SNATCH THEFT IN ISLAMIC LAW AND

MALAYSIAN CIVIL LAW: A COMPARATIVE

STUDY

BY

NUR MUNIRA ROSLAN

A dissertation submitted in fulfilment of the requirement

for the degree of Master of Islamic Revealed Knowledge

and Heritage (Fiqh and Uṣūl al-Fiqh)

Kulliyyah of Islamic Revealed Knowledge and

Human Sciences

International Islamic University

Malaysia

SEPTEMBER 2016

ABSTRACT

Snatch theft is one of the most serious and ugliest crimes rampant in Malaysia in

recent times. It is of deep concern and a pressing threat to Malaysians due to the

severity of its impact on the victims. The existing provisions governing the Penal

Code seem ineffective and unreliable to address and curb this heartless crime.

Therefore the adoption and implementation of Islamic law is called for. The primary

purpose of this study is to examine and evaluate snatch theft from the Islamic law and

Malaysian civil law points of view. This study evaluates Malaysian Civil law and

Islamic law in tackling and treating this new type of theft crime through apparent

relationship such as definition, elements, and punishments. The discussion starts with a

description of snatch theft and its common features followed by the discourse among

Muslim jurists regarding snatch theft and whether it is al-sariqah or al-ḥirābah, which

is liable to ḥadd punishment. This study also examines snatch theft offences in

Malaysian Civil law under Section 378 and Section 390 of the Penal Code. Using a

qualitative method in collecting data through library research and descriptive and

comparative analytical approaches, it is found in the study that there are some

undeniable similarities and differences between these two legal systems. On the basis

of the results of this research it can be concluded that notwithstanding safety and

prevention measures taken to curb snatch theft cases, the comparative analysis between

these two legal systems highlights the need for proper legislation on snatch theft crime.

It is hoped that this study offers all rationales and useful recommendations to improve

Malaysian Civil law on snatch theft offences as well as an orientation for future

comparative law study.

ii

ملخص البحث

‌ِف‌يوم ا‌احلاض ‌خصوًصا‌ِف‌ت تش ‌يت‌الاترائي‌الس قجمن‌أخط ‌وأبشع‌ تعد‌ظاه ة‌ال شلآثار‌ دلا‌ي تج‌ ه‌من‌ن ًا‌يادلال زالشعب‌ واخلوف‌لدى ،كما‌أن‌ال شل‌يثري‌القلقمال زيا

جس مة‌ لى‌ضحاياه،‌وهذه‌القض ة‌تشري‌إىل‌أن‌اْل كام‌اجل ائ ة‌القائمة‌ِف‌مال زيا‌تبدو‌البا ثة‌ض ورة‌ وذلذا‌ت ى هذه‌اجل ّية، لى غري‌صارمة‌وًل‌ّيكن‌اًل تماد‌ ل ها‌للقضاء

وه ا‌تأيت‌ .يتحتي‌ت ن ذه وهذا‌أم ‌مطلوب.‌إىل‌أ كام‌الش يعة‌اإلسَلم ة‌والعمل‌هبا ال جوعوتق مه‌من‌م ور‌الش يعة‌اإلسَلم ة‌والقانون‌ادلدين‌ هذه‌الدراسة‌لتبحث‌ِف‌قض ة‌ال شل

ث‌تقوم‌البا ثة‌ف ه‌بتحل ل‌ادل هج‌والقانون‌الذي‌يطبق‌ِف‌‌ ادلال زي‌وادلقارنة‌ب هما،القانون‌ادلدين‌ادلال زي،‌وقانون‌التش يع‌اإلسَلمي‌ِف‌معاجلة‌هذا‌ال وع‌اجلديد‌من‌ج ائي‌

الس قات‌من‌خَلل‌أوجه‌التشابه‌واًلختَلف‌ سب‌التع يف،‌والع اص ‌اْلساس ة،‌وماه ته،‌وأوصافه،‌ومساته‌ ال شل، كما‌حتاول‌الدراسة‌أن‌تكشف‌ ن.‌والعقوبات‌ادللحوظة

إضافة‌إىل‌.‌الس قة‌أو‌احل ابة وهل‌ي طبق‌ ل ه‌َ دُّ‌ ادلشرتكة،‌وأرآء‌النقهاء‌ وله،‌وما‌وضعهذلك،‌تبحث‌هذه‌الدراسة‌ ن‌مكانة‌ال شل‌ِف‌القانون‌ادلدين‌ادلال زي‌من‌القانون‌اجل ائي‌

