THEF

T
SYAFIQAH JOHARI
CRIMINAL LAW II
HOW DO YOU
FEEL ABOUT
ROBIN HOOD
STEALING FROM
THE RICH TO
PROVIDE TO THE
POOR INSTEAD?
IS IT A NOBLE ACT
OR AN OFFENCE
UNDER THE LAW ?
INTRODUCTION
INTRODUCTION

• Interpretative Problems
• The offence of theft in s 378 is not drafted clearly as to its mens rea and
actus reus. Therefore, it is open to two interpretations, namely:
• First view:
• AR – the Accused moved Victim’s moveable property
• MR – that Accused dishonestly intended to take the property out of
Victim’s possession without Victim’s consent
Second view
• AR – that Accused moved Victim’s moveable property out of Victim’s
possession, without Victim’s consent
• MR – that Accused was dishonest
It is proposed to adopt the first interpretation consistent with several leading cases.
• The language of s 378 requires the first interpretation to be adopted. The Code asked

• “Whether the accused intended to take…moveable property out of the other’s possession without
that person consent.”
• And NOT
• “Whether such a taking has actually occurred.”
• Besides, the first interpretation is favour because:
• Illustration (a), (b), (h) and (m) clearly reflect this interpretation.
• While, Illustration (d) and (l) are expressed in a terms of the accused person have physically moved
an item out of the victim’s possession without consent, but they both involve scenarios where the
intent to do this would also have been present.
DEFINITION
GENERAL DEFINITION OF THEFT
• General definition of theft is taking away property of others illegally. Before that, under
the Common Law of England that is under Larceny Act 1961,larceny was define as
willful and wrongful taking away of goods of other, against his consent with intention to
deprive him permanently.
• But in 1968 Theft Act was introduced which it consolidated the Larceny Act 1961 by
definite theft as dishonestly appropriate with intention of permanent depriving the person
of his property.
• Whereas in Malaysian Penal Code, theft under section 378 is more specific in nature
where in order to constitute theft under this section the following ingredients must be
satisfied, namely :
• intention to take dishonestly,
•  the property must be movable,
•  it should be taken out of possession of another person,
• it should be taken without the consent of that person and
• there must be some removal of that property in order to effectuate such taking.
(SPECIFIC) DEFINITION OF THEFT
 Theft is taking away property of others illegally, willful and wrongful
taking away of goods of other, against his consent with intention to deprive
him permanently.

Actus Reus Mens Rea

• taking out possession • intending

• property in possession of another • dishonesty
• no consent of taking • intention to take without
• moving property out of possession consent
PROPERTY

• Property includes money and all property, real or personal, including things in action and
other intangible property.
• Things in action – bank accounts Kohn (1979)
• Intangible property Quotas – A-G of Hong Kong v Chai Nai-Keung [1987]
• Intellectual Property Rights
 TYPES/FORM OF THEFT

LEGAL PROVISIONS ON THEFT

FORM OF THEFT (PENAL CODE)

• S.379A – Theft of motor vehicle or any

motor vehicle’s components or parts
• S.380 – Theft in dwelling house
• S.381 – Theft by employee (clerk/servant)
• S.382 – Cause death or hurt to commit theft
GENERAL PRINCIPLES OF LAW (GPL)
ELEMENTS ON THEFT
ELEMENTS UNDER THEFT :
SECTION 378 PENAL CODE
1) Intending to take dishonestly
2) Moveable property
3) Out of the possession of any person
4) Without that person’s consent
5) Moving the property
FIRST ELEMENT :
INTENDING TO TAKE DISHONESTLY
• The word dishonest is defined in section 24 of PC
• The word of wrongful gain and wrongful loss is defined in section 23 of PC
• Illustration : ( i ) the elements of dishonest intention is not proven
( j ) dishonest intention is proven
( p ) inline with ( i )
DISHONESTY

• Dishonesty requires the intention to cause wrongful gain or wrongful loss.

