THE LAW OF THEFT: A COMPARATIVE AND ANALYTICAL STUDY BETWEEN COMMON

LAW, MALAYSIAN LAW AND ISLAMIC LAW

BY

SHAMSALDEN A. SALH

A thesis submitted in partial fulfilment of the requirement

for the degree of Master of Comparative Laws

Ahmad Ibrahim Kulliyyah of Laws

International Islamic University Malaysia

MARCH 2006

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“As to the thief, male or female, cut off their hands as a reward

of their own deeds, and as an exemplary punishment from Allah.

For Allah is Mighty and Wise” (AL-Maida: 38)

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ABSTRACT The theft problem in the world today, in fact, occupied a large space in law. Generally, all over the world and in Malaysia in particular, this crime is increasing rapidly. Similar to other countries, theft in Malaysia is increasing at an alarmingly rapid rate that it now becomes one of the main focal problems in Malaysia and among Malaysians. It is currently providing a threat to all individuals and the public at large. This truth of the matter is explicitly demonstrated in the local Malaysian newspapers as well as the electronic media of the television and so forth whilst the police institutions have shown great painstaking responsibility and putting up a hard fight in tackling these theft offences and their offenders. As the country becomes more develop, people are living with terror, tension and pressure due to this crime. In order to know the reason behind the increase in this crime, we have to identify its reason. Is it because the law is not effective that means the punishment for this crime is not suitable, or maybe the law itself is effective but the application and the implementation of the law is not appropriate and emphasized enough in this society? This paper will compare among the three systems of law, i.e., Common Law, Malaysian Law and Islamic Law. The method of this research will be, first, by the explanation of theft under the Common Law, that is, what is theft under the Common Law. This is then followed by the other two law systems, namely, the Malaysian Law and the Islamic Law. The purpose of following this way is to enable the reader to easily understand and gain information about the three law systems – its differences and its similarities. After this, a comparison of these three law systems will be carried out as the last chapter for this paper. This comparative study will be analytical and critical in its nature. At the end of this study, I found some good data that notably indicate the punishment for theft under the Islamic Law is more effective than the Common Law and/or the Malaysian Law. The reason behind this is that, cutting off the offender’s had is a suitable punishment for those who commits this crime. Under the Common Law and the Malaysian Law, the punishment (for theft crime) is imprisonment, and this is less effective than the punishment under the Islamic Law.

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ملخص البحث

. تطيع أن نهملها أو ننسيهاس لا نأصبحت مشكلة السرقة في العالم اليوم شيئاًهذه احتلت قد و، ة في ماليزياصخاوزداد بسرعة في العالم هذه الجريمة ت

آباقي الدول اماليزيو .موالبالأ الخاصةول بين الجرائم لأالمرآز االجريمة ن تدق ناقوس لآمعروف أن السرقة امن الفيها حالات آثيرة من السرقة، و ونلاحظ في الجرائد أن هذه الجريمة البشعة ،الخطر في آثير من دول العالم

ن آثرة السرقة تزيد الخطورة على و آما نعلم أ. تحدث في ماليزيا آل يوم لماذا نسبة هذه الجريمة ترتفغ بهذه ،هناك سؤال. مول الناس و حياتهمأ

أي أن هذه ،ليس له تأثير قوي على السارقن القانون لأالسرعة؟ هل أو ربما القانون له تأثير و لكن لا يطبق ،العقوبة ليست آافية لزجر السارق

لسرقة من جهة سلامي ل هذا البحث يقارن بين القانون الإ.ا في المجتمعآليّوالطريقة لهذا البحث . القانون الماليزي من جهة أخريوالقانون العام و ثم يأتي بعد ذلك شرحها في ،رح السرقة في القانون العامسوف تكون ش

