INCHOATE OFFENCE/PARTICIPATION

INTRODUCTION

● At times, the offender may not have completed the offence that he wanted to carry out. The law
will still punish him for the ‘steps’ that he had done to complete this offence.
● The steps that he took could be amount to offences that are called “inchoate” or incomplete.
● Refer to chapter 34 and pg. 893 of your text book.
● Such offences could fall under s 107 and s 120A.
● Abetment – this offence is penalised under s 107 (refer to pg. 894). Under this section, the offender
is penalised if he assists the principal offender either by instigating, conspiring or by providing
assistance.

1) CONSPIRACY
● An agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful
means.
● Criminal conspiracy is a continuing offence and continues to be committed as long as the parties
continue to agree to carry out the plot.
● Eg: R v Liyanage & Ors, Re Hussain Umar
● Criminal conspiracy is considered as inchoate in a sense that criminal liability can be imposed even if
the substantive offence is not committed.
● However, it is not entirely inchoate as it also covers cases where substantive offence has been
committed.
● s.120A, PC - When two or more persons agree to do, or cause to be done—
(a) an illegal act; or
(b) an act, which is not illegal, by illegal means, such an agreement is designated a criminal
conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal
conspiracy unless some act besides the agreement is done by one or more parties to such
agreement in pursuance thereof
● s.120B, PC –
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death,
imprisonment for a term of two years or upwards shall, where no express provision is made in
this Code for the punishment of such a conspiracy, be punished in the same manner as if he had
abetted such offence.
(2) Subject to subsection (3), whoever is a party to a criminal conspiracy other than a criminal
conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment
for a term not exceeding six months or with fine or with both.
(3) If the offence, the commission of which is the object of the conspiracy, is a minor offence under
the Minor Offences Act 1955 [Act336] the punishment for such conspiracy shall not exceed the
maximum punishment provided for such minor offence.
 ● s.120A provides the substantive offence of criminal conspiracy whereas s.120B provides the
punishment for the offence.
● Prior to the insertion of ss.120A & 120B, conspiracy has always been dealt with the principle of
abetment – s.107(b) – where two elements must be satisfied:
i. 2 or more persons engaged in a conspiracy to do something
ii. Some act or illegal omission in pursuance of the conspiracy
● Hence, the effect of s.107(b) would suggest that if 2 or more people conspire to commit a crime but
no act is done pursuant to their conspiracy, such person would not be liable of an offence
● However, the position has changed.
● Criminal conspiracy is regarded as a continuing offence and continues to be committed as long as
the parties continue to agree to carry out the plot
● Eg: PP v Khoo Ban Hock, R v Liyanage
● Elements:
i. There should be an agreement between two or more persons
ii. The agreement should be:
o For doing of an illegal act; or
o For doing by illegal means an act which may not itself be illegal
● “Agreement” - The essence of conspiracy is agreement
o “Agree” – a true intention to enter into an agreement and indicates an intention to carry
into effect the agreement (Kannan s/o Kunjiraman & Anor v PP [1995] 3 SLR 757)
o Conspiracy can be shown thru words and actions of the parties, indicating their concert in
the pursuit of a common object or design, giving rise to the inference that their actions must
have been coordinated by prior arrangement. Eg: PP v Sumustapha Bin Suradi & Ors [2017]
1 LNS 1408
● It is not necessary for a conspirator to have been a party to the wrongful agreement from the start,
provided that at some stage before the commission of the unlawful act he joins in the agreement to
its commission.
● It is also unnecessary for each conspirator to communicate to each other as long as there is a design
common to them all.
● Eg: R v Chew Chong Jin [1956] MLJ 185
● It is also not required that all the conspirator knew each other, or all the details of the conspiracy
● Eg: Re RK Dalmia (1962) AIR SC 1821
● Mens Rea:
o The conspirators must have intended that their agreement be carried out. In Yash Pal Mital
v State of Punjab AIR (1977) Punjab 189 the court held that the conspirators must act with
one object to achieve the real end of which every collaborator must be aware and in which
each one of them must be interested
o However, the requirement that the conspirators must have intended the offence does not
mean that each conspirator must intend to do those acts that would constitute a complete
offence.
o What is necessary is that at the time of the agreement, each conspirators should intend the
crime to be committed and that he will fulfill his role in the agreement.
 ● Cases:

- Ng Song Luak v PP [1985] 1 CLJ 365 - Defendant pleaded to guilty to a charge under s 120B but it
was said to be defective.
- Murad Halimuddin Hassan & Satu Lagi lwn PP Dan Satu Lagi Rayuan [2018] 1 LNS 992.

