Theft, Extortion and Robbery

byDr. Aspalella A. Rahman

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IntroductionTheft

-Dishonestly-Movable property-Out of possession-Without consent-Moves the property

Extortion-Threat of injury-Threat to exercise legal powers-Delivery of property

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Robbery- Gang robbery-Robbery when armed-Joint liability

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IntroductionOffences against property which involve the

use of force or threat of injury are as follows:i. theft;ii.extortion; andiii.robbery

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Thefts378 –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.

s379-punishment either max 7 yrs imprisonment or fine or both. For a second or subsequent offence shall be punished with imprisonment and fine or whipping.

See PP v Goo Kian (1039) MLJ 291

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Elements of thefti. Intention to take dishonestly;ii. The property must be movable;iii. It should be taken out of possession of

another person;iv. It should be taken without consent of that

person; andv. There must be a moving of the property in

order to effect the taking.

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Intention to take dishonestlys24-dishonestly means doing anything with the

intention of causing wrongful gain to one person or wrongful loss to another, irrespective of whether the act causes actual wrongful loss or gain.

s23-wrongful gain or wrongful loss is gain by unlawful means of property and a person is said to lose wrongfully when he is wrongfully kept out of any property.

Intention must exist in the mind of the accused at the time of moving the property.

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Munandu v PP[1984] 2 MLJ 82The accused plead guilty to theft.H/e, he claimed that he was drunk at that time n took the bicycle by mistake, thinking it was his.Held: If the accused really in good faith and believing that the bicycle to be his property, then he did not take it dishonestly and therefore did not commit theft.

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PP v Ramiah[1959] MLJ 204Three accused were charged for house breaking and theft for removing a trunk which was in the possession of the complainant. They argued that the complainant owed one of them money and the trunk was removed to make the complainant pay the debt.Held: The accused guilty of the charge.

Note: A taking of property as security for a debt is considered theft.

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However, if the taking is in pursuance of a bona fide claim of right, it is not theft.

A claim of right negates dishonesty.

R v Lim Soon Gong [1939] MLJ 10‘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 to raise a presumption that the person intended to do something which he knew or should have known was wrongful. Mens rea is essential to theft.’

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Lai Chan Ngiang v PP [1030] 1 JLR 30A 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.Held: In order to establish a charge under this section, it is necessary that the prosecution should prove that the accused took the goods of another intentionally, dishonestly intending to deprive the owner of his good. There was no dishonesty of intent on the part of A.

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The property must be movables22 PC-movable property includes corporeal

property of every description, except and things attached to the earth or permanently fastened to anything which is attached to the earth.

Explanation 1 s378- a thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.

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Che Man Che Mud v PP [1994] 4 CLJ 823A was convicted of abetting Harun in committing theft. He appealed. Appeal allowed.Held: s378 states that the subject of theft must be movable property. It refers to corporeal property. As such it must be something that can be perceived by the senses. 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.

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It should be taken out of possession of another personTheft is an offence against possession, not

ownership.Possession must relates to movable property.Possession may be:i. Possession in fact/ De facto possession

i.e. actual possession-physical controlii.Possession in law/ de jure possession

i.e. Constructive possession.e.g. possession by a master through his servant.

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Cont’Theft involves the deprivation of the person

in possession of his property.It is sufficient to constitute theft even where

the deprivation is for time .See Sri Churn ChungoHeld: …it should be theft to take goods in

order to keep the person entitled to the possession of them out of the possession of them for a time although the taker did not intend to himself appropriate them, or entirely deprive the owner of them.

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Pyarelal v State of RajashtanThe accused, a government official, took home some files containing certain information. He made it available to another person who replaced some pages in the file with other pages. Later, the accused returned the file to the office.Held: The accused had committed theft.

To prove theft, it is not necessary that the accused take the property permanently. It would be sufficient if he take any movable property out of the possession of another person though he intends to return it later.

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Ward v PP [1953] MLJ 153The appellants were convicted of theft of certain articles.They admitted taking the articles but had no criminal intention and will return them. They also claimed that the owner had only been deprived of possession of the articles for a short time.Held: 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 time, although the taker did not intend to himself appropriate them or to entirely deprive the owner of them.

