Inchoate Offences - Criminal Conspiracy, Joint Liability, Abetment, Attempt PDF

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INCHOATE OFFENCE ()** At times when the offender may had not complete the offence which he wanted to carry out, the law will still punish him for the “steps” which he had done to actually try to complete the offence.** The steps which the accused took = inchoate/ incompleteCRIMINAL CONSPIRACYAn agre...

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INCHOATE OFFENCE () ** At times when the offender may had not complete the offence which he wanted to carry out, the law will still punish him for the “steps” which he had done to actually try to complete the offence. ** The steps which the accused took = inchoate/ incomplete CRIMINAL CONSPIRACY An agreement made between 2 parties or more person to do an unlawful act / to do a lawful act in an unlawful manner. It’s a continuing offence and continues to be committed as long as the parties continue to agree carry out the plot. (Agreed but x do = criminal conspiracy) *Mainly emphasize on the meeting of the mind, the time of agreement. Section 120A: Definition Section 120B: Punishment Elements: a. Two or more people made an agreement b. Agreed to do something (meeting of minds) c. Agreed to do something illegal (a) or a legal act in an illegal manner (b) Kannan s/o Kunjiraman & Anor v PP [element a]

Principle: Agree is a true intention enter into an agreement and indicates an intention to carry into effect of the agreement. *Conspiracy can be show thru words and actions which indicates their concert in the pursuit of a common object/ design. * You don’t need to prove that a conspirator must be a party in the beginning, as long as you can prove at some certain point he joints and agreed to do it. = CC

ABETMENT *Not a stand-alone provision. It involves the participation of an abettor in the commission of a crime but not essential that the abettor had actually involved in the commission. Section 107: Forms of abetment [a]: Instigate [aa]: Commands

* Unnecessary for each conspirator to actually communicate with one another

[b]: engages with one or more other person

PP v Khoo Ban Hock

[c]: intentionally aiding

Principle: The essence of a conspiracy is that a number of persons have joined together to carry out their illegal purpose. -

Section 108: Abettor The secondary offenders would be the abettor. Section 109: Punishment

‘Illegal’ for the purpose of criminal conspiracy is everything which is an offence, or

AR: abetted and the crime is complete.

what is prohibited by law, or which furnishes ground for civil action.

a. Instigate

R v Chew Chong Jin

c. Intentional Aiding

Principle: Unnecessary for the conspirator to communicate to each other as long as they have common intention.

MR: Intention/ Knowledge.

Yash Pal Mital v State of Punjab AIR

1. First of all must identify who is the primary offender and the secondary offender (abettor).

Principle: conspirators must act with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested.

b. Conspiracy

Elements:

2. What did the abettor did?

3. How did he abet? (refer to section 107 for the circumstances)

actively stimulating a person to commit it. (Should have substantially assist)

4. Prove the MR

PP v Dato Hj Harun Idris & Ors

107(a): Instigates

Principle:

*To urge, provoke, initiate, said something to encourage the other to carry out the criminal act

Advice can also be regarded as instigating

* Instigation is said to be complete as soon as the abettor had instigated the person abetted to commit the crime. AR: Instigated the person abetted to commit the crime MR: Intention/ Knowledge Parimal Chatterji Principle: Instigation is being defined as to goad/ urge forward or to provoke, incite, urge or encourage to do an act. R v Mohit Pandey Facts: A woman prepared herself to commit suicide by sati. She was followed up to the funeral pyre and one of the accused had asked the woman to say “Ram, Ram. Held: Liable for abetting because he chanted the deceased and encouraged her. Haji Abdul Ghani bin Ishak & Anor v PP Principle: It is not sufficient in merely placing of temptation, it must be shown that the abettor has

Raj Kumar v State of Punjab Facts: The wife had threatened the husband that she would commit suicide if he did not return home. Issue: Whether the husband was liable for abeting? Held: Not Liable Principle: Being passive did not amount to instigation.