ليفهم القارئ آل هذه الأسلوب والهدف من هذا. ماليزي والإسلاميالقانون ال وستكون المبحث اأتي المقارنة بينهموبعد هذا الشرح ت. لقوانين بسهولةائج و بناءا على نتا. وهذه الدراسة نقدية ومقارنة. ه الرسالةخير في هذالأ

، ولكن لى آخرة لهذه الجريمة مختلفة من قانون إ لي أن العقوب، تجلىالبحث .سلامي هو القانون الوحيد لزجر السارق وتقليص السرقةالقانون الإالقانون ا على السارق من القانون العام وسلامي أآثر تأثيروالقانون الإ

ء الذين قوبة رادعة لهؤلاوالسبب لهذا أن قطع يد السارق ع. الماليزيعقوبة للسارق في القانون العام آما نعلم أن ال و.موال الناسيسرقون أ

يسيرعلى السارق من تأثيروهذه العقوبة لها. ليزي السجنالقانون الماو . سلاميعقوبة القانون الإ

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APPROVAL PAGE I certify that I have supervised and read this study and that in my opinion, it conforms to acceptable standards of scholarly presentation and is fully adequate, in my scope and quality, as a thesis for the degree of Master of Comparative Laws. ……….……………………………… Mohd Ismail Mohd Yunus Supervisor I certify that I have read this study and that in my opinion; it conforms to acceptable standards of scholarly presentation and is fully adequate, in my scope and quality, as a thesis for the degree of Master of Comparative Laws.

………………………………… Mohammad Akram Examiner This dissertation was submitted to the Department of Public Law and is accepted as a partial fulfilment of the requirements for the degree of Master of Comparative Laws.

….…………………………………

Farah Nini Hj Dusuki Head, Department of Public Law This dissertation was submitted to the Ahmad Ibrahim Kulliyyah of Law and is accepted as partial fulfilment of the requirements for the degree of Master of Comparative Laws. ………………………………… Nik Ahmad Kamal Nik Mahmod Dean, Ahmad Ibrahim Kulliyyah of Laws

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DECLARATION PAGE

I hereby declare that this thesis is the result of my own investigations except where

otherwise stated. Other sources are acknowledged by footnotes giving explicit

references and a bibliography is appended.

Name: Shamsalden A. Salh

Signature……………………………… Date………………………………….

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INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA

DECLARATION OF COPYRIGHT AND AFFIRMATION OF FAIR USE OF UNPUBLISHED RESEARCH

Copyright © 2005 by Shamsalden A. Salh. All rights reserved.

THE LAW OF THEFT: A COMPARATIVE AND ANALYTICAL STUDY OF COMMON LAW, MALAYSIAN LAW & ISLAMIC LAW

No part of this unpublished research may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without prior written permission of the copyright holder except as provided below.

1. Any material contained in or derived from this unpublished research may only be used by others in their writing with due acknowledgement,

2. IIUM or its library will have the right to make and transmit copies (print or electronic) for institutional and academic purposes.

3. The IIUM library will have the right to make, store in a retrieval system and supply copies of this unpublished research if requested by other universities and research libraries.

Affirmed by Shamsalden A. Salh …..…………………….……….. ……………………. Signature Date

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To my mother, to all my brothers and sisters, and to all law students

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ACKNOWLEDGEMENTS

First of all, I thank Allah (SWT) for His guidance and strength given to me in completing this dissertation. The completion of this dissertation may not be possible without His Guidance. My sincere and honest thanks goes to my respected supervisor Assoc. Prof. Dr. Mohd Ismail Mohd Yunus, for his constructive comments, guidance and kindness in assisting me to prepare this dissertation. My special thank is extended to Assoc. Prof. Dr. Mohamad Akram for his help and kindness. I would like to extend my thanks to my brother Rashad, for his assistance and support to me in completing this dissertation. I would like to express my special gratitude to Ha Junsheng for typing this manuscript. I wish to thank all staff of the Postgraduate Unit of the Ahmad Ibrahim Kulliyyah of Laws for their help and cooperation.