ويتبع‌هذا‌البحث‌ادل هج‌اًلستق ائي‌ِف‌مجع‌ادلعلومات،‌وادل هج‌.‌"390"‌و"378"ادلادة‌رقي‌الوصني‌التحل لي‌وادلقارن،‌وتست تج‌الدراسة‌أن‌ه اك‌بعض‌أوجه‌التشابه‌واًلختَلف‌بني‌

وتأمل‌البا ثة‌أن‌يؤخذ‌جبم ع‌التوص ات‌ .القانون‌ادلدين‌ادلال زي‌وقانون‌التش يع‌اإلسَلميمن‌أجل‌تطوي ‌القانون‌ادلدين‌ادلال زي‌للحّد‌من‌ال شل،‌فضَلً‌ واًلقرتا ات‌ادلن دة‌ِف‌البحث

.ِف‌دراسات‌ادلقارنة‌القانون ة‌ِف‌ادلستقبل ن‌أن‌يكون‌م جعاً‌

iii

APPROVAL PAGE

I certify that I have supervised and read this study and that in my opinion, it conforms

to acceptable standards of scholarly presentation and is fully adequate, in scope and

quality, as a thesis for the degree of Master of Islamic Revealed Knowledge and

Heritage Fiqh Uṣul al-Fiqh.

…………………………………..

Ahmad Basri Ibrahim

Supervisor

…………………………………..

Mohamad Asmadi Abdullah

Co-Supervisor

I certify that I have read this study and that in my opinion it conforms to acceptable

standards of scholarly presentation and is fully adequate, in scope and quality, as a

thesis for the degree of Master of Islamic Revealed Knowledge and Heritage Fiqh Usul

al-Fiqh.

…………………………………..

Luqman Zakariyah

Examiner

This thesis was submitted to the Department of Fiqh and Uṣūl al-Fiqh and is accepted

as a fulfilment of the requirement for the of Master of Islamic Revealed Knowledge

and Heritage Fiqh Usul al-Fiqh.

…………………………………..

Mohamad Sabri Zakaria

Head, Department of Fiqh and

Uṣūl al-Fiqh

This thesis was submitted to the Kulliyyah of Islamic Revealed Knowledge and

Human Sciences and is accepted as a fulfilment of the requirement for the degree of

Master of Islamic Revealed Knowledge and Human Sciences.

…………………………………..

Rahmah Ahmad Bt. H. Osman

Dean, Kulliyyah of Islamic

Revealed Knowledge and Human

Sciences

iv

DECLARATION

I hereby declare that this dissertation is the result of my own investigations, except

where otherwise stated. I also declare that it has not been previously or concurrently

submitted as a whole for any other degrees at IIUM or other institutions.

Nur Munira Roslan

Signature ........................................................... Date .........................................

PYT E

v

RIGHT PAGE

INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA

DECLARATION OF COPYRIGHT AND AFFIRMATION OF

FAIR USE OF UNPUBLISHED RESEARCH

SNATCH THEFT IN ISLAMIC LAW AND MALAYSIAN CIVIL

LAW: A COMPARATIVE STUDY

I declare that the copyright holders of this dissertation are jointly owned by the

student and IIUM.

Copyright © 2016 by Nur Munira binti Roslan and International Islamic University Malaysia. All

rights reserved.

No part of this unpublished research may be reproduced, stored in a retrieval

system, or transmitted, in any form or by any means, electronic, mechanical,

photocopying, recording or otherwise without prior written permission of the

copyright holder except as provided below

1. Any material contained in or derived from this unpublished research

may be used by others in their writing with due acknowledgement.

2. IIUM or its library will have the right to make and transmit copies

(print or electronic) for institutional and academic purposes.

3. The IIUM library will have the right to make, store in a retrieved

system and supply copies of this unpublished research if requested by

other universities and research libraries.

By signing this form, I acknowledged that I have read and understand the IIUM

Intellectual Property Right and Commercialization policy.

Affirmed by Nur Munira binti Roslan

……..…………………….. ………………………..

Signature Date

vi

COACKNOWLEDGEMENTS

First and foremost, Alḥamdulillāh, all praise and adorations are to Allāh the Most

Gracious and the Most Merciful, with His Guidance and Blessings I am able to

complete this dissertation, and peace and blessings be upon His beloved Messenger,

Prophet Muḥammad, His Family and Companions.

