Criminal-LAW-SEM-2 Notes BY Tasha AND Lilly PDF

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SITI NURLAILA ABDUL GHANI LEB TASHA LIM YI CHIEN LEB140116 CRIMINAL LAW SEM 2 CHAPTER 1: OFFENCES AGAINST PROPERTY 1 Movable Property (MP) S22 : The words “MP” are intended to include corporeal property of every description, except land and things attached to the earth, or permanently fastened to an...

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SITI NURLAILA ABDUL GHANI LEB TASHA LIM YI CHIEN LEB140116

CRIMINAL LAW SEM 2 CHAPTER 1: OFFENCES AGAINST PROPERTY 1.0 Movable Property (MP) S22 : The words “MP” 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. - Must be physical - Detachable (Not attached to the earth) 1.1.1 Theft (S378-382A, 410-411, 413) S378 Whoever, intending to take dishonestly any MP out of the possession of any person w/out that person’s consent, moves that property in order to such taking, is said to commit theft. AR : (1) To take dishonestly (2) To move

MR : Dishonestly: S23-S24 (Wrongful gain/loss)

WARD & ANOR V PUBLIC PROSECUTOR [1953] 19 MLJ 153 FACTS: 2 As were convicted of theft of certain articles under S 380 PC. The main point argued was that although As admitted taking the articles, they did not take them with any criminal intention. The idea in their minds at the time was that in due course they would get consent from the owner and when he required the articles, they would return them to him. Their lawyer argued that the As acted without criminal intention and as the owner would have been deprived of possession of the items for a short time there could be no offence. DECISION: The judge held that there was little substance to the argument. He took the word “dishonestly” from S 368 and read it along with S 24, then read the words “wrongful gain” and “wrongful loss” together with S 23. It should be theft to take goods in order to keep the person entitled to possession of them out of possession of them for a tie, although the taker did not intend to himself appropriate them or to entirely deprive the owner of them. The judge decided they were guilty of theft under S 380.

RAJA MOHAMED V REGINA [1963] 29 MLJ 339 FACTS: A was charged with theft of property in the possession of his employer under S 381. It was alleged that on 15/10/1962 at the Company’s premises, he committed theft of two dozen drinking glasses. A submitted that although it was proved that the glasses were removed by him from the store on the ground floor of the Company to a box on the first floor, it was not proved that they had been removed out of possession of the company. Secondly, they submitted that the act of the A was merely preparation and not even an attempt to commit theft.

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DECISION: The judge conceded that for theft, there must be an intention to take dishonestly any movable property out of the possession of another person without that person’s consent but it was 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 another person which is clear from S 378. And on the 2nd submission- the requisite dishonest intention was established beyond reasonable doubt. Theft occurred as soon as the accused moved the property in order to the dishonest taking. CHE MAN BIN CHE MUD V PUBLIC PROSECUTOR [1994] 4 CLJ 823 FACTS: A is an adv & sol practicing under the style of Che Man & Partners. The A was involved in a plan to defraud Bank Negara and it was successfully executed and the result was that RM 22.2 mil belonging to BSN, which BSN remitted to Bank Negara for the credit of Bank Negara’s Accountant General, found its way instead to the account of Che Man & Partners. Subsequent to the fraud, a former clerk of Bank Negara- Harun was charged with CBT and two alternative charges of cheating and theft by clerk under S 409, 420 and 380 respectively. The former clerk pleaded guilty to the second charge of theft. Evidence showed that the former clerk was attached to the Public Debt Division and one of his duties was to handle cheques for advance subscription for Givt Securities. In line with his duty, the former clerk received RM 22.2 mil. He had forged the signature of his superiors and was able to credit the money to account of Che Man. DECISION: Appeal allowed. Conviction and sentence set aside. S 378 states that the subject of theft must be movable property. S 22 - it refers to corporeal property. As such it must be something that can be perceived by th esenses. There cannot be theft of incorporeal property. To constitute theft there must be a dishonest intention to take movable property out of its rightful possession coupled with the act of moving that property. The movable property intended to be taken must be the one and the same movable property that is actually moved K. N MEHRA V THE STATE OF RAJASTHAN [1957] AIR 369 FACTS: As (Mehra and Philips) were convicted under S 379 of the Indian Penal Code. Both As were cadets on training in the Indian Air Force Academy (Jodhpur). Philips was discharged from the Academy on grounds of misconduct while Mehra was a cadet receiving training as a Navigator- to guide a pilot with help of instruments and maps. Philips was due to leave Johdpur by train while Mehra was due for flight in a Dakota as part of his training with a flying cadet. Authorised time of flight was 6-6.30 am. One morning, both As took off, not using a Dakota but another plane at about 5 am without authorisation and observing any formalities. Around forenoon, they landed in Pakistan and then contacted a Military Adviser and informed him that they had lost their way and force-landed in a field and left the plane there. They requested for help to go back

