(1999) 1 SLR (R) 0826 Chua Kian Kok V PP

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SINGAPORE LAW REPORTS (REISSUE)
[1999] 1SLR(R)
Chua Kian Kok

v
Public Prosecutor
[1999] SGHC 65
High Court Magistrates Appeal No 108 of 1998
Yong Pung How CJ
2 February; 22 March 1999
Criminal Law Abetment Whether necessary for commission of actual offence
Sections 107(b) and 109 Penal Code (Cap 224, 1985 Rev Ed)
Criminal Law Attempt Defence of impossibility Scope and validity of defence
Section 511 Penal Code (Cap 224, 1985 Rev Ed)
Criminal Law Attempt Mens rea and actus reus Section 511 Penal Code
(Cap 224, 1985 Rev Ed)
Criminal Law Attempt Whether accessory should be charged differently
Criminal Law Offences Property Cheating Dishonest inducement of
delivery of property Scope of offence Sections 415, 417 and 420 Penal Code
(Cap 224, 1985 Rev Ed)
Facts
The appellant, Chua, a partner of TT Hardware Supplies (TT), was convicted
of abetting Guok Sing King (known as Allen), a warehouse supervisor at
Nordberg (S) Pte Ltd (Norberg), by conspiring to cheat Nordberg into paying
TT under the mistaken notion that the payment was for goods ordered by
Nordberg. Under their scheme, Allen would sell goods to TT Hardware Supplies
cheaply and then pretend to take delivery of them on Nordbergs behalf by
signing false delivery notes. Chua would then invoice Nordberg for these goods
which Nordberg never received. Allen was convicted of criminal breach of trust.
Chua denied the conspiracy and claimed that he received genuine purchase
orders from Allen.
Held, dismissing the appeal:
(1) There was a possible overlap between s 417 and s 420 of the Penal Code
(Cap 224, 1985 Rev Ed). It was clear that s 420 was intended to penalise, in
particular, cheating by dishonest inducement of delivery of property more
severely than other forms of cheating encapsulated in s 415. To avoid
duplication of requirements, s 420 should be read as if the words cheats and
thereby were omitted: at [21] and [23].
(2) The mens rea of attempt was intention. The accused must intend to
commit the substantive offence, even though a lower mental state would have
sufficed to satisfy the ingredients of the substantive offence: at [26].
(3) It was neither advantageous nor desirable to lay down a precise definition
of the actus reus of criminal attempt. The actus reus of an attempt was satisfied
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Chua Kian Kok v PP
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when an offender had embarked on the crime proper. This was a point in time
midway between a series of acts and crossing the Rubicon: at [36].
(4) The defence of impossibility in the law of attempt could be divided into
four types: (a) physical impossibility; (b) impossibility because of the noncriminality of the intended offence; (c) legal impossibility; and (d) impossibility
through the ineptitude of the would-be criminal. Only (b) could constitute a
valid defence in the law of criminal attempt: at [43] to [45].
(5) The offence of abetment by conspiracy was made out once there was a
conspiracy or agreement to commit the offence and an act was done in
consequence of the conspiracy. There was no need for the actual offence to be
committed: at [51].
(6) The principle that an abettor might be liable even though the principal
offence was not committed should be extended to cover abetment by intentional
aiding as well: at [59].
(7) The fact that the appellant was convicted of an offence different from that
of the principals did not present any difficulty as an accessorys liability was not
derivative under the Penal Code: at [62].
(8) An appellate court would not disturb the findings of fact of a lower court
unless they were clearly reached against the weight of the evidence. The court
was not convinced that the trial judges findings on the facts should be
overturned: at [69] and [73].
Case(s) referred to
Anderton v Ryan [1985] AC 560 (refd)
Attorney Generals Reference (No 3 of 1992) [1994] 2 All ER 121 (refd)
Bank of England v Vagliano Bros [1891] AC 107 (folld)
Daw Aye Aye Mu v PP [1998] 1 SLR(R) 175; [1998] 2 SLR 64 (folld)
DPP v Stonehouse [1978] AC 55 (distd)
Faguna Kanta Nath v The State of Assam AIR (46) 1959 SC 673 (refd)
Garmaz s/o Pakhar v PP [1996] 1 SLR(R) 95; [1996] 1 SLR 401 (folld)
Govindarajulu Murali v PP [1994] 2 SLR(R) 398; [1994] 2 SLR 838 (distd)
Gunasegeran s/o Pavadaisamy v PP [1997] 2 SLR(R) 946; [1997] 3 SLR 969
(folld)
Jamuna Singh v State of Bihar AIR (54) (1967) SC 553 (refd)
Knight Glenn Jeyasingam v PP [1992] 1 SLR(R) 523; [1992] 1 SLR 720 (folld)
Lim Ah Poh v PP [1992] 1 SLR(R) 192; [1992] 1 SLR 713 (folld)
Mohd Ali Jaafar v PP [1998] 4 MLJ 210 (refd)
Ong Ah Yeo Yenna v PP [1993] 1 SLR(R) 349; [1993] 2 SLR 73 (distd)
PP v Yeo Choon Poh [1993] 3 SLR(R) 302; [1994] 2 SLR 867 (folld)
R v Cogan [1976] QB 217 (refd)
R v Collins (1864) 9 Cox CC 497 (refd)
R v Gullefer [1990] 3 All ER 882 (folld)
R v Khan [1990] 2 All ER 783 (refd)
R v Mohan [1976] QB 1 (refd)
R v Shivpuri [1987] AC 1 (refd)
828
[1999] 1SLR(R)
R v Smith (Roger) [1975] AC 476 (refd)

Sim Cheng Hui v PP [1998] 1 SLR(R) 670; [1998] 2 SLR 302 (folld)
Sundara Moorthy Lankatharan v PP [1997] 2 SLR(R) 253; [1997] 3 SLR 464
(folld)
Tan Khee Koon v PP [1995] 3 SLR(R) 404; [1995] 3 SLR 724 (folld)
Thiangiah v PP [1977] 1 MLJ 79 (folld)
Legislation referred to
Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 18
Penal Code (Cap 224, 1985 Rev Ed) ss 107(b), 109, 415, 417, 420, 511 (consd);
ss 24, 108, 115, 116, 120A, 120B, 378, 408, 493
Criminal Attempts Act 1981 (c 47) (UK) s 1(1), 1(2), 1(3)
Criminal Damage Act 1971 (c 48) (UK) s 1(2)
David Rasif (David Rasif & Partners) for the appellant;
Wong Keen Onn (Deputy Public Prosecutor) for the respondent.
22 March 1999
Yong Pung How CJ:
Introduction
1
The appellant was convicted on 13 charges of abetting an attempted
cheating and was sentenced to nine months imprisonment.
The charge
2
DAC 17055/97
You, Chua Kian Kok (M/37 years) NRIC No S 1351036-I are charged
that you sometime in the month of February 1996 in Singapore did
engage with one Guok Sing King in a conspiracy to do a certain thing,
namely, to cheat, and in pursuance of the conspiracy and in order to
the doing of that thing, an act took place on or about 1 February 1996
at TT Hardware Supplies located at No 2, Rowell Road, Singapore, to
wit, you made out a false delivery order number 49930 for eight pieces
of SPC KF 22328 bearing valued at $4,160 and two pieces of SKF 22324
bearing valued at $960 with GST amounting to $153.60 cents and
addressed it to Nordberg (S) Pte Ltd which you presented to the
warehouse supervisor one Guok Sing King for him to append his
signature to acknowledge receipt of the said property when you knew it
was false and thereafter, you sent an invoice bearing number 34587 for
the above mentioned items to Nordberg (S) Pte Ltd in an attempt to
deceive Nordberg (S) Pte Ltd into believing that the said items were
received by their warehouse supervisor Guok Sing King at No 8 Gul
Drive, Singapore, which you both knew was false, and by such manner
of deception, you dishonestly attempted to induce Nordberg (S) Pte
Ltd to release payment for the said items to you and you have thereby
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abetted an offence of attempted cheating, which act was committed in

