Theft Issues

Deprivation, Ownership and Possession

A person is regarded as owning property if he or she has possession or control of it or has any proprietary right or interest not being an equitable interest arising only under an agreement for transfer or the grant of an interest.  Where property is subject to a trust, the person who owns it shall be regarded as including a beneficiary and where a person intends to defeat the trust, he is regarded as having intended to deprive the owner of the property.

The owner for this purpose need not be the owner in the sense of having title as against the whole world.  It can be a person in possession who has the right to give another possession.  See generally the sections on personal property.

A person who receives property on behalf of another and is under an obligation to that other to retain and deal with the property or its proceeds in a particular way, that other shall be regarded as against the former, the owner. This covers not only a trust but also a bailment and other like arrangements.

A person may be guilty of stealing his own property.  Where a person gives another property for example as security, a taking or appropriation of it. may in principle amount to theft if the requisite elements are satisfied.

Where property or a property right is transferred for value to a person acting in good faith, no later assumption by him of rights which that person believes himself to be acquiring shall amount to theft, by reason of a defect in the transferor’s title.

Property

Property covers any assets, including money, property, real and personal, intangible assets, and so-called chose in action.

The English courts under similar legislation have confirmed that theft can apply to a wide range of appropriation of rights and benefits. Property includes money, property real and personal.  It includes land, buildings and movable goods.  It includes all categories of intangible goods, such as debts and other rights that can only be enforced through court action.

There are however limits to what constitutes property and assets for the purpose of theft.  Intangible information in itself may not be sufficient.  However, information in the sense of confidential information that is protectable, may conceivably be covered.  Electricity is subject to special legislation in respect of appropriation under the Energy and Miscellaneous Provisions Act.

Land cannot generally be stolen.  However, if a trustee or a person in a fiduciary or representative position appropriates the land or any part thereof in breach of his position, he may be guilty of theft.  If a person who is not in possession of land appropriates anything forming part of the land by severing it, e.g. removing fixtures or appropriates anything forming part of the land after it has been severed, he is guilty of theft.

If a person in possession of land under a lease or a license appropriate fixtures or structures that are licensed with the land, he may be guilty of theft.

Property includes Living Things

A person may steal things severed from land by him or at his direction. This provision removes the pre-existing position by which things affixed to the land could not be stolen as they were deemed to savour of the realty i.e. treated as if they were real (non-movable) property.

A person although not in possession of lands, who picks mushrooms or other fungus growing wild on land or who takes flowers fruit or foliage from a plant, including a shrub or tree growing wild does not, , steal what is picked unless he does so for reward or other commercial purpose.  This applies only to picking from a plant.  Taking the plant itself would constitute theft.

Wild creatures tamed or untamed are regarded as property.  A person cannot steal a wild creature not tamed or ordinarily kept in captivity or the carcass of such creature unless it has been reduced into possession by or on behalf of another person and the possession of it has not since been lost or abandoned, or another person is in the course of reducing it to possession.

Bona Fide Reasonable Claim

Where a person has a bona fide but incorrect claim of right,  he will not generally be guilty of dishonest appropriation/ theft. Under the former legislation, there was not theft, if a person acted in good faith with an honest good faith claim of right.

A person does not dishonestly appropriate property without consent if he believes on reasonable grounds that he has the owner’s consent or would have his consent if the owner knew of the appropriation and the circumstances in which it is appropriated or (except where property came to him as trustee) he takes or appropriates the property in the belief that the owner cannot be discovered by taking reasonable steps.  Consent obtained by deception or intimidation is not valid.

The presence or absence of reasonable grounds for belief is a matter to which the court or jury shall have regard, in conjunction with other relevant matters in considering whether a person had the requisite belief in respect of consent, discovering the owner or acting dishonestly.

Taking by Deception; No Consent

If the appropriation occurs with consent then it is not theft.  The owner is the person who has possession or control of the property.  It also includes the proprietor or another person who has a proprietary right other than that arising under a contract to purchase.

If a person receives property for a particular purpose from the owner, then that person may commit theft if he usurps or appropriates that property in a manner inconsistent with that purpose.

A person deceives if he or she—

• creates or reinforces a false impression, including a false impression as to the law, value or intention or other’s state of mind,
• prevents another person from acquiring information that would affect that person’s judgement of a transaction, or
• fails to correct a false impression which the deceiver previously created or reinforced or which the deceiver knows to be influencing another to whom he or she stands in a fiduciary or confidential relationship,

and references to deception shall be construed accordingly.

If a person convinces another that an item is valueless and thereby obtains a transfer of it, this may be deemed a transfer by deception.  If the owner makes an error as to value without any positive influence or input from the recipient, then no theft has occurred and the recipient has received the property legitimately.

Corporates & Trustees

Theft may be committed by a body corporate (company).  Where it is shown that the offence is committed with the consent or connivance of directors, managers, secretaries or other officers or persons purporting to act on behalf of the corporation, or in such capacity, they too as well as the corporation are guilty of theft.

Where the affairs of the company are managed by the shareholders, the above provision applies to the members and shareholders as if they were directors and managers.

A trustee, personal representative or other equivalent representative authorised to sell land to another, appropriates the land or anything forming part of it, if in breach of the confidence reposed in him, or not being in possession, he appropriates anything forming part of the land by severing it or causing it to be severed or being in possession under a tenancy or license, appropriates the whole of any fixture or structure, let or licensed.