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to Delhi. They were arrested and were accused of stealing the aircraft and flew it to Pakistan with a dishonest intention. DECISION: Appeal dismissed. Their innocent move of calling did not negate their intention. It may be that after reaching Pakistan only, the impracticability of their scheme to get employment in Pakistan dawned upon them and they gave it up. It was enough to constitute dishonest intention at the commencement of the journey. The fact that they took the other plane, left India at 5 am instead of 6 am, without waiting for a flying cadet and also refused to respond wireless messages from Indian aerodrome authorities showed their dishonest intention. (PRINCIPLE) Proof intention to cause permanent deprivation of property to the owner, or to obtain a personal gain is not necessary for the purpose of establishing dishonest intention. PACKEER ALLY V SAVARIMUTHU (1916) 2 CWR 216- cannot find R V LIM SOON GONG & ORS FACTS: Appeal against order of acquittal. Rs were charged for committing theft of sand from the foreshore- the property of the Crown thereby committing offence punishable under S379 PC. DECISION: S 378 PC read together with S 22 – and land and earth is defined. “Land” in this definition means an area of the earth’s surface and does not mean a sod cut from the land. What can be stolen is something that can be moved. A field cannot be moved so a field cannot be the subject fo theft. “The earth” means this terrestrial globe. A tree cannot be stolen while it is attached to the earth because while so attached it cannot be asported. It would be absurd to treat “the earth” as meaning mould or clay and to assert that a sapling which was pulled up could not be the subject of theft because eart was attached to the roots. But mould, sand, earth, stone etc. can be dug or quarried out of a piece of land and when so dug or quarried out of a piece of land and when so dug or quarried they are undoubtedly “movable”. They are also prima facie property of the person who owned the land from which they were taken. Appeal allowed. LAI CHAN NGIANG V PP [1930] 1 JLR 30 FACTS: A went to the house of a man who owed him $72 for some ‘kayus’ of cloth. A helped himself four ‘kayus’ three of which he had sold to the man. Appeal allowed. DECISION: In order to establish a charge under this section,it is necessary that the prosecution should prove thatthe accused took the goods of another intentionally,dishonestly intending to deprive the owner of hisgood. There was no dishonesty of intent on the

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part of A. PP V RAMIAHON [1959] 25 MLJ 204 Appeal against acquittal of the 1st R who, with 2 others was prosecuted for housebreaking in order to the committing of an offence of theft contrary to S 454 PC (lurking house-trespass or house-breaking in order to commit an offence punishable with imprisonment). FACTS: One morning, 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. Defence of the 1 st R which was accepted by the President and was supported to some extent by evidence of the complainant himself, was that the complainant owed him money and that he removed the property because he thought that if he kept it for a few days the complainant would pay the debt. He had no intention to steal. Defence of the accused was that they thought the property was that of the 1st R and that they had assisted him to remove it. DECISION: 1st R should have been found guilty. The court talked about the difference between our local law of theft and English law of larceny. Larceny- essential ingredient is that there should be an intention permanently to deprive the owner of the thing taken at the time of the taking. On the view of the facts taken by the President there could thus be no question of what the first accused did amounting to larceny. Theft was defined by S 378 and read along with S 24. SITABAI PURSHOTTAN V EMPEROR (1931) 32 CRLJ 287 Revision application against the order of conviction of the three accused who are a sister and two brothers stealing a barge named Gharapuri. FACTS: It was not clear whether A had delivered possession of the barge to B. A had sold it and received part of the sale price. B had not paid the balance. A threatened to cancel the contract unless the balance was paid within a specified time. On the expiry of the period A seized the barge. A was convicted of theft, but as it was not clear whether possession of the barge had been delivered to B and as the purchaser under the contract was at liberty to rescind the contract of sale and to have a lien on the barge. DECISION: It was held that the conviction of A for theft was illegal as he was not shown to have acted with any dishonest intention in seizing the barge. MANIKANT YADAV (1980) 27 BLJR 159 – cannot find 1.1.2 Offences Relating to Stolen Property (SP)

