Snatch theft is becoming a serious issue nowadays. During the months of June and July 2004, the local media, especially the press, have been replete with reports of crime and violence in Malaysia. There have been many reports of snatch thefts which has given a great impact to the society. Police statistics on these crimes indicate that they are on the rise. Therefore, there is a sense of anxiety, even panic and fear in the air.
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The seriousness of this crime can be proven when on January 29th, 2005, the Prime Minister, Datuk Seri Abdullah Ahmad Badawi himself has addressed throughout the country his curious concern on the rise of the crime and the need to implement more severe punishments. There are lots of articles in the newspapers and on the internet to show the seriousness of the offence of snatch theft. On January 30th 2005, our nation’s leading newspapers, namely Berita Minggu and The Star had reported snatch theft crimes, which had happened near Ipoh, Perak. The suspect had snatched the bag from a sixty year old woman at a shopping mall at Jalan Kampar, as the woman was walking to her car. The twenty year old thief, who had tried to escape in his car, also knocked down a man, who suffered minor injuries. The suspect ran through the traffic lights and collided with two cars. This has caused him to lose control of his vehicle, which then hit the road sign. The suspect then was detained.
The second example of this snatch theft crime happened on January 9th 2005. Berita Minggu had reported another snatch theft incident, where two female students were injured after their motorcycle crashed into a concrete drain while escaping from a snatch criminal. The suspect had followed the girls with a motorcycle on their way after attending tuition class. In another case, on June 10th 2004, Ros Saliza Burhan, a factory worker on her way waiting for the bus was followed by two men on a motorcycle. Failed to snatch the victim’s bag, the criminal had used force against her by stabbing her three times so that she will release her bag. The victim fainted because of the injury.
Those were just among a few cases occur in our country. There are other cases, which cause a more terrifying result such as death, grievous hurt, shocked and so forth. The seriousness of this offence can be seen when Chin Wai Fong died in Brickfields in May when she fought back against a snatch thief. Then Chong Fee Cheng fell, went into a coma and died while resisting a snatch thief in Johor Baru in mid-June. This was followed by the killing of Rosli Mohamed Saad who had gone to the aid of an Indonesian woman whose bag was snatched in Ampang in June 29. The newspapers also carried statistics on the number of snatch thefts. Relying on police statistics, Penang Chief Minister Tan Sri Dr Koh Tsu Koon revealed that there had been a total of 515 cases of snatch thefts in Penang between January and May 2004. Meanwhile the Perak Chief Police Officer reported a total of 374 cases of snatch thefts in his state during January to May 2004.
With all the examples and discussions given, the issue of whether or not the crime of “snatch theft” should be separated from the offence of “theft” and “robbery” will impose a lot of legal discussion in order to ensure public safety. The main and crucial issue to be discussed here is that whether the offence of “theft” and “robbery” sufficiently address the offence of “snatch theft”. In other words, whether or not the elements of the two offences, which are already in the Penal Code are sufficient to be raised for a person who commits snatch theft. In order to tackle this issue, the elements of “theft”, which is under section 378 of the Penal Code and the elements of “robbery” which is under section 390 of the Penal Code have to be analyzed one by one. First and foremost, we would like to discuss the elements of “theft” which is under section 378 of the Penal Code. The said provision defines theft as “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”. Basically, from the definition, there are five elements of “theft”.
The first element is dishonesty. It is defined under 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 person, irrespective of whether the act causes actual wrongful loss or gain, is said to do that thing “dishonestly”.” This shows that the important thing is to determine whether or not there is an intention to cause wrongful gain or wrongful loss to the other person. What is “wrongful gain” and “wrongful loss” then? It is further defined in section 23 of the Penal Code, whereby a person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of the property. Since dishonesty requires the intention to wrongfully gain or lose, the intention must exist at the time of moving of the property. This is because, it is not theft if there is no intention at the time of taking of the property .
The authority for the first element can be seen in the case of Raja Mohamed v. R whereby the principle is that there must be an intention to take dishonestly any movable property out of the possession of another person without that person’s consent in order to constitute theft. Meaning to say, it is sufficient that the person, who has such dishonest intention moves the property in order to such taking. In addition, it is not necessary to move such property in order to move out of the possession of the other person.
