Criminal law - attempt and abetment PDF

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CRIMINAL LAW (LAW 2311)WRITTEN ASSIGNMENT(ATTEMPT & ABETMENT)QuestionHannah Bakar, is a girl who recently celebrated her 22nd birthday at Hotel Kyo Kuala Lumpur. She was born and raised in Pasir Mas, Kelantan. She was always known as a shy person. Right after her birthday weekend, she had mi...

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CRIMINAL LAW (LAW 2311) WRITTEN ASSIGNMENT (ATTEMPT & ABETMENT)

Question

Hannah Bakar, is a girl who recently celebrated her 22nd birthday at Hotel Kyo Kuala Lumpur. She was born and raised in Pasir Mas, Kelantan. She was always known as a shy person. Right after her birthday weekend, she had migrated to Kuala Lumpur to pursue her degree in Communication at Taylor’s University, Sunway. During the orientation week, she had made friends with Alexa and Jessica. As class commences, they became really good friend and always hang out at their favourite coffee cafe, Starbroke. As days pass by, Hannah found out that her two best friends were actually having an intimate relationship with each other. They soon started to avoid her and eventually caused Hannah to have no friends due to her shy attitude to make new friends. One day, she was approach by Justin, the captain of Ping Pong Club and the Captain of PASKAL of Taylor’s University. Unknown to Hannah, that actually Justin was only playing with her, as he is a well-known playboy in the university. Justin had told his teammates and friends that Hannah has a very “nice body”. Ever since then, she was always cat-called every time she passed a group of guys. As her final examination was around the corner, she became really stressed and depressed and the situation had gotten a lot worse when she found out that, her two best friend excluded her name in the assignment. It had caused her to fail a few subjects that semester. As she was scrolling her phone, she saw the name Nick and decided to call him, as he was her old friend. She wanted to release her stress and talk to someone who could help her. Nick answered the phone, the conversation went smooth until they had a slight quarrel. Hannah told Nick that she could not live anymore. Nick suggested, “You should just die”. The anxiety was overwhelming for Hannah, so she decided to consume her mother depression medication. Feeling useless, she took a razor blade and slit her wrist attempting to bleed herself to death. After a few minutes, she had started to lose consciousness due to excessive loss of blood. Her mother, Roslin, who saw red water coming out from the toilet decided to check and was shocked to find her daughter unconscious in a pool of blood. Roslin immediately called the ambulance and Hannah was rushed to the hospital. Thankfully, the loss of blood was still not sufficient to cause death. Please refer to medical report

Discuss the liability in terms of attempt and abetment.

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Answer First Issue: Whether Hannah Bakar can be charged with attempted suicide under section 309 of Penal code.

The element required before a person could be charged under attempt is firstly is actus Reus and Mens Rea. To be convicted for an offence, it must be proven that the done the act, which consisted of the actus reus of attempt. Mere doing of an act is insufficient. It must be coupled with mens rea and also beyond preparatory. Thus, the Actus reus of Hannah Bakar is attempting to do any act towards the commission of suicide. For the mens rea, it must be proven that has the knowledge or the intention that the act of her would likely to cause suicide to herself. Hence, in order to prove the actus reus and mens rea of Hannah Bakar, the acts done by him shall fulfil some of the test which are Proximity Test, Last Act Test, Cinematography test and Equivocality test. For the first test, the act of Hannah Bakar must be close enough to the completion of murder and in the direct movement to the commission of the offence. The act of Hannah Bakar which was slit her wrist is proximate enough for the commision of suicide. This test is further supported in the case of PP v Zainal Abidin 1 where in this case, the act of the plaintiff lying on top of the victim is sufficient enough to constitute the attempt for rape. However, in the case of Harishcandra Narayah Khardape2, the act of denuding himself and removing the sari of the victim is not sufficient enough to be charged with attempted rape as it is not proximate enough to constitute the offence but that is proximate enough for outraging modesty offence. Thus, in comparing the cases and Hannah’s case, this shows that he had fulfilled all the requirements for proximity test to be liable for attempted suicide. For Last Act test, the prosecution must take into consideration the last act of Hannah in attempting the offences. The act of the accused must be the very last act required in completing

 rjan Singh v PP 3, where the appellant was found guilty on the the offences. In the case of A offence of attempted extortion. On the appeal, due to the letters were found in the drawer of a 1