I would like to express my profound gratitude and respect to my supervisor,

Assoc. Prof. Dr. Ahmad Basri Ibrahim for his patience, insightful guidance and

encouragement in supervising this dissertation. I also gratefully acknowledge the

assistance of Assoc. Prof. Dr. Mohammad Asmadi Abdullah for his advice and

criticism particularly in Malaysian legal aspects. Without their invaluable comments,

suggestions and advice, it would not have been possible for me to complete this

dissertation. May Allah bless both of them and their families with the best reward here

and in the Hereafter.

My deepest appreciation and thanks go to all lecturers who have taught me at

the International Islamic University Malaysia, especially those from the Department of

Fiqh and Usul al-Fiqh, and particularly Assoc. Prof. Dr. Hassan Ibrahim Hendoiu who

encouraged me to study this topic, Prof. Muhammad Amanullah, Prof. Sayyid

Sikandar, Assoc. Prof. Dr. Azman Mohd. Nor, Assoc. Prof. Dr. Bougheda Ghaliah,

Prof Taher Mesawi, Assoc. Sabri Yunos, Assoc. Prof. Dr. Fuad Sawari, Assoc. Prof.

Affandi Awang Hamat and Dr. Mustafa Shamsuddin.

Most of all, my heartfelt gratitude and love go to my beloved mother Misslia

binti Ismail for her inner strength, sacrifice, understanding, endless support and prayers

not only towards the completion of this thesis but also throughout my life. I would also

like to extend my gratitude and prayers to my late loving father who always inspired

and encouraged me to be a knowledgeable person. My appreciation also goes to all my

siblings, Roshidi Roslan, Zulhasri Roslan, Saiful Anwar Roslan, and Mohd. Fazlan

Roslan and Muhammad Afizam Roslan for their support and encouragement. I am also

grateful to all colleagues and friends especially Dr. Shamila Abu Hasan for her help

and moral support.

Last but not least, this research is indebted to the help, support and

encouragement of many people. Therefore, I would like to thank each and everyone

who has assisted me directly or indirectly throughout the completion of thesis. May

Allah reward all of you and bestow His Mercy and Blessings upon all of us.

vii

LIST OF STATUTES

Malaysian Penal Code (Act 574)

Section 378 of Malaysian Penal Code FMS

Section 379 of Malaysian Penal Code FMS

Section 382 of Malaysian Penal Code FMS

Section 390 of Malaysian Penal Code FMS

Section 391 of Malaysian Penal Code FMS

Section 395 of Malaysian Penal Code FMS

Section 397 of Malaysian Penal Code FMS

Penal Code (Amendment) Bill 2004 Act (A1273)

viii

LIST OF CASES

Public Prosecutor v Thomas Bilong & Ors. [2009] MLJU 1650

Muhammad Safriadi v Public Prosecutor [2011] MLJU 1405

Lim Kim Poh v Public Prosecutor [2000] 8 CLJ 328

Gunalan a/l Visuanathan v Public Prosecutor [2010] 7 MLJ 490

Ahmad Rashidi bin Zainol & Anor v Public Prosecutor [2014] 9 MLJ 562

ix

TABLE OF CONTENT

Abstract................................................................................................................ i

Abstract in Arabic................................................................................................ ii

Approval Page...................................................................................................... iii

Declaration Page.................................................................................................. iv

Copyright Page..................................................................................................... v

Acknowledgements.............................................................................................. vi

List of Statutes...................................................................................................... vii

List of Cases......................................................................................................... viii

List of Tables........................................................................................................ xi

List of Figures...................................................................................................... xii

CHAPTER 1: INTRODUCTION.....................................................................

1

1.1 Introduction........................................................................................ 1

1.2 Problem Statement............................................................................. 3

1.3 Research Questions............................................................................ 4

1.4 Research Objectives........................................................................... 5

1.5 Significance of the Study................................................................... 5

1.6 Research Scope.................................................................................. 6

1.7 Research Methodology...................................................................... 6

1.8 Literature Review............................................................................... 8

CHAPTER 2: CRIME AND PUNISHMENT IN ISLAM......................................

13

2.1 Definition of Crime....................................................................................... 13

2.2 Elements of Crime........................................................................................ 15

2.3 Definition of Punishment.............................................................................. 19

2.4 Punishment in Islam...................................................................................... 20

2.5 Objectives of Punishment............................................................................. 30

CHAPTER 3: SNATCH THEFT UNDER THE LAW OF AL-SARIQAH

AND AL-ḤIRᾹBAH...........................................................................................

