QUESTION 5 

According to Gillian in “Joint Liability in the Penal Code” the complexity of section 34 of
the Penal Code has proved, time and time again, perplexed the courts when considering
whether an accomplice should hold the same accountability of an offence that had been
perpetrated by another individual. The complexity lies in the fact that these accomplices have
not actually carried out the actus reus of the offence that they are being charged with, yet
they carry the punishment of that offence. However, it must be noted at this juncture, that the
purpose of invoking this provision is to ensure that the law is not blind to the gross crimes
carried out by secondary offenders in a commission of an offence. Section 34 lays down
several elements that must be satisfied in the event that it is invoked by the prosecution.
These elements are (i) all accused persons hold a common intention to commit an offence, (ii)
the offenders have participated in the commission of the offence, (iii) a criminal act was
performed and (iv) these criminal acts have been performed in the furtherance of that
common intention. These elements prescribed by the Code have been adopted, analysed, and
dissected by case laws in order to bring deep understanding in the implementation of this
provision in instances involving several offenders.

For the first element, there must exist a common intention between the offenders, it holds a
profound significance under this provision as it expresses that all participants of the crime
hold the same desire to manifest a particular crime although, their acts have differed. In the
article “Clarifying Common Intention and Interpreting Section 34: Should There Be a
Threshood of Blameworthiness for the Death Penalty” by Amirthalingam, the learned
author vividly explains that section 34 displays that criminal liabilty shall be equally imposed
upon all participants if it can be proved that the parties have acted with a common intention.
A significant authority that had lent its powers of interpretation to the component of common
intention is the Singaporean case of Mimi Wong. In this case, the appellant, Mimi Wong, and
her ex-husband had stabbed and killed the wife of the first appellant’s romantic partner, Mrs
Watanabe. Wee Chong Jin CJ explained in this case that the second appellant cannot be
guilty of the offence under section 302 of the Penal Code unless the existence of common
intention of both appellants to cause the death of the victim is proved. The learned judge
provided a deep analysis of section 34 by illustrating that the provision only states that
liability is found in the existence of a common intention which allows the accused to perform
a criminal act in furtherance of that intention. It was further elaborated by the learned judge
that the intention of the actual doer must be distinguished from the common intention of the
doer and his confederates, and whether or not the intention is identical, the common intention
among the offenders must be run in parallel to the criminal act. In this case, the court found
that both the appellants possessed the common intention to cause bodily injury to the victim. 

Another lucid illumination on the principle of common intention was supplied by the case of
Public Prosecutor v Daniel Vijay s/o Katherasan and Ors. Here, the three accused persons
had caused the death of one Wan Cheon Kem, and was consequently charged under section
302 read along with section 34 of the Code. The High Court referred to Lee Chez Kee v PP in
its contemplation of common intention, as it was provided in Lee that in order to prove
common intention inferences from the circumstances of the case must be made such as the
conduct of the parties, the choice of weapons and the nature of the wounds inflicted upon the
victim. The High Court in Daniel Vijay, found that there was distinct evidence to show that
all three offenders had the common intention to commit robbery as they all knew that
violence would have been necessary in order to overpower the victim in order to facilitate the
commission of the robbery and although the first and third accused were unaware of the
principal offender’s method of executing that violence, the brutal assault committed by the
principal offender was made in the furtherance of that common intention. Therefore, the High
Court held that in pursuit of section 34 the secondary offenders shall be held liable for the
actions of the principal offender in the same manner as if the acts were performed by them
thus, holding them equally culpable.  

However, the case went on appeal and the issue of common intention was raised before the
Court of Appeal. The Court of Appeal reversed the decision of the High Court and held that it
was difficult to accept that the secondary offenders had the common intention to cause the
death of the victim. The Court of Appeal further explained that all offenders did possess the
common intention to commit a robbery however, did not have the common intention to cause
the death of the victim. Moreover, the Court of Appeal opined that mere knowledge of the
execution of violence would not amount to the formation of a common intention and that
although the secondary victims were aware the violence was going to be exercised in the
commission of a robbery, it would not equate to them having the desire to kill the victim. 