Next, the second element is that the person must take without consent. It means that there must be an intention to take another’s property without consent. The important point here is how the accused conceives of the situation whether or not the person whose property is taken would consent to it. In other words, this element depends on the mind of the owner of the property. In the situation when a person consents, then the actus reus of theft is not fulfilled and therefore there is no theft.
The third element is to take out of possession. It means that the property must be taken or moved out of the possession. If the accused has a dishonest intention and moves the property, then he is said to move the property out of possession. It is to be noted here that theft is an offence against possession and not of ownership. Therefore, the offence is against the person who is in possession. A possession for the purpose of theft relates to movable property and movable property, which is lost or abandoned may not be in any possession of any person. However, when it is neither lost nor abandoned, even if it is then placed in the possession of someone else, the possession may still remain with the true owner.
Subsequently, the fourth element is movable property. What is “movable property” is defined under section 22 of the Penal Code, which states that 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. It means that as long as the thing is attached to the earth, therefore it is not movable.
Furthermore, a thing attached to the earth is not movable and cannot be a subject of theft until it has been severed from the earth. Land within the meaning of section 22 of the Penal Code does not include soil from the land. However, when it is dug out of the land, it is then known as movable property. In the case of Lim Soon Gong & Ors., the respondents were charged with committing theft of sand from the foreshore. The principle of this case regarding the fourth element is that sand, which has been dug out from the foreshore is a movable property. Eventually, the final element of theft is there must be a moving of the property. It means that the property must be moved out of possession. This can be seen in the authority of Raja Mohamed v. R, the accused had removed boxes containing two dozens of glasses from the company’s ground floor storeroom. He was charged of convicting theft. The principle of this case is that it is sufficient if the person had formed a dishonest intention and moves the property in order to such taking. Moreover, it is not necessary to move the property fully out of possession in order to commit theft.
Having fulfilled all the five elements under section 378 of the Penal Code, the accused then can be held liable for committing theft. Section 379 of the Penal Code further provides the punishment for theft, whereby one can be punished with imprisonment for a term which may extend to seven years or with fine or both. It further adds that for a second or subsequent offence, one shall be punished with imprisonment and also be liable to fine or whipping. The question to be asked is whether the offence of “snatch theft” can fall under the offence of “theft” under section 378 of the Penal Code. It seems like it is insufficient as when snatch theft is committed, there will be the element of force on the person who is being snatched, whereas the elements of theft are more mild in the sense that there is nothing in the provision states that there is a use of force or further may result to a more critical situation such as death. Thus, this will make the punishment for theft does not suit the offence of snatch theft. Snatch theft as being said earlier can cause injury to the other person and it can even come to the extent of causing death to the other person. Besides that, there also should be an element of force. These elements seem do not present in the elements of theft. Thus, we submit that the offence of “theft” does not sufficiently address the offence snatch theft as snatch theft is more serious and causes more severe injury as compared to theft.
Having discussed the elements of “theft”, we will go into details the offence of “robbery” in order to come to the conclusion of whether or not it is sufficiently address the offence of snatch theft. Section 390 of the Penal Code which is regarding the offence of “robbery” will be analyzed. Clause (1) of the said provision states that in all robbery there is either theft or extortion. In other words, for the offence of robbery to arise, either the two main elements, which are theft or extortion has to exist.
Section 390(2) states that theft is “robbery” if, in order to commit theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death, or hurt, or wrongful restraint, or fear of instant death, or of instant hurt, or of instant wrongful restraint. Section 390(3) defines extortion as robbery, if the offender, at the time of committing the extortion, is in the presence of the person put in fear and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
In other words, robbery is theft or extortion in an aggravated form. Hence, the elements of theft or extortion must be present in addition to the aggravated circumstances set out in robbery. Section 390 provides for the circumstances when theft constitutes robbery. The words “for that end” in section 390 must relate to the commission of theft. Hence where an assault has no relation to the theft, robbery is not committed. If, for example, the accused first assaulted the complainant and then subsequently formed an intention to take his watch, he cannot be liable for robbery but only for theft.