consequence of your abetment, and you have thereby committed an
offence punishable under s 511 read with s 109 and s 420 of the Penal
Code (Cap 224).
The other 12 charges were similar except for the dates of the offences, the
delivery orders and the amounts involved.
The facts
3
Before going into the facts of the appeal proper, an account of the
purchasing and accounting procedures of Nordberg (S) Pte Ltd
(Nordberg) and TT Hardware Supplies (TT) will first be summarised.
As a backdrop to the facts, this will allow a better understanding of the
significance of the actions of the parties concerned.
4
When Nordberg decides to purchase something, the first step in the
process is to raise a purchase order (PO). This is done by the purchase
manager, one Soo Kook Sooi (Soo). The PO is sent to the supplier either
by fax or mail. Sometimes, a call will be made to the supplier first to order
the items and the PO is only sent after the price has been agreed. When
suppliers deliver goods to Nordberg, a delivery note (or delivery order) is
signed by one Allen Guok Sing King (Allen), who is the warehouse
supervisor. Sometimes, in the interest of expediency, Allen will go to the
suppliers premises and collect the goods. In these cases, the delivery note is
signed at the suppliers premises. After receiving the goods, Allen will raise
a Goods Received Note (GRN). When the supplier sends his invoice over
to Nordberg for payment, Soo will check the invoice against the GRN. If the
invoice is in order, Nordberg will make payment to the supplier.
5
Even to an untrained logistician, the above system is a sound one. The
PO represents Nordberg telling the supplier: I want to buy X goods. The
delivery note represents Nordberg acknowledging to the supplier that X
goods have been received. The issuance of the GRN tells the accounting
department that X goods have been received by the warehouse. The invoice
from the supplier represents a demand for payment for the provision of X
goods. Before paying out money to the supplier, the purchasing manager
checks the GRN against the invoice and the PO to ensure that they are
paying for what was originally ordered and received.
6
TTs supply and accounting procedures are as follows. When a
purchaser wants to purchase goods from TT, he will normally call up first.
If TT is able to supply the goods required, and he is satisfied with TTs price
quote, a purchase order is sent over. TT will then deliver the goods to the
purchaser. Upon receipt of the goods, the TT delivery men will collect a
signed delivery note from the purchaser and return to TT with it. With this
delivery note, TT raises an invoice and sends it over to the purchaser for
payment. If the parties in this case had complied with these procedures, all
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would have been well. However, their failure to do so denied them the
protection provided by the system.
7
The facts may now be set out. The appellant is a partner of TT. In
May 1996, the Nordberg accountant discovered discrepancies re-occurring
in the daily accounting procedures. Nordberg was being billed by TT for
certain items which had GRN numbers that were not in the system. In other
words, the bills were for goods that Nordberg had not received. As stated
above, Allen was the person in charge of generating these GRN numbers.
Attempts to elicit an explanation from him were unsuccessful. Accordingly,
a police report was lodged.
The prosecution case
8
The prosecution case was that the appellant had abetted Allen by
conspiracy in an attempt to cheat Nordberg by deceiving it to pay moneys
to TT under the mistaken notion that it was for goods genuinely ordered
and received by Nordberg. The Prosecutions main witness was Allen. He
testified that he had approached the appellant and told him that he could
buy goods, which Nordberg would find useful, at a very low price. He
would sell them to the appellant at a low price and then pretend to take
delivery of them on behalf of Nordberg by signing the delivery note. The
appellant would then generate an invoice to Nordberg based on this
delivery note. In accordance with the arrangement, whenever Allen
received the materials, he would go down to the appellants office where he
would sign the delivery note indicating that Nordberg had accepted
delivery of the materials. This occurred many times between February 1996
and April 1996. The appellant would then issue him a cheque for
approximately half the amount on the delivery note. The materials never
passed through TTs possession and were often never received into
Nordbergs warehouse as well.
9
Allen also testified further that, when Nordberg discovered the
discrepancies in the accounts, they had contacted the appellant and asked
him not to take any more orders from him (Allen). In response to this, the
appellant called him and asked him, What is the problem? What is
happening?
The defence at the trial
10 The defence was simply that the appellant was never a party to any
conspiracy to cheat Nordberg. While he was approached by Allen to buy
cheap materials from him to sell to Nordberg, he did not agree to do so. He
instead remained silent throughout and ignored him.
11 The appellant also testified that Allen had placed orders for certain
materials by phone in early February 1996. He then came down to TTs
office to sign the delivery note. However, he did not take delivery. Instead,
[1999] 1SLR(R)
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he told the appellant to hold onto the goods first as he was waiting for the
vessel (which would take the materials to Nordbergs project site) to arrive
first. The appellant stated that he had no reason to believe that Allen was
not making an authorised purchase on behalf Nordberg. He knew that
Allen had been promoted to warehouse supervisor. As such, he thought
that Allen had the authority to make purchases on behalf of Nordberg. This
happened a number of times from February until April 1996. The appellant
said that it was not unusual for his customers to ask for delivery to be put
on hold even though they had already signed the delivery note. The
appellant then proceeded to issue invoices to Nordberg based on these
delivery notes signed by Allen. These invoices did not reflect the PO
numbers as neither Allen nor any other representative from Nordberg had
given him any. The court below raised the question as to how an invoice
could be issued without the PO number being recorded. The appellant
answered that it was not unusual to issue invoices in such a manner. The
Defence submitted previous invoices from TT to Nordberg that also did not
reflect the PO numbers. Again, apparently it was also not unusual for TT to
bill customers before the goods had been delivered.
12 The trial court queried the appellant as to how he could allow Allen to
sign a delivery note when they did not have any goods to deliver. There
were never any materials in TTs possession, yet at the same time the signed
delivery notes indicated that goods had been delivered. The appellant
explained that the materials ordered by Allen were common items which
could be obtained from TTs suppliers at any time.
13 As to some cheques which he had issued in favour of Allen, the
appellant maintained that they had been personal loans as Allen had been
in financial difficulty and he had taken pity on him. During crossexamination, the DPP asked him why he would lend Allen a sum
amounting to $12,855 as he did not know him socially. The appellants
answer was that Im of a very soft nature. I had lent money to quite a
number of my friends. Allen is not the only one. The appellant also stated
at another point that he was willing to lend money to Allen as Allen would
bring business to him in return (ie by buying things from him on behalf of
Nordberg). Another question raised by the DPP was about the length of
postponement of delivery. At the time of the trial, some goods still had not
been delivered. This meant that delivery had been put on hold for a year.
The appellants answer was that Up to now Nordberg has not asked for
delivery.
The decision below
14 The trial judge was satisfied that there was a collaboration between
the appellant and Allen to deceive Nordberg into thinking that goods had
been received in the Nordberg warehouse by putting up false delivery notes
signed by Allen. In this way, they could induce Nordberg to make payment
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[1999] 1SLR(R)
for the fictitious sale and delivery of the goods. She held that, if the
appellant was innocent, he would have had the goods in his possession.
However, by his own admission, he never had. She further held that, while
the main prosecution witnesss evidence was in substance accomplice
evidence, this did not materially affect the weight or credibility of the
evidence. This was because there was no reason why Allen would lie and
implicate him. The appellant could not furnish any explanation. At the
same time, she also found the appellants defence to be weak, inconsistent
and incoherent whereas Allens evidence was independently supported by
the amounts of the payments the appellant had made to Allen. The amounts
of many of the cheques (D3) supported Allens evidence that he was paid
about half the face value of each delivery order as had been agreed by him
and the accused.
15 The trial judge also disbelieved the appellants explanation for the
cheques issued to Allen and dismissed it as a lie. She also pointed to the fact
that the accused had said that, after he had given a statement to the police,
Allen called him and told him that, if he was questioned by the police, he
should just say that the goods had been delivered to Nordberg. She stated
that this indicated that there was an illicit partnership between the appellant
and Allen. This would also explain why he had called Allen, after being told
by Nordberg not to accept any more orders from Allen, and told him that
he had given him so much trouble.
16 After convicting the appellant, the trial judge meted out the following
sentences:
P1A
Three months imprisonment
P3
Two months imprisonment
P4A
Four months imprisonment
P5
P6
P7A
P8
P9
P10
P11
P12
Two weeks imprisonment
P13
P15
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Chua Kian Kok v PP
833
The above sentences were given after the trial judge had taken into account
the fact that the offence was inchoate in nature as well as the mitigation of
the appellant. Pursuant to s 18 of the Criminal Procedure Code (Cap 68)
she ordered that three charges, P1A, P3 and P4A, run consecutively and
hence the appellant was sentenced to a total of nine months imprisonment.
The law
17
The trial judge held that the ingredients of the offence were:
(a)
a conspiracy to deceive a person
(b) inducement of that person so deceived to deliver any property

to any person and
(c) the conspirators intention to cause wrongful gain to one person
or wrongful loss to another person.
In addition, according to s 107(b) of the Penal Code, an act or illegal
omission must take place pursuant to that conspiracy, and in order to the
doing of that thing.
18 The above formulation rather oversimplified the task of the
Prosecution. The charge that the appellant was facing was that of abetment
by conspiracy of the offence of attempted cheating. This offence is
punishable under s 511 read with s 109 and s 420 of the Penal Code. It can
immediately be seen that there are three elements to the offence, namely:
(a)
an abetment by conspiracy;
(b)
of an attempt;
(c)
to cheat
Every element has to be proved beyond reasonable doubt before the offence
can be established. Each element also has its own ingredients which have to
be substantiated before the element itself is made out. It is by no means a
simple task for the Prosecution to prove that there has been an abetment by
conspiracy of the offence of attempted cheating.
Cheating
19 The definition of cheating is set out in s 415 of the Penal Code. It
states that:
Whoever, by deceiving any person, fraudulently or dishonestly induces
the person so deceived to deliver any property to any person, or to
consent that any person shall retain any property, or intentionally
induces the person so deceived to do or omit to do anything which he
would not do or omit if he were not so deceived, and which act or
omission causes or is likely to cause damage or harm to that person in
body, mind, reputation or property is said to cheat.
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[1999] 1SLR(R)
As correctly pointed out by L P Thean J (as he then was) in Knight Glenn

