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  1. Receiving Stolen Property Criminal Law LLB104B Norhakimah binti Seman @ Abdullah
  2. Introduction HELP LLB 104 2 Refer to s 411 – defined offence of receiving stolen property. AR: receiving or retaining stolen property MR: 2 aspects • knowing or having reason to believe that the property was stolen and • being dishonest
  3. The accused can be convicted even if the person who stolen the property is never caught and there is no need to prove that the accused was aware of the original offender’s identity. However, the prosecution MUST prove that the property is stolen – section 410. HELP LLB 104 3
  4. Ajendranath v State of Madhya Pradesh (1964) • Some woolen shawls, mufflers and bed sheets dispatched by rail were found missing. Soon after, the police found the appellant and a few others. • The appellant told the police where the stolen property was, and recoveries were made. • 6 persons were convicted by the magistrate inter alia, concealment of stolen property. HELP LLB 104 4
  5. • The question arose as to whether the appellants could be convicted of receiving stolen property if the property was not proved to be stolen property? • Held: it is not necessary for a person to be convicted under s 414, that another person must be traced out and convicted of an offence of committing theft. The prosecution has simply to establish that the property recovered is stolen property and that the appellant provided help in its concealment and disposal.
  6. AR: Receipt or retention  S 411 embraces people who receive or retain property which they know or have reason to believe to have been stolen.  The word retain ensures the conviction of people who initially receive goods without inkling that they have been stolen, but later find out the truth and decide to hold on them.  In practice, it is easier to prove retention rather than receipt. HELP LLB 104 6
  7. Definition of stolen property • Refer to s 410 of the PC. Its cover the property that has been stolen, extorted, robbed or which has been obtained by criminal misappropriation, criminal breach of trust or cheating. • However, the receiving or retention must within Malaysia. If the theft is committed in Malaysia and the accused was found in possession of stolen property outside Malaysia, he cannot be charged under s 411.
  8. HELP LLB 104 8 In considering whether there has been retention or receipt, the courts ask whether the accused was in possession of the goods. Possession is a question of fact and is dependent on factual context and the degree of control that a person exercises over the property.
  9. Varia & Anor v PP (1948)  In this case the two appellants were convicted of dishonestly retaining flour knowing the same to be stolen property contrary to section 411 of the Penal Code.  The two appellants were found on the deck of a tongkang in which the Police found 13 bags of flour in circumstances which indicated that they were intended to be concealed. Both appellants were members of the crew of the tongkang and it was proved that it was customary, when the tongkang was in the river unladen, for members of the crew to sleep ashore at their respective homes. 9
  10.  Held, that in order to support a conviction under section 411 of the Penal Code proof of possession is essential and as there was no such proof in this case the convictions must be quashed  * therefore, simply being in a place where stolen property is found will not be sufficient. 10
  11. PP v Kasmin bin Soeb (1974)  This was an appeal against the order of a magistrate acquitting the accused under s 411 of the Penal Code wherein he was alleged to have dishonestly retained stolen property to wit, one Honda generator, valued at $300, knowing or having reason to believe the same to be stolen property.  The only evidence adduced connecting the accused with the crime was the fact that about 3 days after the property was stolen, he led the police to the place where the property was recovered. HELP LLB 104 11
  12.  Held: the mere evidence of leading the police to a spot, even if hidden, falls short of proving retention.  *the fact that the accused able to show police where stolen items are being stored is not proof that he or she received or retained those goods. 12
  13. Albakhar v PP (1960) • This was an appeal against the conviction of the appellant on a charge of dishonestly retaining stolen property to wit, orchid plants. • The only evidence of possession of the orchids which were proved to be stolen property against the appellant was that they were found in a house which the appellant occupied with the other members of his family. There was no evidence to show how they got there or when or by whom they were taken. HELP LLB 104 13
  14.  Held: the evidence was insufficient to show that the appellant had possession of the stolen property and he should not have been called upon to enter upon his defence.  *there needed to be some evidence to indicate his personal involvement as opposed to that of any one of the other inhabitants. HELP LLB 104 14
  15. Goh Peng Meng v PP (1948)  In this case the appellant had been convicted together with another person for dishonestly retaining stolen property.  The evidence showed that the Police after forcing their way to a house at night found the stolen property in the house. The appellant and the other person were also found in the house hiding in the roof above the room where the goods were located. HELP LLB 104 15
  16.  One of the grounds of appeal was that the prosecution had failed to prove that the property was in the exclusive possession of the appellant.  Held: In this case the surrounding circumstances were sufficient to show that the appellant and the other person were in joint possession of the property found and therefore the appeal must be dismissed.  * there is no need to prove exclusive possession, joint possession suffice provided the accused is proved to have exercise sufficient degree of control. HELP LLB 104 16
  17. Mens rea • There are 2 aspects to the mens rea – dishonesty and knowing or having reason to believe that the property was stolen. • A failure to prove knowledge or reason to believe is fatal to the case. • Knowledge is the highest degree of speculative faculty and consists of the perception of the truth of the affirmative or negative proposition. HELP LLB 104 17
  18. Reason to believe 18 HELP LLB 104 2 important points emerge: The test is whether the accused had reason to believe, not merely to suspect that the goods were stolen. Refer to s 26 – if he has sufficient cause to believe that thing but not otherwise.
