PARTICIPATION

CRIMINAL LAW 2 ||
UCR2622 ||
 CONTENTS:
1. Conspiracy
2. Constructive Joint Liability
3. Abetment

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 INTRODUCTION
When there is more than one person collaborating
and perpetrating in the commission of a crime,
the possibility that the crime will actually be
committed is higher.
In the Penal Code, apart from specific prohibition
against organized crime e.g. ss. 395, 400
there are general provisions to combat crimes
planned and carried out by group or agreement
ss. 107, 108, 120A, 120B, 34.

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CONSPIRACY
 Introduction
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.

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 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
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 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) 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.
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 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:
1. 2 or more persons engaged in a conspiracy to do
something
2. Some act or illegal omission in pursuance of the
conspiracy
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 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

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 Elements
1. There should be an agreement between two or
more persons
2. The agreement should be:
a) For doing of an illegal act; or
b) For doing by illegal means an act which may
not itself be illegal

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 Categories
Based on s.120A, there are two categories:
1. Illegal act alleged is an offence:
a) Two or more persons came to an agreement
b) They agree to do or cause to be done an
illegal act or offence.
2. The act is not per se an offence, though it is
carried out by illegal means
a. Two or more persons came to an agreement
b. They agree to do or cause to be done an act
by illegal means
c. An overt act was done by one or more of the
conspirators in pursuance of the conspiracy
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 Agreement
The essence of conspiracy is agreement
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)
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.
(Queen v. Liyanage, [(1965)67 NLR 193] that the question is
not whether the inference of conspiracy can be drawn but
whether the facts are such that they cannot reasonably admit
any other inference but that of conspiracy. As the evidence in
support of a charge of conspiracy is often circumstantial, the
actual facts of the conspiracy may be inferred from the
collateral circumstances of the case.)

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 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 13
 Topandas v State of Bombay AIR1956
The very nature of an agreement
means that there must be two or more
parties involved. One cannot conspire
with oneself.
Lennart Schusseler- There must be
meeting of minds, mere coincidence is
not sufficient

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 Mens Rea
.
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
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.
What is necessary is that at the time of
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the
 Physical Element
Ang Ser Kuang v PP
The appellant was charged with abetment by
conspiracy,He conspired with PW7 to rob the victim,.
P7 then recruited P4. P4 recruited P3 and P2.
His argument that he had not met P4,3,2 is failed.
It is sufficient if the parties have reached an
agreement in principle. Need not be aware of the
details.
Need not be a party from the start.
Must have the mental capacity to form an agreement.
NO requirement that there needs to be a physical
meeting of the persons involved
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ABETMENT
 INTRODUCTION
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.

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 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.
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 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.

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 Definition
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

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 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:
1. Instigation
2. Conspiracy
3. Aiding
. The essence of abetment the abettor should
substantially assist the principal offender towards
the commission of principal offence.

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 Abetment by instigation
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 23
of an
 Actus Reus
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.
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
Rv Mohit Pandey: Ram Ram

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 Mens Rea
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.
Eg: PP v Datuk Tan Cheng Swee [1979] 1 MLJ 166
Hence, it is not necessary that the person abetted
need to have the same guilty mind as the abettor.
Indeed it is irrelevant whether the person abetted
should be legally capable of committing an
offence
Eg: s.108, Explanation 3.

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 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:
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.

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 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

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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

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 Mens Rea
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
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 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

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AGGRAVATED FORM OF
ABETMENT