Jeyasingam v PP [1992] 1 SLR(R) 523 at [14] and [15], s 415 envisaged two
different levels of criminality. First, deception by fraudulently or
dishonestly inducing a person so deceived to deliver any property to any
person, or to consent that any person shall retain any property. Secondly,
deception by intentionally inducing the person so deceived to do or omit to
do anything which he would not do or omit if he were not so deceived, and
which act or omission causes or is likely to cause damage or harm to that
person in body, mind, reputation or property.
20 As the appellant was charged under s 420, some additional conditions
must also be satisfied by the Prosecution. Section 420 states that:
Whoever cheats and thereby dishonestly induces the person deceived
to deliver any property to any person, or to make, alter or destroy the
whole or any part of a valuable security, or anything which is signed or
sealed, and which is capable of being converted into a valuable security,
shall be punished with imprisonment for a term which may extend to 7
years, and shall also be liable to fine.
I have had occasion to set out the ingredients of s 420 in Gunasegeran s/o
Pavadaisamy v PP [1997] 2 SLR(R) 946 at [42][44]:
Firstly, the victim must be deceived. To put it another way, deception
must have been practised on the victim. This is to state the obvious, as
this is the whole basis for a charge being brought against the deceiving
party.
Secondly, there must have been an inducement such that the victim
delivered any property to any person. There is no requirement that this
inducement must necessarily be oral, although in most cases that
would usually be the case. There is also no need for this inducement to
be express, as compared to it being inferred. As an example, the
deceiving party need not specifically induce the victim to deliver some
property (eg by saying or doing something specifically such that the
victim was induced), if it could reasonably be inferred from the
surrounding circumstances that this was clearly what the deceiving
party was seeking to do (ie if the totality of the actions of the deceiving
party pointed to him trying to induce the victim to deliver some
property, even though any particular act of the deceiving party, when
taken alone, may not amount to an inducement enough to induce the
victim to deliver up some property). Further, this inducement must
lead to the delivery of the property. If there was delivery of some
property but no inducement by the deceiving party, then it can hardly
be said that there was any form of cheating, even if the deceiving party
had the intention to cheat. The whole purpose of s 420 lies in the
protection of innocent parties against being cheated by unscrupulous
persons. Thus, if the deceiving party failed to do anything which the
innocent party relied on, such that he or she delivered some property,
this would hardly be considered to be cheating. In addition, there is no
requirement that the property delivered must belong to the victim (see
[1999] 1SLR(R)
Chua Kian Kok v PP
835
PP v Singh Kalpanath [1995] 3 SLR(R) 158) nor must the property be

delivered to the person who deceived the victim. In my opinion, the
wording of s 420 was not meant to be so narrow that there could only
be cheating when the victim delivers property to the deceiving and
dishonest party through his inducement. Similarly, in Seaward III
Frederick Oliver v PP [1994] 3 SLR(R) 89, I held that the inducement
need not be the sole or even main reason for the delivery of the
property by the deceived party. So long as the deceiving partys
deception played some part in inducing the victim to deliver some
property, this element in the offence would be satisfied. As to what
constituted property, it is not in dispute that money for the purposes of
cheating amounted to property.
Finally, there must be a dishonest or fraudulent intention on the part of
the deceiving person to induce the victim to deliver the property (ie to
cheat) before the offence could be made out. This would constitute the
mens rea for the offence, and relates substantially to the definition of
cheating as in s 415.
21 However, a closer examination of s 420 reveals a possible overlap with

s 417, which is the punishment for simple cheating. Section 420 specifically
states that whoever cheats and thereby dishonestly induces the delivery of
property shall be punished. This seems to suggest that, apart from the three
conditions listed in Gunasegeran s/o Pavadaisamy v PP, it must also be
shown that the accused had cheated. However, when we look at the
definition of cheating in s 415, we see that the first limb of cheating, ie
fraudulently or dishonestly induces the person so deceived to deliver any
property to any person , substantially overlaps with the Gunasegeran s/o
Pavadaisamy conditions set out above. This appears to make the additional
requirement for the accused to have cheated in s 420 to be redundant.
22 Commentators have struggled unsuccessfully to reconcile this
duplication between s 417 and s 420. Ratanlal & Dhirajlals Law of Crimes
(24th Ed) at p 2104 states that:
The difference between s 417 and s 420 is that, where, in pursuance of
the deception, no property passes, the offence is one of cheating
punishable under s 417, but where, in pursuance of the deception,
property is delivered, the offence is punishable under s 420. In every
case where property is delivered by a person cheated, there must
always be a stage when the person makes up his mind to give the
property on accepting the false representation made to him It cannot
be said that in such cases the person committing the offence can only
be tried for the simple offence of cheating under s 417 and cannot be
tried under this section because the person cheated parts with his
property subsequent to making up his mind to do so.
The vital difference between offences under s 417 and s 420 is that
whereas an offence against the latter section is a cognizable one, that
against the former is noncognizable and investigation of it can only be
undertaken by the police on the instructions of a Magistrate, whereas
836
[1999] 1SLR(R)
in the other case the policy can act on their own motion under
sections 154 and 156, Criminal Procedure Code, 1973.
With all due respect, the learned authors do not really explain the
duplication between the requirement for cheating and dishonest
inducement of delivery of property. All that the learned authors have said is
that s 417 covers simple cheating cases whereas s 420 covers aggravated
cheating cases. Aggravated cases are those where the cheating involves a
dishonest inducement of delivery of property. Conversely, simple
cheating cases are those where the other limbs of cheating as defined in
s 415 are made out, such as intentional inducement or dishonest
inducement of consent to retain property. This is undoubtedly correct as
s 420 carries a far heavier maximum sentence of seven years compared to
the maximum of one year in s 415. However, it does not help us in
reconciling the redundancy.
23 In my opinion, the courts should not apply a strict literal construction
of s 420 as it would give an unacceptable result owing to the duplication of
the requirements that seems to be envisaged by the section. Looking at
s 415, s 417 and s 420 as a whole, and in particular the comparative gravity
of sentences in s 417 and s 420, it is clear that the draftsman was
endeavouring to create a more serious offence of cheating in s 420. The
intention was to penalise, in particular, cheating by dishonest inducement
of delivery of property, more severely than the other forms of cheating
encapsulated in s 415. Accordingly, s 420 should be read as if the words
cheats and thereby were omitted. As such the three conditions in
Gunasegeran s/o Pavadaisamy v PP form the only requirements for a
conviction under s 420. This manner of statutory construction is of course
an untidy solution which can only be justified by the fact that it is the only
way to make sense of the statute in question. One can only hope that
Parliament will take legislative action and amend s 420 to remove this
redundancy.
24 Before I move on to the next issue, I would like to touch on the ambit
of the third condition in Gunasegeran s/o Pavadaisamy v PP. The third
condition is that of fraudulent or dishonest intention on the part of the
accused. While s 415 speaks of either fraudulently or dishonestly inducing
the delivery of property, s 420 only has one mens rea, ie dishonesty. In my
view, to distinguish between fraudulently and dishonestly is an exercise
in the linguistic equivalent of splitting horse hair. However, it has also been
agreed before me that the statute treats them as two distinct concepts. If the
words fraudulently and dishonestly are taken to mean the same thing,
the use of these two words in s 415 becomes a mere surplusage. There is
some truth in that and I would thus like to clarify that the third condition in
Gunasegeran s/o Pavadaisamy v PP is that the accused had a dishonest
intention only. Dishonestly is of course defined in s 24 as whoever does
[1999] 1SLR(R)
Chua Kian Kok v PP
837
anything with the intention of causing wrongful gain to one person, or

wrongful loss to another person, is said to do that thing dishonestly.
Attempt
25 The law of criminal attempt is set out in s 511 of the Penal Code as
follows:
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 the 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.
26 In order to be convicted of an attempt to commit an offence under

s 511, the mens rea and the actus reus have to be proved. The mental
element required by s 511 has not been the subject of much local judicial
pronouncement. The only case that considered this issue was Tan Khee
Koon v PP [1995] 3 SLR(R) 404. In that case, I had to deal with the
argument that certain charges faced by the appellant in that case were bad
for duplicity. The duplicitous charges were for the commission of an
offence and for the attempted commission of another offence where the
first offence actually formed a part of the latter. In analysing the ingredients
of attempt (for the purpose of determining whether it constituted a separate
offence from commission) I approved and adopted the following passage by
Ajaib Singh J in Thiangiah v PP [1977] 1 MLJ 79:
Stephens time-honoured definition of an attempt is still valid and
strong as ever today: 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 were not interrupted.
Ajaib Singh Js adoption of Stephens definition was recently reaffirmed by