The first respondent was charged as a public officer in his capacity as Commissioner of the Malacca Municipality with corrupt practices in the approval of plans. The second and third respondent were charged with abetment of the offences. The learned trial judge found that the first respondent in approving the plans in his capacity as Commissioner of Malacca Municipality had used his public office for his pecuniary or other advantage. But he held that the first respondent was not a public officer and in the absence of this first essential ingredient of the charge, he found that he had no case to answer and therefore acquitted him. He also acquitted the second and third respondents. The Public Prosecutor appealed. Held: 1+2 respondent= liable 3 respondents not liable

PP v Tee Tian Siong *Wilful misrepresentation/ wilful concealment may constitute to an abetment. *GR: Merely present, a person could not be held liable for Instigating. Facts: 9 accused were charged with having abetted the exhibition of an obscene film. Held: Silently watch, x liable. It was held that the accused could not be regarded as having abetted the showing of the film since they were merely the members of the audience. PP v Dato Tan Cheng Swee

Principle for MR: In offence of aiding and abetting, the prosecution need to prove the intention on the part of the abettor to aid and he must be shown to have known the circumstances constituting the crime at the time when he had voluntarily doe a positive act of assistance. Balakrishnan S v PP Facts: In this case it involved 2 appellants who were the course commander and supervising officer of the combat survival training course in the army.

Dunking in a water tub as part of the training course and 1 trainee died and the other suffered serious injuries. Both appellants faced charges causing death and causing death by rash act and causing grievous hurt. For the first app, the offences were alleged to be committed by abetment by intentional aiding through illegal omission and as for the second app by abetment by instigation Second app failed to intervene when he witnessed the conduct of the instructors in dunking the trainees and preventing from catching their breath = encouragement and support of the offence. Principle: Silent x amount to instigating ** (However, indifference or silence can be sufficient to constitute the offence of abetment by instigation.

CC: Agreed but the act did not take place will also be liable. Only need to prove a prearranged plan.

Principle: Not necessary for the conspirator to gang up with each other throughout the commission.

Furthermore, under CC, the PP don’t need to prove the MR.

Sinniah Pillay v PP

Elements: a. Person engage with one or more than another person b. Conspiracy must be for doing of the thing abetted c. An act/ illegal omission must take place * Not necessary he himself should be directly involved. Sufficient if he engaged in the conspiracy. Chandrasekaran & Ors v PP Brief Facts:

107(b): Conspiracy (A secret plan)

This was an appeal against the conviction of the appellants on charges under the Prevention of Corruption Act, 1961. The evidence showed that there was a conspiracy to defraud the Government by means of forged vouchers. The appellants were charged with and convicted of abetment of the offence of defrauding the Government.

Section 107(b) is quite similar to Section 120A

Held: Liable

More restrictive compared to CC (Must be link of what we agreed to do and what we did then only can actually invoked this section)

PP v Yeo Choon Poh

107(aa): Commanded the principle offender to carry out the crime *A person who usually holds a high position in the military or naval force may have the authority to command the other.

Facts: Appellant was convicted of abetment by conspiracy to cause grievous hurt by dangerous weapons. Held: Liable 107(c): Intentional Aid Bhagwant Apaji: With the aim, desire and purpose Chua Kian Kok v PP Principle: A person who abets by intentional aid may be liable even though the principal offence x committed.

JOINT LIABILITY *Secondary participants which had took part into the commission of the wrongful act, to a level that is more than mere abetment. Section 34: Common Intention (to be read together with other section- punishment) *Under S34, proof of commission of an offence by the principle offender is required, if the principle offender is not even qualified to the charge of attempt, the secondary will not be liable as well unless the secondary’s action is sufficient to be charged with abetment or conspiracy. Four elements are required to make this section to be applicable. Elements: -

Identify the principle offender and the offence that he had committed. Identify the secondary offender.

a. Criminal Act (AR) b. Common Intention (MR) c. Participation (AR) d. Criminal Act was done in furtherance of that intention [Element a: Criminal Act] *Need not prove that all the secondary participants had actually carried out the criminal

act, but need to prove that the secondary participants had acted in unity.

