LAW505

Criminal Law
Assignment
Submission Date
12th December 2017
CLASS: LWB03A

NAME STUDENT ID NUMBER PHONE

MUHAMMAD ZULHILMI BIN MD NOR 2016239278 019-6058702

ARIFF HAIQAL BIN JAMSARI 2016239184 017-6102447

Question:

John, Dick and Harry planned to steal a painting that was on display at an exhibition.
Their main target was a painting reputed to be worth RM25 million, dubbed the Bella Mon
Ami. Othai, an old professional thief briefed them on how the theft must be done to ensure
its success. The briefing covered the floor plan of the exhibition hall, the security system in
place, the exact location where the painting was kept at night and the way they may get their
hands on it.

The Bella Mon Ami, due to its value, was kept in a separate safe at night. This safe
was equipped with a biometric locking system which required an authorized person to place
both thumbs on a scanner before it could be opened. The authorized person was Mr. Fingers.

On the designated date, John, Dick and Harry proceed to Mr. Fingers residence. They
found Mr Fingers alone in his house and armed with guns, they managed to overpower Mr
Fingers and cut off both his thumbs. They carried the thumbs with them in a cooler box filled
with ice.

On arrival at the exhibition hall, Harry waited in the car, while John and Dick
immediately overpowered the two guards at the entrance. They tied and gagged both guards.
They managed to get into the exhibition hall without much trouble and proceeded to the safe
containing the Bella Mon Ami. Mr. Fingers thumbs served their purpose and they got hold of
the painting. John carried it in his gloved hands.

As they were making their escape, they were confronted by the two guards who had
managed to untie themselves. A shootout ensued, during which John accidentally dropped the
painting. More security enforcement arrived at the scene. John and Dick decided that it has
become too dangerous and decided to just run away. As they exited through the front door,
John was hit by a shot from one of the security guards. He was thrown onto the pavement and
died almost instantly. Dick continued on his way and escaped with Harry.

They drove through the night but suddenly discovered that, for some reason, the car
was losing fuel very fast. The nearest place where they could hide for the night was at Harrys
mothers house. They stopped there and asked to be allowed to stay the night. Harrys mother
was suspicious since Harry has not visited her for many years but allowed them in.

During the night, she learnt about the robbery attempt at the exhibition hall and
immediately knew that her son was involved. However, she did not have the heart to call the
authorities immediately. She kept them at her house for two days. On the third day, she had a
change of heart, called the police and the two were arrested.

a) Is there sufficient actus reus to charge Dick and Harry for attempted robbery?

b) Explain the circumstances under which Othai may be made criminally liable.

c) Explain the probable defence that may be available to the security guard who killed John?

d) Discuss whether Harrys mother can be liable for any inchoate offence.
Answer:

Crime is an action or omission that constitutes an offense that may be prosecuted by

the State and is punishable by law. It is a wrongful act which bring harm to another and the
society in general. Criminal law is one of mechanism used to control the society, from the
harmful conduct. It is the laws, sets of rules made by the authority, the States, to forbid and
prevent conduct that is unjustifiably and inexcusably inflicts or threatens substantial harm to
individual or public interest. Modernisation brought about the need to enact law to cater the 4
main objectives of the law. First is retribution to the those whose harm is done to, a deterrence
to individual and society from committing those offenses, incapacitation as in prison sentences
as a method of keeping the criminals away from the society and rehabilitation for the offender
to turn into a new leaf. In general, criminal law protects and maintain societys activities.