Augustine Paul J in Mohd Ali Jaafar v PP [1998] 4 MLJ 210 in the Malaysian
courts. The mens rea of attempt is intention. The accused must intend to
commit the substantive offence, even though a lower mental state would
have sufficed to satisfy the ingredients of the substantive offence.
27 This was also the traditional position in England: see R v Mohan
[1976] QB 1. However, in recent times, the English courts have begun to
move away from this view. In R v Khan [1990] 2 All ER 783, the English
court departed from conventional thinking and held that the mens rea for
rape and attempted rape is the same, ie recklessness as to the consent of the
victim. This was justified by Russell LJ in the following way at 787:
838
[1999] 1SLR(R)
In our judgment an acceptable analysis of the offence of rape is as

follows: (1) the intention of the offender is to have sexual intercourse
with a woman; (2) the offence is committed if, but only if, the
circumstances are that (a) the woman does not consent and (b) the
defendant knows that she is not consenting or is reckless as to whether
she consents.
Precisely the same analysis can be made of the offence of attempted
rape: (1) the intention of the offender is to have sexual intercourse with
a woman; (2) the offence is committed if, but only if, the circumstances
are that (a) the woman does not consent and (b) the defendant knows
that she is not consenting or is reckless as to whether she consents.
The only difference between the two offences is that in rape sexual
intercourse takes place whereas in attempted rape it does not, although
there has to be some act which is more than preparatory to sexual
intercourse. Considered in that way, the intent of the defendant is
precisely the same in rape and in attempted rape and the mens rea is
identical, namely an intention to have intercourse plus a knowledge of
or recklessness as to the womans absence of consent. No question of
attempting to achieve a reckless state of mind arises; the attempt relates
to the physical activity; the mental state of the defendant is the same. A
man does not recklessly have sexual intercourse, nor does he recklessly
attempt it. Recklessness in rape and attempted rape arises not in
relation to the physical act of the accused but only in his state of mind
when engaged in the activity of having or attempting to have sexual
intercourse.
If this is the true analysis, as we believe it is, the attempt does not
require any different intention on the part of the accused from that for
the full offence of rape.
[emphasis added]
28 This decision was subsequently followed by a differently constituted

Court of Appeal in Attorney Generals Reference (No 3 of 1992) [1994] 2 All
ER 121. In that case, the accused were charged with attempted aggravated
arson. The completed offence under s 1(2) of the Criminal Damage Act
1971 (UK) required the Prosecution to prove that accused had in fact
damaged property and either (a) intended to damage property and
intended by the damage to endanger the life of another or (b) intended to
damage property and was reckless as to whether the life of another would
thereby be endangered or (c) was reckless as to whether any property would
be damaged and was reckless as to whether the life of another would
thereby be endangered. The trial court acquitted the accused as there was
insufficient evidence to show that there was an intent to endanger the life of
another. The Court of Appeal overturned the acquittal. Their Lordships
quoted and approved the above passage from R v Khan and held that the
mens rea for attempted aggravated arson was the same as that of the
completed offence. In other words, the Prosecution only had to show that
[1999] 1SLR(R)
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839
the accused intended to damage the property and was reckless as to whether
life was endangered.
29 It is obvious that the judges in both cases were persuaded by the
argument that, when there has been an attempt to commit a crime, it is only
by sheer fortune (or ill-fortune from the would-be criminals point of view)
that it did not materialise. Except for the actual physical commission of the
offence, ie the actus reus, all the ingredients of the offence were otherwise
present. As stated by Schiemann J in Attorney Generals Reference (No 3 of
1992) at 128C, The mental state of the defendant in each case contained
everything which was required to render him guilty of the full offence.
This school of thought also has its supporters within the academic circle;
see Glanville Williams [1983] Crim LR 365; Smith [1962] Crim LR 135.
30 I am not persuaded by this shift in judicial thinking in England. Our
courts should not abandon Stephens definition of attempt. I think there are
two reasons why the mens rea of attempt is the intention to commit the
offence, even though a lower mental state is sufficient to satisfy the full
offence. First, it must be remembered that a s 511 offence is an inchoate
offence, meaning to say, no actual crimes were committed. Without going
too much into jurisprudential theory, it may be said broadly that crimes are
simply acts that have been deemed by society to be injurious to the public
interest. There is public harm (even though it may manifest itself in the
form of harm to a specific individual). Criminal law constitutes an
interference in the freedom of the citizen. This is because the nature of
criminal law is to impose penal sanctions with the result that citizens are
restricted from or compelled to perform certain acts. A person cannot
go around punching other people without justification. A driver must stop
his vehicle when he approaches a red traffic light. However, this
interference with the personal freedom of the public is justified as it
prevents the occurrence of public harm. If the law fails to prevent it, it
punishes the criminal for the infliction of public harm.
31 It is clear that inchoate offences form a special exception. In inchoate
offences, no physical public harm was really done. No one was hurt.
Property was not damaged or stolen. However, the fact that inchoate
offences are punishable under criminal law shows that there is still some
sort of harm inflicted on the public. This public harm is of a lower level than
that which is caused when a full offence is committed. The harm to the
public here is that of the presence of individuals in society who would have
committed crimes if they had been successful in their efforts; individuals
who would have succeeded but for some extraneous and perhaps accidental
reason; individuals who may very well try again if they had the chance. Seen
in this light, it seems right that in order to justify this interference with the
freedom of individuals, there has to be a stricter requirement than that for
the completed offence. This is especially so, when one bears in mind that
the punishment under s 511 is the same as that for the completed offence,
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with the exception that any term of imprisonment imposed shall not exceed
one-half of the longest term provided for the offence. As such, in order to
punish a person under s 511, it must be shown that he intended to commit
the offence, even though a lesser mental state would have sufficed for the
completed offence.
32 Apart from policy, the other reason why R v Khan and Attorney
Generals Reference (No 3 of 1992) should not be followed is that the
reasoning of the courts is rather hard to follow. In both cases, the judges
had to deal with the fact that s 1(1) of the Criminal Attempts Act 1981 (UK)
(the 1981 Act) states that:
If, with intent to commit an offence a person does an act which is
more than merely preparatory to the commission of the offence, he is
guilty of attempting to commit the offence.
What is immediately conspicuous is that the mens rea that seems to be

required by the Act is the same as in Stephens definition. The Act
specifically states that there must be an intention to commit the offence.
The reasoning that their Lordships employed to escape from this
interpretation of the statute was as follows: the word offence in the statute
refers to actus reus of the offence. As long as the accused intended to
perform the actus reus of the offence and had the mental state required for
the completed offence, he was guilty of attempting that offence.
Accordingly, the court in R v Khan concluded that the intent required by
s 1(1) of the Criminal Attempts Act 1981 was the intention to have sexual
intercourse; see [1990] 2 All ER 738 at 790E. In Attorney Generals Reference
(No 3 of 1992), the intention required by the Act was the intention to
damage the property; see [1994] 2 All ER 121 at 128D.
33 With all due respect to their Lordships, this was an artificial and
strained reading of s 1(1) of the 1981 Act. There does not seem to be any
justification for interpreting the word offence to mean only the actus reus
of the offence. In fact, in the latter part of s 1(1), where it is stated that is
guilty of attempting an offence, it is obvious that the word offence is
used there in a sense that means both the mental and physical aspect of a
criminal act. It is most unlikely that the UK Legislature intended to have the
same word to have different meanings within the same sentence.
34 The actus reus element in the law of criminal attempts is also not
without its problems. Under s 511, the attempter needs to have done any
act towards the commission of the offence. In Stephens definition, the
accused had to do an act which formed part of a series of acts which would
constitute its actual commission, if it were not interrupted. The obvious
difficulty is when does this series of acts begin? A literal interpretation is of
course undesirable. A person who intends to steal from X starts walking
towards his house. While in a literal sense this is the first in a series of acts
which would culminate in the commission of the offence if uninterrupted,
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841
it would be fairly absurd to say that he is guilty of attempted theft at that