Is the common design … of two or more person acting in together.

*Refers to all the acts done by the persons involved which cumulatively result in the criminal offence in question.

*Common intention does not need to done based on pursuant arranged plan, and it can be formed on the sport or during the course of commission of an offence.

Barendra Kumar Ghosh v Emperor Criminal act = unity of criminal behaviour which result in something, for which an individual would be punishable, if it were done by himself alone. Om Prakash v State Criminal act would cover any word, gesture, deed or conduct of any kind on the part of a person. [Element b: Common Intention] *Common intention means that the secondary participants had acted together to do the physical act. * Common intention had to be inferred from the surrounding circumstances. *Each participant may have had actually carried out different act, but if evidence could show that they had acted with one purpose =liable. State v Saidu Khan Common intention animating all those who are acting in concert within the meaning of section 34. Bashir v State

Lee Kwai Heong & Anor v PP The crucial ingredient to prove common intention is the existence of pre-concert or preplanning which may develop on the spot or during the course of commission of the offence. The crucial test is that such plan must precede the act constituting an offence. In the instant case, there was no misdirection concerning his finding that common intention had been established. *It is not easy to actually prove the common intention through direct evidence. Hence it is usually inferred from the facts and circumstances of the case and from the conduct of the participants. [Element c: Participation] *Participation in the criminal act is the main feature of section34 of the PC which explains why the person involved are made to jointly share in the criminal liability for the offence. PP v Tan Joo Cheng Participation can be active / passive.

Principle: participation required an accused to be physically present when the act constituting the offence was actually committed. Ibrahim bin Masod v PP Facts: The accused and another person had kidnapped the victim. The victim was strangled to death while the accused was in another part of Singapore selling the victim’s watch. Held: The accused was guilty even though he had acted passively and had not actively participated in the killing of the victim and that he was guilty of murder, even though he was not there when the actual strangling of the victim had occurred. Chew Cheng Lye v R Facts: In this case the appellant and another person were charged with the offence of theft of a bicycle at the five foot-way of North Bridge Road. The facts shortly were as follows: About 5.30 p.m. on April 11, 1956 a police constable and a detective saw the appellant and the other man walking along Victoria Street and the officers' suspicions were aroused when they noticed the two men examining bicycles and conversing together. As a result of their suspicions they followed the men. The two men entered North Bridge Road. The other man walked along the five foot-way and when he came in front of house No. 359 North Bridge Road he placed his hand on a bicycle and started to push it along. The police constable ran towards him. The man then let go of the bicycle

and ran away. The constable chased him and arrested him. Meanwhile the appellant who had been walking on the road near the drain, also started to run and was arrested by the detective. The other man and the appellant were both convicted of theft of the bicycle. Held: The application of Section 34 failed because the prosecution could not prove that the defendant had participated. Principle: 1. one of the requisite conditions to bring section 34 of the Penal Code into operation is that a criminal act is done by several persons and; it must be established that more than one person participated in the commission of the criminal act which forms the subject of the charge, although in certain circumstances mere presence may constitute participation; 2. If there is evidence that show that he was merely present during the commission of the crime, then it would be difficult to prove that he had participated. [element d: acted in furtherance of the common intention] Daniel Vijay s/o Katherasan v PP Facts: Three appellants had planned to rob a cargo of mobile telephones. To carry out this plan, they had actually brought along a baseball bat, but there was dispute whether there was any prior agreement to beat up the cargo lorry driver to the extent that he could not identify the

