A Handbook for Public Prosecutors

19. Burglary, Housebreaking and Allied Offences

Chapter 19 BURGLARY, HOUSEBREAKING AND ALLIED OFFENCES Subordinate courts are flooded with cases involving offences of burglary, housebreaking and stealing and similar offences. So a public prosecutor who is ignorant of the elements of these offences is in for a rough ride. Housebreaking What is meant by “to break a building,? By statutory definition, a person who breaks any part, whether external or internal, of a building, or opens by unlocking, pulling, lifting, or any other means whatever, any door, window , shutter, cellar, cellar flap or other thing, intended to close or cover an opening into a building or an opening giving passage into a building or an opening giving passage from one part of the building to another, is deemed to break the building. To open a locked door with a key, or to push it open, or to pull or lift a latch of any door or window and so open it, constitutes breaking of a building. Indeed, if one pushes a door that is closed but not locked, he is said to break the building (see s. 293 PC). So, the offence of housebreaking is committed when a person breaks and enters any building, tent or vessel used as a human dwelling with intent to commit an offence therein; or having entered any building, tent or vessel used as a human dwelling with intent to commit a an offence therein or having committed an offence therein breaks out thereof (see s. 294 PC). In order to obtain a conviction on a charge of housebreaking, therefore, the prosecution must prove the following: (1) that the accused broke the building, tent or vessel used as a human dwelling; (2) that having so broken it, he entered the same; and (3) that he did so with intent to commit a offence. That there was a breaking The first essential element of the offence of housebreaking is that there was a breaking within the meaning of that term. In other words, it is necessary to prove that the door window or other aperture was closed before the breaking (see Renderito s/o Laidosoli v. Republic, (1972) HCD n. 169). That the accused entered the building A second important element of the offence of housebreaking is an entering; that is, there must be evidence to prove that having broken the building, tent or vessel, the accused entered the same (see Said Ali v. Republic (1973) LRT n. 66). The term entering here means both active and constructive entering. A person is deemed to enter a building as soon as any part of his body or any part of any instrument used by him is within the building (see s. 293 PC). If, for instance, the accused forces open a window and then pushes his hand or stick through the window into the building, he is deemed to have entered the building because part of his body, that is, his hand, or his instrument, the stick, is within the building. If he pushes the stick into the building, it is immaterial that the whole of his body remained outside the building (see Paul v. Republic, (1971) HCD n. 135). The least degree of entering will suffice. One more point. If a person enters a building through a chimney or other aperture of the building left permanently open for any necessary purpose but not intended to be ordinarily used as a means of entrance, or if he obtains entrance into the building by means of any threat or artifice used for that purpose, or by collusion with any person in the building, he is deemed to have broken and entered the building (see s. 293 PC; and Peter s/o Mussa v. Republic, (1973) LRT n. 68). So, if an accused colludes with an occupant of a dwelling house to open the door for the accused, and the occupant opens for the accused who then enters the dwelling house, that is as much a breaking and entering by the accused as if he had opened the door himself. 150 Part II Criminal Law: Select Offences That it was used as a human dwelling The third element of housebreaking is that the building tent or vessel which the accused broke and entered was used as a human dwelling. Section 5 of the Penal Code defines a “dwelling house” as including any building or structure which is for the time being kept by the...