• This intention must exist at the time of moving the property [refer to Illustration (h)
and (i)].
• There is no dishonest intention is a person takes his friend’s book, which was carelessly
left in a restaurant, intending to return it after he has read it.
• However, if he subsequently forms the dishonest intention not to return it he may be
liable for criminal misappropriation of property under s 403.
• It is not theft as there is no dishonest intention at the time of taking.
CONTINUED…

• The wrongfulness of the taking consists of:-

• Knowing that the property belong to another person, or
• If the property belong to him, he knows the other person has right of retention
[Illustration (j)]
• If a person takes loss property there is no dishonest intention in the taking but there may
be criminal misappropriation [refer to Illustration (g)]
ISSUE: PROPERTY AS SECURITY FOR DEBT

• Whether the taking of property of another as a security for debt constitutes theft under s 379?
• Manikant Yadav (1980)
• The petitioner removed a bullock from the informant because he owed him money.
• The court held that the petitioner had no dishonest intention. He said:
• “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 committing an offence and to retain until
compensated, he may not be held guilty of theft is as much as there is no dishonest intention
even though he may cause wrongful gain within the meaning of the Penal Code.”
MR: INTENTION TO TAKE WITHOUT CONSENT

• The mens rea of theft also includes an intention to take property of another without his consent.

• Case Law : Lim Soon Gong (1939)

• “Mens rea is essential to theft and illustration (m) and (a)… show this”.

• Illustration (l) and (o) – deal with the question of consent and the element of dishonestly in theft.

• Refer to Explanation 5 and Illustration (e), (m), (n) and (o). The provision under s 90 (consent) also applies in
this context.

• The wording of s 378, as amplified in Illustration (m), (n) and (o) suggests that the question is whether the
accused intended to take property with or without consent of the person rather than whether or not that
person is in fact did consent.

• If the accused conceived that the person would have consented to the taking because he was on friendly terms
with him, there is no theft, even though it turned out that the person would not have consented [refer to
Illustration (m) and (n)].
• Issue: Bona fide claim of right
• Refer to Illustration (p) –
• A in good faith, believing property belonging to Z to be A’s own property, takes that
property out of B’s possession. Here, as A does not take dishonestly, he does not commit
theft.
• This is a right to possession as against the person in whose possession the article is.
• This right may be claimed on either 3 grounds:
• Because the claimant is the owner of the article and he has not parted with the right of possession
involved in ownership in favour of another.
• Because he bona fide believes himself to be the owner of the article, who has not parted with his
possessory rights.
• Because another is the owner of the article or the claimant in good faith believes another to be the
owner and he claims possession on the other’s behalf.
• Mere assentation of right does not constitute a valid claim of right.
• Thus, mere plea by the accused that the property with theft is his own property, unsupported by
proof is insufficient.
• The claim must be tried and determined by the Court and must be proved by evidence.
• Mere doubt as to one’s right is insufficient; the doubt must be shown to be reasonable as where
the ownership of the property alleged to have been stolen is shown to be the subject of bona fide
dispute between the parties.
• The claim must be one in good faith i.e. must be honestly made and if not so made as where it is a
mere pretence, it will be of no avail.
• S 52 defined good faith. Good faith is not equated with honesty. Because the test under s 52 is
objective as “due care and attention” is required.
• Whereas under EL, test of honesty could be subjective; a claim of right is recognised if a person
asserts what he believes to be lawful, even though it may be unfounded in law or fact.
• MENS REA : Absence of claim of right
• MR of theft – an intention to cause wrongful gain and wrongful loss.
• If a bona fide believes himself to be the owner of the article, who has not parted with his
possessory rights, he does not intend to take dishonestly.
• The absence of bona fide claim of right is an elements in the MR of theft.
Lim Soon Gong (1939)

The respondents were charged with committing theft of sand from the foreshore.
One of the issue was whether they has a dishonest intention. The court held that:
“Property may be taken under bona fide though mistaken belief of right or in the bona fide
though mistaken belief that it belong to no one or has been abandoned. The circumstances
must be such as to show or to raise a presumption that the person intended too do something
which he knew or should have known was wrongful. Mens rea is essential to theft and
illustration (m), (n) and (p) show this.”
• ACTUS REUS
• 1) Taking out of possession
• Theft is complete as soon as there is movement of moveable property and there is no
need for the property to be removed from the other person’s possession.
• Temporary deprivation of possession of property would suffice to constitute theft.
• Refer to the case of Ward v PP.
 WARD V PP (1953) 19 MLJ 153
• The two appellants were convicted of theft of certain articles under Sect 380 of PC. The main point argued in the appeal
was that, the evidence tendered to show that the appellant, although they admitted the articles, did not take them with
any criminal intention. The idea in their minds at the time of taking the articles that in due course they would get the
consent from the owner and if he required the articles they would returned them to him. So although the defense argued
that the appellant acted without criminal intention and as the owner would only have been deprived of possession of the
articles for a short time there could be no offence. The main issue argued by the appellant was that although they
admitted taking the articles, they did not take them with criminal intention.