Malaysian courts have also provided extensive analysis and application of the doctrine of
common intention. In Goh Wee Khian v PP, the first appellant had planned to cause hurt to
his girlfriend. The other three appellants had agreed with the plan to cause hurt to the first
appellant’s girlfriend and carried on with the plan which ultimately caused the death of the
victim, the first appellant’s girlfriend. The prosecution invoked the charges under section 302
read together with section 34 in order to hold all appellants liable for causing the death of the
victim. Balia Yusof Wahi JCA delivered that the prosecution must prove that the participants
need only to possess the mens rea for the offence commonly intended and not necessarily the
mens rea of the offence that had been actually committed. The Court of Appeal in this case
reaffirmed the decision of the High Court and held that there was an overwhelming amount
of circumstantial evidence that displayed that common intention was present among all four
appellants. Balia Yusof Wahi JCA went on to further elucidate that there was a unity of
purpose and there was certainly a meeting of the minds between the four appellants as to
what needed to be done which had been carried out by the third and fourth appellants. The
Court of Appeal stated that the charges against the appellants shall stand and dismissed the
appeal. A contrasting example of a unity of purpose can be seen in Mohamad Hafiz
Sairullah Mahadi v PP where the first appellant had stopped the second appellant from
aiming a pistol at the victim. Here, the Sessions court found that since the first appellant had
stopped the second appellant in his act, he would obviously not have the common intention to
cause the death of the victim. It was a clear evidence that both appellants were not in unison
in their intention to commit the offence. 

In addition to these above cases, another case in point that must be mentioned is the old
Indian case of Suresh v State of Uttar Pradesh. Agrawal J explained that a common intention
between the offenders may be formed prior to the commission of the offence or in the course
of the commission of the criminal act or even in the spur of the moment. The learned judge
illustrated the flexibility of common intention to cover an array of instances. Furthermore, in
Asogan Ramesh s/o Ramachandran v PP it was held that  that common intention must be
present in order to invoke section 34 and it was also held in this case that the common
intention can be formed or developed when the defendants carry out the wrongful act
therefore, the defendants may form the common intention as they perform the wrongful act. 

It must be noted at this juncture, the significance this facet of the charge holds. It is evident
from the cases cited above that the prosecution relies on this element heavily as it carries the
core of the charge because it is of a character that it displays that although, the secondary
offenders did not carry out the actus rea of the offence they participated in, the secondary
offenders had the aim, purpose and desire to see that offence manifest. The prosecution must
prove through thorough application of the circumstantial evidence that these offenders have
all been mentally united during the commission of the offence. 

The component under section 34 is participation by the secondary offenders. Soe in “Some
Aspects of Common Intention In The Penal Code of Singapore and West Malaysia” stated
that there is a distinct clause “a criminal act done by several persons” which indicates that
participation is a prerequisite for the invocation of this provision. The prosecution relies on
this element in order to prove beyond a reasonable doubt that not only did the secondary
offenders form a common intention to commit a particular offence, these accomplices had
also participated in the commission of that offence. In Chew Cheng Lye v Regina, Whitton J
rules that the commission of the criminal act through participation is what forms the subject
of the charge. The ruling in PP v Tan Joo Cheng raised an interesting question in respect to
what would constitute participation required by section 34. In this case, the three accused
person were charged with the murder of the victim, Lee Juay Heng under section 302 read
with section 34 of the Code. The High Court found the principal offender, Joo Cheng, to be
liable for murder under section 302 however, stated that the prosecution failed to prove that
the other two offenders, Ah Lek and Kang Hai, were guilty of the same offence. The case
went on appeal to the Court of Appeal. The Court of Appeal found for the first accomplice,
Ah Lek, that his act of procuring a knife and rope, renting a car and being the driver to carry
out the plan all constituted as participation. The court saw Ah Lek’s acts to have actively
facilitated the manifestation of the crime. Furthermore, for the second accomplice, Kang Hai,
the Court of Appeal opined that although the second accomplice was not physically present
during the commission of the crime, every act that the second accomplice had done was in
the furtherance of the common intention to rob which includes participation. 

