LXEB 2121

CRIMINAL LAW II

Group 3:
Esther Tamil Chelevam (LEB 140028)
Shahira Sulaiman Sha (LEB 140105)
Suhaila Binti Shamsul Bahrin (LEB 140111)
Vennila Setham Baram (LEB 140124)

It was mid afternoon when the workers at Syarikat Kilang Beras Bagus Sdn
Bhd had finished loading more than 1000 tons of rice into a container for
transportation to Johor. The container was driven by Abu and his co-driver
Ah Kow. After driving for two hours, they reached an R & R service area and
decided to take a break. Ah Kow went to get some food, while Abu went to
perform his prayer. They then continued their journey. Half an hour into the
journey, the lorry started to stall, forcing Abu to stop it at the emergency lane.
Both he and Ah Kow went down to check the engine. A short while later, a tow
truck came. Salim, the tow truck driver offered his assistant. He told them he
is a mechanic and was able to help them. The lorry must be towed to his shop.
Abu and Ah Kow agreed and allowed Salim to tow the truck to the shop. They
left the lorry there for Salim to repair and went to a coffee shop to have a
drink. 2 hours later they received a call from Salim to say that the truck had
been repaired. They paid Salim for the work and continued their journey.
When they reached their destination, there were workers waiting to unload
the container. When they opened the container, they found that all 1000 tons
of rice was gone. A police report was lodged by the company.

The police conducted the investigation and found the following facts:
i. The rice was repack in new bags with new logo;
ii. The bags of rice were found in Ahmads shop;
iii. Ahmad bought the rice from Syarikat Kilang Jaya Sdn Bhd, his normal
supplier;
iv. Ahmad bought the price at the usual price;
v. Sabariah, the owner of Syarikat Kilang Jaya Sdn Bhd claimed that she
bought it
from Salim, at half of the usual price;
vi. Salim always brought something to be sold at half of the usual price but
this was
the first time he brought rice for sale.

Issues
a)Whether Salim will be liable for theft and
criminal misappropriation of property?
b)Whether Sabariah can be convicted for
handling stolen property?
c)Whether Ahmad will be charged for receiving
stolen property?

SALIM

Whether he can be convicted for theft

(S.378)?

Elements to be proved :

i.dishonestly taking any movable property

ii.out of the possession of any person
iii.without that person's consent
iv.moves that property in order to such taking

Actus Reus
a)Taking of any movable property
S.22 of Penal Code
R v Lim Soon Gong : The thing that can be stolen is
movable property as including "corporeal property of
every description, except land and things attached to
the earth".
The rice bags of more than 1000 tons are classified
under movable property as per S.22 and there was a
positive act of taking them by Salim.

b)Out of the possession of any person

Ward v PP : It is the intention of the legislature that
the theft under s.387 Penal Code is 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 to entirely deprive the owner of
them.
The taking of rice bags by Salim out of the possession
of the owner who is Syarikat Kilang Beras Bagus Sdn
Bhd had deprived the possession of the owners.

c)Takes or moves without that person's consent

Explanation 5 of Penal Code
Illustration (m) of Penal Code
There is no express or implied consent given by the
owner of the rice bags to Salim to take them in his
possession and sell it for half the usual price.

d)Moves that property in order to such taking

Explanation 2 of Penal Code
Raja Mohamed v Regina : It is not necessary for a
person to move that property out of the possession of
the other person to constitute theft. The theft was
committed as soon as the accused moved the property
in order to the dishonest taking.
Salim have moved the rice bags out of the lorry
which constitutes to theft.

Mens Rea - Dishonest intention

S. 23 CPC : Dishonest

S. 24 CPC : Wrongful
gain or loss

Mehra v State of Rajastan : Reading both the sections together, it

means that a person is said to have dishonest intention if taking
the property his intention is to cause gain by unlawful means of
the property to which the person so gaining is not legally entitled
or to cause loss by wrongful means of property to which the
person so losing is legally entitled.
There is dishonest intention on the part of Salim as he has the
intention to cause unlawful gaining for himself by selling the rice
bags and unlawful losing to the Syarikat Kilang Beras Bagus Sdn
Bhd.

Conviction for theft (S.378)

AR
Taking of any movable
property
Out of the possession of any
person
Takes or moves without that
person's consent
Moves that property in
order to such taking

MR
Dishonest intention

Punishable under S.379

Whoever commits theft shall be punished with imprisonment for a term which may
extend to seven years or with fine or with both, and for a second or subsequent
offence shall be punished with imprisonment and shall also be liable to fine or to
whipping.