35

3.1 Snatch theft under Islamic law........................................................... 35

3.1.1 Definition of snatch theft......................................................... 35

3.1.2 Snatch theft as al-Nashl (ال شل) .......................................... 38

3.1.3 Elements of snatch theft crime……………………………… 40

3.2 Snatch theft under the law of al-Sariqah……………………………… 43

3.2.1 Definition of al-Sariqah…………………………………………. 43

3.2.2 Elements of al-Sariqah………………………………………….. 45

3.2.3 Snatch theft punishment as al-Sariqah………………………… 55

3.3 Snatch theft under the law of al-Ḥirābah (احل ابة) …………………... 57

3.3.1 Definition of al-Ḥirābah………………………………………… 57

3.3.2 Elements of al-Ḥirābah………………………………………….. 58

3.3.3 Snatch theft punishment as al-Ḥirābah………………………... 62

3.4 Snatch theft under al-Taʻzīr (discretionary punishment)………...…....... 66

x

3.5 Snatch theft punishment between al-Sariqah, al-Ḥirābah, and al-

Taʻzīr: A resolution………………………………………………...

69

CHAPTER 4: MALAYSIAN CIVIL LAW ON SNATCH THEFT

CRIME…………………………………………………………………………....

73

4.1 Theory of Crime and Punishment in Malaysian Civil law......................... 73

4.1.1 Definition of Crime........................................................................... 75

4.1.2 The Concept of Criminal Liability…………………….......... 77

4.1.3 Definition of Punishment........................................................ 79

4.1.4 Objectives of Punishment in Malaysian Civil law………….. 81

4.2 Snatch theft under Malaysian Civil law……………………………. 84

4.2.1 Definition of Snatch theft crime under Malaysian Civil law.. 84

4.2.2 Snatch theft as Theft……………………………………….... 85

4.2.2.1 Definition of Theft………………………………........ 85

4.2.2.2 Elements of Theft…………………………………….. 85

4.2.3 Snatch theft as Robbery……………………………………... 88

4.2.3.1 Definition of Robbery………………………………… 88

4.2.3.2 Elements of Robbery…………………………………. 89

4.3 Snatch theft between Theft and Robbery: An Analysis……………. 92

4.4 Cases and Implementation................................................................. 95

CHAPTER 5: A COMPARATIVE STUDY OF SNATCH THEFT IN

ISLAMIC LAW AND MALAYSIAN CIVIL LAW………………………...

104

5.1 Similarities…………………………………………………………. 104

5.1.1 General Similarities…………………………………………. 104

5.1.2 Specific Similarities………………………………………… 109

5.2 Differences…………………………………………………………. 111

5.2.1 General Differences………………………………………… 111

5.2.2 Specific Differences………………………………………… 117

5.3 Harmonisation of the Islamic law and Malaysian Civil law……….. 121

CHAPTER 6: CONCLUSION AND RECOMMENDATIONS...................

125

6.1 Conclusion…………………………………………………………. 125

6.2 Problems and Issues………………………………………………... 128

6.3 Recommendations………………………………………………….. 132

BIBLIOGRAPHY……………………………………………………………..

139

xi

LIST OF TABLES

Table No. Page No.

1.1 Elements of Snatch theft and al-Sariqah 54

‎

xii

LIST OF FIGURES

Figure No. Page No.

1.1 Relationship between Snatch theft with al-Sariqah and al-Ḥirābah 71

1

CHAPTER ONE

INTRODUCTION

1.1 INTRODUCTION

Crime is a serious and continuous threat for nations and countries all over the world.

This dangerous social phenomenon goes a long way in affecting the sustainability of

human life and has evoked a sense of fear, insecurity and panic among the public. It

appears in various forms which get more advanced and cunning along with human

development.

Crime is a problem faced by every country in the real world. Malaysia is among

the countries dealing with a serious crime committed against her people and their

possessions known as snatch theft. The crime of snatch theft is one of the distortions of

human life; snatch thieves not only take and seize the property of others, they also

cause serious injuries, trauma, permanent loss and damage, and in some cases they

cause death.