• The idea at that time of taking the articles was that in due course they would get the consent from the owner and when
he required the articles they would return them to him.

• Held: dismissed the appeal on the ground that to take goods in order to keep the person entitled to the possession of
them out of possession of them for a time, although the taker did not intend to himself appropriate them or to entirely
deprive the owner of them, it should be theft. Nevertheless the court held that though he does not intend to deprived
him permanently of it, is said to commit theft under Sect 380 of PC.
 MUNANDU V. PP (1984) 2 MLJ 83

In this case, the accused had pleaded guilty to a charge of theft of a bicycle. The learned Magistrate accepted his plea. Before
sentence was passed the accused said in mitigation to the effect “ I was drunk at the time. I took the bicycle by mistake” The
accused claimed that he went on his own ladies bicycle to have a drink during the lunch break. He parked his bicycle alongside
other bicycle and after he drink ho took a ‘ladies bicycle’ which he thought was his and left. He said he pleaded guilty as he was
told it was a minor case and his job would not be affected and that he would receive a reprimand.
The learned magistrate fined him $300 in default three months’ imprisonment and as a result of the conviction the accused who
had been employed as a Government servant lost his job and pension rights. The accused instructed counsel to ask the High
Court to exercise its power of revision.
It was held that in this case the accused did not fully understand the charge or know that if he really in good faith and believing
the bicycle to be his property had taken it out of the owner’s possession, then he did not take it dishonestly and therefore did not
commit theft. The finding and sentence must be reversed and the case remitted for re-trial before another Magistrate.
PP V RAMAIAH (1959) MLJ 10

• The accused was charged for housebreaking under section 454 & also theft under section 379.
The 3 accused broke into the complainant house & remove a trunk which was in the
possession of complainant. According to the fourth accused, the complainant owed 1 of them
some money and their intention was to keep the trunk for a few days & to ask the complainant
the payment of money that he owed to 1 of them & only the accused would return the trunk.
• It was held that, by removing others property solely to compel the debtor to pay the debt is not
theft. But in this case, the accused had caused the wrongful loss to the complainant. The
accused did not state in his agreement that he believed in good faith that any person could
take others property as security for debt. Therefore, the accused was convicted for the theft
LAI CHAN NGIANG (1930) 1 JLR 30

The accused was a textile vendor. He sold 4 roll of textile to the complainant
on credit. The complainant failed to pay the amount & the accused went to
the complainant house to claim the amount owed to him. At that time, the
complainant was sick & unable to pay. So the accused took 4 rolls of textile
one of which bought from another vendor. So the accused was charged for
theft for 1 roll of textile. According to the court, the accused believe in good
faith that as the creditor, he had the right to take back the property for the
debtor. In this case, he was not convicted for the theft.
SITABAI PORSHUTTOM (1931)32 CLJ 287

The accused was charged with theft of a barge. There were 2 accused person whereby, the first
accused had entered into an agreement with the complainant for the sale & purchase of barge for
1000 rupees. The accused received only sub- payment but not the full price & the remaining price
were not paid. So the accused consulted his pleader before retrieving the barge. So, the pleader wrote
to the complainant telling him to pay up at the owner would repossess the barge. There was no
response from the complainant & the accused took the barge. So according to the court, referring to
the Sale of Good Act, no property could be pass until the purchase price has been fully paid. So the
property still belong to the accused. Thus, he cannot be convicted for theft as it was shown that he
was not having dishonest intention. In conclusion, in debtor and creditor relationship, we have to
look at the facts and circumstances of the case
According to Miegan, good faith as a reasonable man the person must exercise
due care and caution according to his own competence. so the nature of the act
done must be looked into part of the magnitude and importance of the act as well
as as the facilities available for the accused to exercise care and caution.