point in time. The same applies for the doing of any act towards the
commission of the offence.
35 The English courts also have had difficulty grappling with this
problem. The same question of where to draw the line arises when they
interpret the requirement of does an act which is more than merely
preparatory to the commission of the offence in s 1(1) of the Criminal
Attempts Act 1981. Two main formulations seem to have emerged over the
years. The first is the famous Rubicon test. In DPP v Stonehouse [1978]
AC 55 at 65, Lord Diplock stated graphically that The offender must have
crossed the Rubicon and burnt his boats. The other is that propounded by
Lord Lane in R v Gullefer [1990] 3 All ER 882. After rejecting Stephens test
and the Rubicon test, his Lordship stated that the Act envisaged a
midway course. A person can be said to have attempted an offence when
he embarks on the crime proper.
36 It seems to me that it is neither advantageous nor desirable to lay
down a precise definition of the actus reus of criminal attempt. This is
because, the point in time at which a criminal is regarded to have attempted
to bring about an offence is a question of fact that is dependent on all the
surrounding circumstances of the case. Furthermore, criminal offences are
very different in nature. Some offences have more onerous actus reus
requirements. For example, under s 493 of the Penal Code, the actus reus of
the offence is (a) by deceit; (b) causing a woman not lawfully married to the
accused to believe that she was so, and lastly (c) cohabiting or having sexual
intercourse with that woman in which her consent was obtained through
that belief. On the other hand, some offences have relatively simple actus
reus requirements. For example, under s 378 of the Penal Code, the actus
reus of the offence of theft is simply moving property. At the same time
the Rubicon test is unsatisfactory from the view of crime prevention.
Police officers, acting on intelligence gathered, cannot arrest the would-be
murderers until they are practically shooting at the intended victim. As
such, it is my view that the Singapore position should be that of Lord
Lanes. The offender must have embarked on the crime proper. This is a
point in time that lies midway between a series of acts and crossing the
Rubicon. It is a question of fact in which all the surrounding circumstances
have to be considered.
37 Another aspect of the law of attempt that has generated much judicial
and academic interest in the recent past in England is the question of
impossibility. In the words of Lord Bridge in Anderton v Ryan [1985] AC
560 at 581, There is no more fertile field of legal controversy in the
criminal law than that concerned with attempting the impossible. In stark
contrast, our courts have not had the occasion to deal with this issue. While
this issue of impossible attempts was at one time (and not too long ago)
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[1999] 1SLR(R)
the subject of much debate within the English judiciary and among
academics, this has happily since been substantially resolved.
38 Perhaps a short recount of the state of the English law at that time
would set our discussion in context. Before 1981, the common law position
in England was that generally speaking, a person could not be liable for
attempting to commit a crime, if the commission of the offence was
impossible. In R v Smith (Roger) [1975] AC 476, police officers stopped a
large van on a motorway and found that it contained stolen goods. They
took the driver and another man in the van to a police station. The police
then decided to allow the men to continue their journey along the
motorway to a service area but with two police officers in the van and other
police officers following. At the service area there were a number of people
including the accused, who took a leading part in arranging for the future
disposal of the goods. The accused was arrested and charged with
attempting to handle stolen goods. The House of Lords held that the goods,
being in the lawful custody of the police, ceased to be stolen goods by virtue
of s 24(3) of the Theft Act 1968 at the time of the alleged offence. That being
the case, their Lordships held that the accused could not be guilty of
attempting to handle stolen goods as they had ceased to be stolen. The
accused was attempting the impossible.
39 Unsurprisingly, this state of affairs was considered undesirable and
the Criminal Attempts Act 1981 was enacted to replace the common law of
attempts. In particular, ss 1(2) and 1(3) was enacted in the following terms:
(2) A person may be guilty of attempting to commit an offence to
which this section applies even though the facts are such that the
commission of the offence is impossible.
(3) In any case where (a) apart from this subsection a persons
intention would not be regarded as having amounted to an intent to
commit an offence; but (b) if the facts of the case had been as he
believed them to be, his intention would be so regarded, then, for the
purposes of subsection (1) above, he shall be regarded as having had an
intent to commit that offence.
40 However, in the words of the late Professor Glanville Williams,

Parliament proposes, but the Appellate Committee disposes; see Glanville
Williams, The Lords and Impossible Attempts [1986] CLJ 33 at 38. The
question of the continued survival of the defence of impossibility in the law
of attempts under the new 1981 Act came before the House of Lords in
Anderton v Ryan [1985] AC 560. In that case, Mrs Ryan was charged with
dishonestly attempting to handle a video cassette recorder, knowing or
believing it to be stolen. While Mrs Ryan did in fact believe the recorder to
be stolen, the prosecutor could not prove that it was. This was the reason for
framing the charge in terms of an attempt and not the full offence. The
House of Lords quite surprisingly held that Mrs Ryan was not guilty on the
grounds that a defendant could not be convicted of an attempt to commit
[1999] 1SLR(R)
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an offence when his completed actions, ie he has done everything he

intended to do, did not in fact amount to an offence. This was the case,
regardless of his erroneous belief of the facts. The new ss 1(2) and 1(3) of
the 1981 Act was interpreted to apply only to cases where a pickpocket had
put his hand into a pocket only to find it empty, or when a would-be
assassin stabs a pillow believing it to be his intended victim.
41 As expected, the decision in Anderton v Ryan was viewed by many as
an example of the judiciary flagrantly subverting an Act of Parliament.
Under the force of these criticisms (of which the late Professor Glanville
Willamss article in the 1986 Cambridge Law Journal entitled The Lords
and Impossible Attempts, or Quis Custodiet Ipsos Custodes? was perhaps
the most passionate of them all), the House of Lords took the
unprecedented step of overruling themselves barely a year later in R v
Shivpuri [1987] AC 1. In Shivpuri, the accused was charged with attempting
to deal with and harbour heroin. He had agreed to bring a suitcase of drugs
from India back to England for 1,000. When he was arrested, it was
discovered that the suitcase only contained a harmless vegetable matter.
Their Lordships held that as long as an accused had done an act which was
more than merely preparatory of the intended offence and not the actual
offence, he was guilty of attempting to commit the intended offence.
42 So what is the position under our Penal Code? Section 511 itself is
silent on the defence of impossibility. However, the illustrations to the
section do provide some guidance. Illustration (a) states that: 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 the theft, and therefore is guilty under this section.
Illustration (b) states that: 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.
43 Before proceeding any further, it would be useful to highlight that the
defence of impossibility can be divided into four different types. First, there
is physical impossibility. This is the type of impossibility covered by the
illustrations to s 511. Attempting to steal jewels from an empty safe is an
offence that is impossible to commit simply because the jewels are not
physically there. By analogy, stabbing a corpse believing it to be alive is also
an attempt that cannot be completed because of physical impossibility.
From the illustrations to s 511, it is clear that the section catches these types
of attempts. Secondly, an attempt could be impossible because of the noncriminality of the intended offence. For example, a citizen from Ruritania
travels to Singapore and has carnal relations with a girl that is 19 years old.
He believes that in Singapore it is illegal to have carnal relations with a girl
below the age of 21, as is the case in his own country. While he has certainly
intended to commit an offence and has clearly embarked on the intended
crime proper, it was an impossible attempt. This is because, even if he had
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[1999] 1SLR(R)
completed his actions in accordance with his beliefs and intentions, it

would not amount to an offence as such actions are not criminal in
Singapore. Common sense dictates this type of impossible attempts is not
caught by s 511.
44 The third category of impossible attempts poses difficulties. This is
impossibility by law. The classic example of this is the following
hypothetical situation postulated by Bramwell B in R v Collins (1864) 9 Cox
CC 497 where a man takes away his own umbrella from a stand with the
intent to steal it as he genuinely believes that it belongs to another. Is he
liable for attempted theft? There are essentially two reasons why there is an
initial hesitancy to answer in the affirmative. First, as stated by Lord Bridge
in Shivpuri at 21, these are in situations which most people, as a matter of
common sense, would not regard as involving criminality. In my opinion,
this is not a very strong objection if we consider the defence of legal
impossibility in another scenario. A man enters a darkened room and rapes
a resisting woman as he intended. It turns out that she is his wife, whom he
thought was travelling abroad on business at the time. In such a scenario,
common sense may be inclined towards imposing liability on the would-be
rapist for attempted rape. Secondly, it might be thought that imposing
liability for attempt is tantamount to saying that the would-be umbrella
thief is charged with attempting to steal his own umbrella. As it is not illegal
to steal ones own umbrella (to simplify matters we shall assume that the
umbrella was never in any particular persons possession), how can it be an
offence to attempt to do so? This too is not a valid objection. This is because
when we say a person is liable for attempting to steal the jewels from a box
even though the box was empty, we say that he has attempted to steal the
jewels. The attempt was in respect of the intended offence. We do not say
that he has attempted to steal from an empty box. Similarly, the would-be
umbrella thief has actually attempted to steal an umbrella belonging to
another. He has not attempted to steal his own umbrella. That being the
case, it follows that legal impossibility is also not a valid answer to a charge
under s 511.
45 The last type of impossible attempts is that of impossibility through
the ineptitude of the would-be criminal. This is perhaps the most
controversial category. An example of this would be a man trying to break
into a safe with a jemmy that was too small for the task. Generally speaking,
this sort of attempts is liable; see R v Smith (Roger) [1975] AC 476. At first
blush, this does not seem to be a problem. The unsuccessful safe-breaker
may very well return again in the future with a stronger jemmy. Very few
people will disagree that he has caused some degree of public harm and that
it is in the publics interest he should not be allowed to try again. The
problem becomes apparent however, when we take this line of reasoning to
its logical conclusion. What if the accused merely stands outside the house
and tries to use his telepathic powers to open the safe and teleport the
[1999] 1SLR(R)
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845
contents of the safe out to him. He genuinely believes that he has the ability
to do so and carries out his attempt in full earnest. It seems ridiculous to
suggest that he can be convicted of attempting to steal the contents of the
safe. On the other hand, there is nothing really to distinguish our aspiring
telepath from the safe-breaker with the inadequate jemmy. They are both
equally morally culpable, as they both intend to steal the property of
another and have done their best to achieve it. They both can also equally
very well return to try again with more effective methods.
46 The reason for the dilemma is that by following the perfectly logical
train of reasoning to its very end, we face derailment in the regions of
absurdity where common sense is offended. At the same time, it is
extremely hazardous and difficult to demarcate the boundaries where the
realm of absurdity begins. We say it is absurd that a person purporting to
use his telepathic powers to steal is guilty of attempted safe-breaking. On
the hand, it is completely acceptable to say that a person who had used a
jemmy that was too weak should be guilty. What if he used a toothpick to
open the safe? Is that plain absurdity or is it mere ineptitude? How about if
he uses a jemmy that is of the class that is strong enough to break the safe
but is so old and rusty that it broke? In my opinion, the cold and inexorable
operation of legal principles and logic should be tempered by common
sense. Perhaps these cases that fall within the realm of absurdity may never
come before a court as they may be filtered out by the discretion of the
Prosecution. In the words of the English Law Commission in their report
entitled: Criminal Law: Attempt, and Impossibility in Relation to Attempt,
Conspiracy and Incitement, Law Commission No 102 (1980) at para 2.97:
In the ordinary course, we think that discretion in bringing a prosecution
will be sufficient answer to any problems raised by such unusual cases.
47 The conclusion of the examination above is that there is very little
room for the defence of impossibility to operate in the law of attempt.
Before moving on to the next issue, I would also like to add that I have
deliberately refrained from examining the classic Voodoo Deaths debate
that so dominated English academics and judges alike for a period, as this
relates to attempted murder. This falls outside the ambit of s 511 as
attempted murder exists in Singapore as a specific offence in the Penal
Code (see s 307) and is thus not relevant to our present discussion.
Abetment by conspiracy
48
Abetment by conspiracy is defined in s 107(b) of the Penal Code as:

Engages with one or more other person or persons in any conspiracy
for the doing of that thing, if an act or illegal omission takes place in
pursuance of that conspiracy, and in order to the doing of that thing
In Sim Cheng Hui v PP [1998] 1 SLR(R) 670 at [35], it was held that in order
to establish abetment by conspiracy, the Prosecution must show that there
846
[1999] 1SLR(R)
was the existence of a conspiracy to do an illegal act, with the result that the
illegal act which was the object of the conspiracy was actually carried out.
In PP v Yeo Choon Poh [1993] 3 SLR(R) 302 at [19][20], conspiracy was
defined as follows:
The essence of a conspiracy is agreement and in most cases the actual
agreement will take place in private in such circumstances that direct
evidence of it will rarely be available. In fact there is no requirement in
law that the alleged conspirators should remain in each others
company throughout or at all
One method of proving a conspiracy would be to show that the words
and actions of the parties indicate their concert in the pursuit of a
common object or design, giving rise to the inference that their actions
must have been co-ordinated by arrangement beforehand. These
actions and words do not of themselves constitute the conspiracy but
rather constitute evidence of the conspiracy.
It must also not be forgotten that unlike criminal conspiracy under s 120A
of the Penal Code, abetment by conspiracy also requires that an act is done
in consequence of the abetment. This requirement is founded on s 109 of
the Penal Code, where it is stated that:
Whoever abets any offence shall, if the act abetted is committed in
consequence of the abetment, and no express provision is made by this
Code for the punishment of such abetment, be punished with the
punishment provided for the offence.
Summary
49 It may be useful to summarise at this point what the Prosecution has
to establish in order for the court to convict the appellant. The appellant
was charged with abetting by conspiracy an attempt to cheat, an offence
punishable under s 511, read with s 109 and s 420 of the Penal Code. As
stated above, the Prosecution has to show the following:
(a)
The accused had agreed with Allen to:

(i)
Deceive Nordberg; and thereby
(ii)
Induce Nordberg to pay money to him;
(iii) With dishonest intention

(b) he accused had done an act which was done in consequence of
the abetment.
(c) while the cheating had not actually taken place, an attempt to
cheat was made out in that there was an intent by Allen to cheat
Nordberg and Allen had done an act which showed that he had
embarked on the crime of cheating proper.
[1999] 1SLR(R)
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The charge
50 The above is quite a mouthful and deplorably so. This is the result of
the way that the charge is formulated: You have thereby abetted an offence
of attempted cheating. The appellant is accused of agreeing with another
party and thereby doing an act to help that party try to commit a crime.
This means that there is actually a kind of double inchoate offence. The
appellant is charged with being an accessory to an attempt. While this
formula of framing the charge is well established in this sort of case (where
it is alleged that a person was an accessory to a scheme to cheat but the
parties were caught before the full scheme could be brought to fruition), it
is undeniable that it makes the ingredients of the alleged offence rather
complicated, as shown at [38] above. As stated above, this is because of the
double inchoate nature of the offence. In addition it seems rather artificial
to say that the appellant had agreed with Allen to attempt to cheat
Nordberg. Surely if there was any agreement, it would have been an
agreement to cheat Norberg and not just an attempt to do so.
51 Fortunately, this difficulty can be easily surmounted. The need to
make the charge doubly inchoate in this sort of case presumably arises from
the fact that there was no actual cheating. The scam was discovered in time.
However, when an accused is charged for abetting an offence, it is irrelevant
that, after he had done the act in consequence of the abetment, the principal
offender (ie the abettee) in actual fact failed to carry out the offence.
Section 107(b) only requires the abettor to have conspired with the
principal offender and that an act was done in consequence of it. Similarly,
s 109 only requires that an act be done in consequence of the abetment.
There is no mention that the offence has to be committed. It would be
tenuous to argue that the word act in s 109 is meant to be used
interchangeably with the word offence, ie s 109 should be read as
Whoever abets any offence shall, if the offence abetted is committed in
consequence of the abetment . This is because it would indeed be
peculiar drafting for the statute to change words midway through the
sentence and yet intend it to mean the same thing. A much more persuasive
and logical explanation is that the use of the word act was deliberate so as
to contrast with the word offence. This interpretation is not detracted by
the explanation to s 109. The explanation to s 109 states that:
An act or offence is said to be committed in consequence of abetment,
when it is committed in consequence of the instigation, or in
pursuance of the conspiracy, or with the aid which constitutes the
abetment.
The phrase act or offence does not mean that the words act and
offence have the same meaning. This is because what the explanation is
explaining is the concept of done in consequence of the abetment as used
in s 109. The phrase act or offence simply refers to the possible type of
actions that may be done in consequence of the abetment. It does not
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[1999] 1SLR(R)
explain which type of actions is specifically caught by s 109. This is set out
in s 109 itself. It is sufficient that an act (not an offence) is done in
consequence of the abetment. It is of course implicit that, if the abettor goes
further and actually commits the offence in consequence of the abetment,
he will be caught by the section as well. As such, it is my opinion that the
offence of abetment by conspiracy is made out once there is a conspiracy or
agreement to commit the offence and an act is done in consequence of the
conspiracy. There is no need for the actual offence to be committed.
52 If there is any lingering doubt, one may find strong support for this
view in Explanation 2 to s 108. It states that: To constitute the offence of
abetment, it is not necessary that the act abetted should be committed or
that the effect requisite to constitute the offence should be caused. As I
have noted in Ong Ah Yeo Yenna v PP [1993] 1 SLR(R) 349 at [6], The
express words of explanation 2 and illustration (a) are sufficient to show
that, for an abettor to be convicted, the principal accused need not always
be proved to have committed the offence (or the actus reus of the offence)
for which he is charged. It is conceded however that the illustrations that
follow only deal with instigation. Additional support may further be found
in s 115 and s 116 which provide for punishment of an abettor where the
offence is not committed. The creation of provisions that deal specifically
with the question of punishment of the abettor where the offence is not
committed shows undeniably the intention of Parliament to make the
liability of an abettor dependent solely on the performance of his act of
abetment, regardless of the subsequent actions of the principal offender. It
must be noted for the moment that abetment by intentional aid forms a
special case as it has been held that one cannot aid an offence when the
offence (or at least the actus reus of the offence) has not been committed.
This will be dealt with later.
53 It may perhaps be argued that it is illogical to convict an accessory
when an offence has not been committed. This is because the liability of an
accessory is derivative in nature. If the principal is not guilty of the offence
that is abetted (as he would only be guilty of another offence, or at most for
the attempt of the offence) how can it be said that the accessory, who is even
more removed from the offence, is guilty of abetting it? This argument
can be further supported by the fact that the general punishment under
s 109 for abetment is the same as the actual offence itself. This means that
the accessory can be punished for the full extent of the crime, whereas the
principal may very well be let off more lightly.
54 This objection can be dealt with in the following way. The principle
that an accessorys liability is derivative is a common law principle. Our
criminal law is codified in the form of the Penal Code. Sections 107(b), 109,
115 and 116 of the Code clearly state that an accessory can be guilty even
though the actual offence is not committed. Applying Bank of England v
Vagliano Bros [1891] AC 107, one should look at the natural meaning of the
[1999] 1SLR(R)
Chua Kian Kok v PP
849
statutory words and not at earlier case law. That being the case, the Penal
Code should prevail over the common law notion of an accessorys liability
being derivative. In fact, even in England, inroads are being made to this
notion of derivative liability. In R v Cogan [1976] QB 217, the accused
forced his wife to have sexual intercourse with X. Xs conviction for rape
was overturned as he might have been under the mistaken belief that the
wife was consenting and the jury had not been directed properly on this
point. However, the accuseds conviction of abetting X to rape the wife was
upheld even though X was in the end not found to have been guilty of rape.
There was an abetment of rape even though the rape could not be
established. However, it is conceded that, in this and other similar English
cases, the actus reus of the actual offence had been committed. In our case,
the actus reus of the actual offence was not committed.
55 As to the argument that the accessory can be punishable with the
same penalty as that of the full offence, while the principal offender may be
punished for a lesser offence, I think that this scenario is spurious. This is
because s 109 says that an abettor will only be punished in the same manner
as provided for the actual offence, if there is no express provision made in
the Code. However, s 115 provides that where an abettor has abetted an
offence that is punishable by death or life imprisonment, and the offence is
not committed, he is to be punished by imprisonment for seven or fourteen
years, depending on whether hurt to that person was caused. He will also be
liable to a fine. Section 116 covers the situation where the offence that was
abetted but not committed is punishable with imprisonment. The abettor is
only liable to be punished to one-fourth of the maximum sentence of the
actual offence, unless he is a public servant whose duty it is to prevent the
commission of the offence. In the latter case, he is punishable with
imprisonment for a term up to one-half of the maximum for the actual
offence as well as with a fine. As such, because s 115 and s 116 cover
offences punishable with death/life imprisonment and imprisonment
respectively, there is very little room for the punishment provision in s 109
to operate. That being the case, there is no worry of unfairness arising from
a more severe punishment being meted out to the abettor compared to the
principal.
56 Perhaps another concern would be the fact that this interpretation
would make the liability of the abettor very wide. All the abettor has done is
to agree that an offence should be committed and has done some act in
consequence of the abetment, and he would be liable even though the
principal had not actually committed the offence. It can be seen that this is
not a very valid objection as, under s 120B of the Penal Code, a person is
punished for the mere agreement to commit an offence, without
performing a single act in consequence of the agreement. At this point it is
perhaps also appropriate to consider what act is required by s 109. This is
similar to the discussion above on the actus reus of attempts (see above,
850
[1999] 1SLR(R)
[34][36]). For the same reasons discussed above, the variety of crimes
makes it very difficult to define the act required by s 109 with any great
precision. Perhaps a general proposition would be that the act must show
that the abettor has committed himself to the agreement. By way of
illustration, let us suppose that A conspires with B, the security guard of a
warehouse, to break into the warehouse. The agreement is that B will leave
the gate of the warehouse unlocked so that A can effect entry. On the day in
question, B goes to work as usual. While Bs going to work is literally an act
done in consequence of the abetment, it seems rather harsh to say that this
is an act caught by s 109. However, when he distracts his fellow security
guard by falsely telling him that their boss wants to see him in his office
immediately so that he can unlock the door, this would fall within the ambit
of s 109. It must be stressed that ultimately this is again a question of fact
which requires consideration of all the surrounding circumstances. As
such, it must necessarily vary from case to case.
57 As stated above at [52], the proposition that an abettors liability is not
dependent on the commission of the offence poses problems in relation to
abetment by intentional aiding. I have held in Ong Ah Yeo Yenna v PP
[1993] 1 SLR(R) 349 at [10] and [16] that:
In the normal case the charge against an abettor should state the act he
is alleged to have abetted. This is as true of charges of abetment by
intentional aid as it is of charges of abetment by instigation or
conspiracy. This act therefore forms part of the Prosecutions case
against the alleged abettor. There is in the meaning of instigation and
conspiracy no inherent assumption that either the instigation or the
conspiracy came to fruition, and so while the act instigated or
conspired towards by the abettor can and must be identified, the fact
that its actual commission might not be proved is unobjectionable.
Conversely, the word aid does imply that the act aided was
committed, so it follows that the Prosecution must prove the
commission of the act which an abettor is alleged to have aided
intentionally.
In my view, the court which tries an abettor on a charge of intentionally
aiding an offence must direct its mind towards making a finding as to
whether or not the whole actus reus of the offence he is alleged to have
aided was in fact committed; and the court may, indeed must, do so in
all cases, including those where the principal has not been convicted of
that offence by the time the alleged intentional aider is tried.
[emphasis added]
Ong Ah Yeo Yenna v PP was affirmed by the Court of Appeal in

