2. Introduction
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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18. Reason to
believe
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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.
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20.
21. 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).
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22. 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.
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23. 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.
24. 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.
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25. 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;
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26. • 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.
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27. PP v Sam
Kim Kai
(1960)
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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.
28. • 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.
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29. • 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;
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30. • (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
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