Theft Laws Simplified: Property, Possession, And More

Dec 12, 2023

Theft & Theft in Dwelling

Theft is defined in Section 378 of the Penal Code as follows:

“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.”

While Section 378 of the Penal Code appears simple, there are actually several elements that constitute an offence of theft.

This short article seeks to provide a simple overview of the main elements of theft, namely:

a. Property

b. Possession

c. Dishonesty

d. Consent

What is Property?

Property is defined in Section 29 of the Penal Code as follows:

“In this Code —

“immovable property” means land, benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth;

“movable property” includes property of every description, except immovable property;

“property” means money and all other property, movable or immovable, including things in action, other intangible or incorporeal property and virtual currency;

“virtual currency” means a digital representation of value in money or money’s worth that can be digitally traded and functions as a medium of exchange, a unit of account or store of value, regardless of whether it is legal tender in any country or territory including Singapore.

Illustration

Writings, relating to real or personal property or rights, are movable property.”

The first point to make is that theft only relates to “movable property”.  As can be observed, the Penal Code has given “movable property” a broad definition. For instance, virtual currencies (and, indeed, other intangible or incorporeal property) are now considered as “property” for the purposes of theft. This was only made possible after the recent amendments to the Penal Code. Indeed, this amendment is a good example of how the law continues to evolve with the times.

What is possession?

The first point to understand is that theft is an offence against possession not ownership. This much is clear from the wording of Section 378 of the Penal Code. What exactly is possession? Often this would be an instinctive answer.

Take the example of a man who had placed his wallet on a hawker centre table – although the wallet is not in his pocket, nor in his hands, it cannot be seriously doubted that the wallet is not in his possession.

Take another example of a Singaporean man who had misplaced his watch whilst on a trip to a foreign country 3 years ago. The man then takes no steps to find the said watch due to its cheap value. Would the watch be in his possession? The instinctive answer would be no.

What is dishonesty?

Dishonesty is defined in Sections 23 and 24 of the Penal Code, both of which read as follows:

Section 23 of the Penal Code:

1.  A “wrongful gain” is gain by unlawful means of property to which the person gaining it is not legally entitled or avoidance by unlawful means of a loss of property to which the person avoiding it is not legally entitled to avoid.

2.  A “wrongful loss” is loss or exposure of risk to a loss by unlawful means of property to which the person losing it or exposed to the risk of losing it is legally entitled.

Explanation 1.—A person is said to gain wrongfully when the person retains wrongfully, as well as when the person acquires wrongfully. A person is said to lose wrongfully when the person is wrongfully kept out of any property, as well as when the person is wrongfully deprived of property.

Explanation 2.—The word “gain” includes a gain by keeping what one has, as well as a gain by getting what one does not have.

Explanation 3.—The word “loss” includes a loss by not getting what one might get, as well as a loss by parting with what one has.

Section 24 of the Penal Code:

A person (A) is said to do an act dishonestly if —

a. A does that act with the intention of causing wrongful gain to A or another person, or wrongful loss to another person, regardless of whether such gain or loss is temporary or permanent; or

b. that act done by A is dishonest by the ordinary standards of reasonable and honest persons and A knows that that act is dishonest by such standards.

To aid understanding, a simple example of dishonesty is as follows:

a. The offender A took a watch on a hawker centre table that belongs to another person (B). The offender (A) will then have intended to cause wrongful gain to A by way of obtaining the watch (i.e., property) which A was not entitled to; and

b. The reasonable and honest person would find A’s act of gaining the said watch to be dishonest.

What is consent?

It is easy to see why consent is an important element in an offence of theft. Indeed, if a person (A) had consented to another person (B) taking property which is in A’s possession, B can hardly said to be guilty of theft.

Explanation 5 to Section 378 of the Penal Code makes it clear that consent in the context of theft can be either expressed or implied:

The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied.

Combination of the elements

So, how do the elements combine together to constitute the offence of theft? A simple example will illustrate the point:

A person (A) walks to Lau Pa Sat hawker centre. He spots a wallet on a table, which belongs to another person (B). B had left his wallet on the table to reserve it, given that Lau Pa Sat is always crowded during lunchtime. A then places B’s wallet in his pocket and hurries off.

Is an offence of theft made out? Yes, because:

a. There was a property – i.e., a wallet;

b. The property was in possession of B;

c. A was dishonest – he had intended to cause wrongful gain to himself, and the way in which he had done so would be considered by a reasonable and honest person; and

d. B did not expressly nor impliedly consent to A taking his wallet.

Punishment for Theft

The punishment for theft is set out in Section 379 of the Penal Code, which reads as follows:

“Whoever commits theft shall be punished with imprisonment for a term which may extend to 3 years, or with fine, or with both.”

Theft in Dwelling

It is not uncommon for theft to take place in a building (take for instance, a person who steals an item from a supermarket) This will be an aggravated form of theft – otherwise known as Theft in Dwelling.

Theft in Dwelling is defined in Section 380 of the Penal Code, which reads as follows:

“Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or for the custody of property, shall be punished with imprisonment for a term which may extend to 7 years, and shall also be liable to fine.”

As is immediately clear, the punishment for theft in dwelling is more severe than mere theft. This is arguably justified.

In cases of theft in a dwelling house, the offender would most likely be in the victim’s house with the victim’s consent. If the offender then steals from the victim, his criminal act will invariably involve breaking the trust that the victim had reposed in him.

Sentencing Guideline

The relevant sentencing factors for theft, as understood by criminal lawyers, would include the value of the item stole, the circumstances of the offence, whether a vulnerable victim was involved, and if the offender had similar antecedents.

The starting point for the courts would most likely be the value of the stolen item as it would provide a useful and practical proxy. Generally speaking, the more valuable the stolen item is, the heavier the sentence will be.