Govindarajulu Murali v PP [1994] 2 SLR(R) 398. There are also certain
Indian authorities to this effect; see Faguna Kanta Nath v The State of
Assam AIR (46) 1959 SC 673, Jamuna Singh v State of Bihar AIR (54) 1967
SC 553.
[1999] 1SLR(R)
Chua Kian Kok v PP
851
58 It is indisputable that there are strong reasons to hold that the actus
reus of an offence must be committed before one can be said to have
intentionally aided it. If a person intentionally aids the commission of an
offence, the offence must necessarily have been committed. How can the
abettor aid something that never happened? On the other hand, it has
already been seen that there are no policy reasons against making abettors
liable without the principal offence being committed. The statute also
seems to provide that it is possible to convict an abettor even though the
principal offence was not committed (see above, [51][52]). It seems to me
to be rather anomalous to hold that abetment by intentional aid requires
the commission of the principal offence while abetment by instigation and
conspiracy does not. Perhaps this can be explained better by the following
example. A conspires with B to murder C. B does an act in consequence of
the abetment by procuring poison for A to administer to C. B mixes up the
bottle of poison with his bottle of cough mixture and administers it to C
instead. B is guilty of abetment by conspiracy to murder even though the
offence was not carried out. However, let us suppose A goes up to B and
says Get me a bottle of poison as I want to use it to poison C and kill him
(so there is no agreement as such between them to bring about Cs murder)
and B does provide the intentional aid by procuring the posion for A. A
administers cough mixture by mistake, B is not guilty of abetment by
providing intentional aid to murder as the offence was not completed. In
both cases B is equally morally culpable and equally poses a danger to
society. His actions and mental state are substantially the same. Yet, B is
guilty of abetment in the first case but not in the second.
59 Accordingly, I hold that the principle that an abettor may be liable
even though the principal offence was not committed should be extended to
cover abetment by intentional aiding as well. While this may not quite
accord with common interpretation, it is not unusual for legal principles to
depart from common interpretation. An example would be the well-known
principle that goods with marked prices in a shop constitute an invitation to
treat; see Treitel, Law of Contract (9th Ed) p 12. To the legally untrained
person, he would be very surprised to know that, when he brings the item to
the checkout counter and pays the girl behind it the price marked on the
item, he is in fact making an offer to the shop via an agent of the shop (the
checkout girl) to buy the item at that price. When the girl takes his money,
the company has accepted his offer. The common perception would be that
the shop was offering these items at the marked prices and he was accepting
the offer by bringing it to the checkout counter and paying for it. In
addition, it would not be straining English grammar to say that it is possible
to aid an act which does not actually materialise in the end. A man buys an
exercise machine so as to help his wife in her desire to lose weight. She does
not in fact lose weight as she rewards herself for each session on the
machine with chocolate and cookies. While she may not have lost weight, it
852
[1999] 1SLR(R)
can be said that, by buying the exercise machine, the husband has provided
intentional aid to her losing weight.
60 In this respect, Ong Ah Yeo Yenna v PP and Govindarajulu Murali v
PP may be distinguished and the passage quoted above at [57] confined to
facts of the case. In Ong Ah Yeo Yenna v PP, the question before me was
whether an accessory could be tried and convicted before the principal was
tried. The passage quoted above should be read in the light of this issue
before the court. The issue of the non-commission of the actus reus was not
really brought to the attention of the court as the appellants complaint in
that case was that she was being tried prior to the principals trial. It was
always common ground that the actus reus of the offence was committed.
Similarly, in Govindarajulu Murali v PP, the argument before the Court of
Appeal was that, if the principal offender was acquitted of the charge of
drug trafficking on the ground that he did not know that the package
contained drugs, the charge of abetment by intentional aiding against the
abettor would necessarily fail. Again it was common ground that the actus
reus of the offence was committed. This issue of liability of the abettor by
intentional aid without the commission of the actus reus was never brought
before the court.
61 In accordance with the foregoing argument above, I amended the
charge to one of abetment by conspiracy of cheating. The High Court of
course has the power to do so in the exercise of its appellate jurisdiction and
it may be done here without prejudicing the appellants case; see Daw Aye
Aye Mu v PP [1998] 1 SLR(R) 175 and Garmaz s/o Pakhar v PP [1996] 1
SLR(R) 95. The amended charge was thus:
You, Chua Kian Kok (M/37 years) NRIC No S 1351036-I are charged
that you sometime in the month of Februrary 1996, in Singapore did
engage with one Guok Sing King in a conspiracy to do a certain thing,
namely, to cheat, and in pursuance of the conspiracy and in order to
the doing of that thing, an act took place on or about 1 February 1996
at M/S TT Hardware Supplies located at No 2, Rowell Road, Singapore,
to wit, you made out a false delivery order bearing number 49930 for
eight pieces of SPC KF 22328 bearing valued at $4,160 and two pieces
of SKF 22324 bearing valued at $960 with GST amounting to $153.60
cents and addressed it to M/S Nordberg (S) Pte Ltd which you
presented to the warehouse supervisor one Guok Sing King for him to
append his signature to acknowledge receipt of the said property when
you knew it was false and thereafter, you sent an invoice bearing
number 34587 for the above mentioned items to M/S Nordberg (S) Pte
Ltd in an attempt to deceive the said M/S Nordberg (S) Pte Ltd into
believing that the said item were received by their Warehouse
Supervisor Guok Sing King at No 8, Gul Drive, Singapore, which you
both knew it was false, and by such manner of deception, you
dishonestly attempted to induce the said M/S Nordberg (S) Pte Ltd to
release payment for the said items to you and you have thereby
committed an offence of abetment of cheating which is punishable under
[1999] 1SLR(R)
Chua Kian Kok v PP
853
section 109 and section 420 of the Penal Code, Chapter 224. [The
emphasis indicates the amended portion of the charge.]
62 Once it is recognised that an accessorys liability is not strictly

