This document discusses the law of attempt in criminal cases under Malaysian law. It begins by explaining the rationale for punishing attempts and outlining the 4 stages of a crime. It then discusses the elements of an attempt, including the mens rea requirement of intention and the actus reus requirement that the act must be proximate to completing the crime. The document analyzes several cases that help define what constitutes an attempt in terms of both the mental and physical elements. It concludes by discussing how attempt is applied to specific crimes like murder, culpable homicide, and rape.

1. LLB 104 Criminal Law
Attempt
Norhakimah binti Seman @ Abdullah

2. Introduction
HELP LLB 104 2
The law needs to prevent person
from trying to kill. Punishment in
such cases serves as appropriate
deterrent notice to both the
individual concerned and the public
at large of the consequences of
such acts.
An attempt to commit a crime is
only punishable to a maximum of
one-half the maximum term of
imprisonment available for the
completed crime.

3. There are 4
stages in
every crime
• This was explained in Thiangiah &
Anor v PP (1977) to relate to:-
a) An intention to commit the
offence
b) The preparation for its
commission
c) Attempt to commit it
d) Actual commission of the
offence.

4. • The mere forming of an intention to commit a crime and the
making of preparation for its commission are not criminal acts
and are not punishable under the law.
• There must be some further overt act on the part of the offender
which is directed towards the commission of the crime and which
is immediately and not remotely connected with the crime in
order to constitute an attempt.
• A crime is not complete if something happen when the attempt to
commit it is being made, thereby breaking the chain of events
which, if not for the intervening interruption, would have led to
consummation of the crime. In such event, the offender is liable
for an attempt.
HELP LLB 104 4

5. Structure
of
Liability
HELP LLB 104 5
Attempts in Malaysia
is provided for and
punishable in one of
three ways:
• Section 511: general
provision of attempt
• Specific attempts
• Definition of crime includes
attempt

6. 1. Section
511 –
General
provision of
attempt
HELP LLB 104 6
This is extremely broad
provision. One can be liable
for attempting to commit any
offence, whether under Penal
Code or any other statute.
Offences that can be
attempted are those
punishable with imprisonment
or a fine or combination of
both.

7. 2. Specific
attempts
HELP LLB 104 7
There are a few specific provisions in the
Penal Code penalizing types of attempt:
S 307 - attempted murder
S 308 - attempted culpable homicide
S 309 - attempted suicide
S 393 - attempted robbery
s 511 cannot be applied to attempted murder as murder is
not punishable with imprisonment; s 511 cannot be applied
to attempted suicide as there is no crime of suicide.

8. 3.
Definition
of crime
includes
attempts
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Certain crimes are defined in
such a manner that the full
crime is committed either by
a successful completion or by
an attempt.
E.g.: S121 of the Penal Code
provides that “whoever wages
war against the YDPA or
against any of the Rulers of
YDPN, or attempts to wage
such war…”

9. HELP LLB 104 9
S391 of the Penal Code, “When
two or more persons conjointly
commit or attempt to commit
robbery…”
Attempt under this category
unlike the former two categories,
completed and attempts here
carry the same potential
maximum punishments.

10. Elements
• Attempt begin when preparations are
completed & culprit commences to do
something with intention of committing
offence that is a step towards its commission
1. Accused must have proceeded beyond
stage of preparation
• Act must be more than preparatory act
2. Actions must be sufficiently close /
proximate to completed offence
• Need not be penultimate act leading
immediately to commission of offence
• (Abhayanand Mishara v State of Bihar)
3. Act must be clearly / suggestive of
intention
• Steps taken must themselves be
sufficient to show offender’s intention
to commit crime which he is charged
with attempting

11. Mens Rea
HELP LLB 104 11
One can be liable for
attempting to commit a
crime if one has the
intention to commit the
complete offence.
Even if the full offence can
be committed knowingly
or recklessly, only will
suffice for attempt to
commit such offence.