  19. Tan Ser Juay v PP (1972) • The appellant was convicted of voluntarily assisting in the disposal of stolen property, to wit, 400 watches knowing or having reason to believe that they were stolen property. • The appellant was, by occupation, a broker, and he was asked to arrange for the sale of these watches which were new, without the relevant certificate from the seller who admitted the theft. HELP LLB 104 19
  20. HELP LLB 104 2. A person has a reason to believe something if ‘he’ has sufficient cause to believe it.  The use or word ‘he’ injects an important element of subjectivity.  However, dicta in some cases seem to treat s 26 entirely subjective like in the case of Ahmad bin Ishak v PP (1974). 21
  21. Knowledge  There is often no evidence as to who hid the stolen property.  Mere knowledge of the whereabouts of the stolen property may not be sufficient to implicate a person when other inferences may be drawn.  However, if the accused is the only one who knows where the stolen property is hidden, such exclusive knowledge may point to the fact that he was the one who kept them there and was in control and conscious possession of them. HELP LLB 104 22
  22. Moti Lal v State AIR (1959)  The accused was convicted under s 411 for being found in possession of stolen articles inter alia, utensils and silver ornaments.  The utensils were kept in a hidden place and according to the evidence, other persons who were asked to take out the utensils from the sota failed, it was the accused who went and brought the utensils out.  It was therefore, within his exclusive knowledge as to where the utensils were kept.  From this facts of knowledge, an inference can be drawn under s 114 of the Evidence Act (presumption of recent possession) that he had knowledge because he kept them there and he had control over those articles and had the conscious possession of them.
  23. Presumption of recent possession • In most cases of receiving and retaining stolen property there is no direct proof that the accused is receiving stolen property. • However, an inference may be drawn from the fact of recent possession, in the abscene of reasonable explanation. • This presumption is contained in s 114 of the Evidence Act. HELP LLB 104 24
  24. S 114 of the Evidence Act  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. Illustrations  The court may presume—  (a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession; HELP LLB 104 25
  25. • This section creates a presumption which may apply unless the accused can ‘account for his possession’. • The doctrine of recent possession, still requires the prosecution to prove the accused’s guilt beyond reasonable doubt. • If the accused is able to raise a ‘genuine and reasonable doubt’ that he or she had no knowledge that the goods were stolen property, the accused has rebutted the presumption. HELP LLB 104 26
  26. PP v Sam Kim Kai (1960) HELP LLB 104 27 The respondent was charged with dishonestly retaining stolen property contrary to the provisions of section 411 of the Penal Code. He was found wearing a wristwatch which was conclusively identified as the property of the complainant, and which was stolen from the complainant's premises a few months before.
  27. • The respondent was the next-door neighbour of the complainant. At his trial before the learned President of the Sessions Court, the respondent gave evidence that he had purchased the watch from a friend named Ah Seok for $20 about three months earlier. • He failed however to produce Ah Seok as a witness at his trial. The respondent also said that he borrowed money to buy the watch from his sister, and this evidence was corroborated by the sister. The learned President acquitted the respondent. • On appeal by the learned Deputy Public Prosecutor on the ground that the learned President misdirected himself in law, and as a direct result of that misdirection placed too high a value on the respondent's story without giving adequate and proper consideration to the intrinsic worth of that story. HELP LLB 104 28
  28. • Held: • (1) it is not sufficient, on a charge of receiving stolen property, for the accused to give an explanation which the court thinks may possibly be true. The explanation must be such as to raise a genuine and reasonable doubt as to whether the accused was guilty. However, although the learned President described the respondent's story as one that "could possibly be true," it is quite clear from his judgment as a whole that, having heard the respondent's explanation, he came to the conclusion that the explanation might not only possibly but reasonably be true. There could therefore be no question of the learned President having misdirected himself in law; HELP LLB 104 29
  29. • (2) it may well be that a court differently constituted, bearing in mind that the respondent was the next door neighbour of the complainant and that he failed to produce, or account for the absence of, the witness from whom he said he had bought the watch, would have come to a different conclusion in this case. But the learned President was the judge of fact, and on the facts before him; if he was left in honest and genuine doubt, he was perfectly entitled to acquit the respondent. • Appeal dismissed HELP LLB 104 30