a singaporean case of Ow Yew Beng v PP [2003] 1 SLR(R) 536 it
was stated that the two mental elements of dishonesty and knowing or having reason to
believe that the property was stolen can exist together. In the case of PP v Hong Ah
Huat [1971] 1 MLJ 52, dishonest is when the accused must received the property
dishonestly or if he having received it honestly, he retained the property dishonestly.

Lastly, Boboi knew or had reason to believe the goldbar was stolen property.
Under Section 26 of the penal code, when a person has sufficient cause to believe
that thing, but not otherwise, he is said within the term Reason to believe. To illustrate,
in the case of Ahmad Bin Ishak v PP [1974] 2 MLJ 21, the appellant (a penghulu)
voluntarily assisted in disposing of a cheque valued at $2,000.90 which he knew or had
reason to believe to be stolen property. Here, the cheque had been handed to the
appellant by an office boy. It was a government cheque, crossed, and had been made
out in the name of another person. Later, the appellant had taken the cheque to a
goldsmith's shop and had purchased gold ornaments and had taken the balance in
cash. It was held that in order to prove the term of reason to believe, the prosecutor
must look into the circumstances and consider if the circumstances are such that any
reasonable man could see sufficient cause to believe that it was stolen.

Moving on, in the case of Samad bin Kamis & Anor v Public Prosecutor
[1992] 1 SLR 340, the second appellant (a bunker clerk) was sentenced for five months
imprisonment for dishonestly receiving 157 metric tonnes of fuel worth about
S$62,616.95. Here, it is obvious that the appellant was acting dishonestly as he
purchased the oil at less than half the market value and knew that the oil was sold to
him at a very cheap price.

Next, in the case of Tan Ser Juay v Public Prosecutor [1972] 1 MLJ 6, the
appellant voluntarily assisting in the disposal of four hundred wrist watches knowing or
having reason to believe that they were stolen property. Evidently, the appellant was a
broker where he was asked to arrange for the sale of these watches which were new,
without the relevant certificate, and without the issue of a receipt from the seller who
admitted the theft. Thus, it was held that in those circumstances the appellant must
have known or had reason to believe that the watches were stolen property and
convicted him. However, on appeal, the law does not allow for a conviction based
merely on suspicion and the conviction and sentence were set aside.

In applying, based on the fact, Jeri had had found the bag while he was jogging
at the area. Looking at the contents, Jeri suspected an offence had been committed in
relation to the items in the bag; nonetheless, he took the bag home and told Boboi how
he came into possession of it.

For the first elements, the goldbar is clearly is a stolen property. It is however
irrelevant whether the possession of the goldbar was transferred by Jeri to Boboi was
under the offences of Section 410 (1) of the penal code.However, if the goldbar is not
obtained by any of the offences under Section 410(1), it would not be a stolen property.
Thus, the first element is fulfilled as it is clear that the goldbar is a stolen property.

Secondly, Boboi must received or retained the goldbar. Here, conscious and
intelligent possession has to be considered following the case of `PP v Hong Ah Huat.
However, by virtue of the case Tang Kee Poh v. Public Prosecutor, Boboi mere
knowledge in determining whether the goldbar is a stolen property cannot raise a
presumption of possession. Based on the fact that Jeri showed Boboi the goldbar and
told him about how he found the gold bar. Boboi received the gold bar from Jeri. Thus, it
is clear that Boboi has a knowledge about offence had been committed in relation to the
items in the bag and how Jeri found the bag. However, he still want to retain the stolen
gold bar. Here, the second element is fulfilled.

Thirdly, when Boboi received or retained the goldbar, he had acted dishonestly
where he has the intention to take the gold bar illegally and causes loss to another
person. By virtue of the case Najiballah Khan, a change of mental element of
possession must be involved. Here, it was clear that Boboi had acted dishonestly as he
received the goldbar and sold it to the pawnshop. Boboi has the intention to take the
goldbar and sold it to gain profit. He know that Jerri found the bag from an unknown and
illegal source, but he still retained the property dishonestly. Thus, the third element is
fulfilled as it is clear that the Boboi had acted dishonestly.

Lastly, Boboi has a sufficient cause to knew and had reason to believe the
goldbar was stolen property. Following the judgement in Ahmad Bin Ishak v PP, the
prosecutor must look into the circumstances and consider if the circumstances are such
that any reasonable man could see sufficient cause to believe that it was stolen. Based
on the fact, a reasonable man would believe and know that the gold bar was a stolen
property. This is because, a bag containing gold bar would not probably being put in a
public place. It is also not reasonable to take the goldbar without knowing or finding the
real owner of the said property first. To strengthen the fact, gold bar has a its own
considerable value and it is sufficient for Boboi to knew that the property is a stolen
property based on the how Jeri received the said bag and what he has told Boboi. Thus,
the last element also is fulfilled.

In conclusion, Boboi has fulfilled all the 4 elements mentioned above. Hence, he
is criminally liable for the offence relating to stolen property under Section 411 of the
penal code and punishable under the same section for taking the gold bar and sold to
pawn shop.
LIST OF AUTHORITY

1. Section 403 of the Penal Code


2. Section 411 of the Penal Code
3. Parker v British Airways Board [1982] 2 WLR 503
4. Yeow Fook Yuen v R [1965] 2 MLJ 80
5. Durugappa v State of Mysore 1965 Cri LJ 630
6. Hj Maamor bin Hj Abdul Manap v PP [2002] 6 MLJ 688
7. Tuan Puteh v Dragon (1876) 3 Ky 86
8. Munandu v Public Prosecutor [1984] 2 MLJ 82
9. Manikant Yadav 159 [1980] 27 BLJR
10. Public Prosecutor v Ramiah [1959] MLJ 204
11. Sri Churn Chungo [1895] 1 LR 22 Cal 1017
12. Raja Mohamed v R [1963] MLJ 339
13. Troylukho Nath Chowdry [1878] 4 Cal 366
14. Ajendranath v State of Madhya Pradesh Air (1964) SC 170
15. Li Huabo v Public Prosecutor [2014] SGHC 133
16. Goh Khiok Phiong v Regina [1954] 1 MLJ 223
17. PP v Hong Ah Huat [1971] 1 MLJ 52
18. Varia & Anor v Public Prosecutor [1948] 1 MLJ 3
19. Tang Kee Poh v. Public Prosecutor [1993] 2 CLJ 490
20. Najiballah Khan [1884] PR No. 10 of 1884
21. Ow Yew Beng v PP [2003] 1 SLR(R) 536
22. Ahmad Bin Ishak v PP [1974] 2 MLJ 21
23. Samad bin Kamis & Anor v Public Prosecutor [1992] 1 SLR 340
24. Tan Ser Juay v Public Prosecutor [1972] 1 MLJ 6