The crime by which Malka obtained the police document in the first indictment (the "Yair Biton Affair") that includes the classified materials regarding Biton's interrogation, is the removal of a document from custody according to Section 267(b) to the Penal Law. This offense is committed whenever "A public servant who is in charge of handling or safeguarding the document, who unlawfully gives it over to another and the document is removed from custody as stated in subsection (a)", that is: "From institutional custody from state institutions or from a local authority". The claim in the amended indictment is that Queen, "that the public servant in charge of handling or safeguarding the document unlawfully handed it over to defendant 2, while removing, without permission, the document from the custody of one of the state institutions", and thus Fischer deliberately received the document knowing that Malka had obtained the document by crime (paragraphs 33-34; See also the clarification of the accusing counsel at p. 25589).
The problem is that this occurrence did not, and could not have harmed, the social value protected by the offense of receiving property obtained by crime, which, like the two other offenses in the mark to which it belongs, is intended to serve a dual purpose:
"First, the assumption is that criminals who acquire assets illegally rely on the possibility of selling the assets to others in order to realize them, and that in the absence of a receiver who is interested in the stolen property, the motivation to commit the theft will decrease, and therefore the purpose of the said sign is to deter the receipt or possession of assets that have been obtained illegally or are suspected of doing so, and in this way indirectly reduce the temptation to commit offenses in order to obtain the assets. Second, the purpose of the mark is to deter the receipt or possession of illegally acquired or suspected assets in order to increase the chances of locating the assets and returning them to their rightful owners" (Criminal Appeal 987/02, supra, at p. 890).