In conclusion, in debtor and creditor relationship, we have to

look at the facts and circumstances of the case to case and
according to facts
 ELEMENT THREE :
PROPERTY IN POSSESSION OF ANOTHER

• Theft is an offence against possession not ownership.

• Thus, the person who files the complaint that theft has been committed need not establish that he is the owner of the property.

• What is relevant is that HE MUST BE IN POSSESSION OF IT.

• Raja Mohamed v R (1963)

• The accused had moved 2 dozen glasses from the ground floor storeroom of his employer’s premises to a box on the first floor.

• Ambrose J held that constitute to theft if the person who has formed a dishonest intention moves that property in order to such taking; and
it is not necessary for him to move that property out of the possession of the other person.

• Queen-Empress v Venkatasami (1890)

• A postal sorted secreted 2 letters that he intended to share the money with a third person and he was convicted of theft.
• Wallis v Lane (1962)
• A delivery truck driver moves some goods around inside his truck with a view to taking them for
his own use latter.
• He was convicted of stealing on the basis that there have been sufficient ‘asportation’ coupled with
the requisite intent.
• However, it is difficult to prove a dishonest intent in cases where there has been limited movement
of this sort.
• Particularly in cases of alleged shoplifting because shoppers having initially selected an item from
the shelves, may change their mind about a purchase prior to leaving a store.
• Therefore, suspected of shoplifters are generally not apprehended until they leave without paying.
• Bisakhi v Emperor (1917)
• The accused had cut the string of the victim’s necklace and in an ensuing struggle, the
necklace had fallen onto a bed.
• It was held that there had been sufficient movement of the necklace.
R v Lim Soon Gong & Ors
• The respondents had been acquitted at their trial of stealing of sand from the foreshore.
• However, the prosecution appeal was upheld. The trial judge examined s 22 and held that land
means an area of earth’s surface and does not mean a sod cut from the land.
• Term corporeal property can extend to animals and to inanimate things.
• Refer to Illustration (b) – stealing a pet by using bait.

• PC does not provide guidance on precisely when an animal can become the subject of theft.
• Therefore, general common law principles will apply.
• This means that pet can be stolen and not wild animal unless they are in sufficient state of captivity.
• E.g.: a pet goldfish, crabs sitting waiting to be eaten in a tank in a restaurant, fish or shellfish that
are being reared for food but wild fish swimming in a free state in a river cannot be subject of theft.
MORE EXPLANATIONS ON 3RD ELEMENT:
OUT OF THE POSSESSION OF ANY PERSON
Property in possession of another
 offence against possession, not ownership

 Word ‘possession’ not define in PC

 2 kinds of possession:
1) possession de facto (possession in fact)
-a person has a mere custody over the property
eg: a servant has only mere custody of the stuff which
belongs to his master
 2) POSSESSION DE JURE (POSSESSION IN LAW)
- A PERSON HAS A CONSTRUCTIVE
POSSESSION OR A POSSESSION IN LAW
EG: A PERSON HAS THE ACTUAL PHYSICAL
CONTROL AND HE’LL BE DEEMED TO
HAVE POSSESSION IN THE EYES OF
LAW

EG: IF CERTAIN PROPERTY IN THE POSSESSION OF THE

WIFE, SHE IS HAVING THE POSSESSION DE FACTO

AND THE HUSBAND WHO BOUGHT THAT PROPERTY
IS HAVING THE POSSESSION DE JURE. T4,THE
WIFE CAN’T DISPOSE OF THE PROPERTY WITHOUT
THE CONSENT OF THE HUSBAND
 WHEN THINGS ARE IN ONE’S PHYSICAL POSSESSION  HE IS
TO BE IN POSSESSION OF THAT THING

 WHEN THINGS ARE OUT OF ONE’S POSSESSION, BUT HE HAS

CONTROL OVER THEM  HE MAY STILL BE CONSIDERED TO BE
IN POSSESSION TO THAT THING

 SECT 27 OF PC  PROPERTY IN POSSESSION OF PERSON’S

WIFE, CLERK OR SERVANT IS SAID TO BE IN THAT PERSON’S
POSSESSION.