dependent on the liability of the principal, then the next issue can also be
dealt with easily. The issue is this: The appellant is charged with abetting by
conspiracy an attempted cheating. The principal (Allen), however, was
convicted of criminal breach of trust (CBT) under s 408 of the Penal
Code. In other words, the accessory was convicted of an offence different
from the offence for which the principal was convicted. As held above, this
does not present any difficulty as the accessorys liability is not derivative
under the Penal Code. This would also deal with the fact that the actus reus
in criminal breach of trust is different from that of cheating in s 420. The
actus reus of CBT is that of misappropriation and conversion or use or
disposal in violation of law or contract. On the other hand, the actus reus
of cheating is the inducement of delivery of the property by deceit or the
inducement of consent to retention of property by consent. As held above,
the non-establishment of the actus reus of the actual offence is not an
obstacle to the conviction of the abettor.
The appeal
63 Having examined the relevant law, we can now apply it to the facts of
the present appeal. At the hearing before me, the appellant changed his
strategy from that employed in the court below. In the court below, the
appellant asserted that he remained silent and ignored Allen when the latter
told him about his proposal to sell cheap spare parts to him so that he could
sell them to Nordberg in turn at a profit. This can be seen from the
following excerpt from his examination-in-chief in the court below:
In February 1996, I confirm that Allen had ordered on at least seven
occasions acknowledging that the goods had been delivered to
Nordberg yet I had not delivered the goods to Nordberg. I know Allen
for more that ten years working in Nordberg and previously this
procedure is done by purchasers Ive handled before. And certain times
they would order more items from me if there are projects. These are
all repeat items theyd buy before.
I did ask him when to deliver these items and he told me that the project
had just started and waiting for the vessel to come and hell inform me
when to deliver these items
After Allen had ordered the goods, or signed the delivery orders, I would
call my suppliers whether there is stock or not. And I would ask Allen
whether he want these goods. He told me not to worry as hell inform
me when the vessel will arrive.
[emphasis added]
64 However, before me, the appellants case was different. It was argued
that what had happened was that Allen had approached the appellant with
854
[1999] 1SLR(R)
what seemed to be a good business opportunity. Allen could obtain goods

which Nordberg wanted at a cheap price. Due to the obvious difficulty of
selling goods to his own employer, he invited the appellant to buy the goods
from him and resell them to Nordberg. He did not know that, in placing
purchase orders on behalf of Nordberg, Allen was acting outside his
authority and improperly. As far as he was concerned, this was merely a
good business opportunity and he did not have at any time reason to
suspect that Allen was cheating Nordberg. In short, Allens scam was a oneman scam and the appellant was only an innocent agent used for his
purposes. There was never any agreement to cheat Nordberg.
65 It was also argued that this also explained why delivery orders were
signed when goods were not delivered, why the appellant never attempted
to source from his own suppliers and why he did not seem interested in
when delivery was to be made even though more than a year had passed.
This was because, under his arrangement with Allen, the cheap goods
would be brought straight to Nordbergs warehouse instead of taking the
circuitous route from Allens source, to the appellant and then to
Nordbergs warehouse.
66 I was not persuaded by this new version of the events, especially when
it ran contrary to the evidence given by the appellant himself in the court
below.
67 Mr Rasif also brought to my attention the following excerpts from
Allen Guoks examination-in-chief:
I believe he trusted me as he knew that Im the one who is
authorised to place the order. In early 1996, I still had the authority to
issue purchase orders. This authority was given to me by Anthony Bok.
As well as from his cross-examination:

Q:
Do you know that by the accused person agreeing to do this

scheme with you, he was in fact cheating Nordberg?
A:
When I first approached him, I initiated the scheme but I did not
tell him what the scheme is about. I only told him that I had the
spare parts from me and he can sell back to Nordberg. More
details I did not tell him.
Q:
Put That the accused did not know that he would be cheating
Nordberg by asking you to sign the delivery orders and not
delivering the goods on that day.
A:
Yes, I did not tell him that Im cheating the company and I did
not inform him what is the scheme.
Q:
Put in fact you deceived the accused into believing that the
goods which you had signed in the delivery orders were actually
goods meant to be delivered to Nordberg
[1999] 1SLR(R)
A:
Chua Kian Kok v PP
855
By not telling him the scheme beforehand that Im cheating the

company and he did not know that I was deceiving the
company.
68 Based on the above statements, it was argued that there could not be
any agreement between the appellant and Allen to cheat Nordberg for the
appellant was totally ignorant of the presence of any scheme of deceit.
69 As I reminded Mr Rasif in court and repeat again here in my grounds,
all the above evidence as contained in the examination-in-chief and in the
cross-examination was before the trial judge. She heard and rejected them.
In the end she made the finding of fact that there was an agreement between
the appellant and Allen to cheat Nordberg. It is well-established that an
appellate court will not disturb the findings of fact of a lower court unless
they are clearly reached against the weight of the evidence: see Lim Ah Poh v
PP [1992] 1 SLR(R) 192 at [32] and Sundara Moorthy Lankatharan v PP
[1997] 2 SLR(R) 253. There was no attempt before me to argue that this
finding of fact was clearly reached against the weight of the evidence.
70 Mr Rasif further took issue with the trial judges findings that the
cheques issued by the appellant to Allen amounted to half of the invoices.
Mr Rasif stated that, if one were to compare the cheque figures with the
invoice figures, in only two of the cases was this so.
71 This line of argument adopted by counsel rather missed the point.
Granted that the figures in the cheques issued by the appellant to Allen did
not amount exactly to half of the figures on the invoices, what was
important was that the fact still remained that there were large sums of
money moving from the former to the latter. A total of seven cheques were
issued from 7 February to 2 April 1996, amounting to $15,995. This was a
large sum of money transferred in a short space of two months.
Furthermore, the appellant admitted that there was no real social
relationship between Allen and him. The circumstances were clearly such
that an inference arose that these cheques were not personal loans and an
explanation was required. An explanation that, in my opinion, the appellant
could not furnish adequately.
72 Furthermore, there was no reason for Allen, the main prosecution
witness, to falsely implicate the appellant. At the time of the appellants
trial, Allen had already been convicted and sentenced for his role in the
crime. Furthermore, if what the appellant said was true, Allen should have
been grateful to the appellant instead of maliciously implicating him for no
apparent reason. After all, he had lent Allen large sums of money in his time
of need (and without even inquiring as to when he could be repaid), even
though he did not know him very well.
856
[1999] 1SLR(R)
73 At the end of the appeal, I was not convinced that the trial judges
decision should be overturned. Accordingly, I dismissed the appeal.
Headnoted by Agnes Tan.

(1999) 1 SLR (R) 0826 Chua Kian Kok V PP

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paginator.

book Page 826 Sunday, September 20, 2009 2:26 AM

SINGAPORE LAW REPORTS (REISSUE)

Chua Kian Kok

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Chua Kian Kok v PP

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SINGAPORE LAW REPORTS (REISSUE)

R v Smith (Roger) [1975] AC 476 (refd)

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Chua Kian Kok v PP

abetted an offence of attempted cheating, which act was committed in

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SINGAPORE LAW REPORTS (REISSUE)

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Chua Kian Kok v PP

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SINGAPORE LAW REPORTS (REISSUE)

Three months imprisonment

Two months imprisonment

Four months imprisonment

Two months imprisonment

Two months imprisonment

Two months imprisonment

Three months imprisonment

Three months imprisonment

Three months imprisonment

Two months imprisonment

Two weeks imprisonment

Two months imprisonment

Two months imprisonment

paginator.book Page 833 Sunday, September 20, 2009 2:26 AM

Chua Kian Kok v PP

a conspiracy to deceive a person

(b) inducement of that person so deceived to deliver any property

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SINGAPORE LAW REPORTS (REISSUE)

As correctly pointed out by L P Thean J (as he then was) in Knight Glenn

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Chua Kian Kok v PP

PP v Singh Kalpanath [1995] 3 SLR(R) 158) nor must the property be

21 However, a closer examination of s 420 reveals a possible overlap with

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SINGAPORE LAW REPORTS (REISSUE)

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Chua Kian Kok v PP

anything with the intention of causing wrongful gain to one person, or

26 In order to be convicted of an attempt to commit an offence under

Ajaib Singh Js adoption of Stephens definition was recently reaffirmed by

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SINGAPORE LAW REPORTS (REISSUE)

In our judgment an acceptable analysis of the offence of rape is as

28 This decision was subsequently followed by a differently constituted

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Chua Kian Kok v PP

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SINGAPORE LAW REPORTS (REISSUE)

What is immediately conspicuous is that the mens rea that seems to be

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Chua Kian Kok v PP

it would be fairly absurd to say that he is guilty of attempted theft at that

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