Robbery

It is theft or extortion in an aggravated form.

Thus, the elements of theft or extortion must be present in addition to the
aggravated circumstances set out in robbery.

Section 390(2) provides for the circumstances when theft constitutes robbery.
Section 390(3) provides for the circumstances when extortion constitutes robbery.

For that end

Section 390(2) provides for the circumstances when theft constitutes robbery.
The word for that end must be related to the commission of theft.
Therefore, where an assault has no relation to the theft, robbery is not
committed
I.E. the accused first assaulted the complainant and then subsequently
formed an intention to take his watch, he cannot be liable for robbery but
only for theft.

Bishambar Nath v Emperor

The applicants tried their luck at a dart shooting stall at a carnival. An altercation
ensued with the manager. A scuffle broke out and thereafter the applicants removed
a cash box and money from a table.
Held

There is no robbery. (There may be theft)

For that end in section 390(2) clearly mean the criminal act (in this casehurt) caused by the offender must be with the express object of facilitating
the committing of theft; or must be caused while the offender is committing
the theft or is carrying away or attempting to carry away the property
obtained by theft.
It doesnt mean that the assault or the hurt must be caused in the same
transaction or in the same circumstances.
It must be proven: the criminal acts IE hurt was committed in order to the
committing of theft carry away property obtained by the theft.
The hurt contemplated must be a conscious and voluntary act on the part of
the thief for the purpose of overpowering resistance on the part of victim.
Here, the assault bears no relation to the commission of the theft. Of course,
there is no doubt that the theft was committed. In this case, the assault and
theft were 2 separate acts.

Muda bin Zainal v PP

The appellants were found guilty under s395 and s397. However, the trial judge
sentenced them only under s 395, reasoning that the 2 offences consisted of the
one and the same transaction and the punishments under both sections were
similar.
Held
It would not be right to frame two separate charges in a case of this kind, for there
is only one offence.
Section 397 is not intended to include gang-robbery and does not create a separate
offence in conjunction with section 395.
in a case of armed robbery it is the usual practice to frame one charge in which it
is stated that the accused is punishable under sections 392 and 397. If the
prosecution fails to prove that the robber was armed, a conviction under section
392 only is recorded.
This is because when a person is convicted under section 395, no purpose would be
served by invoking section 397 because it would not increase the punishment in any
way.

Is s 397 a separate/substantive offence and therefore attracts s34?

Whether s 397 creates a separate offence has been raised in a number of cases
Conflicting views
(i) s 397 creates a substantive offence and s 34 can be invoked. This means that
other offenders who were not armed with or did not use deadly weapons could be
jointly liable with the offender.
(ii) s 397 merely prescribes an additional punishment for this aggravated form of
robbery; there is no scope for the application if s 34.

Non applicability of s 34 to s 397

S397 is only an additional provision to other substantive offence. It states that in
addition to any other punishment to which he may be liable under any other section
of the Code
Tan Chew Man v PP

S 397 does not constitute a separate offence.

It only provides an additional punishment for the person or persons who at
the time of committing or attempts to cause death or grievous hurt". in
addition to any other punishment under any other section of this Code

Subramaniam v PP

S397 aims at the particular offender who is thus armed attempts to cause
death or grievous hurt; not against the associates with such armed offender
in the commission of robbery where himself is not armed with a deadly
weapon and does not himself cause grievous hurt or attempts to cause death
or grievous hurt to any person.
The joint liability of two or more persons in the doing of a criminal act under
section 34 of the Penal Code does not extend to section 397.
Section 397 provides for the imposition of an additional sentence and
its provisions are to be invoked only against an offender who actually acts
in contravention of that section; not to other person no matter how much
that person may have acted in concert and in furtherance of the common
intention to commit robbery.
In the present case only one of the three robbers was armed with a knife- a
deadly weapon within the meaning of section 397. The other two were not
armed nor did they cause grievous hurt or attempt to cause death or
grievous hurt to any person. Thus, the additional punishment of whipping
under section 397 could only be imposed against the armed offender.

Applicability of s 34 to s397
R v Yeo Kim Watt
The appellants were jointly charged under s 392 and s397. 2 ND A was armed with a
deadly weapon but 1st A was not. It was argued on behalf of appellants that by
comparing s 394 such person and any other person with s 397 such offender, s
397 does not create a distinct offence and s 34 cant be applied.
Issue: Does s397 create a separate offence or that it merely prescribes a
punishment for an offence already defined in the Code. In another words, is the
offence prescribed under s 397 distinct from robbery which is punishable under s
392 or attempted robbery punishable under s 393?
HELD - Apart from being liable under s 392, the appellants were equally liable
under s 397 (1st A liable by virtue of s 34).
The court refer to a number of examples in the code where the commission of an
offence in specified aggravated circumstances is made an offence quite separate
and distinct from the non-aggravated offence. IE:
(i) s 382 is entirely different from s 379
(ii) Voluntarily causing hurt by the means of weapons or means set out in s 324
is different from offence punishable under s 323.

(a)
Comparison of the language of section 397 with that of section 394 is of no
assistance as to whether section 34 applies to section 397 because the provisions of
section 394 are sufficient in themselves to deal with all the persons committing
robbery with hurt without recourse to section 34.
(b)
By section 9 of the Penal Code it is provided that words in the singular include the
plural and therefore the word "offender" in section 397 can be interpreted as
including more than one person.
(c)

Section 397, when read with section 392 or section 393, creates separate and
distinct offences from the offences prescribed by the two last mentioned sections to
the same extent that the offence of theft in any of the aggravating circumstances
set out in section 382 is an offence different from theft under section 379 and just
as voluntarily causing hurt by the weapon or the means set out in section 324 is not
the same offence as that which is punishable under section 323 for voluntarily
causing hurt.
(d)
That since section 392 or section 393, read together with section 397, creates
separate and distinct offences, there is no reason why section 34 should not apply
to those offences to the same extent as it applies to other offences.
With regard to the reference, therefore, this Court decides that the provisions of
section 34 of the Penal Code are applicable to section 397 of that Code in respect of
the offences defined when that section is used conjointly with section 392 or section
393.

Refer Tutorial PP v Sanli bin Sunggoh