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TABLE OF CONTENTS

Page

Abstract ........................................................................................................... iii Abstract (Arabic) ............................................................................................. iv Approval Page.................................................................................................. v Declaration Page .............................................................................................. vi Copyright Page................................................................................................. vii Dedication ........................................................................................................ viii Acknowledgements.......................................................................................... ix Table of contents ……………………………………………………………..x List of Cases..................................................................................................... xiii Table of Statutes .............................................................................................. xiv CHAPTER ONE: INTRODUCTION .......................................................... 1 A. Nature and Scope of Theft .................................................................... 1 1. Nature and Scope of Theft under Common Law ............................... 3 2. Nature and Scope of Theft under Malaysian Law ............................. 6 3. Nature and Scope of Theft under Islamic Law .................................. 9 B. Classification of Crime against Property ............................................. 11 (i). Classification of Crime against Property under Common Law ......... 11 1. Theft ........................................................................................ 11 2. Robbery................................................................................... 12 3. Burglary & Aggravated Burglary ........................................... 12 4. Handling Stolen Goods ........................................................... 13 5. Criminal Damage .................................................................... 14 6. Blackmail ................................................................................ 15 (ii). Classification of Crime against Property under Malaysian Law ..... 16 1. Theft ......................................................................................... 16 2. Robbery.................................................................................... 17 3. Burglary ................................................................................... 17 4. Handling Stolen Goods ............................................................ 17 5. Criminal Damage ..................................................................... 18 6. Blackmail ................................................................................. 18 (iii). Classification of Crime against Property under Islamic Law .......... 19 1. Theft ........................................................................................ 19 2. Robbery................................................................................... 19 CHAPTER TWO: THE LAW OF THEFT UNDER COMMON LAW .. 21 A. Definition of Theft under the Common Law ........................................ 21 B. Actus Reus of Theft ............................................................................... 21 (1). Property ............................................................................................. 21 i. Tangible Property ......................................................................... 21 ii. Intangible Property ...................................................................... 22 iii. Property Capable of Being Stolen and Property Not Capable Being Stolen.................................................................. 24 (a). Money........................................................................................ 24

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(b). Personal Property …………………………………………… 24 (iv). Land........................................................................................... 26 (v). Wild Creatures........................................................................... 27 (vi). The Human Body and Organs................................................... 28 (vii).Ownerless Property ................................................................... 28 (2). Appropriation ................................................................................... 31 (3). Property Belonging to Another ........................................................ 34 (a). Property Obtained By Mistake ....................................................... 39 (b). Attempt to Commit Theft ............................................................... 41 (c). Mens Rea of an Attempt ................................................................. 43 C. Mens Rea of Theft .................................................................................. 44 1. Dishonesty............................................................................................ 44 2. The Ghosh Direction or Test................................................................ 48 3. Intention to Deprive Permanently ........................................................ 48 4. Conditional Intention ........................................................................... 51 CHAPTER THREE: THE LAW OF THEFT UNDER MALAYSIAN LAW .................................................... 53 1. Mens Rea of Theft.................................................................................. 54 (a). Dishonesty ......................................................................................... 54 (b). Intention to Take without Consent .................................................... 58 2. Actus Reus of Theft ................................................................................ 59 (a). Taking Out of Possession: temporary deprivation sufficient ............ 59 (b). Property in Possession of Another .................................................... 60 (c). No Consent of Taking........................................................................ 62 (d). Moving Property Out of Possession.................................................. 64 CHAPTER FOUR: THE LAW OF THEFT UNDER ISLAMIC LAW ... 66 1. Definition of Theft .............................................................................. 66 (i). Taking Properties Surreptitiously, Without Owner’s Consent...... 67 (ii). The Property Should be Wealth (Mal) ......................................... 71 a. The property should be movable............................................ 71 b. The property should be valuable............................................ 71 c. The property should be in custody (hirz) ............................... 72 d. The property should reach nisab or more .............................. 73 (iii). Belonging to Another.................................................................. 74