[ 1987] 2 MLJ 741 (1983) 2 Crimes 98 3 [1948] MLJ 73 2

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writing table and there was no evidence of any attempt to transfer them by any means to the addressees. The court decided that the mere act of writing and detaining a letter is not an attempt to commit extortion but at the most a preparatory step towards the commission of that offence. The act done by Hannah Bakar must be the very last act in completing the offence of attempted suicide where the act of she already slit her wrist with the razor was considered last act to commit suicide. Hence, in line with the last act test. This can be seen in the case of Awadesh Mahto4 whereby the court held that at first, there was no attempt committed unless the person had fired the gun and miss. By comparing to Hannah Bakar case, when she had slit her wrist towards the comission of suicide is considered as the last act in the completion of offences, thus attempted suicide. For Cinematography test, the court will view the act of the accused as a series of act in a film. The court will guess what would be the next scene committed by the accused. If there is only one conclusion and the act is beyond preparation, the accused has attempted to commit the offence. If the accused is still at the stage of preparation and only pulled the trigger.What could be the possible last scene? On the other hand, if there are many probable conclusions, For example, the accused was pointing a gun at the victim and has to kill the victim. In the case of Ismail v PP, the postman was charged under S 354 read with S 511 of the for an attempt to outrage modesty. When evidence was given by the complainant, Mek bte Jumaat, she said that the accused pulled out RM5 and said, " Even if you are married, take it". The learned Magistrate found him guilty and convicted him. On appeal, it was held that those words coupled with the offer of RM5 were so vague that it was impossible to say certainly that there had been invitation for sexual intercourse, Mere probability was insufficient in criminal cases to sustain the conviction. Court held that there is no offence committed neither an attempt. However, in the case of Ooi Bee Kee v PP5, the accused was arrested for having a bunch of keys and a piece of cloth. He tried to open a car that does not belong to him. Though the act was not the very last act in stealing the car nevertheless the act was proximate and there is only one possibility by looking at the act of the accused to steal the car. Cinematography test is therefore fulfilled. In Hannah

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(1979) Cri LJ 1275 (1983)(unreported- Magistrate’s Appeal no 175 of 1983, Subordinate Courts, Singapore) 4

situation, there could be only one possible conclusion which is she would die after she slit her wrist with a razor and no other possibilities.

Lastly, for Equivocality test, it requires the act of the accused to speak by itself. To constitute an attempt, the act must be clear and unequivocal, indicating the intention of the accused to commit the offence. If steps taken by the accused had attained the object, then it an attempt, otherwise it is merely preparatory. In the case of Tan Beng Chye v PP 6, the Accused had been convicted of attempted rape. The evidence had shown that the Appellant had taken the Complainant to some bushes where he took off his pants & lowered his underpants to his knees. He then threatened the Complainant with a knife to force her to take off her coat and trousers leaving her in her panties which she refused to take off. He demanded her to caress his penis but due to her refusal, he did it himself. An old Chinese man came by and the Complainant shouted asking for help. Thereupon, the Appellant put back his shorts and started to run while buttoning them. The court held that since the Appellant did not attempt to penetrate thus, it did not amount to an attempted rape & therefore, the conviction must be put aside and a conviction for s. 354 (offence of outraging modesty) was substituted for it. In Hannah case, even though there is no series of action of Hannah attempt to suicide, in a few situations shows that Hannah life situation had pushed her to commit suicide. Her series of action includes her consume her mother depressant pill and subsequently followed by her sliting the wrist using the razor. It shows a series of her action which intended to attempt to commit suicide. In State v Madho Singh 7, the court held that the acts of pounding some oleander (herbs) roots with intention poison one's self does not constitute an attempt to commit suicide. The act amounted merely to preparation to commit suicide. In other cases, State v Dhirajia [1940] 8, a woman was running away from her abusive husband and the husband had threatened to beat her up. After a heated quarrel, she fled from the house late at night taking with her their six-month-old baby. The husband gave a chase and caught up with her near a well, she panicked and jumped straight into the well with the baby in her arms. Subsequently, she was rescued but

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[1965-1968] 1 SLR 73 [1878] PR No 22 of 1878 8 [1940] All 647 7

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the baby died. The court held that she could not be convicted under this section as the word attempt' connoted some conscious endeavour to accomplish the act, and the accused in jumping down the well was not thinking at all of taking her own life but only escaping from her husband. By comparing to Hannah situation, it shows that Hannah action is not merely preparation which she already consumes the pills and slit her wrist and became unconscious. Hannah action proved that she attempts to commit suicide but she fails because she was found by the mother. In conclusion, Hannah may be held liable for the attempt to suicide according to the test provided. Hannah may be punished with section 309 of which imprisonment for a term which may extend to one year with fine, or both.

Second Issue: Whether Nick can be charged for committing the offence of abetment by instigation under Section 306 of the Penal Code.

The second issue which arises in this case is whether Nick is liable for committing the offence of abetment by instigation under Section 306 of the Penal Code. This section is a specific section that deals with the offence of abetment of suicide, which mentions the punishment of the offender which is an imprisonment for a maximum term of ten years and shall be liable to fine. Section 306 prescribes punishment for ‘abetment of suicide’ while section 309 punishes ‘attempt to commit suicide’. Abetment of attempt to commit suicide is outside the purview of section 306 and it is punishable only under section 309 read with section 107 of the Penal Code. From the section, we can deduce the actus reus which is the the statement or command given by the abettor to the abettee to commit the offence. Meanwhile the mens rea is the intention to induce the victim to commit suicide. In order to convict a person under section 306, Penal Code, there has to be a clear mens rea that the accused intended to commit the offence of inducing the victim towards the commission of the crime. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that the person committed suicide. 9

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Hrivastava, R. (2014). ABETMENT OF SUICIDE. International Journal of Law and Legal Jurisprudence Studies, 4(1). :ISSN:2348-8212 6

Abetment literally is the act of helping or encouraging someone to do something wrong or illegal.