There have been many dreadful incidents of snatch theft reported in Malaysia. It

is more than pedestrian stealing crime because it employs different tactics to attack

innocent victims. The latest victims of this crime as reported in the news are two nuns

who were attacked with helmets outside a church in Seremban in which one of them

died after falling into a coma.1

Although the latest statistics from Bukit Aman show the percentage of high

profile crimes such as murder and armed robberies is declining, this does not apply to

snatch theft crime. Recently, Home Minister Datuk Seri Dr Ahmad Zahid Hamidi

___________________________ 1 “Attacker caught on Camera,” The Star, Tuesday, 20 May 2014, 11.

2

admitted that awareness against snatch theft crime has not been successful as the crime

has increased from 7.5% to 10.5% lately.2 It is still considered as a horrific street crime

due to the detriment and fatalities faced by the victims.

According to Malaysian Civil law, there are no adequate provisions or

legislation to regulate the crime of snatch theft. Malaysian still have involves legal

discussion as it is addressed to both the elements of “theft” under section 378 of the

Penal Code and the elements of “robbery” under section 390 of the Penal Code and

administered by Police charge under section 392, 394 and 397 of Penal Code which

allows for canning and jail terms. The present law does not sufficiently address this

gruesome crime. President of the Muslim Lawyers Association, Malaysia, Tan Sri Abu

Zahar Ujang said that the government should use a serious legal approach, and make a

specific provision for the crime of snatch theft which gives a clear explanation of the

crime and its punishment.3

Similarly, a memorandum signed by 200 000 people has been made to urge the

government to draft specific and separate provisions in the Malaysian Penal Code for

snatch theft. Chairman of Community Policing Association (CP), Kuan Chee Heng

claimed that the existing law in Malaysia fails to draw an offender‟s attention, and

there is no mandatory prison term. Snatch theft also considered as the most dangerous

crime today because its effects befall so many people and it can be committed at any

chance, time, and place.4

___________________________ 2 “Op Cantas Berkas 794 Individu,” Utusan, 11 June, 2014, via Utusan Online,

<http://www.utusan.com.my/utusan/Parlimen/20140611/pa01/OpCantasberkas79,414individu#ixzz3531oVX78> 3 Mohamad Shafi Mat Isa, “Wujudkan Akta Khusus Ragut,” Utusan, 8 May 2009, via Utusan Online,

<http://www.utusan.com.my/utusan/info.asp?y=2009&dt=0508&pub=Utusan_Malaysia&sec=Dalam_N

egeri&pg=dn_10.htm#ixzz3FcdNyjbx2> 4 Nur Farhana Abdul Manan, “ Saran Kenakan Hukuman Berat Jenayah Ragut,” Sinar Harian, 29

November, 2013, via Sinar Online, <http://www.sinarharian.com.my/saran-kenakan-hukuman-berat-

jenayah-ragut-1.225558>

3

Thus, many people including ministers, lawyers, judges, NGOs, police, and

members of the public insist on the need for immediate and sufficient punishments.

On the other hand, with regard to the snatch theft, in Islamic law, like the Malaysian

Civil law, the offence also has an element of Sariqah (theft) and Ḥirābah (robbery)

which categorised under the prescribed and fixed punishment or Ḥudūd as well as

Qiṣāṣ (retaliation) in the Islamic Penal System. Islamic criminal law aims at securing

human welfare by offering vigilant consideration of each matter through its general

principles and comprehensive rules. It is concerned about the varying conditions of

society as well as the consistency and constancy of human life.

Unfortunately, due to misinterpretation and lack of understanding of Islam

itself, Islamic law is perceived as a violent and barbaric system of regulations that

ignores human rights. It becomes saddeningly worse when Muslims themselves have

misconceptions of the Islamic legal system.

Therefore, because of the false interpretation of Islamic law, this study

establishes a comparative study between Islamic law and Malaysian Civil law on

snatch theft in order to show the wisdom of Islamic Law, thus refuting claims that

Islamic law is barbaric and violates human rights. This study looks at description of

snatch theft in both Islamic law and Malaysian Civil law and provides an adequate

comparison between them.

1.2 PROBLEM STATEMENT

Snatch theft is a new dimension of crime. It occurs rampantly in Malaysia and causes

casualties as well as fatalities. Despite the existence of laws and punishment within the

Penal Code and all the safety and sufficient precautions that have been adopted by the

authorities and everyone in society, the crime is continuously taking place within

4

society. This shows that the present and existing laws have not achieved their desired

effect of deterring and preventing the crime.

This circumstance gets significant attention from many quarters including

ministers, judges, lawyers, NGOs and members of the public whereby they believe that

a harsher and severe punishment must be meted out.