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It should be taken without consent of that personTo constitute theft, the taking of the movable

property must be without the person in possession’s consent.

Explanation 5 s378- 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.

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Cont;If a person consents to the taking of his

property, theft has not been committed.

Troylukho Nath ChowdryD sought the aid of Cummins with the intention of committing theft of property of Cummins’ master. Cummins, with the knowledge and consent from his master aided the D in carrying out the theft.Held: Theft had not been committed as the property had been removed with the knowledge of the master.

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There must be a moving of the property in order to effect the taking

The property must be moved or taken out of possession.

It is sufficient that the person who has formed such dishonest intention, moves that property in order to such taking.

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Raja Mohamed v R[1963] MLJ 339A was charged with theft of property in the possession of his employer. He claimed that the property were removed but they had not been removed out of the possession of the company.Held: Appeal dismissed. It is sufficient if the person who formed such dishonest intention moves that property in order to such taking; and it is not necessary to move that property out of the possession of the other person.

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Thiangiah v PP [1977] 1 MLJ 79A was charged for attempted theft. He was caught by the management of the estate at the time he was loading the property into the car.Held: No attempt to commit theft as the act was still premature and still at a preparatory stage. The judge suggested that if the management had waited perhaps, until the A was about to leave the compound of the estate, there might be attempted theft or even theft.

Note: there must be the actus reus of moving the property.

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Extortions383- whoever intentionally puts any person in

fear of any injury to that person or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits extortion.

s384- punishment max 10 yrs imprisonment, or fine or whipping or with any two of such punishments.

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Elements of Extortioni. Threat of injury There must be fear of injury inducing the

delivery of property. Threat of injury either to that person himself or

any other person. s44- injury means any harm illegally caused to

any person, in body, mind, reputation or property.

The injury must be illegal. s43-illegal refers to everything which is an

offence, or which is prohibited by law, or which furnishes ground for a civil action.

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Threat of injury (cont’)Fear of injury must be communicated through an

act.

Arjan Sigh v PPA was charged for an attempt of extortion in respect of the letters addressed to the complainant.Held: Appeal allowed. The gist of the offence of extortion was the putting of another person in fear of an injury and to support the conviction, the intending extortioner must have done some act with this intention. The mere act of writing and detaining a letter is not an attempt but a preparatory step towards commission of that offence.

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Threat of injury (cont’)The fear of injury must be conveyed by express

threats.See illustration (a)-(c) s383.A threat of injury may be implied from the words

uses.

Beh Tuck Seng v R [1947] 1 MLJ 197A was charged for extortion. The threat was via words of the A.Held: It is clear that the complainant was put in fear and that he was induced thereby to hand over his money to the A.

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Threat of injury (cont’)A threat of injury may also be conveyed by

the countenance (approval) of the accused.

Tan Cheng Kooi v PP [1972] 2 MLJ 115Held: …if words innocent on their surface were uttered with overtones or implications of an injury, there would be the use of a threat of injury.

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Threat of injury (cont’)The threat of injury is not confined to physical

injury.It also covers body, mind, reputation or property.The threat can take the form of using influences

of power to the detriment (disadvantage) of the complainant.

Meer Abbas Ali v Omed AliAbbas Ali was guilty of extortion. He had very great influence that may affect the complainant’s position in the Small Cause Court Judges.

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No extortion;When there is no threat of injury to the

complainant or any other person.See Lee Choh Pet v PP [1972] 1 MLJ 197

When there is no threat to induce the payment of money.See Mohamed Taufik v PP [1975] 1 MLJ 36

When the accused was forcibly take the property or valuable security from the victim.See Jadunandan Singh & Anor’s case

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Elements of Extortion (cont’)ii. Threat to exercise legal powers

Issue: whether a person who is empowered to exercise certain legal powers can be liable for extortion , when he threatens to exercise his legal powers if his demand for payment of a sum of money is not met by the complainant.

