Recap: abetment

Chua Kian Kok

A was charged for abetment for attempted cheating; partner-in-crime was charged with criminal breach of trust the accessory was convicted of an offence different from the offence for which the principal was convicted. As held above, this does not present any difficulty as the accessorys liability is not derivative under the Penal Code.(para.62) Should aiding be treated differently from instigation and conspiracy in terms of not needing AR to be completed?: there are strong reasons to hold that the actus reus of an offence must be committed before one can be said to have intentionally aided it. If a person intentionally aids the commission of an offence, the offence must necessarily have been committed. How can the abettor aid something that never happened? (apart from ordinary language, goes on to note that in terms of culpability, one who aids is as culpable as one who instigates or conspires) the principle that an abettor may be liable even though the principal offence was not committed should be extended to cover abetment by intentional aiding as well. While this may not quite accord with common interpretation, it is not unusual for legal principles to depart from common interpretation (para. 58, 59)
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Recap: s. 34

Lee Chez Kee

a subjective knowledge on the part of the secondary offender in relation to the collateral offence (the criminal act AR + MR as established derivative nature) likely happening the secondary offender must subjectively know that one in his party may likely (relatively low probability) commit the criminal act (the criminal act AR + MR as established derivative nature) constituting the collateral offence in furtherance of the common intention of carrying out the primary offence. I do not think it is necessary for the actual method of execution (in murder) to have been known by the secondary offender. The expression criminal act is to be given a wide interpretation (no need exact knowledge of how it would be committed) in the case of murder (of s.300.c) the secondary offender knew that one in his party might (A subjectively knew likely that actual doer) inflict a bodily injury which was sufficient in the ordinary course of nature to cause death (definition of the actual offense committed).

Actual doers MR + AR: intend to inflict b.i (b.i in the ordinary course of nature causes death) + b.i. Secondary offenders MR in relation to collateral offense: knows that the actual doer may likely inflict that b.i.
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Recap: s.300.c

PP v AFR

As severe beating of V resulted in rupture of IVC (inferior vena cava is the large vein that carries de-oxygenated blood from the lower half of the body into the right atrium of the heart) Overview of cases involving s. 300.c --- cited Yasin with approval The point is the extent to which AFR could reasonably have known that the beating he was unleashing on the deceased could have caused the rupture. Even an experienced pathologist with expert training could not be certain as to how it happened in this case. This is quite unlike the cases considered in para 36 above, in which the consequences of injuries by stabbing with knives or spears, or drowning in water, are well within ordinary human knowledge or experience. (para. 37)

Recap: s. 300.c

PP v AFP (para. 34)

This issue may be better understood if the concept of injury in s 300(c) of the Act were clarified.An accused person commits a physical act which results in bodily injury to his victim. The act may be a direct blow on the victims body with part of the accuseds body (such as a foot or a fist) or with a weapon. It may also be a non-violent physical act such as inducing the victim to ingest a poison. These acts result in bodily injury to the victim: ranging from bruises in the case of a blunt force, to cuts in the case of a stab with a knife, to bodily reaction to the poison. A person is deemed to intend the ordinary and natural consequences of his acts, and so if a person takes a large kitchen knife and stabs the victim in a vulnerable part of his body, then he will be taken to have intended to cause the injuries to whatever vital organs that such an act would be likely to result in. But the thin skull rule cannot apply in the criminal law and a person cannot be imputed to intend all consequences, no matter how remote, of an act done by him on another.

Determining intention may be inferred depending on whether the A inflicted a direct blow or a non-violent physical act that results in a range of consequences

Attempts
s. 511 and other specific provisions

Attempt (general provision)

511.(1) Subject to subsection (2), whoever attempts to commit an offence punishable by this Code or by any other written law with imprisonment or fine or with a combination of such punishments, or attempts to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code or by such other written law, as the case may be, for the punishment of such attempt, be punished with such punishment as is provided for the offence. (2) The longest term of imprisonment that may be imposed under subsection (1) shall not exceed (a) 15 years where such attempt is in relation to an offence punishable with imprisonment for life; or (b) one-half of the longest term provided for the offence in any other case.

