Challenges to Establishing a Crime - Attempts

Question 1

S 511 PC:

Attempt Definition?

Answer 1

S 511(1): If person has intention of committing the offence and takes a substantial step towards commission of that offence.

S 511(2): Examples listed.

S 512: If offence punishable with death or life prison, shall, where no express provision is made by this Code, be punished with up to 20 yrs prison, and fine or caning.

Question 2

Stages of Crime?

[Thiangiah and Anor v PP [1977] 1 MLJ 79]

Answer 2

(1) Intention

(2) Preparatory acts (will not give rise to culpability)
- E.g. dreaming of robbing a bank and wanting to rob a bank is not a crime. If you proceed a little further by buying a mask, a car, and drive to the bank, these are considered preparatory acts as you could have changed your mind.

(3) Attempt
(4) Commission

Question 3

Objectivist approach to prosecuting attempts:

Conduct?

Answer 3

Conduct much closer to commission of offence (causing apprehension, fear or alarm).

Focus lies with the actual conduct.

Question 4

Objectivist approach to prosecuting attempts:

Criminal endeavours that cannot be completed?

Answer 4

Requires some danger of an actual offence being committed.

Question 5

Objectivist approach to prosecuting attempts:

Appropriate level of punishment?

Answer 5

More lenient – lesser degree of harm inflicted.

Question 6

Objectivist approach to prosecuting attempts:

Rationale?

Answer 6

John Stuart Mill’s harm to others principle.

Question 7

Subjectivist approach to prosecuting attempts:

Conduct?

Answer 7

Proof of intention + ANY conduct (even apparently innocuous conduct) to commit offence.

Focus lies with the INTENTION (manifested in the dangerousness) and not the actual conduct.

Question 8

Subjectivist approach to prosecuting attempts:

Criminal endeavours that cannot be completed?

Answer 8

Judged on the facts as the accused believed them to be (i.e. impossible attempts).

Question 9

Subjectivist approach to prosecuting attempts:

Appropriate level of punishment?

Answer 9

Equal severity - failure NOT choice of accused, why should he benefit from it?

Question 10

Subjectivist approach to prosecuting attempts:

Rationale?

Answer 10

Culpability principle.

Question 11

Ss 511 and 512 PC’s approach to prosecuting attempts?

Answer 11

Subjectivist:
A. S 511(3): Impossible attempts included.

B. S 512(2): Any attempt to commit an offence shall be punished with such punishment prescribed.

Balanced:
A. S 511(1): AR and MR required.

B. S 512(1): Anything punishable by death or life imprisonment now punishable by max 20 years and fine or caning.

Question 12

Elements of offence of attempt:

AR - Conduct that goes beyond preparation?

Answer 12

Thiangiah and Anor v PP [1977] 1 MLJ 79

Must be some further overt act on part of offender which is directed towards the actual commission of the crime and which is immediately and not remotely connected with the crime.

Question 13

Elements of offence of attempt:

AR - Unequivocality test?

Answer 13

State of Maharashtra v Mohd Yakub [1980] AIR 1111

Manifest and clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence. (Sakaria J, 1164C-E)

Question 14

Elements of offence of attempt:

AR - Crossing the Rubicon?

Answer 14

DPP v Stonehouse [1978] 1 AC 55

Man insured his life in UK and faked his death. Found 5 weeks later in Australia. Charged with attempting to obtain property by deception (result crime).

Question 15

Elements of offence of attempt:

AR - Embarking on the crime proper?

Answer 15

Chua Kian Kok v PP [1999] 1 SLR(R) 826

Alternative to Rubicon test, preferred in SG.

[36] 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 (point of no return – Rubicon test). It is a question of fact in which all the surrounding circumstances have to be considered.

[A convicted of abetting B by conspiring to cheat B’s company into paying A’s company for goods not ordered by B.]

(Yong CJ)

Question 16

Elements of offence of attempt:

MR - Intention to commit the crime?

Answer 16

Chua Kian Kok v PP [1999] 1 SLR(R) 826

[26] A must intend to commit the substantive offence, even though a lower mental state would have sufficed to satisfy the ingredients of the substantive offence.

[A convicted of abetting B by conspiring to cheat B’s company into paying A’s company for goods not ordered by B.]

(Yong CJ)

Question 17

Elements of offence of attempt:

MR - Intention or knowledge to do the act constituting the crime?

Answer 17

A. Om Parkash [1961] AIR 1782

B mistreated and starved by husband A. B escaped to a hospital. A charged with attempted murder. Held sufficient for A to have held the intention to commit murder and acted towards its commission.

B. PP v Mas Swan bin Adnan [2012] 3 SLR 527, CA

CA held that MR for the general offence of attempt under s511 PC is the “intention to commit the primary offence”.
Last act test: Accused’s conduct must be seen as clearly and unequivocally indicating his intention to commit the principal offence and the substantial step he has taken”.

Question 18

Thiangiah and Anor v PP [1977] 1 MLJ 79

[Senior conductor of estate and his worker caught loading 7 unused bags of fertiliser into car. Watchmen ambushed them. Acts not classified as attempts as no intent could be made out.]

Answer 18

“The apprehension of the appellants was indeed premature. … A few more minutes would have been sufficient to find out if the appellants were intending to take the bags to the store or out of the estate itself or to some unauthorised or secret place and this would have afforded ample proof of their guilt or innocence. In all the circumstances of the case therefore I did not think that the evidence adduced in the lower court was sufficient to establish a case against the appellants beyond reasonable doubt.”

Must be some further overt act on part of offender which is directed towards the actual commission of the crime and which is immediately and not remotely connected with the crime.

Question 19

4 types of impossibility?

[Chua Kian Kok at [43]-[45]]

Answer 19

A. Legal impossibility

B. Physical impossibility

C. Impossibility by ineptitude

D. Impossibility by non-criminality of act

[Lilian Bay; Mas Swan: Non-existence of subj matter of offence doesn’t preclude an attempt to commit the offence.]

Question 20

Criticism of impossibilities?

Han Fang Guan v PP [2020] 1 SLR 649, SGCA at [98]

Answer 20

1. Inept offender impossibility not impossibility at all. Ineptitude does nothing but explain why the act was merely an attempt, and doesn’t affect culpable intent which is the subject of a charge of attempt.
2. Common ground is no-offence impossibility. mistaken belief of the actor that what he has done is criminal cannot possibly make his conduct an offence if it is not in fact so.
3. Focus in criminal attempt should be on the criminal intent of the actor, rather than on the criminality or otherwise of the act that has in fact been carried out.