Habitual Offenders, Attempt and Fine: Sections 14 to 16

Three short provisions close the chapter on offences. Section 14 punishes the repeat offender more severely. Section 15 makes an attempt to commit criminal misconduct an offence in itself, which is necessary because Section 13 is not framed in terms of attempt. Section 16 directs the court, in fixing a fine, to have regard to the pecuniary resources or property for which the accused is unable satisfactorily to account, which converts the fine into a means of removing the gain.

1. Section 14: The Habitual Offender

Whoever, having been convicted of an offence under the Act, subsequently commits an offence punishable under it is liable to imprisonment of not less than five years, extending to ten years, and to fine. The section as substituted in 2018 is framed around a previous conviction, which is a change from the earlier provision, where the offence was described in terms of habitual commission of the offences under Sections 8, 9 and 12.

1. A previous conviction is the trigger. The prosecution must prove a conviction under the Act preceding the commission of the offence charged, which is done by producing the judgment and proving identity.
2. The subsequent offence may be any offence under the Act, not necessarily of the same kind as the first.
3. The enhanced punishment is the consequence, being a minimum of five and a maximum of ten years, which is the highest range in the Act.
4. Under the earlier provision the concept was habitual commission rather than previous conviction, and the older authorities on what makes conduct habitual, requiring a course of conduct rather than isolated instances, relate to that version.

2. Section 15: Attempt

Whoever attempts to commit an offence referred to in clause (a) of sub-section (1) of Section 13 is punishable with imprisonment which may extend to three years and with fine. The section is confined to an attempt at the misappropriation offence, and the reason is structural: the other offences already include attempts within their own language, Section 7 covering an attempt to obtain and Section 11 covering an attempt to obtain a valuable thing, while illicit enrichment under clause (b) is a state of affairs rather than an act that can be attempted.

3. Section 16: Fixing the Fine

Where a sentence of fine is imposed under Section 13 or Section 14, the court, in fixing the amount, shall take into consideration the amount or the value of the property, if any, which the accused person has obtained by committing the offence or, where the conviction is for an offence referred to in Section 13(1)(b), the pecuniary resources or property for which the accused person is unable to account satisfactorily.

• The purpose is disgorgement. A fine unrelated to the gain leaves the offender in profit, and the section directs the court's attention to the gain itself.
• In an illicit enrichment case the measure is the unexplained wealth, which is why the computation of the disproportion matters to sentence as well as to conviction.
• It is a direction to consider, not a formula. The court retains its discretion, and the ability of the accused to pay and the other ordinary sentencing considerations continue to apply.
• It operates alongside attachment and forfeiture. Section 18A applies the Criminal Law Amendment Ordinance, 1944 to offences under the Act, so property may be attached during the proceedings and dealt with on conviction, and proceedings under the money laundering and benami legislation may run in parallel.

4. Related Topics and Provisions