12. Merrit v
Commonwealth
12
“While a person may be guilty of
murder though there was no
actual intent to kill, he cannot be
guilty of attempted to commit
murder unless he has a specific
intent to kill… When we say that a
man attempted to do a given
wrong, we mean that he intended
to do it specifically; and proceed a
certain way in the doing. The
intend in mind covers the thing in
full; the act covers it only in part…”
HELP LLB 104

13. R v Mohan
HELP LLB 104 13
The accused, in response to a police officer’s
signal, slowed his car down, but then accelerated
and drove the car at the police officer.
The police officer jumped aside and the accused
continued on his journey.
He was charged with attempt by wanton driving to
cause bodily harm to the police officer.

14. • The judge in his final direction to the jury, said
that it had to be proved that the accused
deliberately drove wantonly, realizing that such
wanton driving would be likely to cause, unless
interrupted by some reason, bodily harm to the
police officer or that the accused was reckless as
to whether such bodily harm would be caused
by his wanton driving. It was not necessarily to
prove an intention to cause bodily harm.
• The accused was convicted, and he appealed.
• The court allowed the appeal on the ground
that the final direction by the judge was bad
in law.
• Not only did the judgment maintain the
exclusion of ‘intent’ as an ingredient of the
offence, but he introduced an alternative
basis for a conviction which did not and
could not constitute the necessary mens rea.
It is well established that intent (mens rea) is
an essential ingredient of the offence of
attempt.
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15. • Mens rea in offence of attempt is proved by establishing beyond
reasonable doubt that the accused knew and correctly foresaw the
consequence of his act unless interrupted would as a high degree
of probability to be the commission of the complete offence.
• Attempt is essentially a crime of mens rea, with the actus reus
performing only a secondary role, only the clearest form of mens
rea should suffice.
• S 511 is silent as to species of mens rea required.
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16. Mohd
Yakub
HELP LLB 104 16
“In order to constitute an
attempt, first, there must be an
intention to commit a particular
offence”.
Therefore, s 511 and other
specific attempt provisions
where no indication as to the
requisite mens rea will be
interpreted to require intention.

17. HELP LLB 104 17
S 307 and 308 – specifically
state the degree of mens
rea required – intention or
knowledge.
Does this mean the mens
rea of attempted murder is
the same as that of murder
itself?

18. Actus Reus
• The problem is to determine how
much action is needed before one can
be said to be attempting a crime.
Eagleton
• “Acts remotely leading towards the
commission of the offence are not to
be considered as attempts to commit
it; but acts immediately connected
with it are…”
• Before an acts be classified as an
attempt there must be, inter alia, an
act towards the commission of the
offence.

19. Arjun
Singh v
PP
HELP LLB 104 19
The accused was charged with attempted
extortion in that a letter demanding
money and containing threats was found
in a locked wooden chest at his house; 2
further extortionate letters were
discovered at another house also
occupied by the accused.
Held: the letters found in the drawer and
there was no evidence of any attempt to
transfer them by way any means to the
addressees.

20. • The mere act of writing and detaining a letter is not an attempt to
commit extortion but at the most a preparatory step towards the
commission of that offence.
• The gist of the offence of extortion is putting another person in
fear of an injury and similarly to support a conviction for
attempted extortion the intended extortioner must have done
some act with this intention.
• Therefore the conviction quashed.
HELP LLB 104 20

21. Abhayanand
Mishra v
State of
Bihar
• The A was convicted of an attempt to
cheat. He had applied to Patna
University for permission to sit for an
exam as a private candidate.
• He had falsely represented as a BA
degree graduate and had been
teaching in certain school. In support
of his application, attached forged
certificates.
• The university’s authorities accepted
the A’s statement and gave permission
and wrote to him asking for remission
of the fees and 2 copies of his
photograph.

22. • He furnished these and an admission card
for him was dispatched. When the untruth
of his representations was discovered he
was prosecuted. He appealed against his
conviction.
• Held, dismissing the appeal on the ground
that the facts proved that the A had go
beyond the stage of preparation for the
commission of the offence of cheating.
• Attempt to commit an offence, begin when
the preparations are completed, and the
culprit commences to do something with
the intention of committing the offence
and which is a step towards the
commission of the offence.

