Theft – s378 of the Penal Code

This blog post will first lay out the general elements of theft under Section 378 of the Penal Code. It will then focus on shoplifting and will examine and explain the benefits of community based sentences instead of custodial sentences (imprisonment).

When is a person punished under Section 378 for theft?

Theft under Section 378 covers a broad range of offences that involve the dishonest appropriation of someone else’s property. This includes, but is not limited to, shoplifting, taking an item from someone’s house/dwelling and other acts of taking things that does not belong to you.

Section 378

1) A person commits theft when a person;

1. intends to take dishonestly
2. any movable property
3. out of the possession of any other person
4. without that person’s consent
5. and moves that property in order to such taking

*Dishonestly – an action done with the intention to cause wrongful gain or loss to a person.

*Wrongful gain – a gain by unlawful means of property by a person who is not legally entitled to it

*Wrongful loss – a loss by unlawful means of property by a person who is not legally entitled to it

Elements

1. Physical Element
• that the accused moved the victim’s movable property
2. Fault Element
• that the accused intended to take the property out of the victim’s possession without the victim’s consent

Examples

1. A cuts down a tree on Z’s ground, with the intention of dishonestly taking the tree out of Z’s possession without Z’s consent. Here, as soon as A has severed the tree, in order to such taking, he has committed theft.
2. A puts a bait for dogs in his pocket, and thus induces Z’s dog to follow it. Here, if A’s intention be dishonestly to take the dog out of Z’s possession without Z’s consent, A has committed theft as soon as Z’s dog has begun to follow A.
3. A, being Z’s servant and entrusted by Z with the care of Z’s plate, dishonestly runs away with the plate without Z’s consent. A has committed theft.
4. Z, going on a journey, entrusts his plate to A, the keeper of a warehouse, till Z shall return. A carries the plate to a goldsmith and sells it. Here the plate was not in Z’s possession. It could not, therefore, be taken out of Z’s possession, and A has not committed theft, though he may have committed criminal breach of trust.
5. A finds a ring belonging to Z on a table in the house which Z occupies. Here the ring is in Z’s possession, and if A dishonestly removes it, A commits theft.
6. A finds a ring lying on the high road, not in the possession of any person. A by taking it commits no theft, though he may commit criminal misappropriation of property.
7. A sees a ring belonging to Z lying on a table in Z’s house. Not venturing to misappropriate the ring immediately for fear of search and detection, A hides the ring in a place where it is highly improbable that it will ever be found by Z, with the intention of taking the ring from the hiding place and selling it when the loss is forgotten. Here A, at the time of first moving the ring, commits theft.
8. A delivers his watch to Z, a jeweller, to be regulated. Z carries it to his shop. A, not owing to the jeweller any debt for which the jeweller might lawfully detain the watch as a security, enters the shop openly, takes his watch by force out of Z’s hand, and carries it away. Here A, though he may have committed criminal trespass and assault, has not committed theft, inasmuch as what he did was not done dishonestly.
9. If A owes money to Z for repairing the watch, and if Z retains the watch lawfully as a security for the debt, and A takes the watch out of Z’s possession, with the intention of depriving Z of the property as a security for his debt, he commits theft, inasmuch as he takes it dishonestly.
10. Again, if A having pawned his watch to Z, takes it out of Z’s possession without Z’s consent, not having paid what he borrowed on the watch, he commits theft, though the watch is his own property, inasmuch as he takes it dishonestly.
11. A takes an article belonging to Z out of Z’s possession, without Z’s consent, with the intention of keeping it until he obtains money from Z as a reward for its restoration. Here A takes dishonestly; A has therefore committed theft.
12. 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 thatA may have conceived that he had Z’s implied consent to use Z’s book. If this was A’s impression, A has not committed theft.
13. A asks charity from Z’s wife. She gives A money, food and clothes, which A knows to belong to Z, her husband. Here, it is probable that A may conceive that Z’s wife is authorised to give away alms. If this was A’s impression, A has not committed theft.
14. A is the paramour of Z’s wife. She gives A valuable property, which A knows to belong to her husband Z, and to be such property as she has no authority from Z to give. If A takes the property dishonestly, he commits theft.
15. A in good faith, believing property belonging to Z to be A’s own property, takes that property out of B’s possession. Here, as A does not take dishonestly, he does not commit theft.

Punishments for Theft

1. General punishment (s 379): Imprisonment of a maximum of 3 years OR a fine OR both imprisonment and a fine.
2. Punishment for theft of a motor vehicle or any components (s 389A): Imprisonment of a maximum of 3 years AND a fine, AND, unless special reasons exist, shall be disqualified from driving for such period as the court may order from the date the convicted person is released from prison
3. Punishment for theft in building, tent or vessel etc. (s 380): Imprisonment of a maximum of 7 years AND is also liable to a fine.
4. Theft by clerk or servant of property in possession of master (s 381): Imprisonment of a maximum of 7 years AND is also liable to a fine.
5. Theft after preparation made for causing death or hurt in order to commit theft (s 382): Imprisonment of maximum of 10 years AND minimum 3 strokes of the cane.

Shoplifting – Community Based Sentences

The Attorney General V K Rajah (as he was known then) called for more community- based sentencing options for less serious crimes at the opening of the legal year in 2016. He noted that the option for community-based sentencing options “has so far been under-used” . He called for the use of more community based sentences stressing that prosecution and punishment cannot be the only response to crime. This shows a marked shift from previous years of prosecution where imprisonment was seen as the main way to deter crimes. There has been a promising development for community based sentencing options, especially where the offender has a real prospect for rehabilitation.

The Attorney General’s Chambers have laid out a guideline as to when Community Sentences are applied:

Where the offence committed is not too serious and the offender has not been sentenced to imprisonment before (note: this does not apply to the mandatory treatment order, for mandatory psychiatric treatment), an offender may receive a community sentence instead of a fine or imprisonment. Community sentences include:

1. Mandatory Treatment Order: An order requiring an offender to undergo psychiatric treatment for a maximum period of two years. This is targeted at offenders suffering from a treatable underlying psychiatric condition, who are amenable to receiving treatment.
2. Day Reporting Order: An order requiring an offender to report on a regular basis for a period of 3 – 12 months for supervision and / or counselling or rehabilitation.
3. Community Work Order: An order requiring an offender to perform supervised community work associated to his offence for a period of time.
4. Community Service Order: An order requiring the offender to perform supervised community service for a period of time.
5. Short Detention Order: An order requiring the offender to be detained in prison for up to 14 days.

Probation

In addition to Community based sentences, a judge may also order Probation. Probation will not count as a criminal conviction subject to supervision for a period between 6 months to 3 years. There will be conditions attached to his probation such as curfews and community service requirements as well.