The crucial point under the offence of robbery is to determine the meaning of the word “for that end”. The force or threat of force must be for the purpose of committing theft and carrying away the property. In Karuppa Gounden, it was held that “the word ‘for that end’ in section 390, Penal Code, cannot be read as meaning in those circumstances”. It was held by the Lahore Court in Karmun that, “…before a person can be convicted of robbery the prosecution must prove that hurt was caused in order to the committing of the theft or in committing the theft or in carrying away or attempting to carry away the property obtained by the theft. The hurt contemplated must be a conscious and voluntary act on the part of the thief for the purpose of overpowering resistance on the part of the victim, quite separate and distinct from the act of theft itself…”
In the other case of Bishambhar Nath v. Emperor AIR, the principle is that in order to commit theft of the cash or in committing the theft of cash for carrying away or attempting to carry away property obtained by the theft, the accused for the theft voluntarily caused or attempted to cause hurt.
The word “for that end” clearly means that the hurt caused by the offender must be with the express object of facilitating the commission of theft or hurt must be caused while the offender was committing theft or in carrying away or in attempting to carry away the property obtained by the theft. It does not mean that the assault or hurt must be caused in the same transaction or in the same circumstances. In Nga Po Thet, the essence of robbery is that the offender must cause death, hurt or wrongful restraint or fear of death, hurt or wrongful restraint in the commission of theft or in carrying away the property obtained by theft. The punishment for robbery is stated in section 392 of the Penal Code, whereby it shall be punished for a term which may extend to ten years and shall be liable to fine. In addition, if the robbery is committed between sunset and sunrise, the imprisonment may be extended to fourteen years and shall also be liable to fine or whipping.
From the discussion of robbery as in section 390 of the Penal Code, the offence of robbery seems to satisfy some elements of snatch theft. As what has been said earlier, the offence of snatch theft involves the elements of force and the consequences of the act will lead to a severe injury to the victim and sometimes it may lead to death of the victim. In fact, section 390 is being used for the time being as to replace the offence of snatch theft which is not in the Penal Code yet. This shows that snatch theft is very dangerous to the public at large as the offence is nearly similar to the elements of the offence of robbery under section 390. The punishment for snatch theft is as the same as the punishment for robbery under section 392. This again proves that snatch theft is a serious crime.
However, we strongly think that there must be an element of force in snatch theft. This is because when a person snatches another person’s handbag, there is an existence of force used against the other person. This is because, when a person wants to grab the other person’s bag, it will happen fast. When this happens, the other person will be hurt and injured as there is force used against him or her. In other words, force and hurt will tend to exist simultaneously when a person commits the offence of snatch theft.
In the current situation, the Deputy Internal Security Affairs Minister Datuk Noh Omar has clarified in Parliament that the Police, since early 2004, had resorted to using the Emergency Ordinance (Crime Prevention & Public Safety) 1969 against snatch thieves “if the Police is convinced that the suspects had committed the offence”. Under the Ordinance, those suspected may be held for sixty days after which the Internal Security Minister could decide to detain them for up to two years without trial. The Deputy Internal Security Affairs Minister further clarified that the Police would also charge snatch thieves under sections 392, 394 and 397 of the Penal Code, which allows for caning, jail terms (up to twenty years if armed, under section 394), apart from imposing fines. This last step is in line with the suggestions of another politician, Karpal Singh, who called for amendments to sections 392 and 394 of the Penal Code to impose mandatory whipping of not less than six strokes. It was also the suggestion of Wong Sulong in his Editorial in The Star on June 15th, 2004.
Since there is still no laws imposed on snatch theft, it is to be tabled in the year 2005. The Minister in the Prime Minister’s Department, Datuk Mohd Radzi Sheikh Ahmad said a Bill dealing specifically with snatch theft offences would be tabled in Parliament in July, 2005. He added that, under the new law, the offenders could be imprisoned between seven and twenty years and whipping could be included as part of the punishment. Currently in the Penal Code, there is no special provision for snatch theft besides the separate charges for theft and robbery, which carry a maximum jail sentence of seven and twenty years respectively. He further added that the law would be effective by the end of the year 2005 if everything goes smoothly. The need of having a special law for snatch theft is due to the many reported cases of victims being killed or seriously injured. This shows that the offence of snatch theft is indeed a serious crime.