a. Some Related Issues ............................................................ 75 b. Stealing of Debtor’s Property .............................................. 76 (iv). Taking It with Criminal Intention ............................................... 77 CHAPTER FIVE: PUNISHMENT FOR THEFT ...................................... 80 1. Punishment for Theft under Common Law ........................................ 80 2. Punishment for Theft under Malaysian Law....................................... 80 3. Punishment for Theft under Islamic Law ........................................... 81 4. Comparison of the Three Systems of Law ......................................... 82 5. Difference in Punishment ................................................................... 87

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6. The Effectiveness of the Islamic Punishment for Theft ..................... 89 7. Conclusion and Suggestion................................................................. 90 BIBLIOGRAPHY............................................................................................ 93 Appendix A. The Malay Mail: Thursday, October 20, 2005.................... 95 Appendix B. The Malay Mail: Thursday, October 20, 2005 .................... 96 Appendix C. The Malay Mail: Thursday, October 20, 2005 .................... 97 Appendix D. The New Straits Time: Tuesday, October 18, 2005 ............ 98 Appendix E. The Star: Wednesday, August 24, 2005 .............................. 99 Appendix F. The New Straits Time: Saturday, August 06, 2005 .............. 100

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LIST OF CASES

R v Holden [1991] CA R v Turner(1970)CA R v Velumy[1989] crim LR 299 DPP v Launder[1994] DC Cahill[1998] Crime LR 141 Manikant Yadav[1980] 27 BLJR 159, 160 PP v Rania(1959) 25Ml J 204 (HC, Malaysia). Hardman v Chief Constable of Avon [1986] crim LR 330 CND Harry[1974] Crim LR32 174 Kohn(1979)69 cr APP R 396 Attorney Qonerd for Hong Kong v Nai Keuny [1987]1 WLR 1339,PC Oxford v Moss (1978) 68Cr App Rep183 Herbert (1950) 25 crim LJ163 Kelly [1989] 3 All ER 741, CA Hibbert v McKiernan (1869) LR 1 CCR 184 Williams’s v Phillips (1957) 41 Cr APP R5 Hancock [1990] 3 All ER 183 Waverley B C V Fletcher [1995] 4 All ER 756 R v Morris [1983] 3 WLR 697, House of Lords Lawrence v Metropolitan price commissioner [1972] AC 626, House of Lords DDP v Gomez [1993] AC 442, House of Lords R v Williams [2001] Crim LR 253, CA R v Woodman [1974] QB 754 R v Bonner [1970] 1 WLR 838 R v Turner [1971] 1 WLR 901 Dip Kaur v Chief Constable for Hampshire (1981) 2 All ER 430 Corcoran v Wheat [1977] Crim LR52 162 R v McHugh (19760 64 Cr App Maynes v Copper [1956] QB 439 Attorney Generals Reference (No 1 of 1983) [1984] 3 All ER 369 Gullefe3 [1990] 1 WLR 103 R v Easom [1971] 2 QB 315 Small (1988) 86cr APP R170 Forrester (1992) Crim LR 793(ct) Flynn [1970] crim LR 118 R v Ghosh [1982] 1 QB 1053, CA In Attorney General's Reference Nos.1 and 2 of (1979) CA R v Coffey (1987) CA Walkington v R (1979) CA Manikant Yadav (1980) 27 BLJR 159,160 Kadirawil v Kader Meedin (1882) Wendt’s Rep 103