23. • The A not only sent an application but
also followed it up by remitting the
necessary fees and sending the copies
of his photograph, on the receipt of
which the university did issued the
admission card.
• The preparation was complete when
he had prepared the application and
the moment he dispatched it, he had
entered the realm of attempting to
commit the offence of cheating.
• He did succeed in deceiving the
university but failed to sit the exam
because something beyond his control
took place.

24. Padala
Venkatasami
• Held that the preparation of a copy of
an intended false document together
with the purchase of stamped paper
for the purpose of writing that false
document and the securing of the
information about the facts to be
inserted in the document, were held
not amount to attempt to commit
forgery because the accused had not,
in doing these acts, proceed towards
an act towards the commission of the
offence of forgery.

25. PP v Kee Ah
Bah
• The A was acquitted on a charge of an
attempt at fraudulent evasion of export
duty. He had hidden the tin-ore in his car.
• He left the immigration check point at JB
causeway and approached the customs
check point.
• When the car was about ten yards from
the check point, a custom officer signaled
to the A to stop.
• The A reversed and made a U turn and
escaped back to JB. The car was discovered
shortly afterwards still containing the tin-
ore.
• The prosecution appealed against the
acquittal. Held, the acquittal was set aside
and set for re-trial.

26. • The trial judge held that he has the intention
to commit the offence when he made secret
compartment in the car, the obtaining and
loading of the tin ore into the car and driving
up to the immigration check point to present
his travel documents.
• As to the gap which lies between the
immigration check point and the custom
check point meant to facilitate those
travellers on vehicle who in good faith
change their mind about leaving, or who has
no proper travel documents and are ordered
by the immigrations officer not to leave the
country.
• Whether or not the offence reaches the
border, as in this event the Resp would have
got over the customs without declaring the
goods.

27. State of
Maharashtra
v
Mohd Yakub
• Customs officers arrested the accused
at the midnight when he stopped his
jeep near a bridge at a creek and
started removing silver ingots from
the vehicle.
• At the same time the sound of the
engine of a mechanized se-craft from
the side of the creek was heard by the
officers.
• The accused gave a false name and
address. He was convicted for
attempting to smuggle silver ingots.

28. • However, the additional session judge
acquitted him.
• The high court upheld the acquittal.
The prosecution appealed to the
Supreme Court.
• Held, allowing the appeal on the
ground that the intention of the
accused to export the silver from India
by sea was clear from the
circumstances .
• They were taking the silver ingots
concealed in the two vehicles under
cover of darkness.

29. • They had reached close to the sea-
shore and had started unloading the
silver there near a creek from which
the sound of the engine of a sea-craft
was also heard.
• Beyond the stage of preparation, most
of the steps necessary in the course of
the export by sea had been taken.
• The only step that remained to be
taken towards the export of the silver
was to load it on a sea-craft for moving
out of the territorial water.
• But for the intervention of the officers
of law, the unlawful export of the silver
would have been consummated.

30. Oi Be Kee v
PP
• The accused was charged with
attempted theft.
• Police officers spotted the accused
tampering with a motor car.
• The accused was seen trying to open
the vehicle’s nearside door, with a
piece of cloth and a bunch of keys.
• At the same time, the accused was
looking around, presumably to ensure
no one was around.
• After a short while, the police officers
stopped him.

31. • Held, convicted the accused on the
ground that it was beyond doubt that
the accused had the intention of
committing the said offence,
otherwise, he would not have
confessed of attempting to steal.
• The fact that he had a piece of cloth
with him which ordinary person
would not ordinarily carry it with him.
• It was view that the insertion of the
key into the key slot of the car was a
direct act done towards the
commission of the offence.