2) ABETMENT
● The law against abetment is aimed to prevent the commission of the principal offence.
● Abetment involves the participation of an abettor in the commission of a crime but it is not essential
that the abettor must be actually involve in the commission.
● S.107 – A person abets the doing of a thing who—
(a) instigates any person to do that thing;
(aa) Commands any person to do that thing;
(b) engages with one or more other person or persons in any conspiracy for the doing of that thing,
if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of
that thing; or
(c) intentionally aids, by any act or illegal omission, the doing of that thing.
● S.108
● There is no definition given in the Penal Code for the term ‘abet’
● However, s.66 of the Interpretation Act provides that the word abet appearing in statutes and any
public documents is to have the similar meaning as in the Penal Code
● s.107 does not prescribe any specific offence – it merely provides the circumstances of how
abetment can happen.
● Under s.107, it provides that abetment can be committed through:
i. Instigation
ii. Conspiracy
iii. Aiding
● The essence of abetment – the abettor should substantially assist the principal offender towards the
commission of principal offence.

i) Abetment by instigation
● The definition of abetment under s107 includes key terms such as “instigation” “conspiracy” and
“aiding” All these words have numerous meanings.
● “Instigation” generally means incitement, urging, giving incentive, stimulus or spur.
● The term has been defined as to goad or urge forward or to provoke, incite, urge or encourage to do
an act – Parimal Chatterji (1932) AIR Cal 760
● It is not sufficient to merely placing of temptation to do a forbidden thing but it must be shown that
the abettor has actively stimulating a person to commit it – Haji Abdul Ghani bin Ishak & Anor v PP
[1981] 2 MLJ 230
● Advice which can be interpreted as actively suggesting or stimulating the commission of an offence
can also be regarded as instigating – PP v Dato’ Hj Harun Idris & Ors [1977] 1 MLJ 180
● It is possible that a learning institution could be held liable for the actions done by its employees or
students. (Illustration)
● This could be possible if the institution has in some way contributed to the carrying out of this
offence.
● If for instance, students of that institution have infringed the copyright laws, the institution could
also be held liable if it had contributed to the commission of this infringement under the concept of
contributory liability.
● This “contribution” on the part of the institution could have been in the form of “instigation” or “a
conspiracy” or “an aid or assistance.”
● The concept of contributory liability could be used to attach liability onto the institution, if the
institution "with knowledge of the infringing activity (of the primary infringer), induces, causes or
materially contributes to the infringing conduct of another."
● Thus, raising this concept contributory liability, s107 could be needed. In this instance, two elements
need to be satisfied, (i) that the institution’s knowledge of the infringing activity, and (ii) the
institution’s contribution to, or participation in, the infringing activity.
● There can be no contributory liability without the institution’s actual or "constructive" knowledge of
the underlying wrongful act.
● Thus, in this instance, it would amount to aiding if it can be proven that the institution had
knowledge and had caused or materially contributed to the direct infringement. If the institution
had made suggestion to the commission, then s107 (a) could be relevant.
● Actus reus:
o Abetment by instigation is complete as soon as the abettor has instigated the person abetted to
commit the crime, regardless of whether the latter consented to it or not; or if consented,
whether he commits the crime or not.
o If communication was done through a medium eg. Letter, the moment the letter is handed over to
a person to be delivered to the person abetted is sufficient – Isaac Paul Ratnam v The Law Society
of Singapore [1976] 1 MLJ 195 - it was held that the instigation could also take effect if the
communication was by letter.
o Perhaps the judgment given by Raja Azlan Shah, CJ in Haji Abdul Ghani b Ishak(1981) would give a
better picture as to how such an offence could take place. He made the following statement:
o It is of the essence of the offence of abetment that the abettor should substantially assist the
principal offender towards the commission of principal offence in the commission of the principal
offence.
o In fact it is an essential ingredient in a prosecution that the abettor actively suggested, or
stimulated the principal offender to the act by any means of language direct or indirect in the form
of “hints” insinuations or encouragement ..
o However, the defendant cannot have instigated if he was silent – Raj Kumar v State of Punjab
[1983] Cri. LJ 706.
o Also read the case of Whang Sung Lin v PP, [2010] 2 SLR 958, which is a more recent.
o Both these cases show that the defendants DID NOT actively suggest, or support or cause the
commission of the offence to take place.
 o
Likewise, in the case of R v Mohit Pandey, the accused was said to have instigated because, he
encouraged the victim to commit suicide, by chanting, ‘Ram, Ram.’
o However, if he had only silently watched, he would not have been held liable, as in the case of PP
v Tee Tee Siong, [ 1963]. MLJ 201.
o This rule could be subject to exceptions, Balakrishnan S v PP, 4 SLR 249, refer to pg. 898. Take note
of the judgment.
● Hence, the offence of abetment by instigation is complete when the offender communicates his
support or encouragement to the other to commit the offence, even if this communication is done
through a 3rd party – refer to your textbook, pg. 899, footnote 30.
● Mens rea:
o The required mens rea is intention or knowledge but it depends on the mens rea of the instigator
only and not dependable on the intention or knowledge of the person abetted.
o Eg: PP v Datuk Tan Cheng Swee [1979] 1 MLJ 166
o Hence, it is not necessary that the person abetted need to have the same guilty mind as the
abettor.
o Indeed it is irrelevant whether the person abetted should be legally capable of committing an
offence
o Eg: s.108, Explanation 3.