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S411 Dishonestly receiving/retaining SP S412 Dishonestly receiving/retaining property stolen in the commission of gang robbery S413 Habitually receiving/dealing in SP S414 Voluntarily assisting in concealing/disposal of making away w/ SP But first, what is SP? S410 (1) Property the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which CBT or cheating has been committed, is designated as “SP”, whether the transfer has been made or the misappropriation or breach of trust or cheating has been committed within or without MY. But if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be SP. S410 (2) The expression “SP” includes any property into/for which the same has been converted/exchanged and anything acquired by such conversion/exchange whether immediately/otherwise. AJENDRA NATH VS STATE OF MADHYA PRADESH (1964) AIR 170 FACTS: 5 bales, containing woollen shawls and mufflers dispatched from Kanpur by the British India Corp Ltd and another bale dispatched from Haimanpur to Kanpur were loaded in wagon at Itarsi railway station. The lock of the wagon bales were found missing. On search, certain articles including some torn labels were recovered from the house of one Gopinath. The same day the A and few other persons were found by the police coming out of Gopinath's house whose front door was locked. They were taken to the Police Station and the police recovered woollen shawls, mufflers, bed sheets and certain house breaking implements from different places of that house. After investigation, six persons including the A were put on trial for charges under S 120-B, S 379 and 414 of the IPC except for Birendra Nath. All were convicted. On appeal, all the convicts were acquitted. On further appeal, HC allowed appeal only against the A with respect to the offence under S 414. DECISION: Appeal dismissed. It is not necessary for a person to be convicted under S 414 IPC that another person must be traced out and convicted of an offence of committing theft. The prosecution has simply to establish that the property recovered is stolen property and that the A provided help in its concealment and disposal. The circumstances of the recovery in the present case sufficiently prove that the A had assisted in the concealment of the stolen property and had thus committed the offence under S 414. AHMAD BIN ISHAK V PUBLIC PROSECUTOR [1974] 2 MLJ 21 FACTS: A (a penghulu) was convicted on the charge that he voluntarily assisted in disposing a cheque which he knew of had reason to believe to be stolen property thereby

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committing an offence punishable under s 414 PC (assisting in concealment of stolen property). Cheque had been handed to the A by an office boy. It was a govt cheque, crossed and had been made out in the name of another person. The A had taken the cheque to a goldsmith’s shop and had purchased gold ornaments and had taken the balance in cash. He was sentenced by lower court to 12 months imprisonment. DECISION: Appeal dismissed. 1) There was no doubt the cheque as stolen. 2) The accused knew that the person from whom he had obtained the cheque was a mere office boy and that the sum made out thereon was considerable 3) There was sufficient cause for the accused to have reason to believe that the cheque was stolen and the conduct of the accused tended to show that the cheque was stolen 4) The presumption under S 114 of the Evidence Act was correctly applied (presumption of the existence of certain fact by the courts) 1.1.2A S411 Whoever dishonestly, receives/retains any SP, knowing.having reason to believe, the same to be SP, shall be punished w/ imprisonment ... AR : Receive/Retain MR : Dishonestly ALBAKHAR V PUBLIC PROSECUTOR [1960] 1 MLJ 247 FACTS: 50 orchids went missing. Two witnesses (father and son) identified a few pots of orchids believed to be the ones missing. It was then necessary to prove that the stolen orchids, or part of them, were found in the possession of the A and that he had retained them knowing, or having reason to believe, that they were stolen property. Appeal against the conviction of the A (18 year old student) on a charge of dishonestly retaining stolen property, to wit,7 plants of orchids which he knew, or had reason to believe, was stolen property, contrary to S 411 PC. For prosecution to succeed, need to prove: a) That orchids had been stolen; and b) That the A retained them knowing or having reason to believe that they had been stolen. DECISION: Evidence consisted slowly of three witnesses (the father and son: who identified the orchids, and a Police Officer who said that the A did not give a “satisfactory explanation” to him). A submitted that there was no evidence that the plants had been brought to the house by the A and that they were in his possession as a distinct from the possession of any other members of the house in which he lived and in which the plants were found. It was also necessary to refer to Ratanlal’s Law of Crimes – “where property found in a house in the possession of more than one person, mere discovery of any stolen property in that house is not in itself sufficient to prove that the possession