32. • From the above cases the following general propositions seem to emerge:-
1. The accused’s action must be proximate to the complete offence; he must
be beyond the stage of preparation.
2. The accused must do some acts towards the commission of the offence.
3. Actions are proximate to a completed offence when they are reasonably
close to the commission of the offence but:
a) The accused act need not be the last but one act towards the
commission of the offence;
b) It is irrelevant that the accused still has time to change his mind.
4. Actions were proximate when they revealed, with reasonable certainty,
the intention of the accused to commit the crime.
HELP LLB 104 32

33. PP v Zainal
Abidin
• The accused was charged with
attempted rape. He lay on the top of
the complainant with the intention of
penetrating her but abandoned his
plan when he was unable to obtain an
erection. He did not remove his
trousers.
• Held that the accused did attempt to
penetrate the girl and that the act
which took preparatory of the offence,
namely by lying on the top of the girl,
with his expressed intention of having
sexual intercourse are sufficient in law
to constitute an attempt to rape.

34. Harichandra
Narayah
Khardape
• The accused was spending the night
with the complainant and the family.
• He entered the kitchen where the
complainant and her children were
sleeping, bolted the kitchen door from
inside, extinguished the lamp and
made advances to the woman.
• He denuded himself below the waist
and attempted to remove her blouse
and sari.
• A scuffle ensued; the complainant
shouted for help and was rescued by
neighbors.
• Held, the accused still in preparatory
stage.

35. Actus reus
under
s 307 & s 308
• The accused must have done the last
act necessary for him to achieve his
objective.
• If yet further action were required,
then there would be no question of his
having committing the requisite act
that if cause death because that act,
without more, could not cause death.
• Refer to the Illustration

36. Om Prakash
v
State of
Punjab
• The accused ill treated and
deliberately undernourished his wife
causing her health deteriorate.
• He intentionally starved her and
prevented her leaving the house.
• She was denied foods and used to be
given gram husk mixed with water.
• Once she nearly escaped but was
caught, dragged back inside the house
and was severely beaten.
• 2 months later she manage to escape
and obtain help.

37. • The accused was convicted of
attempted murder and appealed
against his conviction.
• The court had dismissed the appeal on
the ground that the intervening fact
thwarted the attempt of the A to
commit the murder of the victim was
her happening to escape from the
house and succeeding in reaching the
hospital and thereafter securing
medical treatment.

38. • The accused was convicted of
attempted murder and appealed
against his conviction.
• The court had dismissed the appeal on
the ground that the intervening fact
thwarted the attempt of the A to
commit the murder of the victim was
her happening to escape from the
house and succeeding in reaching the
hospital and thereafter securing
medical treatment.

39. White
• The accused, who was indicted for the
murder of her mother, was convicted of
attempt to murder her.
• It was held that the accused had put 2
grains of cyanide of potassium in the wine
glass with the intent to murder her.
• It was, however, argued that there was no
attempt at murder because “the act of
which he was guilty, namely, the putting of
poison in the wine glass, was a completed
act and could not be and was not intended
by the A to have the effect of killing her at
once; it could not kill unless it were
followed by other acts which he might
never have done”

40. • This contention was repelled, and it was
said:
“There seems no doubt that the learned
judge in effect did tell the jury that if this
was a case of slow poisoning the A would be
guilty of attempt to murder. We are of
opinion that this direction was right, and
that the completion of attempted
completion of one of a series of acts
intended by a man to result in killing is an
attempt to murder although this completed
act would not, unless followed by the other
acts, result in killing. It might be the
beginning of the attempt, but would
nonetheless be an attempt”.

41. Impossible
Attempts

42. Introduction
• In understanding the law on this it will
be useful to employ the following
common law classification:-
1. Physical impossibility
2. Legal impossibility
3. Impossibility through ineptitude

43. Physical
Impossibility
• This is where it is physically
impossible for the accused to commit
the crime, whatever means he
adopted.
• E.g.: he intends to steal from a safe; he
breaks into the safe, but it is empty;
there is nothing for him to steal.

44. Legal
Impossibility
• This is where the accused has done
everything he means to do but in fact,
and unknown to him, what he has
done does not amount to a crime.
• E.g.: he intends to steal an umbrella
but unknown to him, the umbrella he
takes turns out to be his.