ii) Abetment by Conspiracy

● Abetment by conspiracy is confined to conspiracies to commit an offence, where some further act
required to be done pursuant to the conspiracy.
● Essential elements:
a) The person abetting must engage, with one or more other persons in a conspiracy;
b) The conspiracy must be for doing of the thing abetted; and
c) An act or illegal omission must take place in pursuance of the conspiracy.
● It is not necessary that the abettor should himself be directly involved as a participant to the
commission of the offence. It is sufficient if he is engaged in the conspiracy pursuant to the offence
committed.
● Eg: Chandrasekaran & Ors v PP [1971] 1 MLJ 153
● It is also not necessary for the conspirator to gang up with each other throughout the commission –
PP v Yeo Choon Poh [1994] 2 SLR 867

iii) Abetment By Intentional Aid

● s.107(c) and Explanation 2 of s.107 provides for the type of abetment

● The actus reus of abetment by aiding may consist of assisting in the commission of an offence by
either doing an act or illegal omission.
● Eg: Chuan Keat Chan Ltd v PP [1972] 2 MLJ 57
● Facilitating the commission of an act either prior to or during the commission of an act may also
amount to aiding
● Eg: Varatharajalu v PP [1960] MLJ 158
● There is an issue of whether the abettor who is aiding know the actual mens rea of the offender?
● It was held in Datuk Tan Cheng Swee that in offence of aiding and abetting, the prosecution need to
to prove the intention on the part of the abettor to aid and he must be shown to have known the
circumstances constituting the crime at the time when he voluntarily does a positive act of
assistance.
● A person who abets by intentional aid may be liable even though the principal offence is not
committed – Chua Kian Kok v PP
● However, where the principal offender has been acquitted of the offence, it is suggested that it
must also result to the acquittal of the abettor
● Eg: Periasamy s/o Sinnapan & Anor v PP [1996] 2 MLJ 557

Abettor - s.108
“A person abets an offence who abets either the commission of an offence, or the commission of an act
which would be an offence, if committed by a person capable by law of committing an offence with the
same intention or knowledge as that of the abettor.”
Effect: A person who abets the commission of an offence, or an act which would be an offence if
committed by a person not suffering from any physical or mental incapacity is “abettor”.

Scope of s.108 - Issue: whether s.108 can be applied to offences other than the Penal Code?
Eg: PP v Mirza Khan [1947] MLJ 49
• s.109 only deals with the punishment of an abettor and does not create a substantive offence – it
must be read together with s.108
• Hence, s.108 shall applies to an offence not only under the Penal Code but also other laws via s.109
read with s.40(2) of the Penal Code.