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PP v Ramiah (1959) 25 MLJ 204, (HC, KL, Malaysia) Sri Churn Chungo (1895) ILR 22 Cal 654 Packer Ally (1916) 2 CWR 216. Raja Mohamed v R (1963) 29 MIJ 339 (HC, Singapore Ward v PP (1953) 19 MLJ 153 (HC, Johore, Malaysia). Sri Chrn Chungo (1895) ILR 22 Cal 1017 Packar Ally v Savarimutta (1916) 2 CWR 216 (SC, Ceylon) Troylukho Nath Choodhry (1879) 4 Cal 366 Raja Mohamed v Regina [1963] M.L.J 339 (HC, Singapore). R v Duru [1973] 3All ER R v Preddy [1996] AC 815; [1996] 3 WLR 255 R v Arnold [1997] 4 All ER 1 R v Clark [2001] Crim LR 527

TABLE OF STATUTES

Theft Act 1868 Criminal Damage Act 1971 Malaysian Penal Code (Act 574) Patents Act 1977 Criminal Attempts Act 1981

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CHAPTER ONE

INTRODUCTION

A. Nature and Scope of Theft

Criminal Law bears the legal responsibility of providing an organized means for

controlling the behavior of vengeance. Unless Criminal Law provides and enforces

punishment to the offenders, the people hurt by offences would take Criminal Law in

their hands. In a nutshell, blood feuds would run riot.

There are various categories of offences against property where Criminal Law is

concerned. They are extortion, robbery, gang robbery and criminal misappropriation -

just to mention a few, and theft is also one of them.

Theft is a very serious offence which needs a crucial consideration. It occupies the

top list of offence against property in Criminal Law because most of the offence

against property is theft. It is an offence of mutual concern between Common Law

and Islamic Law or any other system of law. It is a concern of Criminal Law and its

affiliated institutions to ensure that both private and public properties are protected

and secured. On the other hand, the important goals of Shari’ah [[[Al-Maqasid Al-

Shari’ah] aim at securing and protecting one’s property besides religion, life, intellect

and dignity.

The crime of theft as a wrong in its very nature justifies the infliction of certain

punishment upon the thief. The impact of inflicting punishment upon the criminal is to

deter him and others from committing similar acts in the near future. The Criminal

Law, through its institutions, has a paramount role of reforming the criminal and

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inducing him to lead a non-criminal life in the future. In other words, a thief has to be

punished in order to change him from an evil man to a good one.

The crime of theft is very dangerous. If there is no law to prevent people from

committing this crime or punish the criminals who commit it, the society will be

destroyed by it in the near future. That is because this crime is increasing while there

is a law. How about if there is no system of law? How would people who really want

to live safely and be secured feel? They should apply very strict law for punishing the

criminal in order to protect this society and people, and law should be applied in a

very wise way.

Theft is not a new crime that people knew about it just now, but it is a very old

crime and lawmakers put for it different types of punishment in different countries. In

some countries, people apply Islamic Law while in most countries people apply

manmade laws. Even though, the punishments are different for those who commit

theft according to the system of law that is applied in those countries. But one thing

that all of them agreed upon are that theft is a crime, and the person who commits this

crime is a criminal; he or she should be punished according to the law.

It should be noted that among all crimes against property such as robbery,

extortion, snatch, gang robbery, burglary, blackmail and theft, theft is the most

dangerous and the most current in so many countries. That is why lawmakers try their

best to control and reduce it. However, it could be reduced in a few countries, but for

many other countries, the rate of committing this crime is still increasing, such as in

Malaysia. As it is seen in TV or newspapers, the rate is increasing alarmingly. While

there is a law, the lawmakers should ensure that they try to reduce the rate of

committing theft. In Islamic law, certain Acts also try to reduce the rate of thefts. We

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can see that it is clear that the rate of theft is lower in those countries that apply

Islamic Law than it is in those countries, which do not apply Islamic Law.

This paper will explain the law of theft according to the three systems of law:

Common Law, Malaysian Law and Islamic Law. In many countries that apply

common law, even the applications may be different from one country to another. But

these differences are very slight while some countries apply Islamic Law.

