CNA Explains: If the crime was 'impossible' to commit, can an offender still be guilty?

SINGAPORE: A man was recently convicted of attempting to cheat after he tried to pass off as genuine a rare watch that he thought was fake.

In a twist, the timepiece turned out to be authentic, making it "impossible" for the man to cheat the watch retailer who bought it. 

The man was sentenced to seven months' jail.

CNA asked lawyers to explain what exactly was illegal about the man’s actions, and how the law views botched attempts to commit crime.

Why is this called an “impossible attempt” at a crime?

The man, Deepak Singh, bought a rare Rolex GMT Saru with the intention of selling it for profit.

After getting the watch, he thought he may have been cheated with a fake and wanted to palm it off on an unsuspecting buyer.

While under the impression the Rolex was fake, he sold it to a watch retailer and attempted to flee the country.

The watch was eventually certified as authentic and original by the Rolex Service Centre after the crime was reported to the police.

Since the watch was genuine, Singh could not have cheated anyone about its authenticity – making it an “impossible attempt” at cheating that could not be completed.

The prosecutor referred to a past judgment by the Court of Appeal, noting that there are two situations where an offence of attempting to commit a crime may typically arise.

The first is where the accused has not completed what they intended to do – for example, because they were inept or someone intervened.

The second is where the accused has done all they intended to do, but the offence was not completed for some reason.

In the second situation, this may be because the accused was operating under a mistaken belief about something.

“This mistaken belief lies at the heart of the problem of impossible attempts because it leads to dissonance” between the act the offender intended to carry out, and the act they in fact carried out, said the court in the previous judgment.

Why was the man convicted even though he did not cheat anyone?

Singh’s conviction is under Section 511 of the Penal Code for an attempt to commit an offence. He was not convicted of cheating per se.

The legal test for conviction is whether he intended to commit the offence, and then whether he took a substantial step towards committing it, said Mr Mervyn Cheong of Advocatus Law LLP.

“In other words, once the accused intended to cheat and took concrete action towards doing so, the offence is established, even if no victim was ultimately cheated,” said Mr Cheong.

Apart from selling the watch, Singh took other steps in his attempt to cheat.

He showed a forged copy of his passport details to the buyer in order to escape criminal liability.

He also ignored calls from the buyer, who had grown suspicious, and booked a flight to leave Singapore that night. He was caught at the airport.

In offences of attempted crime, it is wrong to take reference from what an accused actually did, rather than what they intended to do, the Court of Appeal said in a previous case about impossible attempts.

“Cases involving impossible attempts must be resolved by focusing on the criminality of the intended act,” said the judges.

“If that is sufficiently established, it will not generally matter even if what the accused person in fact did would not objectively amount to an offence, such as if a would-be murderer stabbed a bolster mistakenly thinking it was his intended victim.”

Does this mean all that is needed to commit a crime is the intention to do it?

“Thinking about doing something wrong is not enough on its own,” said Ms Noelle Teoh, an associate lawyer at Gloria James-Civetta & Co.

“There must also be some real steps taken to put that intention into action.”

You might hear the words “mens rea” and “actus reus” in discussions about this.

“Mens rea” is a Latin phrase meaning the “guilty mind” that refers to what the accused was thinking or planning at the time.

“Actus reus”, meaning the “guilty act”, is what the accused actually did, added Ms Teoh.

Mr Cheong said both elements – intention and action – must be present for an offence to be made out of an attempted crime.

“In the case of attempt offences, the act is a substantial step towards committing the intended crime,” he said.

The Court of Appeal has said that the offender is required to have taken sufficient steps in attempting to commit the crime, which acts as a safeguard to ensure they are not punished purely for guilty intent.

Section 511 of the Penal Code describes examples of attempt offences, such as trying to pick a pocket that is empty.

“Another classic example that has been cited in case law is the example of a man who takes his own umbrella, believing it to be someone else’s, with intent to steal it,” said Ms Tan Jun Yin, partner at Trident Law Corporation.

Have there been other “impossible attempts” in Singapore?

There are at least two other cases of impossible crimes, both involving drugs.

A man named Mas Swan Adnan was accused of importing 21.48g of diamorphine for trafficking in 2009.

“At the trial, the accused raised the defence that he believed he was carrying ecstasy pills instead of diamorphine. The trial judge accepted his defence,” said Ms Tan.

This raised the question of whether Mas Swan could be convicted of attempting to import ecstasy, given that the drug he actually brought in was diamorphine, she added.

The Court of Appeal decided the answer was yes.

This was because Mas Swan had intended to commit the offence of importing ecstasy and done everything possible to complete the offence.

“The only circumstance that prevented him from actually importing ecstasy was that the three bundles did not in fact contain ecstasy,” the judges said in 2012.

Another man called Han Fang Guan was accused of attempting to traffic in 18.62g of diamorphine (or heroin) in 2016. He was initially convicted and sentenced to death.

The Court of Appeal acquitted Han after he successfully argued that he had ordered ketamine and methamphetamine (or Ice) instead, and that there could have been a mix-up in the drug orders.

The judges, led by Chief Justice Sundaresh Menon, then had to decide if Han’s charge should be amended to one of attempting to traffic in other drugs.

Seven bundles of drugs were found in the case, and none of them corresponded to Han’s drug orders.

The question the judges asked themselves was: “Given that it was impossible at the relevant time for Han to have committed the offence of possessing ketamine and Ice for the purpose of trafficking, can he be charged with attempting to commit that offence?”

Deliberating this in 2020, they established a two-stage framework to determine if an accused would be guilty of an “impossible attempt”.

“First, the accused must have had a specific intention to commit a criminal act. This constitutes the mens rea, or ‘intention’ element of an impossible crime,” said Ms Tan.

This involves asking what the accused specifically intended to do, and whether the intended act was criminal. If the answer is yes, the inquiry proceeds to the second stage.

“Second, the accused must have taken sufficient acts in furtherance of the specific intention to commit the criminal act (above). This constitutes the actus reus of an impossible crime,” said Ms Tan.

In the end, Han was reportedly sentenced to eight years’ jail for attempting to traffic in ketamine and methamphetamine.

How does the intention to commit crime affect sentencing?

“Intention is a requirement to establish the offence. Once the offence is made out, intention itself becomes a neutral factor at sentencing,” said Mr Cheong.

He added that evidence of premeditation or sophisticated planning may result in a heavier sentence.

“While these relate to intention, they more directly relate to the offender's culpability or blameworthiness,” he said.

“Generally, an offender who engages in deliberate planning, especially to cover their tracks, evade detection or avoid arrest, will be viewed as more culpable and face a harsher sentence.”

Conversely, when the act is more spontaneous or involves a lower level of planning, the punishment may be less severe, said Ms Teoh.