Hassan Mohsen Elhais
After qualifying as a lawyer in his native Egypt within the fields of Criminal and Public Law, Mr. Mohsen Elhais has been practicing in Dubai for the past seven years.
Working exclusively with Al Rowaad Advocates, Hassan is an effective leader of the company, the spokesperson and driving force. Hassan has a strong ethical stance with regards to the place of the law firm and its work on behalf of the client, from clarity on the legal process through to the fee system.
Specialising in the drafting of all statement of claim, memos and consultation with regards to all kind of litigations, Hassan has worked his way through the ranks of Al Rowaad Advocates from joining as Legal Advisor to his current role as Managing Partner.
Theft under the UAE laws is a crime and is regulated by Federal Law No. 3 for the year 1987 on passing Penal code. Theft can only be committed on real movable property, which has value, monetary or otherwise, that belongs to another. Property is defined in the Civil Transactions Law of the UAE as anything that you can take under your custody. However, there are similar crimes to theft, but they can be committed on non-real movable properties, as thoughts, ideas, and intellectual property. Such crimes are regulated by different articles of law.
Like all crimes, it requires the presence of mens rea and actus rea. For theft to occur under the laws of the UAE, it must involve an involuntary handover of the object. In cases where the owner of the object, willingly hands over the object for safe keeping, and the keeper took it for himself then it is a crime of breach of trust since it does not satisfy the condition of an involuntary handover. In contrast, money handed over by mistake and kept by the accused in cases of money exchange houses is considered theft. Objects that are concealed inside other objects and are passed on by mistake give rise to the question of’ informed will’. However, in such cases also, theft might not be established, however, a breach of Trust under article 405 of the penal law can be levied. Objects handed over relying on deception form the accused shall be covered by Article 399 under Fraud. Hence the absence of free and informed will is crucial to establishing theft. Mens rea for the crime should be present during or prior to the crime. A mens rea arising after the crime is not mens rea for that crime.
Cases where the owner releases the property from his ownership and custody and the same is taken by someone else, it shall not be theft. So items left near the trash with the intention of giving up ownership means that if those items are taken by someone, it shall not be theft. Following the same example forward, if the trash company takes these items into their custody and someone commits theft of those items, that shall be theft since custody and ownership was re-established. In contrast, a property forgotten by someone, if taken is a breach of trust since ownership is not established.
There is also an exception to the condition of the ‘property belonging to another’. Cases where the property is a security against a debt, like a security cheque in cases of a mortgage, although that property belongs to the person, if he takes it, it shall be theft. The same rule applies to property kept with the police for investigation purposes or with a debtor for guardianship in his custody.
Situations involving temporary custody are also covered under the law. A sealed envelope intended for another person or a key given to view an apartment are all examples of temporary custody and in both cases, taking any object from inside the envelope or the property would be theft. If the custody changes to partial custody like a leased apartment, then the resulting crime in case of theft in such cases is breach of trust.
In the event where an agreement to purchase exists between two parties and the custody is taken by one party without completing the payment terms, the courts have ruled it to be theft since the agreement is incomplete without receiving the full consideration.
Consuming inside supermarkets’ have long been the discussion of legal arguments on both sides, however, consuming inside a supermarket does not tantamount to the crime of theft since it has to have mens rea. If the intent to pay is there, its cannot be theft but if the mens rea for the crime is there and there is no intent to pay for the consumed food, it shall be theft.
Also, misuse of keeping for oneself something that was handed over for partial custody is breach of trust and not theft. So handing over your car to the driver and he keeps it for him is a breach of trust since the handover was by free will, or handing money for a servant to buy groceries from the supermarket, which he keeps for himself is a breach of trust.
The nature of the custody also determines the nature of the crime. In cases of spouses, one can only be accused of that of the ownership of the object was only with one spouse and now co-owned by both. If something is mutually owned it can only be theft in cases where one takes exclusive custody of the object and prevents the other from using the same.
Custody also plays an important role in differentiating between attempted theft and theft. According to the law, it is theft if the object is taken into the full custody of the accused. Any action to prepare for the theft are not considered an attempt however any acts that start executing those shall be attempted theft. Ruling on whether the custody was complete or partial is left up to the discretion of the court.
Acts that require licenses like fishing etc., are also not categorized as theft because the property or object of theft is a product of nature, for example the fish in the sea and hence not strictly under the state’s control. Hence, such crimes are tried under different laws.
The motive for the crime of theft is immaterial. In cases where theft is committed in dire circumstances like stealing food if starving, the judge’s discretion will apply as to mens rea and his intent.
Author: Mr. Hassan Elhais, along with his team of legal consultants and prominent local lawyers across the UAE, has made a name for himself as a renowned specialist in the fields of civil law, construction law, banking law, criminal law, family law, inheritance law and arbitration.