Attempt (specific provisions)

Attempt to murder 307.(1) Whoever does any act with such intention or knowledge and under such circumstances that if he by that act caused death he would be guilty of murder, shall be punished with imprisonment for a term which may extend to 15 years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to imprisonment for a term which may extend to 20 years, and shall also be liable to caning or fine or both.
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Attempt (specific provisions)

Attempt to commit culpable homicide 308.Whoever does any act with such intention or knowledge and under such circumstances that if he by that act caused death he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment for a term which may extend to 7 years, or with fine, or with both; and if hurt is caused to any person by such act, the offender shall be punished with imprisonment for a term which may extend to 15 years, or with fine, or with caning, or with any combination of such punishments.
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Attempt: AR

Core idea of attempt: something has been done that is linked to the commission of full offense Chua Kian Kok

A ran goods supply firm P warehouse supervisor A conspired with P to cheat V by invoicing V for purchase orders issued by P on behalf of V for goods that would never be delivered to V The actus reus element in the law of criminal attempts is also not without its problems. Under s 511, the attempter needs to have done any act towards the commission of the offence. In Stephens definition, the accused had to do an act which formed part of a series of acts which would constitute its actual commission, if it were not interrupted. The obvious difficulty is when does this series of acts begin? (para. 34) A literal interpretation is of course undesirable. A person who intends to steal from X starts walking towards his house. While in a literal sense this is the first in a series of acts which would culminate in the commission of the offence if uninterrupted, it would be fairly absurd to say that he is guilty of attempted theft at that point in time. The same applies for the doing of any act towards the commission of the offence. (para. 34)

Must go beyond preparation embarks on commission of the offense

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AR tests for attempt

Problem of formulating one single test to determine when an attempt has taken place The vagueness and uncertainty of these tests In some cases, a test may help; in others, the same test may not give a clear answer (due to its open-ended nature) These various tests may be read as indicators but not one of them provides the complete answer
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Last act test

Om Prakash v State of Punjab

It may, however, be maintained that in cases of attempt to commit murder by firearm, the act amounting to an attempt to commit murder is bound to be the only and the last act to be done by the culprit. Till he fires, he does not do any act towards the commission of the offense and once he fires, and something happens to prevent the shot taking effect, the offense under s. 307 is made out. Expressions, in such cases, indicate that one commits an attempt to murder only when one has committed the last act necessary to commit murder.
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Immediately and not remotely connected act test

Thangiah

There are four stages in every crime. First, an intention to commit the crime, secondly the preparation for its commission, thirdly the attempt to commit it and finally the actual commission of the crime The mere forming of an intention to commit a crime and making preparations for its commission are not criminal acts There must be some further over act on the part of the offender which is directed towards the actual commission of the crime and which is immediately and not remotely connected with the crime in order to constitute an attempt within the meaning of s. 511 of the Penal Code
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substantial act test

Common law origins R v Roberts

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unequivocal act test

Commits an act that manifests intention to commit the offense (linked to MR) State of Maharashtra v Mohd Yakub

As action must manifest a clear intention to commit the offense aimed

Criticized in Kee Ah Bah

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A contextual test: generally ask if embarked on crime proper

The tests focus on identifying the nature of the act the last act, substantial act, immediately and not remotely connected

Can such an act be identified? Does it capture the real purpose of punishing attempt, which is to punish people who have started to commit offense Avoid a strict test - factual question ask if A had embared on the crime proper
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Chua Kian Kok

A contextual test

Chua Kian Kok (para. 36)

It seems to me that it is neither advantageous nor desirable to lay down a precise definition of the actus reus of criminal attempt. This is because, the point in time at which a criminal is regarded to have attempted to bring about an offence is a question of fact that is dependent on all the surrounding circumstances of the case. Furthermore, criminal offences are very different in nature. Some offences have more onerous actus reus requirements. For example, under s 493 of the Penal Code, the actus reus of the offence is (a) by deceit; (b) causing a woman not lawfully married to the accused to believe that she was so, and lastly (c) cohabiting or having sexual intercourse with that woman in which her consent was obtained through that belief. On the other hand, some offences have relatively simple actus reus requirements. For example, under s 378 of the Penal Code, the actus reus of the offence of theft is simply moving property. .it is my view that the Singapore position should be that of Lord Lanes. The offender must have embarked on the crime proper. This is a point in time that lies midway between a series of acts and crossing the Rubicon. It is a question of fact in which all the surrounding circumstances have to be considered.
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Attempt: MR

S. 511: intention to commit the offense Chua Kian Kok (para. 26)

The mens rea of attempt is intention. The accused must intend to commit the substantive offence, even though a lower mental state would have sufficed to satisfy the ingredients of the substantive offence.