SALIM
Whether he can be convicted for CMA (S.403)?
Elements to be proved :
i. dishonestly misappropriates
ii.converts to his own use

Actus Reus
a)Misappropriates, or converts to his own use
Tuan Puteh v Dragon : Although there was no
conversion since he did not manage to encash
the cheque, he clearly misappropriated the
cheque when he dishonestly attempted to
encash it.
Misappropriation
and
conversion
was
established as Salim has repacked the rice into
new bags and sold it to Sabariah for half the
usual price for his own benefit.

Mens Rea
a) Dishonest intention
PP v Mohd bin Abdul Jabbar : The cash book of the
A's office, though kept in a confused and haphazard
way yet was accurate as far as it could be and was
checked and that there have been no false entries or
omissions which would be evidence of dishonest
intention on his part.
Salim dishonestly did the conversion of rice bags
when he was clearly knew that those rice bags are not
belong to him.

Conviction for CMA (S.403)

AR
Misappropriates, or converts
to his own use

MR
Dishonest intention

Punishable under S.403

Shall be punished with imprisonment for a term which shall
not be less than six months and not more than five years and
with whipping and shall also be liable to fine.

SABARIAH
Whether Sabariah should be charged for dishonestly
retaining the stolen property having reason to believe
that the same to be stolen property (S.411)?
Razalitono Bin Ropa'Ai v PP : To sustain conviction under
sec411 of Penal Code, the prosecution must prove that the :
- Motorcycle in question is stolen property
- Appellant retained the said motorcycle
- He did so dishonestly
- He has reason to believe that the said motorcycle was stolen
property

ELEMENTS :
1. The goods are stolen goods.
In the present case, the rice were stolen by Salim
when he repaired the lorry.
2. The Accused retained the stolen goods.
In the present case, Sabariah has bought the rice
from Salim for half of the usual price.

3. He/She did it dishonestly

Based on the facts of the case, it can be concluded that Sabariah
dishonestly receives and retains the rice as she knew that the rice
is being sold for half of the usual price and yet she decided to
buy it from Salim and sell it for usual market price to Ahmad
with her company logos in.
4. He/She has a reason to believe that the goods were stolen
property.
As an owner of a company that supplies rice, Sabariah should
have a reason to believe that the rice were stolen good as it was
being sold for half of the usual price by Salim and she is aware
of the usual market price as she sell the rice to Ahmad at usual
rate. Moreover, this is the first time Salim brought rice to sell to
Sabariah. So, the circumstances are clear for Sabariah to have a
reason to believe that that rice was stolen by Salim.

ELEMENT 1

The goods are

stolen goods.

FULFILLED

ELEMENT 2 - ACTUS
REAS

The Accused
retained the stolen
goods.

FULFILLED

ELEMENT 3 - MENS REA

He/She did it
dishonestly

FULFILLED

He/She has a reason

to believe that the
ELEMENT 4 - MENS REA
goods were stolen
property

FULFILLED

CONCLUSION : SABARIAH CAN BE CHARGED FOR DISHONESTLY

RETAINING THE STOLEN GOODS HAVING REASON TO BELIEVE
THAT THE SAME TO
BE STOLEN PROPERTY UNDER SECTION 411 OF PENAL CODE.

AHMAD
Whether Ahmad will be charged for
receiving stolen property (S.411)?

1. The goods are stolen goods.

- In the present case, the rice were stolen by Salim when he
repaired the lorry.
2. The Accused retained/received the stolen goods.
- In the present case, Ahmad has bought the rice for usual price
from his usual supplier Syarikat Kilang Jaya Sdn Bhd.

ELEMENTS :
3. He/She did it dishonestly
Based on the facts of the case, there is no dishonest intention on the part
of Ahmad as he does not really know that the rice were stolen due to few
reasons. The first reason is that the rice were packed with new logo and
he might have thought that it is from his usual supplier, Syarikat Kilang
Jaya Sdn Bhd. The second reason is that Ahmad bought the rice for the
usual market rate from Sabariah and not half of the price or for a lesser
price.
4. He/She has a reason to believe that the goods were stolen property.
As per 3rd element, there is no reason to believe from Ahmad's part that
the rice were stolen good as for the reasons stated above.

ELEMENT 1

The goods are

stolen goods.

FULFILLED

ELEMENT 2 - ACTUS
REAS

The Accused
retained the stolen
goods.

FULFILLED

ELEMENT 3 - MENS REA

He/She did it
dishonestly

NOT FULFILLED

He/She has a reason

to believe that the
ELEMENT 4 - MENS REA
goods were stolen
property

NOT FULFILLED

CONCLUSION : AHMAD CANNOT BE CHARGED FOR RECEIVING

STOLEN PROPERTY UNDER SECTION 411 OF PENAL CODE.