Topic: Burglary
Burglary is governed by the section 9(1) Theft Act 1968. Section 9(1) states that, A person is guilty of
burglary if—
(a)he enters any building or part of a building as a trespasser and with intent to commit any such
offence as is mentioned in subsection (2) below; or
Theft
Infliction of GBH
Criminal damage
(b)having entered any building or part of a building as a trespasser he steals or attempts to steal
anything in the building or that part of it or inflicts or attempts to inflict on any person therein any
grievous bodily harm.
Section 9(2) states that, The offences referred to in subsection (1)(a) above are offences of stealing
anything in the building or part of a building in question, of inflicting on any person therein any
grievous bodily harm F2... therein, and of doing unlawful damage to the building or anything therein.
Section 9(3) states that, A person guilty of burglary shall on conviction on indictment be liable to
imprisonment for a term not exceeding—
(a) Where the offence was committed in respect of a building or part of a building which is a
dwelling, fourteen years;
(b) In any other case, ten years.
Actus reus
1.Entry- Physical activity
Case: R v Collins
The defendant was charged with burglary. He had climbed a ladder to an open window where a
young woman was sleeping naked in her bed. He descended the ladder and stripped down to his
socks then climbed up again. The woman awoke and saw him at the window. She thought it was her
boyfriend so invited him in. It was not clear, and neither party could recall whether he was inside or
outside the window when she invited him in. They proceeded to have sexual intercourse. She then
realised it was not her boyfriend and screamed for him to get off. He ran off. The following day he
was questioned by the police and charged with burglary under s.9 (1)(a) on the grounds that he
entered as a trespasser with the intent to commit rape. (He could not be charged with rape as the
woman had consented to sexual intercourse). The jury convicted. The defendant appealed on the
grounds of misdirection as the jury had not been asked to consider if he was a trespasser at the time
of entry.
Held: His conviction was quashed. It was held that there must be an effective and substantial entry
with knowledge or being reckless as to being a trespasser. Consent of the home owner (the girl's
parents) was not required it was sufficient that the girl had invited him in.
Case: R v Brown [1985]
Partial entry, need only be effective.
The appellant appealed against his conviction for burglary. He or another with him had smashed the
window of the Argos shop. He had lean in and taken goods. The appellant argued that following
Collins an entry into a building had to be substantial and effective and as his feet were still on the
pavement outside the building there was no substantial entry.
Held: His conviction was upheld. The entry need not be substantial provided it is effective.
Case: R v Ryan
No requirement of effectiveness
The defendant was found wedged in the kitchen window of the home belonging to an elderly man.
His head and right arm were inside the property but the rest of his body was outside. The fire
brigade had to be called to remove him. He was convicted of burglary and appealed on the grounds
that there had been no effective entry.
Held: His conviction was upheld. The question had been correctly put to the jury.
2.Trespass- A civil law concept ( a tort)
But take note provisions of Criminal Justice and Public Order Act 1994:-
Section 61(4) – Trespassers on land
Section 62B Failure to comply with direction under section 62A: offences
Section 63(7A) Persons attending or preparing for a rave
Section 68, 69(3) Aggravated trespass
Section 70 read with sections 14B, 14C Public Order Act 1986 – Trespassory assemblies
Section 73 read with section 7 Criminal Law Act 1977 – Adverse occupation of residential
premises
Section 74 read with section 12A Criminal Law Act 1977 – Protected Intending Occupiers
Section 75, 76 – Interim Possession Orders
Section 77 – Unauthorised Campers
Section 78 – Orders for removal of persons and their vehicles unlawfully on land
3.Building or a part of building: A structure of considerable size and permanence
Case: B and S v Leathley
A lorry container was resting on sleepers and used as refrigeration storage. It was connected to the
electricity supply and had been in the same place 2-3 years. Held: The container did constitute a
building for the purposes of the Theft Act 1968.
Case: R v Walkington : The defendant was in Debenhams department store. He saw a till which was
partially opened and left unattended. He reached behind the counter and looked into the till but it
was empty. He was charged with burglary under s.9 (1) (a) for entering a part of a building with
intent to steal. He was convicted and appealed contending that the counter which is not physically
separated from the rest of the store cannot amount to a part of a building. Held: His conviction was
upheld. There was no requirement to have a physical separation. The counter area was clearly out of
bounds to the public and thus he was a trespasser in that part of the building.
Menz rea:
1.As a trespasser- civil law term
Case: R v Collins: D must know or be reckless as to trespass
Case: R v Jones and Smith: trespass if D exceeds terms of license to enter.