assailants. The 3 accused forced the lorry driver to stop at the roadside and the driver was repeatedly beaten by one of the accused. The lorry driver suffered serious injury and eventually died. The appellant who hit the lorry driver was charged with murder. Issue: Whether the other two accused had acted in furtherance of the common intention? Held: Evidence could not be adduced that the other two appellants had acted in furtherance of the common intention and section 34 failed. There was no sufficient evidence to show that the other two appellants had acted to bring the death of the victim. General case: Pathmanabhan Naliannen v PP & Other appeals Facts: The first accused, an advocate and solicitor, and his employees, the second, third and fourth accused, were convicted of four counts of murder under s. 302 read with s. 34 of the Penal Code. Held: Third accused not liable. There was overwhelming evidence before the court to show that Sosilawati and the three others were murdered at the farm within the time and on the date stated in the charges, and that their murders were committed by the first, second and fourth accused persons acting with common intention. However, there was

insufficient evidence implicating the third accused in those murders and the trial judge had erred in calling the third accused to enter on his defence at the close of the prosecution's case. ATTEMPT *If the defendant had attempted to commit a criminal offence, the defendant will be liable for his attempts. *The attempts= more than mere preparatory * The court will rely on several test to determine whether is it merely preparatory or more than mere preparatory. * If the court can’t get the accused for attempting to do a criminal offence, they will try to get him for others, for instance, outrage of modesty. *Do not get confuse with this general provision with other specific provision that actually provided the provision for attempts Exp: 307 (attp for murder) 308 (attp for culpable homicide) 309(attp for sucide) Section 511: Attempting to commit offences (Not a stand-alone provision, must be read together with relevant section) *This section is a lose definition Elements: AR: Unlawful acts must be more than merely preparatory.

What is require is that an accused must have proceeded beyond the stage of preparation. *Mere preparation does not amount to an attempt. It must reach to a certain proximity MR: Intention (The clearest form of mens rea could only be accepted) R v Mohan Although S511 does not state clearly indicating the requirement of MR, but should go for the highest fault element which is intention. Test to Determine AR *There is no definite principle to actually determine proximity of an act with the commission of an offence. *However based on precedents, courts have actually adopted various test to determine the AR. a. Proximity Test Proximity is a flexible concept whereby one has to demonstrate sufficient proximity to the complete offence depends on how a court view the particular circumstances. Q: Whether the accused act is near enough towards the commission of the offence? R v Eagleton Facts: Defendant was a baker who contracted with a Parrish to supply bread weighing a certain amount to the poor. The Parrish in turn

would credit his account and pay him per loaf that he supplied to poor customers for free. Before the first payment, the Parrish discovered that Defendant was supplying loaves of bread that weighed less than the agreed contract weight. Defendant was convicted of attempting to obtain money by false pretences. Principle: Acts remotely leading to the commission of the crime are not to be considered as attempts, but acts immediately connected with the crime are attempts Thiangiah v PP Facts: The apps are estate workers and were charged of attempted of theft. They were ambushed when they were loading the unused fertilizer into the car. Held: Not liable. They might be intention to steal but not sufficient to constitute attempt to steal. Principle: There must be some further overt 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 s511. Harischandra Narayan Khardape v State of Maharashtra Facts: The accused could not be liable for attempted to rape where the accused had entered

the kitchen where the complainant was, denuded himself below the waist and attempted to remove her blouse and sari.

*The conduct of the accused must be such as to clearly and unequivocally indicate in itself the intention to commit the offence.

His acts were held to be merely preparatory in nature and he was convicted with assault with intent to outrage modesty instead of attempted to rape.

* Q: Whether a person observing the conduct in “video form” without the sound on, as it were, would decide that the accused was attempting to commit the offence charged.

PP v Zainal Abidin bin Ismail

*But this test had been criticised by the Malaysian court

Held: One of the accused could be convicted of attempted to rape even though he had actually abandoned his plan because he could not obtain an erection. b. “Last Act” Test *This test is a stricter form compared to proximity test. *The accused had done the last act by himself Om Prakash v State of Punjab Facts: The app was charged with attempted to murder his wife for intentionally starving his wife for days. His wife managed to escaped and seek help. Held: The last act test was not applicable as it was hard to determine which is the last act to starving someone.

c. Equivocality Test

Tan Beng Chye v PP Facts: The accused had been convicted of rape. Evidence had shown that the appellant had took the complainant to some bus...