 ILLUSTRATION (N) AND (O) OF SECT 378 OF PC

 POSSESSION MAY BE LOST OR ABANDONED AS WHEN THERE

IS NO LONGER CONTROL OVER THE THING.
EG: ALI LOST HIS WATCH WHEN SWIMMING IN THE SEA 10
YEARS AGO. AFTER SUCH A LONG PERIOD OF TIME, HE
MAY NO LONGER HAVE THE CONTROL OF THE THING. HE
MAY EVEN HAVE ABANDONED THE IDEA OF GAINING
POSSESSION OF IT.
PYARELAL V. STATE OF RAJASTHAN AIR (1963)
SC 1094
-The accused, a Superintendent in a government office took home some files containing
certain information and made it available to another person who replaced some papers in
the file by other papers and later the accused returned the file to the office.
-The Supreme Court of India found the accused guilty.The judge observed that, “to
commit theft one need not take moveable property permanently out of the possession of
another with the intention not to return it to him. It would satisfy if he took any moveable
property out of the possession of another person though he intended to return it later”.
 WHETHER A TEMPORARY DEPRIVATION OF POSSESSION OF
PROPERTY WOULD SUFFICIENT TO CONSTITUTE THEFT ??

WARD & ANOR v. PP (1953) 19 MLJ 153

-The appellant were convicted of theft of certain articles under Sect 380 of PC. The main
point argued in the appeal was that, the evidence tendered to show that the appellant,
although they admitted the articles, did not take them with any criminal intention. The
idea in their minds at the time of taking the articles that in due course they would get the
consent from the owner and if he required the articles they would returned them to him.
So although the defense argued that the appellant acted without criminal intention and as
the owner would only have been deprived of possession of the articles for a short time
there could be no offence.
-Nevertheless the court held that though he does not intend to deprived him permanently
of it, is said to commit theft under Sect 380 of PC.
FOURTH ELEMENT :
WITHOUT THAT PERSON’S CONSENT
• No consent to taking
• Explanation 5 – consent can either be implied or express and may involve either the person in
possession or another person who has express or implied authority to give consent.
• Where a person did consent, the fact that the accused thought there was no consent is irrelevant
because no theft is committed.
• S 90 – consent will not be real if given under fear of injury, under misconception of fact or by a
person who was incompetent to give consent due to insanity, intoxication or age.
• What if there is a de facto consent as in entrapment cases where for example, a master is suspecting
his servant to be dishonest in conspiring with another to remove the property, facilitates the theft?
Packeer Ally v Savarimuttu (1916)
• The accused had approached the storekeeper on a rubber plantation and suggested that they should
steal some rubber and share in the proceeds of its sale.
• The storekeeper did not wish to take part and told the estate superintendent of the accused’s
intention. The superintendent keen to identify to identify the prospective purchaser, directed the
storekeeper to give the accused some rubber.
• The accused argued that this could not constitute theft because the superintendent had consented to
him taking the rubber.
• However, the court held that the predominant feature of theft is the intention of the accused rather
than the consent or otherwise of the person from whom the property was taken.
Moving property out of possession

• Refer to Explanation 2 to 4 and Illustration (a), (b) and (c) to s 378.

• Case: Raja Mohamed v R (1963)
• Case: Mehra
 K.N.MEHRA v. STATE OF RAJESHTAN
(1975) AIR SC 369

The accused was a cadet in training to be a pilot. He was charged with theft
of the aircraft. According to the fact, the accused person was scheduled to
fly from the airport at 0600 hrs until 0700 hrs across the country. But he
came to the airport at 0500 hrs and took off with another plane without
following the flight pattern. He fled to the border and landed in Pakistan.

