Theft and Extortion

by
Assoc. Prof. Dr. Aspalella A. Rahman

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 OUTLINE
• Introduction
• Theft
-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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 Introduction

Offences against property which involve the use of

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

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 Theft

• s378 –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 (1939) MLJ 291

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 Elements of theft

i. 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;
and
v. There must be a moving of the property in order
to effect the taking.
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 Intention to take dishonestly

• s24-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
82
The 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 204
Three 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.
• However, if the taking is in pursuance of a bona fide claim of
right, it is not theft (e.g: creditor-debtor)
• A claim of right negates dishonesty.

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Lai Chan Ngiang v PP [1030] 1
JLR 30
The accused sold some bundles of cloth to the
complainant on credit. When the complainant
failed to make payment (as a debtor), the accused
went to his shop and removed four bundles of
cloth, three of which were those sold to the
complainant.
Held: The accused believed in good faith that as a
creditor, he had a right to take back the property
from the debtor. Therefore he was not convicted for
theft.
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 The property must be
movable
• s22 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 823
A 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 person
• Theft 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 control
ii. 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 Chungo
• Held: …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 Rajashtan
The 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 153
The 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 person
• To 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 Chowdry

D 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 339
A 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
79
A 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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 Q- THEFT OF
INFROMATION?????

• Meaning of theft - S 378 (movable property)

• S.22 – what is movable property – movable property - a
tangible property which is capable of being carried and
removed by the taking possession and is not permanently
attached to the earth. Excludes intangible property as a
subject matter of theft
• Explanation 1 of s 378 - what can be stolen is something that
can be carried and moved. Property other than moveable
property cannot be subject matter of theft, therefore if an
immovable property is stolen, s 378 is not applicable.
• So – Information????
 Extortion
• s383- 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 Extortion
i. 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 PP
A 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 197

A 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 115

Held: …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 Ali

Abbas 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 extortion
b) Liable for extortion

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

Vincent Lee v R
Held: 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 extortion
• The 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 39

The 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 property
• The 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 PP
Held: 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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