1. Nature and Scope of Theft under Common Law

The explanation of the nature and scope for this offence according to the basic

definition of theft as is provided in Section 1 (1) Theft Act 1868. This section

provides: “A person is guilty of theft if he dishonestly appropriates property belonging

to another with the intention of permanently depriving other of it.”

Here the explanation of the nature and scope of theft will be according to this

section. First, it should be noted that if the person is honestly appropriating property.

It means that there is no crime called theft if a person believes that he has, in law, the

right to deprive the others of it. For example, if D believes that he has a legal right to

appropriate property and it is not dishonest. It means he appropriates other peoples’

properties by mistake. In this case, D is not liable for theft because the scope of theft

is “dishonestly appropriates property”. But here D appropriates property by mistake

and he believes that he has a legal right. And that is not theft also if someone

appropriates property while he believes that the person, whom the property belongs to,

gives consent. For instance, if D takes P’s property, but he believes that P gave

consent, so D is not liable for theft. In these two circumstances the person is not guilty

for committing theft because they are out of scope of theft1. As it is clear in the case R

1 JC Smith, The Law of Theft, Butterworths, London, , Sixth Edition,1989, p65.

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v Holden2, in this case, D took tyres from his former employer in the belief that he had

permission to remove the tyres, or believed it would have been granted had he sought

it. Here it was held that the reasonableness of a defendant's belief was irrelevant to the

question of dishonesty. So D is not guilty.

Another thing about the nature and scope of theft is that the property must belong

to another at the time of appropriation. So the person cannot steal his own property

while it is under his control. It is true sometimes people can be guilty for stealing

their own property as can be see in the case of R v Turner3. Turner had taken his car

to a garage to be repaired. When the repairs were done, he saw the car parked outside

the garage and drove it away without paying for the work that had been carried out.

He was liable for stealing his own car because the garage had possession of the car at

the time he took it. He argued he owned the car and therefore it did not belong to

another. It was held that Turner had stolen the car because at the time of the

appropriation it was under the possession and control of the garage.

But usually people cannot steal their own property while the property is under his

possession. In the case of R v Turner, it is true that the defendant stole his own car but

at that time the car was under the shop owner’s possession. Another point that should

be noted from the definition is the intention of permanently depriving the other of it.

The thing that is understood from this point is if someone takes property from his

friend and then he sold it, it means he has intention of permanently depriving his

friend of this property, so it is one of the scopes of theft. Here we give some examples

to illustrate this: if P takes the wallet from B and spent all the money that is inside the

wallet, so P will be guilty of stealing.

2 [1991]Crim LR 480, CA. 3(1970) 2 All ER 441, CA.

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However in some situation if someone takes property without the intention of

permanently depriving it, he will not be guilty of theft. For example, if D takes a book

from P and after some days he read the book and he returns the book to P. So in this

situation D will not be guilty of theft because he did not have the intention of taking

the book forever. While if D takes V’s bicycle in order to go home by it, when he

reached home he left the bicycle on the side of the road, when later V accidentally

discovered it, here D is guilty of stealing V’s bicycle and no one can say that D

borrowed the bicycle from V as he did not have permission and he did not return it.4

So the intention of the defendant must be to deprive the victim of his own

property, an intention to return money taken is not inconsistent with an intention

permanently to deprive. In the case, R v Velumy5, where the appellant had taken over

1,000 pound from his company safe at work without authority and contrary to the

company’s rules and lent it to a friend. He intended to return the money on the

following Monday. It was held that, D's intention to repay the money (with different

notes or coins) did not afford V a defence. He had the requisite intention permanently

to deprive. He had no intention to return the objects he had taken. It had not been

suggested that there was a lack of dishonesty on V's part6.

And also in the case of DPP v Launder7; in this case, D took two doors from a

council house and used them to replace damaged doors in his girlfriend's house,

owned by the same council. It was held that under the first limb of section 6 (1) D had

treated the doors as his own to dispose of regardless of the owner's rights, and that was

enough.