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Attempt: MR

Om Parkash

The expression whoever attempts to commit an offence in s 511 can only mean whoever intends to do a certain act with the intent or knowledge necessary for the commission of that offence.

The following English cases are consistent with Om Parkash

R v Khan: attempted rape MR of intention to have sexual intercourse and reckless (in terms of knowing of the possibility) as to Vs consent AGs Reference (No 3 of 1992): attempted aggravated arson MR of intention to damage property and reckless as to endangering life

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Attempt: MR

Chua Kian Kok emphasizes intent to commit the underlying offense

Chua Kian Kok (para. 30 31)

Criminal law constitutes an interference in the freedom of the citizen. justified as it prevents the occurrence of public harm... .In inchoate offences, no physical public harm was really done. The harm to the public here is that of the presence of individuals in society who would have committed crimes if they had been successful in their efforts; individuals who would have succeeded but for some extraneous and perhaps accidental reason; individuals who may very well try again if they had the chance. Seen in this light, it seems right that in order to justify this interference with the freedom of individuals, there has to be a stricter requirement than that for the completed offence. This is especially so, when one bears in mind that the punishment under s 511 is the same as that for the completed offence, with the exception that any term of imprisonment imposed shall not exceed one-half of the longest term provided for the offence. As such, in order to punish a person under s 511, it must be shown that he intended to commit the offence, even though a lesser mental state would have sufficed for the completed offence.

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Attempt: MR

Definition of the offense AR: may have different ARs; prohibited consequence and circumstantial elements Prohibited consequence

Intention e.g. rape: penetration (the consequence), non-consent (circumstantial element) By its nature, you cant intend a circumstantial element (A cant intend Vs non-consent) the MR equivalent is knowledge (A knows of Vs non-consent)
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Circumstantial element:

Different tests for s. 307 & 308?

Attempt to murder 307.(1) Whoever does any act with such intention or knowledge and under such circumstances that if he by that act caused death he would be guilty of murder Attempt to commit culpable homicide 308.Whoever does any act with such intention or knowledge and under such circumstances that if he by that act caused death he would be guilty of culpable homicide AR closer to the completed offense (last act) MR farther away from the completed offense (knowledge rather than just intent)
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Impossibility

Factual impossibility Impossibility by law Ineptitude of means Legal non-offense

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Factual impossibility

S. 511 illustrations (clear that factual impossibility does not matter)

(a) A makes an attempt to steal some jewels by breaking open a box, and finds after so opening the box that there is no jewel in it. He has done an act towards the commission of theft, and therefore is guilty under this section. (b) A makes an attempt to pick the pocket of Z by thrusting his hand into Zs pocket. A fails in the attempt in consequence of Zs having nothing in his pocket. A is guilty under this section.
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Impossibility by law

Results because of a particular legal fact or status e.g. A tries to steal umbrella that is actually his Chua Kian Kok (A to be judged based on facts as he believed) (para. 44)

There are essentially two reasons why there is an initial hesitancy to answer in the affirmative. At first sight does not appear very culpable: First, as stated by Lord Bridge in Shivpuri at p 21, these are in situations which most people, as a matter of common sense, would not regard as involving criminality. In my opinion, this is not a very strong objection if we consider the defence of legal impossibility in another scenario. A man enters a darkened room and rapes a resisting woman as he intended. It turns out that she is his wife, whom he thought was travelling abroad on business at the time. In such a scenario, common sense may be inclined towards imposing liability on the would-be rapist for attempted rape. Similar to impossibility by fact: Secondly, it might be thought that imposing liability for attempt is tantamount to saying that the would-be umbrella thief is charged with attempting to steal his own umbrella. when we say a person is liable for attempting to steal the jewels from a box even though the box was empty, we say that he has attempted to steal the jewels. The attempt was in respect of the intended offence. Similarly, the would-be umbrella thief has actually attempted to steal an umbrella belonging to another. He has not 24 attempted to steal his own umbrella..

