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Section 390(2) provides for the circumstances when theft constitutes robbery.
Section 390(3) provides for the circumstances when extortion constitutes robbery.
Section 390(2) provides for the circumstances when theft constitutes robbery.
The word for that end must be related to the commission of theft.
Therefore, where an assault has no relation to the theft, robbery is not
committed
I.E. the accused first assaulted the complainant and then subsequently
formed an intention to take his watch, he cannot be liable for robbery but
only for theft.
Subramaniam v PP
S397 aims at the particular offender who is thus armed attempts to cause
death or grievous hurt; not against the associates with such armed offender
in the commission of robbery where himself is not armed with a deadly
weapon and does not himself cause grievous hurt or attempts to cause death
or grievous hurt to any person.
The joint liability of two or more persons in the doing of a criminal act under
section 34 of the Penal Code does not extend to section 397.
Section 397 provides for the imposition of an additional sentence and
its provisions are to be invoked only against an offender who actually acts
in contravention of that section; not to other person no matter how much
that person may have acted in concert and in furtherance of the common
intention to commit robbery.
In the present case only one of the three robbers was armed with a knife- a
deadly weapon within the meaning of section 397. The other two were not
armed nor did they cause grievous hurt or attempt to cause death or
grievous hurt to any person. Thus, the additional punishment of whipping
under section 397 could only be imposed against the armed offender.
Applicability of s 34 to s397
R v Yeo Kim Watt
The appellants were jointly charged under s 392 and s397. 2 ND A was armed with a
deadly weapon but 1st A was not. It was argued on behalf of appellants that by
comparing s 394 such person and any other person with s 397 such offender, s
397 does not create a distinct offence and s 34 cant be applied.
Issue: Does s397 create a separate offence or that it merely prescribes a
punishment for an offence already defined in the Code. In another words, is the
offence prescribed under s 397 distinct from robbery which is punishable under s
392 or attempted robbery punishable under s 393?
HELD - Apart from being liable under s 392, the appellants were equally liable
under s 397 (1st A liable by virtue of s 34).
The court refer to a number of examples in the code where the commission of an
offence in specified aggravated circumstances is made an offence quite separate
and distinct from the non-aggravated offence. IE:
(i) s 382 is entirely different from s 379
(ii) Voluntarily causing hurt by the means of weapons or means set out in s 324
is different from offence punishable under s 323.
(a)
Comparison of the language of section 397 with that of section 394 is of no
assistance as to whether section 34 applies to section 397 because the provisions of
section 394 are sufficient in themselves to deal with all the persons committing
robbery with hurt without recourse to section 34.
(b)
By section 9 of the Penal Code it is provided that words in the singular include the
plural and therefore the word "offender" in section 397 can be interpreted as
including more than one person.
(c)
Section 397, when read with section 392 or section 393, creates separate and
distinct offences from the offences prescribed by the two last mentioned sections to
the same extent that the offence of theft in any of the aggravating circumstances
set out in section 382 is an offence different from theft under section 379 and just
as voluntarily causing hurt by the weapon or the means set out in section 324 is not
the same offence as that which is punishable under section 323 for voluntarily
causing hurt.
(d)
That since section 392 or section 393, read together with section 397, creates
separate and distinct offences, there is no reason why section 34 should not apply
to those offences to the same extent as it applies to other offences.
With regard to the reference, therefore, this Court decides that the provisions of
section 34 of the Penal Code are applicable to section 397 of that Code in respect of
the offences defined when that section is used conjointly with section 392 or section
393.