In criminal law, there are two basic elements that needed to be fulfilled to establish
criminal liability. Those cardinal principle to establish criminal liability are actus reus and mens
rea. Actus reus is defined committing a forbidden act or committing that which causes a result
prohibited by law. Meanwhile, mens rea is an accompanying guilty state of mind in carrying
those conduct. In Malaysia, we adopt the position that criminal liability is only justifiable if a
person commits a prohibited act or causes forbidden harm and his actions which are
accompanied by a blameworthy state of mind. The cardinal principle is reflected in the maxim
actus non facit reum nisi mens sit rea which are translated as An act does not make a person
legally guilty unless his mind is guilty
The first issue in this question is whether there is sufficient actus reus to charge Dick
and Harry for attempted robbery. In order to answer this issue, it is important for us to determine
the actus reus in attempted robbery.
Criminal liability is present when the offender commits the crimes. However, the
punishment is not limited to only those who successfully did the crimes. This is because the
offender who tries is in as much need of incapacitation and rehabilitation as those who
succeed. If one did not succeed in doing the crime the first time, he might try to do it again till
he succeed. The laws are to prevent the crimes in any way possible. This is why all the legal
system aims to punish people who attempts to commit a crime. The person who tries to commit
a crime but does not succeed is just as blameworthy as the person who succeed in causing
the forbidden harm.
The offence of attempt is an incomplete crime in that liability is incurred although the
act has not reached fruition with the achievement of the intended result.
The liability of attempts to commit the offences can be found in three different manners
as prescribed in the Penal Code. First, the commission of offence and its attempt are set out
in the same provision and carry identical punishment. For such example, Section 121 of Penal
Code talked about offences against the Yang di-Pertuan Agong, a Ruler or Yang di-Pertua
Negeri.
The second manner is that the attempts are contained in different provisions that carry
different punishments. In this manner, the punishment for attempt carries a lesser sentences.
Such examples a murder is provided in Section 302 while the attempted murder is provided in
Section 307, both sections provides different punishment for the two offences.
 The third manner is a general provision of punishment for the attempts where there is
no specific provisions relating to the attempts. Section 511 provides the punishment of
attempts. There is no exact definition as to what amounts to attempt. But it was discussed in
the case Thiangiah & Anor (1977)1. In this case, the Court defined an attempt to commit a
crime is an act done with intent to commit that crime and forming part of a series of acts which
would constitute its actual commission if it was not interrupted. However, in the case of State
of Maharashtra v Mohd Yakub (1980)2, the court held that to constitute an attempt, there
must be an intention to commit an offence and it must be done towards the commission of the
offence. The act must be proximate to the intended result. The measure of proximity is not in
relation to time and action but in relation to the intention, it must be indicative or suggestive of
the intention.
There are four stages in every crime; the intention, the preparation, the attempt and the
actual commission.
The intention is merely an intent to commit the crime and does not amounted to an
attempt and is not punishable under the law. There must be some overt act directed towards
the actual commission of the crime.
Same as intention, the preparation for the commission of a crime is also not a criminal
act and is not punishable under the law as preparation only does not attract criminal liability.
This can be seen in the case of Harishchandra v State of Maharashtra (1983)3 where the
act of accused stripping below the waist a state of preparation and had not gone beyond the
stage of preparation, thus he could not be said to have attempted to commit rape.
Meanwhile, attempts is amounted to a crime and it is punishable by law. For attempts,
it is sufficient that the offender fulfilled the elements needed in criminal liablity; actus reus and
mens rea.
In actus reus of attempt, an offence is only an attempt if an act is done with the intention
to commit the crime. The accused must have proceed beyond the stage of preparation and his
action must be sufficiently closed to the completed offence to be described as proximate to
the offence. There is distinction between intention to commit crime and the attempt to commit
the crime. In the case of Houghton v Smith (1975)4, the court held that there must be an
intention to commit crime and there must be an overt act of such kind that is intended to form
and does form part of the series of acts which would constituted the actual commission of the
offence if it were not interrupted. The act relied on must be more than preparatory to commit
the completed offence, but must bear a relationship to the completion of the offence as being
immediately and not merely remotely connected with the completed offence.
For mens rea of attempt, it has been discussed in the case of Abhayanand Mishra
where the court held that there must be an intention to commit a particular offence and the
mens rea is needed, and intention to bring about a certain consequences in the offence of
attempt and that is in accordance with the common law where a person can only be liable for
attempting to commit a crime if there is the intention to commit the complete offence. It is
further explained in the case of R v Mohan (1976)5 where it was stated that in an offence of
attempt intention means spesific intent and not only knowledge of likely consequence.