Similarly, there is misunderstanding and prejudice against the implementation

of Islamic criminal law in Malaysia. In discussing Islamic criminal law in Malaysia

some go to the extent of saying that the implementation of Ḥudūd would only bring a

great human rights disaster as the punishments are very cruel and inhuman or

degrading. In fact, the severity of Ḥudūd punishment is to serve as a preventive

measure and deterrence from committing crimes in the first place. Ḥudūd brings peace,

order, and disciplined behavior as people know that the punishment that awaits them

on committing a crime is severe.5

Therefore, throughout the discussion the researcher attempts to construct a

comparative analysis between Islamic law and Malaysian Civil law in referring to

snatch theft crime cases. This includes the definition of snatch theft, its elements,

punishment and its position in these two legal systems.

1.3 RESEARCH QUESTIONS

Throughout this study, the researcher tries to answer the following questions:

1. What is the definition of snatch theft in Islamic law and Malaysian Civil

law?

2. What are the elements of snatch theft in both Islamic law and

Malaysian Civil law?

___________________________ 5 Ashgar Ali Ali Mohamed, “Implementation of Hudud (or limits ordained by Allah for serious crimes)

in Malaysia”, International Journal of Humanities and Social Science, vol. 2, no. 3 (2012): 241- 244.

5

3. What are the punishments for snatch theft offences in both Islamic law and

Malaysian Civil law?

4. What are the similarities and differences between Islamic law and

Malaysian Civil law on the offence of snatch theft offence?

1.4 RESEARCH OBJECTIVES

The objectives of writing this dissertation are as follows:

1. To have a clear vision of snatch theft and its definition under Islamic law

and the Penal Code applied in Malaysia.

2. To identify the elements of snatch theft offences in both Islamic law and

Malaysian Civil law.

3. To reveal the punishments for snatch theft offences as stipulated in the

Islamic penal system and the Malaysian penal system.

4. To critically exam the similarities and differences between Islamic law and

Malaysian Civil law on snatch theft.

1.5 SIGNIFICANCE OF THE STUDY

Snatch Theft is a grave concern in Malaysia today. It is considered as a new form of

property interference and its legal discussion is still ongoing. Some studies have been

done studies written in a similar manner have yet to be found.

It is believed that this study is a further in-depth research in comparative law

especially between Islamic law and Malaysian Civil law. In order to provide a

significant comparison between Islamic law and Malaysian Civil law relating to

snatch theft, the pertinent provisions of Islamic law and Malaysian Civil law will

6

be examined. The comparative analysis between these two systems of legislation

will highlight the need for proper legislation on the crime of snatch theft.

This study provides further suggestions to improve the law relating to snatch

theft in Malaysia. Furthermore, it is recommended that Malaysian Civil law espouse

punishment as delineated in Islam as a solution in determining and inflicting the

appropriate sentences for snatch theft. It is strongly believed that this study contains

valuable input and is a useful reference that will benefit the Islamic and Malaysian

systems of law.

1.6 RESEARCH SCOPE

This study focuses on analyzing the viewpoints of Islamic law and Malaysian Civil

law under sections the 378 and 390 of the Penal Code regarding snatch theft offences.

It discusses the definition of snatch theft, its elements and punishments. In addition,

this research provides a comparative analysis of snatch theft between these two legal

systems.

1.7 RESEARCH METHODOLOGY

In writing this research, the researcher uses certain methods to complete the work. The

researcher will be using the qualitative and analytical method as follows:

1. Library research, textual analysis and internet browsing.

In order to know the Islamic legal purview on snatch theft, the current

research involves primary textual references from the Qurʼān and legal

texts of Ḥadīth. This is followed by analysis of relevant data in textual

documents comprising classical scholars‟ books, particularly the writing

of scholars from the four major schools which provide diverse views

7

concerning the Islamic legal sytem. The study also refers to

contemporary works and opinions dealing with criminal aspects of the

Islamic legal system that can be accessed through many publications.

Meanwhile, to describe snatch theft in Malaysian Civil law, all the

necessary and related information has been referred to including

academic journals, Malaysian Law Journals, Criminal Law Journals,

websites, reports, court cases, newspaper articles, and conference

proceedings.

2. Deductive, Inductive, and Comparative methods

Inductive and deductive methods are used in order to identify snatch theft

in Islamic Law and Malaysian Civil law. The researcher uses analogical

reasoning to reach inductive discovery the place of snatch theft in Islamic

law by comparing it with other related crimes existed and clearly

prescribed in Islamic law. Meanwhile, in explaining snatch theft under the

purview of Malaysian Civil law, the deductive method has been used

through identification of all relevant data to arrive at a specific conclusion.

