UCR 2622: Criminal Law II

Tutorial 4 – Criminal conspiracy & Abetment

1) Ali, Muthu and Chong are best friends from their school days. The three had agreed
and planned to break into a house owned by Dato’ Zack. (S.120A) According to their
plan, Chong was to stand guard outside the house by the back gate, while Muthu and
Ali were to break into the house.

On the agreed day, Muthu informed Ali and Chong that he had to send his sick mother
to the clinic, but he promised to Ali and Chong that he will arrive at the house “on-
time” according to their plan. At the appointed time, Muthu failed to appear as
promised, Chong and Ali then proceeded with their plan without Muthu being present.
Chong, who was standing guard outside the back gate of the house as planned, was
caught by a patrolling policeman who had heard a shot coming from Dato’ Zack’s
house. In the incident, Ali was shot by Dato’ Zack at his feet when Ali tried to break
the sliding door entrance to the house.

Discuss the criminal liability of Ali, Chong and Muthu respectively.

Ali -
Chong -
Muthu - S.120A (criminal conspiracy)

The first issue is whether Ali, Chong and Muthu are liable for criminal conspiracy
under Section 120A of the PC.

Criminal conspiracy is provided in Section 120A of the Penal Code (PC), which
states that when there are two or more persons agreeing to do an illegal act or any legal act
by illegal means shall be considered as criminal conspiracy. It is provided in the Proviso that
any agreement made between two or more persons to commit an offence shall fall within the
meaning of criminal conspiracy, even the accused are yet to reach the stage of preparation.
The offence of criminal conspiracy is punishable under Section 120B of PC, where
subsection (1) provides that, for criminal conspiracy to commit any offence that is originally
punishable with death or imprisonment with a term of two years or more, the accused shall
be liable for the same punishment as if he had committed such offence. On the other hand,
Section 120B(2) of PC specifies the punishment to be imposed for situations excluded in
subsection (1). If a person is found to be liable for criminal conspiracy to commit an offence
that is punishable with any other penalties other than the mentioned penalties, he shall be
punished with imprisonment for a maximum term of six months, or with fine, or with both.

From this provision defining criminal conspiracy, two elements may be derived from
it in satisfying the element of actus reus of criminal conspiracy. Firstly, it is necessary to
show there is an agreement made between two or more persons, and secondly, the agreement
must be made for either of the two purposes, namely to commit an illegal act or to commit a
legal act by illegal means. These two elements under actus reus have been laid down in the
case of Mulcahy v R, where the court outlined that a criminal conspiracy does not only
involve intention of two or more persons, but there must be an agreement between two or
more persons for the purpose of doing an unlawful act or doing an act by unlawful
means. The word “agree” was defined by the court in the case of Kannan s/o Kunjiraman
& Anor v P, that “agree” refers to a true intention of the parties to enter into an agreement
and when the parties are said to have agreed on something, the agreement suggests that there
is an intention between the parties to carry into effect of the agreement.

Besides, the mens rea of the accused must be proven, where there must be intention
on the conspirators to join or gain something that is illegal in its nature or by illegal means,
after agreement has been made. In the case of Yash Pal Mital v State of Punjab, the accused
was charged with criminal conspiracy together with other various offences. In relation to the
mens rea of criminal conspiracy, the court has clearly stated that it is required for all
conspirators to acquire one particular objective that is known by all conspirators and they are
all interested in such objective. In order to establish criminal offence, the main ingredient is
the agreement, concert or league between the conspirators. Besides, it is unnecessary to
prove that each conspirators have the knowledge of specific details in the agreement, but
they will be liable if he acts with the intention to achieve the main objective of the
conspiracy. 

Applying to the present case, in proving the element of actus reus, there must be an
agreement by at least two more more persons agreeing to commit the same illegal act or an
legal act by illegal means. With reference to the facts provided, all the three friends, Ali,
Muthu and Chong had mutually agreed on a plan to break into a house owned by Dato’
Zack, which was regarded as an illegal act by way of trespassing into someone’s house
without consent or prior permission. Moving on, in determining the mens rea, by looking
into the facts, according to the three guys’ planning during their communication, each of
them were assigned with different roles and duties during the commission of crime, in which
Chong was to stand guard outside the house by the back gate, while Muthu and Ali were to
break into the house. Although during the actual commission of the illegal act, although at
the appointed time Muthu failed to appear as promised in Dato’ Zack’s house and thus was
not directly involved in actual commitment of the crime, nevertheless he may still be found
liable for conspiracy as he had agreed with the other friends to break into Dato’ Zack’s
house and have agreed on the planning regarding their roles and duties. (he did not withdraw
from the conspiracy) Hence, criminal conspiracy was committed as all of them had agreed to
commit the offence and they had actually took some steps towards its commission.

Conclusively, Muthu are all liable for criminal conspiracy under Section 120A of the
PC. Upon conviction, they shall be punished under S.120B (1) /(2)?