He argued that there was no dishonest intention and furthermore, there was
an implied consent by the authorities because all trainee pilots were entitled
to fly an aircraft. There was a mistake when he landed in Pakistan.
The Supreme Court upheld the conviction for theft because the dishonest
intention was proven and there was a cause of wrongful loss and wrongful
gain.
 MEHRA v. STATE OF RAJASTHAN
AIR (1957) SC 369

The court said :

Commission of theft, therefore, consists in (1) moving a moveable
property of a person out of his possession without his consent, (2)
the moving being in order to the taking of the property with a
dishonest intention. Thus, (1) the absence of the person’s consent at
the time of moving, and (2) the presence of dishonest intention in so
taking at the time, are the essential ingredients of the offence of
theft.
The rational for this approach is that where a person did consent,
the fact that the accused thought there was no consent is irrelevant-
no theft is committed.
 ELEMENT FOUR:
WITHOUT THAT PERSON’S CONSENT

What does it mean actually under S. 378?

In explanation 5 of S. 378, consent mentioned in the definition

may be express or implied and may be given by the person in
possession, or by person having for bad purpose authority either
express or implied.
The question whether the owner has given consent for that other
person to give it to a third person.
One interpretation is to consider dishonesty and absence of
consent as two distinct and essential constituents of the offence of
theft, i.e. the actus reus and the mens rea.
FIFTH ELEMENT :
MOVING THE PROPERTY
• The word ‘move’ in s378 is explained in
• Explanation 2 & 4 of the section.
• The property must be moved and taken out of possession.
• Illustrations (a), (b), & (c) to s378 make it
• clear that the crux of the offence of theft is the dishonest intention of taking property
out of a person’s possession upon the moving of the thing
THE MAIN QUESTION ASKED IS WHETHER THE ‘MOVE’ NEEDS TO
BE MOVING THE PROPERTY OUT OF THE PREMISES?

RAJA MOHAMED v. R (1963) 19 MLJ 339

• The appellant, who was a chemical mixer in a glass factory was charged for theft when the
employer found that he was moving 2 boxes of drinking glasses from the ground floor to the first
floor of the factory.
• It was submitted on behalf of the appellant that, though the Magistrate found that the two dozen
glasses were removed by him from the store on the ground floor of the company’s premises to a
box on the first floor, it was not proved that they had been removed out of the possession of the
company.
• Ambrose J conceded that to constitute theft there must be an intention to take dishonestly any
moveable property out of the possession of another person without that person’s consent. But in his
judgment, it is sufficient if the person who has formed such dishonest intention moves that
property in order to such taking, and it is not necessary for him to move that property out of the
possession of the other person.
THIANGIAH V. PP (1977) 1 MLJ 79

• Some fertilizers were found hidden behind a tree in the rubber estates and the accused
was caught by the management who was waiting in an ambush.
• The court decided that there was no attempt as the act was still premature and was still at
a preparatory stage. There must be some further overt act by the accused and there was a
clear intention to steal.
 K.N.MEHRA v. STATE OF RAJESHTAN
(1975) AIR SC 369

 The accused was a cadet in training to be a pilot. He was charged with theft of the aircraft.
According to the fact, the accused person was scheduled to fly from the airport at 0600
hrs until 0700 hrs across the country. But he came to the airport at 0500 hrs and took off
with another plane without following the flight pattern. He fled to the border and landed
in Pakistan.

 He argued that there was no dishonest intention and furthermore, there was an implied
consent by the authorities because all trainee pilots were entitled to fly an aircraft. There
was a mistake when he landed in Pakistan.

 The Supreme Court upheld the conviction for theft because the dishonest intention was
proven and there was a cause of wrongful loss and wrongful gain.
ISSUES ON STEALING/THEFT
1. CAN ELECTRICITY BE A SUBJECT OF THEFT?

AVTAR SINGH AIR (1965) SC 666

Electricity is not subject of theft and it is not considered as moveable

property. However, under Section 13 of The Electric Act of England and
under Theft Act 1968, it is an offence and the accused can be convicted for
theft under Electricity Act 1948 of Malaysia, Section 86(3)(a) provides that a
wrongful use of electricity can amount of wrongful loss.
2. WHAT ABOUT STEALING A HUMAN BODY ?