4 Edward, Philips, Charlotte, Paul, Law Relating To Theft, Cavendish Publishing Limited, London, First Edition, 2001, p107. 5 [1989]Crim LR 299. 6 Mike Molan, Duncan, Denis, Modern Criminal Law, Cavendish Publishing Limited, London, Fifth Edition, 2003,289. 7 [1994] Crim LR 297.

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And in the case of Cahill8, the situation is the same as in Launder’s case.

Therefore, the scope and nature of theft are very clear; it has been explained according

to Section 1(1) of the Theft Act 1968.

2. Nature and Scope of Theft under Malaysian Law

On the other hand, the nature and scope of theft under the Malaysian Law is a little

similar to the Common Law, according to the definition of theft in the Malaysian

Penal Code; Section 378 of the Penal Code provides:

“Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, move that property in order to such taking, is said to commit theft.”

The nature and scope of theft will be explained and determined according to this

definition: First of all, “take dishonestly.” Dishonestly requires the intention to cause

wrongful gain or wrongful loss of any person having the intention of dishonestly

taking other people’s property at the time of moving it. But there is no dishonest

intention if A takes B’s book, which he forgets in a restaurant, intending to return it

after he had read it. While if he has dishonest intention to take the book and he does

not have intention to return the book to A; in this circumstances B is liable for

committing theft. So it is not theft if there is no dishonest intention at the time of

taking the property.9 And also the property should be under someone’s possession at

the time of taking it. For example, if A takes B’s wallet and spent all the money that

was inside the wallet at the time of taking the wallet, and A was sure that it is in B’s

possession, then A committed theft; but if A finds a ring lying on the high road, not in

the possession of any person, A by taking it, commits no crime.10

8 [1998] Crime LR 141 9 KL, Koh, Criminal Law in Singapore and Malaysia, 1989, p531. 10 Ibid.

21

The scope of theft is clear if someone with dishonest intention takes other people’s

property, it is a crime; while if someone takes property from another as a security for

debt, it is not considered theft. In the Indian case of Manikant Yadav11, the petitioner

removed a bullock from the informant because he (informant) owed him money. The

court held that the petitioner had no dishonest intention. It stated:

“when a person takes another man’s property believing, under a mistake of fact and in ignorance of law, that he has the right to take it committing an offence and to retain it until compensated, he may not be held guilty of theft in as much as there is no dishonest intention even though he may cause wrongful loss within the meaning of the penal code”

Similarly in the case at PP v Rania:12 The three accused were prosecuted for

housebreaking in the committing of the offence of theft in contravention of Section

454 of the Penal Code. All three of them were found not guilty.

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. The defense of the first

accused was that the complainant owed him money and that he had removed the

property because he thought if he kept it for a few days the complainant would pay the

debts. He had no intention to steal it. The defence for the other two accused was that

they thought the property was that of the first accused and that they had assisted him

to remove it.13

In these two cases, it is noted that the nature and scope of theft is limited, that is

taking property with dishonest intention without any reasonable reason is considered

theft. While taking it just for purpose of debts, it is not theft.

11 [1980] 27 BLJR 159, 160. 12 (1959) 25Ml J 204 (HC, Malaysia). 13 Ibid. pp531,532

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Another thing it must be taken in consideration here for the scope of theft is that,

“intention to take without consent.” So it is not considered theft if someone takes

property from his friend with his consent. It is considered theft when he takes it

without his consent. For example, if A took B’s watch when he went to B’s house to

visit him, A takes B’s watch without B’s consent, A committed theft.

In some situations there is no theft while there is no clear consent, for example, if

the accused conceived that the person would have consent, because he was on friendly

terms with him, there is no theft, and even though it turned out that the person would

not have consent.14 There is an example for explaining this point, in this example: A,

being on friendly terms with Z, goes into Z’s library in Z’s absence and takes away a

book, without Z’s express consent, for the purpose merely of reading it, and with the

intention of returning it. Here it is probable that A may have conceived that he has

implied consent to use Z’s book. If this was A’s impression, A has not committed

theft.15 Therefore, the scope of theft include lack of consent, it means there is no theft

if there is consent.