Two different views:a)Not liable for extortionb)Liable for extortion

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Threat to exercise legal powers (cont’)a) Not liable for extortion

Vincent Lee v RHeld: the exercise of legal powers however done can never constitute harm.

Abu Hassan v PP

Held: putting a person in fear of injury through the exercise of legal powers did not constitute the offence of extortion.

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b) liable for extortionThe exercise of legal powers can constitute an

offence of extortion.Loh Kwang Seang v PP

Rigby J said: If A, knowing that B has committed an offence in respect of which it is A’s duty to take action against him, threatens to take such action against him unless B pays him a sum of money, and, in consideration of such money being paid by B, forbears to take such action, then A has committed the offences of both corruption and extortion…the offence is completed by the act of obtaining the money as a direct consequence of the threat to bring the criminal accusation.

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liable for extortion (cont’)Ling Kai Huat v PP [1963] 1 MLJ 123

Held: While to threaten to use the process of the law is lawful, to do so for the purpose of demanding money or other illegal purpose is unlawful and constitutes injury under s44 PC.

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liable for extortion (cont’)The exercise of legal powers can constitute an offence

of extortion because it was an abuse of legal power.

PP v Kang Siew Chong [1968] 2 MLJ 39The accused, a police constable was acquitted of attempted extortion. PP appeal and it was allowed.Held: the threat is made with the object of exacting payment of money that is not due, it is an abuse of the exercise of that power and is therefore illegal, and such a threat made with such an object constitute a threat of injury within the meaning of s44 PC.

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liable for extortion (cont’)According to Ratanlal;

‘threat to use the process of law for the purpose of enforcing payment of more than is due is illegal and such a threat made with such an object is a threat of injury.’

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Elements of Extortion (cont’)iii. Delivery of propertyThe offence of extortion is in the actual

delivery of possession of property by the person put in fear and the offence is not complete before such delivery.

Chinniah v PPHeld: extortion consisted of two acts, one of putting in fear of injury and the other of taking delivery of property.

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Deliver of property (cont’)Tan Chin Keng v PP [1964] MLJ 316

‘The attempt to commit extortion has proceeded so far towards completion that a person has been put in fear of injury, or that there has been an attempt to excite such fear, but an offence is incomplete because there has been no delivery of property, etc.’

Note: it must be fear of injury that dishonestly induces the person put in fear to deliver property, valuable security or anything which may be converted into valuable security.

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Deliver of property (cont’)According to Ratanlal:

‘the chief element in the essence of extortion is that the inducement must be dishonest. It is not sufficient that there should be wrongful loss caused by an individual but the person putting an individual in fear of injury must have the intention that wrongful loss should be caused. Where the accused honestly believes that the complainant had taken the money believing him (the accused), an attempt to get it back cannot be said to be with the intention of causing wrongful loss to him.’

Note: A bona fide belief in a right to the property can negate dishonesty.

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Robbery s390 PCs390 (1)- in all robbery there is either theft or

extortion.s390(2)- theft is ‘robbery’, if, in order to

commit theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death, or hurt, or wrongful restraint, or fear of instant death, or instant hurt, or of instant wrongful restraint.

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Robbery s390 PC (cont’)s390(3)- extortion is ‘robbery’, if the offender,

at the time of committing the extortion, is in the presence of the person put in fear and commits the extortion by putting that person in fear of instant death, or instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.

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Theft and robberyThe essence of the offence of robbery is that

the violence caused or attempted to be caused, is of the theft, either in order to, or in committing, or in carrying away or attempting to carry away the proceeds of the theft.

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Theft and robbery (cont’)According to Ratanlal & Dhiralal- ‘for that

end’ in s390 means that the offender for the end of committing theft, or carrying away or attempting to carry away property obtained by theft, voluntarily causes or attempts to cause to any person, death, or hurt or wrongful restraint or fear of instant death, or instant hurt, or of instant wrongful restraint .

Death, hurt or wrongful restraint must be caused in committing theft, or in carrying away property obtained by theft.

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Extortion and robbery

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Gang robbery

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Robbery when armed

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