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was of any of those persons” and also “where stolen property is found in a house occupied by several persons, it is not enough to show that the property was found in the house to convict a member of the family who might have had nothing to do with bringing or keeping it there”. Evidence was insufficient to show that the A had possession of the stolen property and he should not have been called upon to enter upon his defence. MAH KOK CHEONG V R [1953] 1 MLJ 46 FACTS: A originally charged in Sessions Court with forgery of a railway receipt. After hearing the evidence of the prosecution, the learned President amended the charge to one under S 420 PC (cheating and dishonestly inducing delivery of property). DECISION: The considerations which arise when an accused is found in possession of recently stolen goods are not applicable to other cases and in ordinary criminal cases, the sole question which a subordinate Court has to ask itself at the conclusion of the trial is – Does the defence rise a reasonable doubt as to the truth of the prosecution case or as to the accused’s guilt? (Note from Lilly- I think for this case, the facts and decisions don’t really matter. The only thing that matter is that one passage where it says “cases of theft or receiving where the only evidence against the accused is the possession of the property recently stolen. These cases may be looked upon not so much as cases where the law has cast a burden of proof upon the accused, but rather as cases where the law has given special significance to a certain class of circumstantial evidence, namely, the possession of stolen goods. The law is that such possession is in itself evidence of the theft or receiving unless explained”) PP V HONG AH HUAT [1971] 1 MLJ 52 FACTS: Accused was charged under S 411(Dishonestly receiving stolen property) PC for having dishonestly retained four spray pumps and six tins of paint having reason to believe same to be stolen. He was also charged for having dishonestly retained motor cycle having reason to believe the same to be stolen. Learned magistrate acquitted and discharged the accused on both the charges without calling for the defence because there was doubt in the prosecution case on both charges. DECISION: For a charge to succeed under S 411, it must be proved that the accused either dishonestly received the property or having received it honestly retained it dishonestly. The order of the magistrate in that case was to be set aside with the direction that the charge to be amended to one under S 414 of PC. As the evidence showed that the property had been stolen and that they were recovered from the possession of the accused soon after the theft, there was sufficient evidence to call for his defence on the charge under S 414 of the PC and the case should be sent back for retrial.

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1.1.3 Extortion (S383-S384, S44) S383 Whoever intentionally puts any person in fear of any injury to that person/to any other, and thereby dishonestly induces the person so put in fear, to deliver to any person any property/valuable security, or anything signed/sealed which may be converted into a valuable security, commits “extortion”. S384 Punishment for Extortion AR

: Intentionally puts any person in fear of injury (Threat of Illegal Injury) MR : Dishonestly (S24-S23) AR+MR : Deliver to any person property/valuable security(VS) S44 Injury Any harm whatever reputation/property.

illegally caused to

any person,

in

body,

mind,

S43 “Illegal”, “unlawful” and “legally bound to do” The words, “illegal” and “unlawful” is applicable to everything which is an offence, or which is prohibited by law,or which furnishes ground for a civil action. And in respect of the word “illegal”, a person is said to be “legally bound to do” whatever it is illegal in him to omit. *Always S383>S44>S43 (i) The fear of injury must be communicated through an act (ii) The threat of injury is not conferred only to physical injury (iii) It is clear from the definition of S44, tha...