1
(1997) 1 MLJ 79.
2
SCC (Cri) 513
3
2 Crimes 98
4
(1975) AC 476
5
(1976) QB 1
 In applying to the first issue whether there is sufficient actus reus to charge Dick and
Harry for attempted robbery.
The intention of Dick and Harry to steal Bella Mon Ami was clear as both of them are
directly involve in the crime. We can derive their intention at the point when they heard briefing
by an old professional on how the theft must be done to ensure its success. The intention
could also be derive when they manage to get the thumbs for security clearance required to
open the safe of Bella Mon Ami.
Moreover, their act exceed the preparation stage as they managed to enter the premise
without much trouble and even nearly succeed in steal the painting but failed when they
changed their mind when situation becomes too dangerous and decided to just run away. We
could conclude that thereis intention to commit crime and an overt act of such kind that is
intended to form and does form part of the series of acts which would constituted the actual
commission of the offence if it were not interrupted as found in the case of Houghton v Smith
(1975)6 This shows that actus reus has been proven and Dick and Harry can be charged for
attempt robbery.
The second issue is whether Othai may be made criminally liable for the robbery.
What is abetment? Defined in Section 107 of Penal Code, abetment is an act of
instigate any person to do the thing, or engaging with other person in any conspiracy for the
doing of that thing, if the act takes place as how the discussion goes. It is an intentionally aiding
to do the offence. Under Penal Code, the person being abettor will be held liable if the act is
abetted and done accordingly, or different as long as it is a probable consequences.
Section 108 explains on what amounted to abetment. The abetment of an illegal
omission may be an offence though the abettor may not himself be bound to do that act. It is
not necessary that the abetted act be committed or effect requisite the offence be caused. It is
not necessary that the person abetted should be capable by law committing an offence or have
the same guilty intention or knowledge as the abettor.
It is sufficient if the abettor engages in a conspiracy in pursuance of which the offence
is committed. Abetment may takes place by either instigation, engaging in the conspiracy or
intentionally aiding in the commission of the act. Instigation is not only merely placing the
temptation to do a forbidden thing but actively stimulating a person to do it. In the case of Haji
Abdul Ghani bin Ishak & Ors (1981)7, the court held that instigation is the urge to provoke
and encourage others to do the offence. It is not necessary that the abettor must assist the
principal offender towards the commission of the act. There are many ways of abetment, one
of it being abetment by aiding. In the case of PP v Datuk Haji Harun Idris, abetment by aiding
is when a person intends to facilitate and does, in fact, facilitate the commission of the crime..
There must be shown a positive act of assistance voluntarily done by a person with knowledge
of the circumstances constituting the offence namely the actus reus.
Next, there must be the intention, mens rea on the abettor to aid and he must know
the circumstances constituting the crime at the time when he voluntarily did the positive act of
abetment. The act must be done before the commission of the offence.

6
(1975) AC 476
7
(1981) 2 MLJ 230
 Applying to the situation, Othai who is an old professional thief aided them on how the
theft must be done to ensure its success. The briefing covered the floor plan of the exhibition
hall, the security system in place, the exact location where the painting was kept at night and
the way they may get their hands on it. This information had aided John, Dick, and Harry for
to commit attempted robbery. Moreover by aiding John, Dick and Harry, he falls into Section
107 of Penal Code as
As per Penal Code, Othai is liable for abetment under section 108 by aiding the robbery
with a full discussion of floor plan of the exhibition hall, the security system in place, the exact
location where the painting was kept at night and the way they may get their hands on it. As
Othai is a professional theft and he knows the circumstances of aiding John, Dick and Harry
which is the robbery thus prove mens rea is present. In conclusion we can say that Othai is
criminally liable for his action as an abettor.