Moving on, the next issue to be determined is whether Chong & Ali is liable for
abetment by way of conspiracy under Section 107 (b) of PC.
 As outlined in Section 107(b) of PC, abetment may also be committed by
conspiracy. Generally, abetment by conspiracy refers to the agreement between two or more
persons to commit an unlawful act, and the conspirators have taken further steps related to
the unlawful act pursuant to the conspiracy. 

From this provision, there are three elements to be satisfied in order to establish the
actus reus of abetment by conspiracy. Firstly, the abettor shall engage with another one or
more persons to constitute conspiracy. Once conspiracy exists, there is no need to determine
who is the abettor and who is the principal offender, as they will all be regarded as
conspirators. Secondly, the subject of the conspiracy or agreement between the conspirators
must be the doing of the thing abetted. Thirdly, certain acts or illegal omission must have
been done by the conspirators in pursuance of the conspiracy, where there is an agreement
and further act has been taken in order to commit the offence that has been conspired by the
conspirators. The abettor may not have been involved in the commission of the offence, but
it will be sufficient to hold him liable together with another principal offender once
conspiracy has been established, where the abettor is engaged in the conspiracy.

In the case of Chandrasekaran & Ors v PP, the accused was found to be guilty for
abetment by conspiracy to defraud the government with the use of forged vouchers.
Evidences were adduced and proven that there was communication made between the
accused and the witness, and act was done in pursuance of the conspiracy. In another case of
PP v Yeo Choon Poh, it was outlined by the court that it is not necessary to prove that the
conspirators have worked together throughout the commission of the offence, but it will be
sufficient if they have participated in the process of conspiracy. In this case, three accused
were driving three separate cars, plastics bags were being placed by the second accused in
the first accused’s car and three accused went for lunch by using the car of the second
accused. Subsequently, drugs were found in the plastic bags that were placed in the first
accused car.

Applying to this case, the fact that Ali n Chong agreed to proceed with the plan to
break into house, and they proceed without Muthu shows that they had intention to enter into
agreement. This also shows they have done sth in pursuant to their conspiracy.

Conclusively, by fulfilling both actus reus and mens rea, Chong and Ali shall be
liable for abetment by conspiracy under S.109 PC.

If a
Attempt? (Ali)
S.457 - house breakinng (principle offence)
2) Explain the difference between section 107 (b) and section 120A of the Penal Code.
Section Section 107(b) PC
Offence Abetment by Conspiracy
Nature of Offence Musr read together with
principal offence
Elements 1. The person abetting must
engage, with one or more
other persons in a
conspiracy;
2. The conspiracy must be
for doing of the thing
abetted; and
3. An act or illegal omission
must take place in
pursuance of the
conspiracy.
Nature of Participation The abettor participates in the
commission of the offense as
part of a pre-existing
conspiracy with one or more
persons. (act in pursuant of the
conspiracy)
The abettor may aid, engage,
or encourage the main
offender to commit the
offense, but they are not
necessarily present at the
scene of the crime. (but the act
must have been committed
somehow)
Case: PP v Yeo Choon Poh
Number of Offenders There may be multiple
offenders involved in the pre-
existing conspiracy, but there
must be at least two people
involved, i.e., the abettor and
the main offender.
Proof required The prosecution must
establish that there was a pre-
existing conspiracy involving
the abettor and the main
Section 120A PC
Criminal Conspiracy
Stand-alone offence
1. AR
(a) there is an agreement
made between two or more
persons
(b) the agreement must be
made for either of the two
purposes, namely:
- to commit an illegal act, OR
- to commit a legal act by
illegal means.
2. MR
Intention of the conspirators
achieve particulat objective
The parties agree to commit
an offense and take some steps
towards its commission.
Unlike abetment by
conspiracy, criminal
conspiracy does not
necessarily require any direct
involvement in the
commission of the offense/act.
There must be at least two
persons who agree to commit
an offense and take some steps
towards its commission.
The prosecution must prove
that two or more persons
agreed to commit an offense
and took some steps towards
 offender, and that the abettor its commission.
aided, engaged, or encouraged
the main offender to commit
the offense
Punishment S.108 PC S.120B, PC
A person abets an offence who
(1) Whoever is a party to a
abets either the commission of
criminal conspiracy to commit
an offence, or the commission
an offence punishable with
of an act which would be an death, imprisonment for a
offence, if term of two years or upwards
committed by a person shall, where no express
capable by law of committingprovision is made in this Code
an offence with for the punishment of such a
the same intention or
conspiracy, be punished in the
knowledge as that of the same manner as if he had
abettor. abetted such offence.
(2) Whoever is a party to a
(Same as the punishment for criminal conspiracy other than
the offense that was a criminal conspiracy to
committed or intended to be commit an offence punishable
committed. ) as aforesaid shall be punished
with imprisonment for a term
not exceeding six months or
with fine or with both.