In addition, the research engages the descriptive comparative method

whereby the researcher studies patterns of snatch theft in Islamic law and

Malaysian Civil law. Here, a method of agreement and a method of

differences have been used to identify, analyse and explain the similarities

and differences between Islamic law and Malaysian Civil law. Moreover,

the researcher establishes qualitative comparative analysis in explaining

and interpreting diverse outcomes between Islamic law and Malaysian

Civil law that focus on the crime of snatch theft.

8

1.8 LITERATURE REVIEW

Snatch theft is a new form of crime in Malaysia, gaining notoriety day by day. Due to

the newness of the crime, the researcher faces a situation where it is difficult to obtain

a precise definition of the crime from either Islamic law or Malaysian Civil law. This

predicament is also due the fact that the term “snatch theft” itself is a term given by the

media which describes it as a criminal act of forcefully stealing from a pedestrian

while employing rob and run tactics.6

Therefore, to get a clear definition of snatch theft, the researcher has decided to

learn the definition through associated terms usage in the Arabic-English dictionary

and English-English dictionary. Meanwhile, in order to get a clear picture of its nature

and characteristics in the Islamic law, the researcher will adopt several writings from

contemporary Muslim jurists. There are a limited amount of resources from the early

traditional writings of Muslim scholars that discuss the crime particularly. It was

mostly discussed in line with the general principle of theft and robbery.

As a preliminary reading, the researcher refers to the published Arabic language

book “Jarāʼim al-Sariqah fī al-Sharīʽah al-Islāmiyyah wa al-Qānūn al- Waḍʽī‖ (Theft

crime in Islamic law and Secular law) written by ʽAbd al-Khāliq al–Nawāwī7. The

author has explained and discussed theft, including its definition, elements, and

punishments. He also has provided a comparative analysis of theft between the Islamic

law and Secular law. The researcher refers to this book because it is relevant to the

subject matter, where the present study benefits from its systematic classification and

discussion of Islamic law and punishment related to theft and its characteristics.

However, this book only focuses on theft offences as ordinarily understood. Thus, the

___________________________ 6 “Snatch Thieves”, Study Mode Research, 20 November, 2010, http://www.studymode.com/essays/

Snatch-Thieves- 485071.html 7 „Abd al-Khāliq, al-Nawāwī, al-Sariqah fī Sharīʽah al-Islāmiyyah wa al-Qānūn al-Waḍʽī, (Beirūt:

Manshūrāt al-Maktabah al-„Aṣriyyah, 1980).

9

present study approaches the issue of snatch theft differently and extensively, since

snatch theft is not just considered as an act of stealing but it also combines the

elements of robbery as well as homicide and injury.

The researcher has also reviewed the work of Abū Rūs, Aḥmad Basyūnī which

is written in Arabic entitled ―Jarāʼim al-Sariqāt‖ (Theft Crimes) 8 which deals with

the legal system for theft crime, the provision of the courts, and subjects of the offence,

which include the reason for conservation issues on theft cases that have highlighted

cases occurring mostly in middle eastern countries. The author also has suggested a

few methods that should be taken to curb contemporary crimes including snatch theft,

pick-pocketing, and house and shop theft. Even so, the discussion of snatch theft in

this writing is not carefully observed which is what the present research intends to do.

The current research discovers the reality of snatch theft cases in Malaysia and the

governing law on snatch theft which is codified in Malaysian legal system; moreover,

this research also looks at the Islamic law‟s standpoint towards snatch theft and

establishes a comparison between these two legal systems.

A careful analysis and illustration of the philosophy and theory of punishment

in Islamic law in the light of contemporary approaches was undertaken by Mohamad

S. El-Awa in his writing, ―Punishment in Islamic Law: A Comparative Study‖9. The

author is concerned with the discussion in classical treatises of six offences included in

the fixed punishment (Ḥudūd), and has established a comparative analysis among

jurists. He has also approached the Islamic concept of retaliation (Qiṣāṣ), and the

concept of discretionary punishment (Taʽzīr). There is also an explanation of the

method of proof relating to the law of evidence in criminal cases. The concept of

Islamic punishment for snatch theft has not been disscussed by the author, nor has the

___________________________ 8 Abū Rūs, Aḥmad Basyūnī, Jarāʼim al– Sāriqāt, (Iskandariah: Dār al-Maṭbūʽāt al-Jāmiʽyyah, 1987).