Ineptitude of means

Similar to factual impossibility; but not by chance; A could have never succeeded using same means Indian case law: acquittal Asgarali

A tries to induce miscarriage by V, forces V to drink powder and liquid; substances not capable of producing miscarriage Different from factual impossibility If a man thrusts his hand into the pocket of another with intent to steal . He tries to steal, but is frustrated by a fact, namely the emptiness of the pocket, which is not in any way due to any act or omission on his part (para 10) witchcraft puts a spell on another, or burns him in effigy, or curses him not an act towards the commission of that offense, but an act towards the commission of something which cannot, according to ordinary human experience result in hurt to anotherHis failure to cause hurt is due to his own act or omission, that is to say, his act was intrinsically useless or defective or inappropriate for the purpose that he had in mind (para. 10)
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Ineptitude of means

Chua Kian Kok (A to be judged on facts as he believed) (para. 45-46)

An example of this would be a man trying to break into a safe with a jemmy that was too small for the task. The unsuccessful safe-breaker may very well return again in the future with a stronger jemmy. Very few people will disagree that he has caused some degree of public harm and that it is in the publics interest he should not be allowed to try again. The problem becomes apparent however, when we take this line of reasoning to its logical conclusion. What if the accused merely stands outside the house and tries to use his telepathic powers to open the safe and teleport the contents of the safe out to him. .there is nothing really to distinguish our aspiring telepath from the safe-breaker with the inadequate jemmy. They are both equally morally culpable, as they both intend to steal the property of another and have done their best to achieve it. They both can also equally very well return to try again with more effective methods. . Perhaps these cases that fall within the realm of absurdity may never come before a court as they may be filtered out by the discretion of the Prosecution.

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Legal non-offense

No controversy Chua Kian Kok (para. 43)

For example, a citizen from Ruritania travels to Singapore and has carnal relations with a girl that is 19 years old. He believes that in Singapore it is illegal to have carnal relations with a girl below the age of 21, as is the case in his own country. .even if he had completed his actions in accordance with his beliefs and intentions, it would not amount to an offence as such actions are not criminal in Singapore. Common sense dictates this type of impossible attempts is not caught by s 511.
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Different approach for non-s.511?

Chua Kian Kok (para. 47)

The conclusion of the examination above is that there is very little room for the defence of impossibility to operate in the law of attempt. Before moving on to the next issue, I would also like to add that I have deliberately refrained from examining the classic Voodoo Deaths debate that so dominated English academics and judges alike for a period, as this relates to attempted murder. This falls outside the ambit of s 511 as attempted murder exists in Singapore as a specific offence in the Penal Code (see s 307) and is thus not relevant to our present discussion.

Why would a different rationale for impossibility issues apply to non-s.511 attempts?
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Modes of liability

The criminal law criminalizes certain AR and MR --beyond this, how far should the criminal law reach?

Welfare principle prevent crime (those involved) Culpability principle - reflect individual moral guilt rather than group liability (for joining group activity) or constructive liability (for committing an initial less serious wrong other more serious wrongs automatically assigned)

Apart from actual perpetrator who completed the specifically prohibited AR

Those who abetted (instigation, aiding, conspiracy) Those who conspired Those who acted with common intention
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Inchoate crimes

Welfare principle: prevent crimes from occurring (then the earlier on the attempt is arrested the better) Culpability principle: only those who are really going to commit the crime; what about those who change their mind Rule of law principle: potential for power abuse Inchoate offenses: even when final AR not completed

Abetment Conspiracy Attempt

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Course objectives

Substantive goals:

criminal law doctrine (black-letter law), ideas shaping them (social, political, jurisprudential), impact of the criminal law (power relations)

Process goals:

Critical analysis: beyond black-letter law, limited but focused study of material Independent/guided learning: lectures and class discussion (different perspective from assigned reading); IVLE (mix of exploration and focused questions) Participation: presentation, IVLE learning through doing Ownership: include views, feedback
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