INCHOATE OFFENCES:

1. Attempt
2. Conspiracy

1
 INTRODUCTION
Inchoate offence: Offence committed by
doing an act with the purpose of effecting
some other offence.
Fletcher An offence relative to the
offence-in-chief

2
attempt

3
 Introduction
An intentional act which a person does
towards the commission of an offence but
which fails in its object through
circumstances independent of the volition
of that person - State of U v Ram Charan
AIR (1962) All 359

4
Guilty Preparation Attempt
CRIME
mind !!!

Eg.: Thiangiah & Anor v PP [1977] 1 MLJ 79

5
 The Penal Code have general & specific
approach dealing with the issue of attempt:
i. Commission of an offence & the attempt to
commit it are dealt with in the same section,
and extent of punishment is similar for both
ss. 121, 377A, 385, 386
ii. Attempts for committing specific offences are
dealt with side with the offences but separate
punishment ss. 307, 308, 393
iii. General provision to cover cases falling outside
the prior two categories s.511

6
 s.511, PC
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 such 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:
Provided that any term of imprisonment imposed
shall not exceed one-half of the longest term
provided for the offence.
7
 s.511 does not define an attempt. It only states
what attempts are themselves offences.
Before an attempt is itself an offence it must
satisfy two conditions:
1. It must be an attempt to commit an offence
punishable by the Code or by any other written
law.
2. There must be an act towards the commission of
the offence.

8
 s.511 applies to attempts for offences
that are punishable with imprisonment &
fine
It only applies to offences which are not
covered by express provision

9
 Elements
1. The accused intended to commit an offence, or
attempted to cause such offence to be
committed
2. The accused did some act towards the
commission of that offence

10
 Mens rea
Generally, a person can only be convicted for an
attempt to commit an offence if he has the
intention to commit that complete offence
regardless that the offence can be convicted
with knowledge or negligence.
Although s.511 does not clearly indicates the
requirement of mens rea, judicial precedent
expressly set such element.
Eg: R v Mohan [1976] QB 1 (CA, Criminal
Division);

11
 Attempt is essentially a crime of mens rea as
the actus reus is only secondary in nature.
Hence, only the clearest form of mens rea
should be accepted i.e. intention.
This approach is also applicable to other specific
attempt provisions where no indication is given
as to the requisite mens rea.
Eg: ss. 309; 393; 385.
However, there are differences held by the
judges in distinguishing the requirement (test)
of mens rea under s.511 and attempt under ss.
307 and 308
12
 S.511
The provision is silent on
the required mens rea
There must be an
intention to commit the
complete offence
Eg: Abhayanand Mishra
AIR [1961] SC 1698;
State Maharashtra v
Mohd Yakub [1980] SCC
(Cri) 513
SS.307 & 308
Specify the required mens
rea intention or
knowledge
The mens rea of attempted
murder or culpable
homicide is the same as
that of murder itself.
Eg: Om Prakash v State of
Punjab, PP v Edmund
Jammy Ngali, PP v Ong Poh
Chen
13
 Actus reus
It is not easy to prove it is not entirely clear
when an act constitutes an essential ingredient
of attempt
It must be shown that the act was done at any
stage of the commission, proximate to the
commission of the offence
Test: based on fact and common sense depend
on the circumstances
What is required is that an accused must have
proceeded beyond the stage of preparation

14
 Attempt vs. Preparation
Mere preparation for the intended crime before
the actual commencement of the offence itself
does not amount to an attempt.
Attempt involves certain degree of proximity
to the commission of the offence.
Attempt to commit an offence can be said to
begin when the preparations are complete and
the offender commences to do something with
the intention of committing the offence or a step
towards the commission of the offence.

15
 Test
There is no definite principle to determine
proximity of an act with the commission
of an offence.
However, based on precedents, court
have adopted various approaches to test
the proximity
(refer to textbook pp. 992 - 997)

16
1. The accuseds action must be proximate to the
completed offence he must be beyond the
stage of mere preparation
. R v Eagleton, Thiangiah v PP
. Mohd Ali Jaafar v Public Prosecutor [1998] 4 MLJ
210 - There was sufficient evidence to show that
the appellant had attempted to obtain sexual
favours from the complainant. There were steps
taken towards the actual commission of the
offence.
. Distinguish with PP v Zainal Abidin bin Ismail &
Harischandra Narayan Khardape v State of
Maharashtra
17
2. Equivocality test Actions revealed with
certainty the intention of the accused to commit
the offence
. State Maharashtra v Mohd Yakub [1980] SCC
(Cri) 513
. PP v Kee Ah Bah [1979] 1 MLJ 26

18
3. Last act test all the acts necessary to commit
the substantive offence must be done
. Although this test is said to be rejected by
precedents, the existing provisions under s.307
suggested the applicability of the test
. Eg: Om Prakash v State of Punjab; State of
Maharashtra v Bairam Bama Patil
. Illustration (c) and (d)

19
 ATTEMPT TO CAUSE
ATTEMPTED MURDER
GRIEVOUS HURT

20
 Attempt of impossibility
An attempt to do something which is not an offence
is not punishable. However, in Malaysia,
impossibility of performance still tantamount to an
attempt to commit an offence.
Illustration (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.
Illustration (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.
21
 There are several types of impossibility:
1. Physical impossibility it is physically impossible
for the accused to commit the offence,
regardless of the means he adopted.
2. Legal impossibility Accused has done
everything he means to do but in fact, and
unknown to him, what he has done does not
amount to a crime
3. Impossibility due to ineptitude the offence is
impossible to be committed due to the accused
inability, inefficiency or he adopted insufficient
means.
22
CONSPIRACY

23