OFFENCES RELATING TO STOLEN PROPERTY

by
Dr. Aspalella A. Rahman UUM COLGIS

INTRODUCTION
Dishonestly receiving or retaining stolen property Dishonestly receiving or retaining property stolen in the commission of gang-robbery Habitually receiving or dealing in stolen property Voluntarily assisting in concealing or disposal of or making away with stolen property
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The common ingredients in all four offences are that:

The property concerned must be stolen property The offender knows or has reason to believe that the property is stolen property

STOLEN PROPERTY
The property concerned in the offences must be stolen property. stolen property is defined in the following manner in section 410(1) of the Penal Code:
Property the possession whereof has been transferred by theft, of by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust or cheating has been committed, is designated as stolen property, whether the transfer has been made or the misappropriation or breach of trust or cheating has been committed within or without Malaysia
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Section 410(2) further states that the expression stolen property includes any property into or for which the same had been converted or exchanged and anything acquired by such conversion or exchange whether immediately or otherwise

The property that is the subject of the offence must be stolen property. However, it is not necessary to prove that a person had been convicted of the offences listed in section 410 before the accused can be convicted.

In Ajendranana v State of Madaya Pradesia some woolen shirts, mufflers and bed sheets dispatched by rail were founding missing
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The property was recovered. 6 persons were convicted of various offences (conspiracy and theft) and the appellant was convicted of conspiracy and assisting in concealment of stolen property under section 414 on the Indian Penal Code. The question arose as to whether the appelant (and others) could be convicted of receiving stolen property.
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The essence of an offence relating to stolen property is that the act was committed with full knowledge at that time that the property was obtained in one of the ways specified in section 410 of the Penal Code. It is immaterial whether the accused knew or did not know who stole the property
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KNOW OR HAS REASON TO BELEIVE

The mens rea of the offences relating to stolen property is that the offender must know or has reason to believe that the property is stolen Knowledge is not defined but is the highest degree of speculative faculty and consist of the perception of the truth of the affirmative or negative propositions
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Section 26 of the Penal Code defines reason to believe as

A person said to have reason to believe a thing, if he has sufficient cause to believe that thing, but not otherwise

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The High Court of Oudh in Bhaggan stated in relation to the word believe :
The word believe in section 411 IPC, was much stronger than the word suspect, and involved the necessity of the prosecution showing that the circumstances were such that a reasonable man must have felt convinced in his mind that the property which he was dealing was stolen property, and it was not sufficient inquiries to ascertain whether it had been dishonestly aquired.
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Koh Hak Boon v PP

In Koh Hak Boon v PP it was said that knowledge or having reason to believe that the property is stolen property does not involve the necessity of showing that the circumstances were such a reasonable man mest have felt convinced in his own mind that the property he was dealing with was stolen property
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It involves a lesser degree of conviction that certainty and a higher one than speculation. The matters that contribute towards a person having reason to believe something are not those a court would require as proof of that thing. Whether or not a person had reason to believe is a test to be applied by the court from the perspective of the accused.
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It must relate to the standards of belief of the reasonable man and not those of any particular accused person However, some element of subjectivity must be involved because what might be apparent to a person with specialized knowledge of a certain field might not be apparent to a layman of even very high intelligence.
The court must assume the position of the actual individual involved (that is, including his knowledge and experience) but reason (that is, infer from facts known to such individual) from that position like an objective reasonable man.

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Samad bin Kamis v PP

A similar approach was applied in Samad bin Kamis v PP where the court held that the second appellant clearly had reason to believe that the property, marine fuel oil, was stolen property. He had purchased the oil at less than half the market value and he knew that the oil was sold to him at a very cheap price.
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PP v Koh Poh Gek

Similarly in PP v Koh Pok Gek was charged with retaining stolen property under section 411 in respect of some transistors

The accused ran a karong guni business, buying and selling junk items.
He bought the stolen property soon after some thefts.
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The prosecution case was that since the items were not locally available and in view of the large number sold to the accused, he should have reason to believe that the items he was dealing with were stolen item. The accused in his defence stated that he was at first reluctant to buy the items.
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However, after the sellers had identified themselves as policemen and had assured him that nothing would happen to him, he bought the items. The magistrate, in acquitting the accused, said:

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He had no knowledge that the items which he said looked like junk to him were stolen items or had reason to believe that they were stolen items because they were sold to him by police officers who had assured him that he could resell the items. Furthermore, he was also assured that nothing would happen to him. He had no reason to doubt the words of the police officers.

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DISHONESTLY RECEIVES OR RETINS STOLEN PROPERTY

SECTION 411 of the Penal Code states:
Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment for a term which may extend to five years, or with fine, or with both, and if the stolen property is a motor vehicle or any component part of a motor vehicle as defines in section 379A, shall be punished with imprisonment for a term or not less than six months, and not more than 5 yers, and shall also be liable to fine
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The essential requirements of the offence under section 411 are that:
a. b. c. d. The property was stolen Accused received or retained the property He did so honestly; and He knew or had reason to believe the property was stolen property
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Receive or Retain?
The court in order to convict for an offence under section 411 must be satisfied that the property was stolen by some other person to the knowledge of the accused and there must be some evidence to show this, and that in relation to the property, the accused either received it dishonestly or having received it honestly he retained it dishonestly
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Dishonest retention is distinguished from dishonest receiving in that in dishonest retention, the dishonesty supervenes after the act of acquisition of possession while in dishonest reception, the dishonesty is contemporaneous with the act of acquisition.

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Possession
This second element of the offence is established by the recovery of the stolen articles from the possession of the accused Possession implies a physical capacity to deal with things as we like to the exclusion of every one and a determination to exercise that physical power on ones own behalf. It implies dominion and consciousness in the mind of the person having dominion over the object 24

Possession must be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even close proximity to the object
The prosecution has to establish that there is possession of the stolen goods.

There mere fact of the presence of the accused in a house where the stolen goods was found cannot amount to possession.
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But when it is couple with proof of other suspicious circumstances, it may warrant the conviction of the accused.

In Goh Peng Meng v PP the appellate court found that the case involved a person whose door was barred to the police, who has found hiding in the roof above property stolen a few days before
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On the question whether this conduct and circumstances were compatible with conscious and voluntary possession, the appellate court, based on the evidence of witness seen and heard in the court below, agreed with the trial court that there was sufficient evidence.

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Where, however, property is found in a house occupied by more than one occupier, mere discovery of stolen property in that house is not in itself sufficient to prove that the possessions was in any of those persons. There must be some evidence of conscious control and as a matter of law, it is not necessary that the accused must have exclusive control
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It can amount to receiving of stolen goods when the accused did take actual possession of the stolen goods and had control over it.

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Presumption of recent possession

Section 411 subject to be presumption of section 114 of the Evidence Act 1950 Section 114 states:
The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case
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Before section 114 of the Evidence Act 1950 can be applied, it must be proven:
a. That a person was in possession of the property b. That this was soon after the theft

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The End
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