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However, it is important to take note that this section does not specifically mention

about the different types of abetment. The types of abetment is laid down in Section 107 of the Penal Code, which are namely abetment by instigation, abetment by conspiracy and abetment by aiding. Looking at the facts of the case the abetment uttered by Nick falls under abetment by instigation. “Mere acquiescence or passivity generally does not amount to instigation” 11, ” , from the statute, we can deduce that abetment by instigation is a question of fact in the case of Nick we would need to look upon the words uttered by him to Hannah during their conversation on the phone. Abetment of suicide involves a mental process of instigating a person or intentionally aiding a person in committing suicide. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. Therefore, in proving that the act was indeed an offence, then we need to fulfil these few elements namely that instigation has to be communicated, the instigation has to be an active suggestion by the abettor and the instigation has to be clear, objective and specific that relates to the act that the person abetted. Firstly, to prove that abetment did occur, we need to prove that the statement was communicated from the abettor to the abettee. In this case, that there was a communication of abetment from Nick to Hannah. We can see the words of instigation was communicated through the phone call that Hannah had with Nick. Also, in proving that the instigation was an active suggestion, we look at the saying of Nick who uttered “ikut gi mu, nak ke mampus ke” and “nak gi bunuh diri”. The nature of the words used by Nick as mentioned was also clear and the objective is specific. This is sufficient to deduce that was a communicated, active suggestion which later would clearly result in a prohibited act done by Hannah by virtue of Section 306 of the Penal Code, specifically on abetment of suicide.

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ABETMENT | meaning in the Cambridge English Dictionary. (n.d.). Retrieved from https://dictionary.cambridge.org/dictionary/english/abetment 11

Section 8 of the Accessories and Abettors Act 1861(UK) 7

Looking at the case of PPv Datuk Hj Harun bin Hj Idris12, t he judge defines the word “instigates” does not merely means placing of temptation to do a forbidden thing but actively stimulating a person to do it. In some situations, an advice may become an instigation”. The case illustrates that a mere advice is not an instigation. However, in a situation that the advice is coupled with an active encouragement it may become a form of an instigation. In the case, Hannah did rely upon Nick advice as the sole reason for her to communicate with Nick was to ask for advice regarding her current situation. Nevertheless, instead of getting advice Nick called Hannah “gelenyah”, “tubit” and “pakai seksi-seksi”, this can be seen as an active encouragement. The words uttered by Nick was an advice that was coupled with an active encouragement. Hannah upon hearing the words to the means necessary to commit the crime which is suicide, thus this can be seen as an effective instigation by Nick. Next, looking at the case of Queen v Mohit Pandey 13, a woman had prepared herself to commit suicide by Sati . Sati refers to the practice of the people in India in the olden days in a situation where the husband had passed away, the wife would also die with him. She was followed up until the funeral alter. One of the accused asked the woman to chant ‘Ram Ram’, before jumping into the fire. It was held that the accused was guilty of abetment by way of instigation as they had encourage the woman to commit suicide by jumping into the fire. To illustrate the liability of a person who had abetted the commission of suicide, we look at whether the act of committing suicide was committed, the abettor had instigated the commission of the offence and the form of instigation, whether it was direct. Looking at the Indian case of Brij Lal v. Prem Chand 14 , the husband had constantly abused the wife. He had constantly abused her physically by beating her and had demanded money from her. One day, he said that the death of the wife could provide him a quick relief in his life. Consequently, the wife had committed suicide. The court held that the series of act done by the husband had instigated the suicide of his wife, instigating a person to commit suicide constituted abetment. To further illustrate, looking at the Indian case of Gurbachan Singh v.

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[1977] 1 MLJ 180 (1871) 3 NWPR 316 14  IR 1989 SC 1661 A 13

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Satpal Singh15, the court had a similar ruling regarding the conduct of an abusive husband towards the wife. The facts of the case is similar to the previous case discussed, where the husband had multiply caused physical and mental abused to the wife which later had resulted to her committing suicide. The court held that the defendants was liable for the charge of abetting a wife to commit suicide. Although there has been a general agreement on the point that cruelty may itself not be enough to cause an offence under abetment to suicide but where the accused has wilfully produced an atmosphere as a result of which the deceased had no other option left and was forced to commit suicide, a conviction may be upheld. 16 In this case, Nick had indeed created a situation where Hannah had felt depressed and stressed in consequence of her recent bad experiences at her new university in Kuala Lumpur. His advice had further instigated her intention of committing suicide. As suicide is self-murder and the person committing suicide is beyond the reach of the law. Nevertheless, it does not follow that abetment of suicide is not forbidden by the code. Therefore, a person is still liable for the offence of abetment of suicide. In conclusion, Nick can be charged for committing the offence of abetment by instigation under Section 306 of the Penal Code with the punishment towards the offender of an imprisonment for a maximum term of ten years and shall be liable to fine.

AIR 1990 SC 209 Hrivastava, R. (2014). ABETMENT OF SUICIDE. International Journal of Law and Legal Jurisprudence Studies, 4(1). :ISSN:2348-8212 15 16

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