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Trespass (Msia) - Coggle Diagram
Trespass (Msia)
Criminal Trespass
Section 441:
- (1) Whoever enters into/upon property in the possession of another with intent to commit an offence / to intimidate, insult / annoy any person in possession of such property; or
- (2) Having lawfully entered into / upon such property, unlawfully remains there with intent thereby to intimidate, insult / annoy any such person, / with intent to commit an offence, is said to commit "criminal trespass"
Section 441(1)
AR:
- "...enters into or upon..."
- "...property in the possession of another"
MR:
- with intent to
- (i) commit an offence or
- (ii) intimidate, insult or annoy any person in possession of such property
Section 441(2)
AR:
- "... lawfully entered into or upon..."
- "...such property..."
- "... unlawfully remains there..."
MR:
- With intent thereby to
- (i) intimidate, insult / annoy any such person, or
- (ii) comit an offence
Keywords
"Enter"
- The introduction of any part of the criminal trespasser's body in entering sufficient to constitute house-trespass
- Every expression which is explained in any part of this code, is used in every part of this code in conformity witht he explanation
"Property - S22:
- The words "movable property" are intended to include corporeal property of every descruption except land and things attached to the earth, or permanently fastened to anything which is attached to the earth
Intent to insult / annoy
Ahmad bin Ali [1967]:
- "I would refer to the case of Abbas Tomby (1881) where it was held that the act of a person in going into the house of another with intent to have criminal intercourse with the latter's wife, although necessarily resulting in annoyance or as an insult to the latter si not an offence within sections 441 and 442 of the Penal Code"
Tee Teng Heng [2001]:
- Principles:
- (1) intention inferred
- (2) Intent to annoy need not be the primary / dominant motive
Sentence - S.447:
- Max 6 months and/or max RM3,000.00
House Trespass
Section 442:
- Whoever commits criminal trespass
- By entering into / remaining in:
- (1) Any building, tent / vessel used as a human dwelling or
- (2) Any building used as
- A place of worship, or as
- A place for the custody of property
- Is said to commit "house trespass"
Lurking House Trespass - Section 443:
- Whoever commits house-trespass, having taken precautions to conceal such house trespass from some person who has the right to exclude or eject the trespasser from the building, tent / vessel which is the subject of the trespass, is said to commit, "lurking house-trespass"
-
Sentence - S.448:
- Max 3 years and/or max RM5,000.00
House Breaking
S.445:
- Commits house trespass
- He effects his entrance into the house or any part of it in any of the 6 ways hereinafter described; or
- Being in the house or any part of it for the purpose of committing an offence, or having committed an offence therein, he quits the house or any par to fit in any of such 6 ways:
(1)
- If he enters or quits through a passage made by himself, or by an abettor of the house trespass, in order to commit the house trespass
see illustration A:
- A commits house trespass by making a hole through the wall of Z's house and putting his hand through the aperture. This is house breaking
(2)
- If he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance, or through any passage to which he has obtained access by scaling or climbing over any wall or building
see illustration B:
- A commits house trespass by creeping into a ship at a port hole between decks, although found open. This is house breaking
see illustration C:
- A commits house trespass by entering Z's house through a window, although found open. This is house breaking
(3)
- If he enters or quits through any passage which he or any abettor of the house-trespass has opened, in order to the committing of the house-trespass, by any means by which that passage was not intended by the occupier of the house to be opened
see illustration D:
- A commits house trespass by entering Z's house through the door, having opened a door which was fastened. This is house breaking
(4)
- If he enters or quits by opening any lock in order to commit the house trespass, or in order to quit the house after a house trespass
see illustration F:
- A finds the key of Z's house door, which Z had lost, and commits house trespass by entering Z's house, having opened the door with that key. This is house breaking
(5)
- If he effects his entrance or departure by using criminal force or committing an asault, or by threatening any person with assault
see illustration G:
- Z is standing in his door-way. A forces a passage by knocking Z down, and commits house trespass by entering the house. This is house breaking
see illustration H:
- Z, the door keeper of Y is standing in Y's doorway. A commits house trespass by entering the house, having deterred Z from opposing him by threatening to beat him. This is hose breaking
(6):
- If he enters or quits by any passage which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the house trespass
see illustration D:
- If A commits house trespass by entering Z's house through the door, having opened a door which was fastened. This is house breaking
Sentence - S.453:
- Max 3 years and fine, and whipping for second / subsequent offence
Property Offences
Fraud - Section 1:
- (1) A person is guilty of fraud if he is in breach of any of the sections listed in subsection (2) (which provide for different ways of committing the offence)
- (2) The sections are:
- (a) section 2 (fraud by false representation
- (b) section 3 (fraud by failing to disclose information), and
- (c) section 4 (fraud by abuse of position)
Fraud by false representation - S.2:
- (1) A person is in breach of this section if he
- (a) dishonestly makes a false representation, and
- (b) intends, by making the representation
- (i) to make a gain for himself / another, or
- (ii) to cause loss to another / to expose another to a risk of loss
- (2) A representation is false if -
- (a) It is untrue / misleading, and
- (b) The person making it knows that it is, or might be untrue / misleading
AR:
- Makes a representation
Representation is false
MR:
- Dishonesty, intention to make gain/loss, knowledge that representation is / might be untrue / misleading
Keywords
"Misleading"
- Something "less than wholly true and capable of an interpretation to the detriment of the victim"
"Representation"
- Any representation as to fact / law,
- Including a representation as to the state of mind of -
- (a) The person making the representation, or
- (b) Any other person
- A representation may be express / implied
[This is a conduct crime and not a result crime]
"Gain" and "Loss" - S.5:
- (2) "Gain" and "Loss" -
- (a) Extends only to gain / loss in money / other property;
- (b) Include any such gain / loss whether temporary / permanent;
and "property" means any property whether real / personal (including things in action and other intangible property)
- (3) "Gain" includes a gain by keeping what one has, as well as a gain by getting what one does not have
- (4) "Loss" includes a loss by not getting what one might get, as well as a loss by parting with what one has
Fraud by Failing to Disclose Information - S.3:
- A person is in breach of this section if he -
- (a) Dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and
- (b) Intends, by failing to disclose the information -
- (i) To make a gain for himself / another, or
- (ii) To cause loss to another / to expose another to a risk of loss
AR:
- Failure to disclose information under a duty to disclose
MR:
- Dishonesty, intention to make gain/loss
- R v Cornelius [2012]
- R v Gilbert [2012]
Fraud by Abuse of Position - S.4:
- A person is in breach of this section if he -
- (a) Occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person
- (b) Dishonestly abuses that position, and
- (c) Intends, by means of the abuse of that position -
- (i) To make a gain for himself or another, or
- (ii) To cause loss to another / to expose another to a risk of loss
AR:
- Occupying fiduciary position, act / omission in abuse of position
MR:
- Dishonesty, intention to make gain / loss
[No need to show abuse of position caused gain/loss]