Rex v Dhalla (Criminal Appeal No. 150 of 1943.) [1943] EACA 59 (1 January 1943)

## APPELLATE CRIMINAL

BEFORE SIR JOSEPH SHERIDAN, C. J., AND HAYDEN,

## REX. Respondent.

$\mathbf{v}$

## MOHAMED ALI DHALLA s/o DHALLA ISMAIL, Appellant.

## Criminal Appeal No. 150 of 1943.

Penal Code. Section 387—Attempt to obtain money by false pretences.

*Held* (3-9-43).—(1) That section 387 of the Penal Code is not more restricted in its meaning than English Law.

(2) That the fact that a final step remains to be taken to consummate an attempt to obtain by false pretences does not prevent the acts done amounting to such an attempt if these acts would have culminated in the full offence if accused had not been interrupted. John Laitwood 4 Cr. A. R. 248.

(3) That in the present case the accused had taken a step in the commission of the offence as distinct from a merc preparation for it.

Definition of attempt Stephens Digest of the Criminal Law p. 39 6th Edition referred to.

Atkinson and Inamdar for appellant.

Spurling, Crown Counsel, for the Crown.

JUDGMENT.—In our opinion the learned Magistrate, who in a very helpful judgment carefully analysed the evidence, had ample evidence before him to support his finding that the accused deliberately and knowingly made out false receipts and had them signed by representatives of the Naval Authorities purporting to show that he had supplied 700 mattresses stuffed with kapok when they were in fact stuffed with the inferior and less expensive article, cotton. He rejected the defence of mistake and we consider that he was justified<br>in doing so. In his judgment he said: "It is submitted by Mr. Inamdar that there is no evidence that the accused prepared or sent the invoices or delivered them. It is true there is no direct evidence on this point, but there is a. preponderance of circumstantial evidence which leads me to believe beyond a reasonable doubt that the two invoices were prepared, sent and delivered with the full cognizance, consent and instructions of the accused". This is a reasonable inference to be drawn from the evidence. The question then is whether what the accused did amounted to an attempt or was it merely a matter of preparation. for the commission of an offence.

Section 387 of the Penal Code in so far as it is material provides: -

"When a person, intending to commit an offence begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.

It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention. . . . "

We have already indicated that the learned Magistrate was justified in finding that the accused had the intention of committing the offence of false pretences. Can it be said that he had put his intention into execution by means adapted to its fulfilment and that he manifested his intention by some overt act? The learned Magistrate answered this question in the affirmative and in our opinion he was right. It is possible that the accused might not have succeeded in obtaining payment without completing the Form D56, though the evidence of d'Souza, the Naval Stores Clerk, was that one of the two invoices in the case had been sent to the Base Accountant's Office for payment. But in our view the sending of the invoices by the accused in conjunction with the preparation of the receipts for the mattresses which he had signed by the Naval representatives and the costings he had had made by Mr. Smith, the Deputy Price Controller, were acts not remotely leading towards the commission of the offence, but on the contrary acts immediately connected with it, and that accordingly what the accused did amounted to an attempt. It would, we consider, be an attempt in English law and in our opinion section 387 is not, as was contended, more restricted in its meaning than English law. The case of John Laitwood, 4 Cr. App. R. 248, seems to us to be in point, though we would remark that the present case strikes us as a stronger one. The headnote to Laitwood's case reads: "The fact that a final step still remains to be taken to consummate an attempt to obtain by false pretences does not prevent the acts done amounting to such an attempt, if those acts would have culminated in the full offence if accused had not been interrupted". In that case the appeal was not argued on the ground that there was no falsity, but on the ground that the appellant did not by what he said attempt to get money. Pickford, J. (as he was then), in the course of the case referred to the definition of attempt in Stephen's Digest of the Criminal Law (6th Ed. page 39) and in the judgment of the Court adopted that definition. In so far as it is material it reads: "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. The point at which such a series of acts begins cannot be defined; but depends upon the circumstances of each particular case". In Laitwood's case Pickford, J., said: "But what was he making the representations for? They were not mere preparation. He must have made them to get the £100". In the present case may we not with greater reason ask. "For what purpose did the accused prepare the false receipts for kapok, have the costings made and submit the invoices?" The answer we give is that these acts can have been done for one purpose only, namely an attempt to obtain money to which he was not entitled for kapok mattresses. Referring once more to Lait*wood's case* an illustration to Article 50 in Stephen's Digest to which Pickford, J., referred in the course of the arguments clearly shows that there can be an attempt even though there are other acts to be performed by an accused person prior to the commission of the offence. " $A$ procures dics for the purpose of coining bad money. A has attempted to coin bad money." One can envisage the other acts necessary to be performed by $A$ before the offence of coining has taken place.

In the present case the accused in short had taken a step in the commission of the offence as distinct from a mere preparation for it (see the judgment in The King v. Robinson, 2 K. B. 342 at 349.)

We do not consider that the conviction should be disturbed, nor do we consider that the sentence is excessive.

The appeal is dismissed.