There is also under the nature and scope of theft “moves that property in order to

such taking”. The accused should take the property in order to steal it, if not like this is

no theft. This case will explain this circumstance, Raja Mohamed v R16: The appellant

removed boxes containing two dozen glasses from the company’s ground floor

storeroom.

In this case, the appellant, who was a chemist employed by the Singapore Glass

Manufacturers Co. Ltd., was charged with theft of property in the possession of his

employer under Section 381 of the Penal Code. It was alleged that on 15th October

14KL, Koh, Criminal Law in Singapore and Malaysia, p533. 15Malaysian Penal Code Act 574,p141 16(1963) 29 MLJ 339(HC, Singapore)

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1962, at about 7:45 PM at the company’s premises at Henderson Road, Singapore, he

committed theft in respect of two dozen drinking glasses valued at $ 2.00 in the

possession of the company. He was convicted.17

In this case the appellant was convicted because he moved property in order to

such taking, without the owner’s consent. So this is the nature and scope of theft under

the Malaysian Law.

3. Nature and Scope of Theft under Islamic Law

The nature and scope of theft under Islamic Law is quite different from the other two

systems of law, i.e. Common Law and Malaysian Law. The definition of the nature

and scope of theft according to Islamic Law is “Taking other’s property without their

consent.”

According to this definition, if someone takes other people’s property using force,

it is not theft but it is called robbery (hirabah); and also the owner of the property

knows when the accused robs from him using force. But in theft crime, the appellant

does not know when the accused takes a property, and also does not use force against

him.

From the definition will take out four basic elements (arkan) for theft: 1) taking

property without owner’s consent; 2) the property should be wealth (Mal); 3) belong

to another; and 4) taking it with criminal intention.18

The first element is to take property without owner’s knowledge. For instance, if

A takes B's property while A is not at home or while A is sleeping; but if A takes B’s

property with B’s knowledge, it is not considered theft; but if A takes property from B

by using force against property and not against B, to take the property in this way it is 17 KL, Koh, Criminal Law in Singapore and Malaysia, p541. 18 Abdul Qadir Awdah, al-Tashri al-Jinai al-Islami, Vol 2 Beirut, 1996, pp514, 518.

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considered snatch theft. But if A takes property from B by using force against B or

had threatened him, this case is called robbery (hirabah). On the other hand, if A takes

B’s property with his consent, it is not theft, so it is not a crime and A is not guilty.

The second element for theft under Islamic law is, the property should be wealth

(Mal), now these days only property can be stolen, but in the past slaves who were

also considered properties had been stolen. The property should be removable

property such as cars, books, and so on.

And the property that is capable of being stolen should be valuable property. If the

property is not valuable such as pork and wine, these kinds of property are not capable

of being stolen.

The property should be in place for custody (hirz), if the property is not in the

custody, it is not capable of being stolen. Another point about property should be

reached the limitation (nisab). So if it does not reach (nisab), there will not be Hadd

punishment, for cutting hand as a punishment for the theft, the value of property

should reach a quarter dinar, so if it is less than this amount, it is theft but not

punishment of cutting hand, the punishment will be tahdhir.19

The third element of theft is (belonging to another). If the property belongs to the

thief himself, then it is not considered theft even though he takes from custody. The

property belongs to someone at the time of appropriation; if it does not belong to

anyone then it is not considered crime if someone takes it such as the taking of wild

animals.

The last element for theft is “taking with dishonest intention”: it means if accused

takes someone’s property without criminal intention or dishonest intention, he did no

crime. For example, A takes B’s ball. After he plays with it he returns the ball to B.

19 Ibid.p580.