RE RAHMAN DIN
(1902) vol 25 ALLAHABAD 179

The court said that a human body is not a moveable

property. ‘A corpse is only moveable object but not
a property’.
ROBBERY
ROBBERY

• Definition, Element, Types, Degree of robbery SJ

• Law in Malaysia, Case Law & Punishment
• Comparison Robbery: India, Pakistan and Sudan
• Punishment on each crime
• Current issues
• Effect & Suggestion
• Conclusion
DEFINITION OF ROBBERY (S.390)

(1) In all robbery there is either theft or extortion

(2) Theft is robbery
(3) Extortion is robbery

Robbery is an act of (includes to commit theft & extortion) , having the intention to
carry away property and to put such fear/hurt/instant death or use of force to inflict
fear, hurt, wrongful restraint and instant death.
ELEMENTS OF ROBBERY

Actus Reus Mens Rea

•To commit or in committing theft • intended to cause or inflict fear or instant fear

• to carry or carrying away property • induce to deliver or carry away property

• property obtained by way of theft & extortion

• voluntarily causes or attempt to causes instant

hurt, death or wrongful restraint

• put in fear of hurt or death will be inflicted

instantly
ROBBERY IN MALAYSIA

Penal Code covers:

 Types of Robbery,
 Attempt/Preparation of Robbery,
 Causing Grievous Hurt or Murder while commit Robbery,
 Punishment for both types of Robbery
• Robbery in Malaysia been treated as a serious offence since injury to person and property
• (Effect: trauma, injury, loss of life and property)
Section 390 Definition Robbery – either theft or extortion
 in order to commit, in committing theft
 carry away, attempt to carry away property
 voluntarily cause / attempt fear, hurt, death, wrongful restrain, instant or
subsequently.

Section Types  Robbery : S.390

390  Gang – Robbery :
391  2 or more persons conjointly commit or attempt to commit robbery.
 Includes aiding, abetting, any form of helping the robbery take place

Section Attempt Whoever attempt to commit shall be punished with imprisonment that may
393 extend 7 years and shall be liable for fine.

Section Preparation Whoever makes any preparation for committing gang-robbery, shall be punished
399 with imprisonment that may extend 10 years and shall be liable for whipping.

Section Others offences under  Belonging to a gang of robbers

400 - 402 robbery  Belonging to wandering gang of thieves
Assembling for the purpose of committing gang - robbery
DEGREE OF ROBBERY OFFENCES

Assemble

Preparations

Abetment

Attempt

Commit
Degree of Robbery Punishment
Attempt S. 393 – 7 years below and fine

Preparation S. 399 – 10 years below and whipping

Robbery S. 392 – 14 years below and fine or whipping

Gang - Robbery S. 395 – 20 years below and whipping

Gang – Robbery with murder S. 396 – death or imprisonment 30 years below. Whipping

Voluntarily Causing Hurt S. 394 – 20 years below and fine or whipping

Armed robbery S. 397 – whipping and to be read with other section

Belonging to gang of robbers S. 400 – 20 years below and whipping

Assemble for purpose of robbery S. 402 – 7 years and fine or whipping

 CASE LAW
 R v Yeo Kim Watt (1946) 12 MLJ 155

 Fact: the first appellant and second appellant were jointly charged under
S.392 & S.397. Second appellant was armed with a deadly weapon (pistol).
 Issue: Common intention and joint liability
 Sentence (Willan CJ) :First and Second appellant was sentence to an
additional punishment under S.397, but not first appellant.
* This case was criticised badly as it indicate a bad judgment.
 SUBRAMANIAM V PP [1976] 1 MLJ 76
• Fact: One of three appellants was armed with a knife which was a deadly
weapon within the meaning of S.397 of the Penal Code. The other two
were not armed nor they did they cause grievous hurt or attempt to cause
death or grievous hurt to any person. All the appellants were charged
under S.392 and S.397 read with S.34 of Penal Code.
• Issue: commit or attempt together?
• Judgment (Ajaib Singh): The common intention (S.34) does not
applicable in this case as the evidence shows in contrary.
*Convictions and sentences set aside.
 CRIMINAL PROCEDURE CODE

• Governing the law, rules and correct procedures in

handling offences such as robbery such as arrest,
remand and charge
• First Schedule stated the tabular statement of offences
• For robbery the remand stands for 7 days + 7 days
(continue if necessary)
• IP : IC search, Evidence (CCTV, weapon, material),
‘Kawad Cam’, Witness statement, DPP’s consent etc
Q & A SESSIONS