Another case that illustrates further on the principle of participation is PP v Neoh Bean Chye
& Anor. Here the court saw the secondary offender’s act of loading the gun and handing to
the principal offender as an active participation. The Court of Criminal Appeal stated that
both offenders were present during the commission of the criminal offence of murder thus
charged both offenders under section 302 read with section 34. In addition to this, in
Barendra Kumar Gosh v Emperor, Lord Summer of the Privy Council expounded “Even if
the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as
in other things they also serve who only stand and wait”. In this case, the accused that this
quote was directed at was outside the room where the victim was killed. The Privy Council
found that although he did not fire at the victim, he was nevertheless guilty for actively
facilitating and participating in the commission of the offence. Moreover, in Om Prakash v
State the Allahabad Court of Appeal held that the presence of the offender for the purpose of
facilitating or promoting a particular offence is in itself an actual participation. The Court
further explained that every person charged under section 34 must have, in some form or
other, participated in the offence, however slight, whether it was an act of an omission.
Furthermore, in Wan Hung Soon & Anor v Public Prosecutor, Wee Chong Jin CJ provided
that participation could have played only a small part in the commission of the criminal act
however, can still take the form of participation required by section 34. 

Malaysian courts have also lent its powers of analysis to the principle of participation under
section 34. In Shamsudin bin Abas v Public Prosecutor it was stated that section 34
envisages the criminal act to be done by several persons, which means that presence and
participation are the most crucial components needed to be proven. In the recent case of
Chew Wai Keong v PP & Another Appeal, Her Ladyship Aziah Ali FCJ held that “presence
at the scene of the crime is not necessary for section 34 of the Code to apply but presence on
the spot for the purpose of facilitating or promoting the offence is itself tantamount to actual
participation in the criminal act”. This perspective of participation was also seen to have been
adopted in, PP v Perdaus bin Ahmad Sah where the court provided that among the
ingredients of section 34 a mere presence is not necessary to form participation however they
must have performed an act with some nexus to the crime. Lastly, in Ong Teik Thai v PP the
court held that participation of the individual offender in the criminal act in some form or the
other is the leading feature of the principle of constructive liability under section 34. 

Looking at the cases cited above, an inference can be made from each decision of the court.
The requirement of participation under section 34 is a unique one as it is solely based on the
conduct and acts of the secondary offenders. In some cases like Joo Cheng and Barendra,
the secondary offender’s mere presence in the vicinity of the criminal act was sufficient to
hold them vicariously liable however, in other instances mere presence was not enough to
hold someone accountable for the offence that had been committed in their presence, such as
in Chew Wai Keong and Perdaus. Therefore, the prosecution is dependent on the principle of
participation to show that, whether or not the secondary offender was merely present, there
was the essential element of acting with the desired purpose in mind. All these offenders in
the cases above had been persecuted under section 34 because whatever act they had
performed no matter how small was an active facilitation of the criminal offence being
carried out. Thus, through their conduct they have participated in their own way intentionally
and consciously manifested the offence committed. 

Having discussed and analysed the principles of common intention and participation by
secondary offenders, the prosecution must now establish that a criminal act has been
performed. A criminal act flows in tandem with participation. The distinct case of Barendra
Kumar Gosh v Emperor the Privy Council defined the meaning of criminal act as the unity
of criminal behaviour. Another authority that delved into the constituents of a “criminal act”
is the article “Recent Developments in Common Intention, Case Note on Lee Chez Kee v
PP'' by Nathaniel Yong-Ern Khng and Chen Siyuan. Within this academic work the
definition provided by Barendra was adopted. The paper explained that a criminal act in
respect to section 34 does not solely refer to the actual commission of the offence but rather
the whole of the criminal enterprise in which the parties engage themselves in regard to the
common intention held amongst them. This goes to mean that the cumulative acts of each
offender had led to the manifestation of the crime. Moreover, in Suresh v State of Uttar
Pradesh, his Lordship Thomas J stated that in order to attract the invocation of section 34 of
the Indian Penal Code, two postulate are indispensable, among which is that (i)  a criminal
act, consisting of a series of acts should have been performed by not one person however all
persons that are found liable under the provision and (ii) the combination of every individual
act had in toto caused the commission of the deplorable offence. 

To analyse the principles explained and elaborated above, there is a demanding need for the
prosecution to evince that each of the offenders have contributed some form of act or conduct
which accumulated to form one whole criminal act that had caused the offence in question.
As aforementioned, participation and criminal act are conjoined in its application under
section 34 therefore, like in the case of Wan Hung Soon, even if the act contributed by the
secondary offender does not hold a similar significance as the primary offender, the
combination of the criminal acts by the secondary offender and the primary offender must
have caused the crime. The establishment of this postulate strengthens the invocation of
section 34 by the prosecution as it showcases that these secondary offenders are just as
culpable as the principal offender because the offence could not have manifested without the
combination of the criminal acts of all offenders. 