The two appellants went to the home of one of their parents and stole two television sets. The
father gave evidence stating that his son had permission to be in his house. Held: The appellants had
exceeded their permission by stealing and were thus trespassers.
2. The ulterior Offence- 9 (1) a
Intent possessed before or at the time of entry
Conditional Intention
Case: R v Husseyn
Facts: D was charged with attempting to steal sub-aqua equipment from a van. He had
opened a bag and started to look in it to see if there was anything worth taking. Court of
Appeal: because it could not be said that he had intended to take the sub-aqua gear he
could not be found guilty of attempting to steal it.
Case: Attorney General’s references
3. Specific Offences- 9 (1) b
Theft, GBH
Aggravated Burglary- Section 10 of the Theft Act 1968( carries life sentence)
1) A person is guilty of aggravated burglary if he commits any burglary and at the time has with him
any firearm or imitation firearm, any weapon of offence, or any explosive; and for this purpose—
(a)“firearm” includes an airgun or air pistol, and “imitation firearm” means anything which has the
appearance of being a firearm, whether capable of being discharged or not; and
(b)“weapon of offence” means any article made or adapted for use for causing injury to or
incapacitating a person, or intended by the person having it with him for such use; and
(c)“explosive” means any article manufactured for the purpose of producing a practical effect by
explosion, or intended by the person having it with him for that purpose.
(2)A person guilty of aggravated burglary shall on conviction on indictment be liable to
imprisonment for life
Malaysian Law:
Criminal trespass- section 441 of the Malaysian penal code
1. Whoever enters into or upon property in the possession of another with intent to
commit an offence or to intimidate, insult or annoy any person in possession of such
property; or
2. having lawfully entered into or upon such property, unlawfully remains there with
intent thereby to intimidate, insult or annoy any such person, or with intent to
commit an offence, is said to commit "criminal trespass"
1. Actus Reus:
Enters into or upon
Property in the possession of another
Mens rea: with intent to
Commit an offence or
Intimidate, insult or annoy any person in possession of such property.
Actus reus:
Lawfully entered into or upon
Such property
Unlawfully remains there
Mens rea: with intent thereby to
Intimidate, insult or annoy any such person, or
Commit an offence
Enter: explanation to 442- the introduction of any part of the criminal trespasser’s body is entering
sufficient to constitute house-trespass. Every expression which is explained in any part of thos code,
is used in every part of this code in conformity with the explanation.
Property (s22): The word “movable property” are intended to include corporeal property of every
description, except land and things attached to the earth, or permanently fastened to anything
which is attached to the earth.
Intention to annoy:
Case: Ong Eng Chuan: on the facts of this case I could find no evidence that the appellant ever had
an intention to annoy, even though he may have succeeded in fact in doing so.
Case: Ahmad bin Ali 1967] 1 MLJ 211
“I would refer to the case of Abbas Tomby (1881) 3 Kyshe 131 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 is not an offence within
sections 441 and 442 of the Penal Code.”
Case: Tee Teng Heng [2001] 1 SLR 356
Two principles: Intention inferred, Intent to annoy need not be the primary/dominant motive.
Case: PP v Seah Soon Keong: intent is insufficient.
House trespass- Section 442 of the Malaysian Penal code
Whoever commits criminal trespass
by entering into or remaining in
1. Any building, tent or vessel used as a human dwelling or
2. any building used as a place for worship, or as a place for the custody of property,
is said to commit "house-trespass".
Lurking House trespass- Section 443 of the Malaysian Penal Code
Whoever commits house trespass, having taken precautions to conceal such house trespass from
some person who has a right to exclude or eject the trespasser from the building, tent or vessel
which is the subject of the trespass, is said to commit, lurking house-trespass.
Specific instances of house trespass:
449. House-trespass in order to commit an offence punishable with death
450. House-trespass in order to commit an offence punishable with imprisonment for life
451. House-trespass in order to commit an offence punishable with imprisonment
452. House-trespass after preparation made for causing hurt to any person
House breaking- Section 445 of the Malaysian Penal code
A person is said to commit "house-breaking",
who commits house-trespass if he effects his entrance into the house or any part of it in any
of the six ways hereinafter described; or if,
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 part of it in any of such six ways:
The six ways:
if he enters or quits through a passage made by himself, or by any 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.
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;
if he enters or quits through any passage which he or any abettor of the house-trespass has
opened, in order to commit the house-trespass, by any means by which that passage was
not intended by the occupier of the house to be opened;
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;
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;
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.