45. Impossibility through ineptitude
• This where the crime is
impossible in the circumstances
because of the accused's
ineptitude, inefficiency or his
adoption of insufficient means.
• E.g.: he tries to breaks open a
safe with a short crowbar, but
the short crowbar is too weak to
open the safe.

46. English law
position
• There could be no criminal liability for
impossible attempts in either of the
first two categories above.
• There could, however, be liability for
an attempts that was impossible
because of the ineptitude of the
accused.
• The rationale of this approach is that
when a crime is physically or legally
impossible to commit the accused can
never get close enough to the crime to
satisfy the actus reus of attempt.

47. • Impossibility through ineptitude, on
the other hand, the crime is not
actually impossible; the accused can
break into the safe; he simply need to
fetch and use a stronger short
crowbar.
• What is the position in Malaysia?
• S 511 clearly indicates that there can
be liability for attempting the
physically impossible.
• Refer to Illustration (a) and (b) of s
511.

48. Munah bt Ali
v PP [1958]
• The accused, trying to procure an
illegal abortion, inserted an
instrument into a woman’s vagina
with a view to thereby causing a
miscarriage.
• Unknown to the parties, the woman
was not in fact pregnant and thus it
was impossible to cause her to have
miscarriage.

49. • Held, dismissing the appeal on the
ground that the evidence clearly
showed that it was the intention of the
A to bring about a miscarriage and she
could not have made the attempt
unless she believed the complainant to
be pregnant.
• If the complainant was not pregnant,
then the failure of the attempt was due
to the factor independent of the A
herself.
• She is exactly in the same position of
the illustration under s 511 even
though these illustration speak of
attempts to commit a different type of
offence.

50. Ashgarali
Pradhania
• The accused was charged with attempting
to cause a miscarriage, but there was no
evidence to show that either of the two-
substance administered to the woman was
an abortifacient.
• The accused was acquitted on appeal.
• The court held that there was no attempt
to cause a miscarriage because the drug
which was administered was harmless but
it is implicit throughout the judgment that
s 511 and the principles embodied in the
Illustrations are wide enough to cover a
case where an act is done towards the
commission of an offence against s 312,
regardless that the complete offence
cannot be committed by reason of some
fact independent of the person who seeks
to commit the offence.

51. Queen
Empress v
Mangesh
Jiva’ji
• It was held that the inept person
would not be guilty of an attempt only
if his or her plan simply could never
succeed under any circumstances as
opposed to where it could not succeed
on this particular occasion only.

52. PP v Zainal
Abidin b.
Ismail
• Roberts CJ:
• The act…must be proximate… with
the offence… there can be an attempt
where the failure to convict the offence
is due to “ineptitude, inefficiency or
insufficient means on the part of the
defendant”.
• Applying this test, I find that
notwithstanding the he failed to
penetrate the girl by reason of his
inability to obtain any erection, D4 did
attempt to penetrate the girl…(and he
is guilty of) an attempt to rape.

53. R v Francis
Cassidy
• The accused pointed loaded uncapped
gun (believing it was capped) at his
superior officer with the intention of
murdering him.
• He was about to pull the trigger when
the gun was pushed up and he was
prevented from doing so.
• Held: in the present case although the
act was done with the intention to
causing death and was likely to belief
of the prisoner to cause death; yet in
point of fact it could not have caused
death, therefore, does not come within
section 307.

54. Awadesh
Mehto v
State of
Bihar
• The accused drew a loaded pistol and
pointed it at P but before he had time
to shoot the pistol, it was snatched
from his hand and he was arrested.
• Held: it is clear that act which is
punishable under s 307 must be an act
which is itself capable of causing
death…in the present case till he fires
he does not do any acts towards the
commission of the offence and once he
fires, and something happens to
prevent the shot from taking effect,
the offence under s 307 is made out.

55. • From the above case it seems relatively
clear that once the gun is fired,
liability will follow.
• A fired gun is capable of causing
death.
• It is irrelevant that in the
circumstances death would not
actually have resulted or indeed was
impossible.