Punishment of Abetment – s.109

“Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and
no express provision is made by this Code for the punishment of such abetment, be punished with the
punishment provided for the offence.”
• By virtue of s.109, if the act of the principal offender is committed in consequence of the abetment
and there is no specific provision in the Penal Code to punish the abetment, the abettor shall be
subjected to the same punishment provided for the original offence.
• Hence, s.109 shall not applies to offences under ss. 121, 121A, 121B, 121C, 121D, 122, 123, 130,
132, 134, 138, and 164.

Aggravated forms

1) s.110

“Whoever abets the commission of an offence shall, if the person abetted does the act with a different
intention or knowledge from that of the abettor, be punished with the punishment provided for the
offence which would have been committed if the act had been done with the intention or knowledge of
the abettor and with no other.”
• The effect of s.110 – although the person abetted commits the principal offence with the different
intention or knowledge from that of the abettor, the abettor will still be liable for the offence he had
abetted which is commensurate with his intention – Daw Aye Aye Mu v PP [1998] 2 SLR 64
• In Daw Aye Aye Mu v PP it was held that s.110 should be read together with s.111.
• s.110 prescribes the liability of an abettor where the act is not a probable consequence of such
abetment whereas s.111 provides for the liability of an abettor where the act is a probable
consequence of the abetment.

2) s.111

“When an act is abetted and a different act is done, the abettor is liable for the act done, in the same
manner, and to the same extent, as if he had directly abetted it:
Provided the act done was a probable consequence of the abetment, and was committed under the
influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the
abetment.”

In order to apply s.111, the evidence must be shown that:

• The accused abetted the commission of the offence

• The act actually committed was done under the influence of such abetment

• The act done was the probable consequence of such abetment

3) s.113

“When an act is abetted with the intention on the part of the abettor of causing a particular effect, and
an act for which the abettor is liable in consequence of the abetment causes a different effect from that
intended by the abettor, the abettor is liable for the effect caused, in the same manner, and to the same
extent, as if he had abetted the act with the intention of causing that effect, provided he knew that the
act abetted was likely to cause that effect.”

• s.113 must also be read together with s.111; whilst s.111 provides the doing of an act different from
the one abetted, s.113 deals with liability where the act done is the same as the act abetted but the
end result or effect of is different from that intended by the abettor.
• To make the abettor liable in this situation, it must be shown that he knew that the act abetted was
likely to cause such effect
• This implies a reasonable men test
JOINT LIABILITY

Introduction

In criminal law, it is often difficult to prove which of several participants actually effected the crime.
ss. 34 – 38 deal with joint liability in criminal actions.
s.34 is in effect a rule of evidence where whenever there is no direct evidence available to prove the
actual perpetrator, the common intention is to be inferred from the fact and circumstances of the case
Hence, where there is difficulty to prove that the participant was actually effected the actus reus,
although his participation contributed to the result; he is liable for it.

s.34, PC: “When a criminal act is done by several persons, in furtherance of the common intention of all,
each of such persons is liable for that act in the same manner as if the act were done by him alone.”

s.34 embodies principle of common intention – a rule of evidence to infer joint responsibility for a
criminal act committed by numbers of people – Chota bin Abdul Razak v PP [1991] 3 MLJ 77
Objective: To determine the issue of exact liability against individual members of a pact who acted in
furtherance of their common intention – it imposes liability of the actual perpetrator on those who
participated/contributed to the realization of the crime although they could not be proven to have
committed the actus reus themselves – Shaiful Edham bin Adam & Anor v PP [1999] 1 SLR 682
All participants are regarded by virtue of joint liability as principals in the crime.
The provision does not create a substantive offence and need to be read together with the relevant
substantive offences. Hence, if one of the participants is acquitted, the rest of the participants may still
be convicted of a crime. Eg: Teh Thiam Huat v PP [1996] 3 SLR 631

There are some distinctions between s.34 with abetment and criminal conspiracy
Eg: Noor Mohammad AIR 1971 SC 885

When s.34 is invoked, it is not mandatory to prove that there is a common intention on all the
participants to execute the exact and actual crime committed. It is sufficient that the prosecution
established the existence of common intention between all the participants who committed the criminal
act and that that criminal act which was the subject matter of the charge was done in furtherance of
that common intention.
Eg: Mimi Wong & Anor v PP [1972] 2 MLJ 75

Elements

• There exist a common intention

• Criminal act was done in furtherance of that intention.