9 Mohamed S. El–Awa, Punishment in Islamic Law: A Comparative Study, (USA: American Trust

Publications, 2000).

10

Malaysian Civil law. The present work is inclusive of analyzing Islamic law and

Malaysian Civil law which focuses on snatch theft as a contemporary subject matter.

A dissertation entitled ―Pengelasan Jenayah Ragut menurut Syariah Islam‖

(Classification of Snatch theft crime according to Islamic Syariah) written by Emil

Azril Bahari Mohd Nor10

is a useful writing for this researcher‟s study as it relates

closely to this research. This Master‟s thesis with six chapters basically has

emphasized theories and concepts of punishment in Islam, which are discussed in the

initial chapters. Throughout the writing, the author provides discussions and

evaluations of the appropriateness of the fixed punishment (Ḥudūd) concept,

discretionary punishment (Taʽzīr) and retaliation (Qiṣāṣ), corresponding to the crime

of snatch theft. At the end of the writing the author finds a new method, namely,

“Tangga Hukuman Progresif‖(progressive punishment step) for determining the

sufficient punishment for the snatch theft offender based on the consequences that

befall the victims. The current research benefits a lot from this book in identifying the

characteristics or elements of snatch theft and its possible punishment according to

Islamic law. However, a discussion of snatch theft in existing Malaysian Civil law is

absent. The author does not discuss the crime within the Malaysian legal system‟s

purview and no comparison is made between Islamic law and Malaysian Civil law.

However, the present study covers the issue and provides comparative analysis of the

snatch theft from both Islamic law and Malaysian Civil law perspectives.

Furthermore, writing by Lee La Hwai in ―Jenayah Ragut: satu kajian tentang

Kesedaran Wanita di Wangsa Maju” (Snatch Theft crime: A study of women‘s

awareness in Wangsa Maju)11

provides a description of snatch theft as a crime that

makes women as victims based on cases that have occurred especially in the Wangsa

___________________________ 10

Emil Azril Bahari Mohd Nor, “Pengelasan Jenayah Ragut menurut Syariah Islam,‖ (Master thesis,

University of Malaya, 2005). 11

Lee, La Hwai, “Jenayah Ragut: satu kajian tentang Kesedaran Wanita di Wangsa Maju”, (Master

thesis, University of Malaya, 2005).

11

Maju area. This book contains information on how women react and respond to this

crime. The author also suggests some safety measures for avoiding this crime, and

urges women to be cautious so that they will not become a victim. The study does not

discuss anything concerning law relating to snatch theft issues as the present research

intends to do. Thus, this present study, as new research on snatch theft issues, provides

legal discussion of both Islamic law and Malaysian Civil law.

In addition, the researcher has obtained a general explanation of Islamic law in

the series of articles by Abdurrahman al-Muala, published under the title ―Crime and

Punishment in Islam‖12

which provides knowledge of Islamic regulations in combating

societal crimes. It comprises an Islamic approach in dealing with crime, the unique

features of the Islamic penal system and its objectives, and various forms of

punishment in Islam. This was an essential piece of writing for the researcher to

acquire basic knowledge of the Islamic legal system mostly as a foundation to the main

subject matter. Therefore, the current study has additional value in the study of Islamic

law which discusses new forms of crime and develops a comparative analytical

assessment of Islamic law and Malaysian Civil law.

An argument on snatch theft crime is also highlighted in a journal article

entitled ―Ẓāhirat al-Nashl wa Atharuhā al-Ijtimāʽiyyah‖. (Pick-pocket/Snatch theft

and its social impacts)13

This Arabic language article, written by Ibrāhīm Muḥammad

al-Zaban has discovered expands of the snatch theft crime in Saudi Arabia; it gives a

description of the snatch theft, its elements and characteristics, and its impact on the

economy. The writing however addresses snatch theft neither in terms of the

perspective of Islamic law nor Malaysian Civil law as this research intends to do.

Nonetheless, the present study refers to this writing to get an idea of the snatch theft

___________________________ 12

Abdul Rahman al-Muala, “Crime and Punishment in Islam,” The Religion of Islam http:

www.islamreligion/articles/253/viewall/ (accessed 14 July, 2013). 13

Al-Zaban, Ibrāhīm Muḥammad, Ẓāḥirat al-Nashl wa Atharuhā al-Ijtimāʽiyyah, (Mecca: Naif Arab

University for Security Sciences, 2007).