The last element relied upon the prosecution in their invocation of section 34 is that every act
performed by the offenders must have been in the furtherance of their common intention.
Many jurists have found that the clause “furtherance in common intention” to be vague and
have vexed the courts in its interpretation of the phrase. In Ratanlal and Dhirajlal’s Law of
Crimes it was explained that the phrase “furtherance of common intention” falls into three
main categories namely, (i) acts which were directly intended by all the confederates, (ii) acts
which in the circumstances were undoubtedly to be taken as included in the common
intention although the were not intended by all the offenders, and (iii) acts that were
committed by any of the offenders to remove any resistance against the proper execution of
the common intention. The case of Lee Chez Kee v PP the second category was embraced in
the court’s decision. In this case, the court laid down that the secondary offender must
subjectively know that one in his party is likely to commit the criminal act constituting the
collateral offence in the furtherance of the common intention of carrying out the primary
offence. This perspective was however rejected in Daniel Vijay v PP as the Court of Appeal
found that the presence of knowledge that violence would be used does not sufficiently
amount to a common intention beholden amongst the confederates therefore, every individual
act performed by the secondary offenders were done in the furtherance of the primary
offence, the robbery, and not the death of the victim.

Malaysian courts have also contributed to the analysis of the clause. In PP v Kagatree Pechi
& Anor High Court found that the conduct of both accused persons had pointed to the
undeniable conclusion that they had caused the death of the victim in pursuance or in the
furtherance of their common intention. The court found that both the accused persons,
Kagatree and Murugan, based on the circumstantial evidence admitted to the court that every
act that they performed was all committed with that common intention to cause injury to the
victim which was likely in the ordinary nature of the act to cause the death of the victim in
pursuance of section 300(c) of the Code. Furthermore, in Mahadzir bin Yusof & Anor v
Public Prosecutor the Court of Appeal made reference to the categories laid down by the
learned Ratanlal and Dhirajlal Law of Crimes. Here the Court of Appeal viewed that the
appellants had the common intention to obtain the monies that were intended to be shared
amongst the victim and found the two appellants in their act of continuous assaults on the
deceased until he was immobile to be in the furtherance of that common intention. In addition
to this, in Low Kian Boon & Anor v PP the court made reference to Mimi Wong’s case as it
was seen that the act of throwing detergent in the victim’s eyes at the moment the primary
offender was about to stab the victim in order to prevent resistance on the victim’s part had
displayed some kind of strategy on the part of the secondary offender which was consistent
with the killing. 

In the furtherance of common intention shall encompass one significant facet which is that all
offenders must have had a common intention firstly to commit the specific offence they are
jointly charged under and their criminal acts must have served that common purpose. If at all
the offence were to have occurred without the knowledge or intent of the confederates, their
criminal acts cannot be seen to have fueled the manifestation of that specific offence. Thus,
the prosecution must take into account all evidence, direct and circumstantial, to prove
through the act and conduct of the confederates that they have all performed their individual
acts to see that common purpose through. 

In sum total, the invocation of section 34 is not a light burden to bear by the prosecution. The
elements prescribed under the provision bestows a strenuous expectation on the prosecution
to establish each and every one of them in order to hold secondary offenders vicariously
liable. The prosecution team is expected to establish (i) that there was a common intention
among the culprits, (ii) that the secondary offenders must have participated in the commission
of said offence, which means that their presence at the scene of the crime must have actively
facilitated the performance of the malicious act, (ii) there was a unity in the criminal act of all
confederates to display that the combination of every individual act must have caused the
crime to occur and lastly (iv) every act performed by the offenders must have been done in
pursuance of that common intention that has been established in the beginning. If the
prosecution fails to establish any of these postulates beyond a reasonable doubt, then their
invocation of section 34 against the secondary offenders will also fail. It must also be
remembered that section 34 does not hold for a substantial punishment on its own thus it
must be read together with the offence that the parties have participated in. Like in the case of
Mimi Wong and Tan Joo Cheng where the accused persons have been charged with section
34 read with section 302 for murder, and as well as all the other case laws cited above. In my
own humble opinion, I believe that the weight of invoking section 34 is just and reasonable
as it imposes a great liability upon the secondary offenders. Therefore, although it may seem
unfair to impose a liability as such upon the accomplices, these offenders have displayed, in
their own individual ways, that their conduct and actions in the duration of the commission of
the offence was so gross that it would seem as though they had committed the offence solely.