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Commonly, robbery is said to be the action by which a person takes the property which is possessed by other person, by way of force or threatening. In legal perspective, robbery was defined by Mukerji J. in Karali Prasad Dutta v The East India Railway Co to be an illegal taking from other person or opposed to a person’s wills in his existence, by way of violence or placing him in fear. The issue related to robbery is not a new trend in Malaysia. Recently, there is an issue where a 17-year-old and friend were arrested for committed an offence of robbery towards a convenience store in Sibu, Sarawak. In this case, the offenders have been arrested for robbing a 24-hour convenience store of RM1000 and would be remanded under Section 395 or 397 of the Penal Code for the crime they had done which is armed robbery.
Our Malaysian law protected us against robbery since there are expressed provisions provided in the Penal Code which governs robbery that comes under the provision in Section 390 to Section 402. Section 390 briefly provides that in robbery there must be either theft or extortion. However, robbery is distinct from theft and extortion as in robbery elements such as using force or placing someone in fear must be present to distinguish the offences as stated in subsection (2) and (3) of Section 390. Therefore, in order to establish the offence of robbery, the prosecution is first necessary to prove theft or extortion as provides in Section 378 and Section 383 respectively. The actus reus for robbery is similar with theft and extortion but accompany by the usage of force or violence while the mens rea for robbery is the intention to put a person in fear so as to commit the criminal act of theft and extortion. For further understanding, Illustration (e) of Section 390 can be referred to whereby A is said to commit robbery if Z is walking along a road and A who is on a motorcycle snatches Z’s handbag and in the process causes hurt to Z and subsequently rides away with Z’s handbag. According to Karuppa Goundan’s case, the phrase ‘for that end’ is suggested to not be interpreted to mean ‘in those circumstances’. In Bishambhar Nath v Emperor, it is stated that the use of force or violence will not transform theft into robbery unless the force used was for the purposes to achieve one of the ends as specified in Section 390(2). Section 391 provides that the offence of gang-robbery is conducted when two or more persons commit or attempt in committing a robbery together, and of persons present and aiding the said commission or attempt.
Another evidence to prove that our law has indeed protected us from robbery is that the Penal Code also imposes punishment towards the offence of robbery as provided in Section 392 which stated that a person shall be punished with imprisonment for a maximum terms of fourteen years, and he shall also be liable to punishment such as fine or whipping if he commits robbery. In Mohd Shaiful bin Rahmad v PP , the appellant was charged for the robbery of a gold necklace belonging to the complainant under Section 392. The appellant was found guilty and was punished with imprisonment for seven years and two strokes of whipping. Furthermore, any person commits or in attempt to commit robbery, voluntarily causes hurt he shall be sentenced with imprisonment for a maximum term of twenty years, and at the same time liable to either fine or whipping as stated in Section 394. In Muhammad Afandi bin Mukhtar v Public Prosecutor , it was held that the appellant was liable for an offence under Section 394 of the Penal Code read together with Section 34 for voluntarily causing hurt to the victim when committing robbery and was imprisoned for nine years from the date of arrest and two strokes of whipping. The sanctiont for gang-robbery was provided in Section 395 which reads whoever commits gang-robbery shall be imprisoned for a maximum term of twenty years, and can also be punished with whipping. Section 396 deals with gang-robbery involving murder where the offenders are to be subjected to either death or imprisonment for a maximum term of thirty years and nevertheless be imposed with the punishment of whipping if no death punishment is imposed. Section 397 makes whipping as a compulsory sentence for the offender shall he armed with or uses any dangerous weapon, or causes grievous hurt to other person. The severity of robbery especially in gang-robbery cases can be reflected by the higher sentence prescribed. In Public Prosecutor v Lee Wei Chin & Anor, the court allowed the appeal made by the public prosecutor by setting aside the judgment of imprisonment for two years passed by the SCJ and replacing it with the sanction of imprisonment of seven years for both respondents and five strokes of whipping with the justification that the criminal act committed is of a serious nature. The fact that only RM200 was the subject matter involved as contended by learned counsel for the respondents does not mean the offence can be treated as trivial in nature. The ordeal and trauma that the victim must have gone through when placed in fear of his life by being confronted with a knife must be also considered. Besides, in the case of Mohd Irwan Shah bin Zainaul v PP , the appellant’s appeal was dismissed and the sentence of 14 years of imprisonment and six strokes of rotan was maintained on the ground that the sentence should commensurate with the offence committed in order for the society to feel safe and protected.
As for a comparative study purpose, the law against robbery in Singapore can be referred to as the Singapore’s lawmaker makes caning a compulsory punishment for nearly all of the robbery related offences, whereas the law in Malaysia is still regarded as lenient since part of the provision suggests that there is a choice to either fine or whipping will be imposed. For instance, in Section 394 for both the Malaysian Penal Code and the Singapore Penal Code, the sanction provided in Malaysian Penal Code is that the offender shall be imprisoned for maximum 20 years and can also be subjected to fine or whipping while in the provision in Singapore states that the offender should be imprisoned for minimum 5 years and not exceeding 20 years and caned with a minimum number of 12 strokes. In Chang Kar Meng v PP , the accused was being imprisoned for five years and caned with 12 strokes for the robbery with hurt charge. As in Islamic perspective, four punishments were laid down by the Hudud, among those are death penalty, crucifixion, amputation of hand and foot from opposite sides and also banishment. However, the punishments vary according to the seriousness of the offence committed. If the robbery is conducted without murder, the punishment would be the amputation of right hand and left leg. If the robbery involves murder, death punishment will be imposed and the offender will be crucified as well. However, in order for ḥudud to be executed, a set of conditions are required to be fulfilled, whereby it must undergo a due process and all forms of doubt and suspicion must be eliminated.
There is still a room for the law against robbery in Malaysia to improve in order to protect the people in a more complete way. Provisions relating to gangs of robbers who are not robbers and also issues involving abetment and joint liability should be made more detailed and cleared. Punishment of whipping shall be made compulsory but not optional as the punishment of whipping can serves as a purpose to teach and deter others from such offence. Although some might argue that the enforcement of whipping is seem to be inhumanity or degrading as it will humiliate and debase the prisoner to such an extent that it constitutes an assault on his dignity and feelings as a human being. However, lenient measures will result in uncooperative citizens who will never take authority seriously.
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