E.g: Mimi Wong & Anor v PP [1972] 2 MLJ 75

Common intention vs pre-arranged plan

Common intention implies a pre-arranged plan to commit the criminal act which forms the subject
matter of the charge.
- Mahbub Shah v King Emperor (1945) AIR PC 118 – There must be a pre-arranged plan and the crime
must be done in concert pursuant to the pre-arranged plan.
- Namasiyiam & Ors v PP [1987] 2 MLJ 336 – common intention required a prior meeting of the minds
and presupposes some prior concert.

However, this requirement has been disputed in many instances:

- Nga Aung Thein & Anor (1955) AIR Ran 89 (FB)
- Bashir v State (1953) AIR All 668

Therefore, prior plan is not necessary – the plan may be developed at any time before the actual
commission or on the spot
- Krishna Govind Patil – Pre arranged plan may develop on the spot during the course of the
commission of the offence but the crucial condition is that the said plan must precede the act
constituting the offence
- Namasiyiam & Ors v PP – “…direct evidence of a prior plan to commit an offence is not necessary in
every case because common intention may develop on the spot and without any long interval of
time between it and the doing of the act commonly intended”

What is required is the meeting of the minds.

Other cases
- Sabarudin bin Non & Ors v Public Prosecutor [2005] 4 MLJ 37 - The crucial test is that such plan
must precede the act constituting an offence.
- Lee Kwai Heong & Anor v Public Prosecutor [2006] 2 MLJ 528

Inference

It is not easy to prove common intention through direct evidence. Hence it is usually inferred from the
facts and circumstances of the case and from the conduct of the participants – Mahbub Shah v King
Emperor
- Krishna Rao a/l Gurumurthi v Public Prosecutor [2009] 3 MLJ 643 – “The existence of a common
intention to commit a crime under s 34 of the Code is a question of fact in each case to be proved
mainly as a matter of inference from the circumstances of the case...the trial judge concluded that
such a common intention had been established relying on the inferences garnered from the
circumstances proved...the acts committed in this case should be taken as one transaction and not
separate...the appellants had acted with the common intention in executing the killings.”

In furtherance of common intention

There are 3 circumstances:

• The act which is directly intended in between all the confederates

• The act which the circumstances of the case leave no doubt to conclude that though the act
was not directly intended but was taken by all of them as included in the common intention

• The act which any of the confederates commits in order to avoid or remove any obstruction or
resistance put up in the way of the proper execution of the common intention. In the doing of
this, the act of the individual may cause a result not intended by any other of the confederates.
Participation

s.34 requires the physical presence and actual participation of all the participants at the commission of
the crime – PP v Tan Joo Cheng & Ors [1991] 1 MLJ 196
It is not sufficient to prove that the accused merely planning its perpetration. It must be proven that the
accused had participated either actively or passively in the commission of the crime – PP v Gerardine
Andrew [1998] 3 SLR 736
However, in certain circumstances, the fact that the accused was absent may still amount to his passive
participation – Ibrahim bin Masod & Anor v PP [1993] 3 SLR 736

Common object vs common intention

Common object is referred to in s.149 and it is not similar to common intention under s.34.
Common object under the provision need to be read together with s.141 – refers to any of the 5
common objects.
Hence, in offence of unlawful assembly, prior concert or meeting of the minds is not required –
Chandran & Ors v PP (1992) 2 SLR 265
Barendra Kumar Gosh v Emperor (1925) AIR PC 1: “There is a difference between object and intention;
for though their object is common, the intentions of several members may differ and indeed may be
similar only in the respect that they are all unlawful…”

Criminal act
‘Criminal act’ should be interpreted in a broad manner as s.33 provides: “The word “act” denotes as well
a series of acts as a single act”
In Om Prakash v State – criminal act would cover any word, gesture, deed or conduct of any kind on the
part of a person, whether active or passive, which tends to support the common design.
Criminal act should refer to all acts done by several persons which cumulatively result in the subject
matter of the charge.
The acts committed by different participants may be different but all must in one way or the other
participate and engage in the commission of the crime.
Differences? Similarity?