INTERNAL OFFICE MEMORANDUM OF LAW

TO
: Mr Mohd Darbi Hashim, Senior Associate
FROM: Nik Abdul Matin Fawwaz Bin Nik Sapeia, Legal Assistant
DATE : April 11, 2014
CASE : Re Abu Hassan
OFFICE FILE NUMBER: 32 1118211
SUIT NUMBER: N/A
RE
: Mr Abu Hassan; Theft, Section 378 ,381 of the Penal Code

STATEMENT OF THE ASSIGNMENT

Determine whether Mr Abu Hassan could be charge for the offence of theft for taking a
file from his office and making it available to the public although he had returned it 2
days later.
ISSUES
1. Whether Mr Abu had committed theft when he took the file from his office.
FACTS
Our client, Abu Hassan, a government officer in March 2015 had removed a file from his
office and made it available to an outsider. He returned the file 2 days later to his office.
APPLICABLE STATUES AND CASES
Theft, Section 378. Whoever, intending to take dishonestly any movable property out of
the possession of any person without that persons consent, moves that property in
order to such taking, is said to commit theft.

Theft by clerk or servant of property in possession of master, Section 381.

Whoever, being a clerk or servant, or being employed in the capacity of a clerk or
servant, commits theft in respect of any property in the possession of his master or
employer, shall be punished with imprisonment for a term which may extend to seven
years, and shall also be liable to fine.
Movable property, Section 22. The words movable property are intended to
include corporeal property of every description, except land and things attached to the
earth, or permanently fastened to anything which is attached to the earth.
ILLUSTRATION Writings, relating to real or personal property or rights, are movable
property.
Wrongful gain and wrongful loss, Section 23. Wrongful gain is gain by unlawful
means of property to which the person gaining is not legally entitled. Wrongful loss is
the loss by unlawful means of property to which the person losing it is legally entitled. 38
Law
Dishonestly , Section 24. Whoever does anything with the intention of causing
wrongful gain to one person, or wrongful loss to another person, irrespective of whether
the act causes actual wrongful loss or gain, is said to do that thing dishonestly.

CASES REFERRED
Munandu V Public Prosecutor [1984] 2 MLJ 82
Ward & Anor V Public Prosecutor [1953] Mlj 153 ( was referred In Tadmansori
Floor Covering Sdn Bhd V Samsiah Bte Hasan & Ors [2002] 6 Mlj 460)
Raja Mohamed V Regina [1963] 1 Mlj 339

ANALYSIS
1. Whether Mr Abu had committed theft when he removed the file from his office.
In order to constitute the offence of theft, there are five elements must be fulfilled.
Firstly, there must be an intention to take dishonestly. The word dishonest is defined in
section 24 of the Penal Code as whoever does anything with the intention of causing
wrongful gain to one person or wrongful loss to another man, irrespective of whether the
act causes actual wrongful loss or gain, is said to do that thing dishonestly.
Then, under section 23, wrongful gain is gain by unlawful means of property to which
the person gaining is not legally entitled. Meanwhile, wrongful loss is the loss by
unlawful means of property to which the person losing it is legally entitled. Therefore,
dishonest requires intention to cause wrongful loss or wrongful gain at the time of
moving property.
In the case of Munandu v PP, the accused had pleaded guilty to theft of a bicycle.
Although he pleaded guilty, he claimed that he was drunk at the time of the incident and
took the bicycle by mistake thinking it was his. It was held that if the accused really in
good faith and believing that he bicycle to be his property, he had taken it out of
possession, then he did not take dishonestly and therefore did not commit theft.
The above authority applies because the intention of our client must be established
whether he did it dishonestly or not as it could be a crucial factor and mitigating factor .
Therefore, if Mr Abu Hassan in good faith believe that he had the authority or consent to
do so then it will not amount to dishonestly cause wrongful loss or wrongful gain at the
time of moving property. However, it is unlikely that he as a servant of the government in

good faith believe that he had the authority to remove the file with the express approval
from his superior.
The second element that must be satisfied in order to constitute an offence of theft is
the property must be movable. Movable is defined in section 22 of Penal Code as to
include physical property of every description other than land. In our client case there is
no question that the file is a moveable property.
The third element that must be fulfilled is the property should be taken out of
possession of another person. In the case of Ward & Anor v Public Prosecutor, it was
stated that'Whoever in order to take with the intention of gaining property by unlawful
means moves that property, or whoever in order to take with the intention of
retaining by unlawful means property which he does not intend to acquire, moves
that property, or whoever moves property in order to take it with the
intention of keeping the person entitled to the possession of it out of the
possession of it by unlawful means, though he does not intend to deprive
him permanently of it, is said to commit theft'. When the section is read in this
way it is evident that it was the intention of the legislature that it should be theft
under the Code, 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.
Thus, in our client case, the file indeed had been removed in which amounted to taking
out of the possession of the government. The fact that our client has no intention to

remove it permanently and had indeed returned the file 2 days later are of no
significants on this matter. s
The forth element is that the property is taken without consent of the person.
Explanation 5 of section 378 states that the consent may be express or implied and
may be given either by the person in possession or by any person having that purpose
authority either express or implied.
The fact is silent on this matter but assuming that he is going to be charge for Theft for
his action it is safe to say that Mr Abu Hassan did not received the consent of his
superior.
The last element is there must be a removal of property. 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. Explanation 2 of
section 378 of PC states that a moving, effected by the same act which effect the
severance, may be theft.
In the case of Raja Mohamed v R, In this case the appellant, who was a chemical
mixer 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
when he moved the glasses but not from the full possession but only to a different floor.
It was stated that
"Whoever, intending to take dishonestly any movable property out of the possession of
any person without that person's consent, moves that property in order to such taking, is
said to commit theft."

Is clear in our client case that he removed the property out of the possession for 2 days.
Thus the final element is satisfied.

Therefore, based on the cited authority, our client can be said to have committed the
offences of theft under Section 378 of the Penal Code
CONCLUSION
1. Mr Abu Hassan action has fulfilled all the elements of the offence of theft under
Section 378 and if he were to be charge he may be found guilty by the court.
RECOMMENDATION
Our client appears to have a committed an offences of theft, thus we should take
measure in ensuring that his best interest is taking care for. These include in determined
whether he would consider plea bargaining for a lighter sentencing. If not, we should
inquire more information concerning his action so that we could formulate a defence
should he be charged by the Public Prosecutor.

Yours Truly,

(NIK ABDUL MATIN FAWWAZ)