comprehensive notes on the topic of abetment PDF

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TOPIC 2:ABETMENT1. Definition of Abetment: -Abetment is an inchoate offence which involves a mode of participation. -More than one person is involved in the commission of the crime -Similar to common intention -Literally means : Helping, aiding, facilitating & assisting. -the PC does not define ...

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Criminal Notes by Tuan Syakeer bin Tuan Besar

TOPIC 2: ABETMENT

1. Definition of Abetment: -Abetment is an inchoate offence which involves a mode of participation. -More than one person is involved in the commission of the crime -Similar to common intention -Literally means : Helping, aiding, facilitating & assisting. -the PC does not define what is abetment but only explains what acts amount to an abetment & underlines the different types of abetment. -why s. 107 mentions the doing of a “thing”  Because an abettor may abets a person who incapable in law to commit an offence (eg. A child/lunatic – refer to Illustration (a) to s. 108) 2. Elements of an Abetment: 

An abettor  the person who abets the Principal Offender (one who was abetted) -s. 108 defines the Abettor as a person who abets: (i) the commission of an offence OR (ii) the commission of an act which would be an offence, if committed by a person capable by law -liability does not rely on the abetted person - Explanation 1  an abetment of an illegal omission may amount to an offence though abettor is not bound to the act - Explanation 2  does not matter that the act abetted be committed/that effect requisite to constitute the offence should be caused -Explanation 3  does not matter if the person abetted should be capable by law of committing an offence

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The Mens Rea  Requires intention/knowledge

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the Actus Reus  3 types; (a.) Instigation  s. 107 (a) (b.) Conspiracy  s. 107 (b) (c.) Intentional Aiding  s. 107 (c) -there may be overlapping btw different types of abetment 1

Criminal Notes by Tuan Syakeer bin Tuan Besar

In order to charge a person for abetment: (1.) the PP must identify the Primary Offender (the one who committed the crime) & the Secondary Offender (the ones involved in the commission of the crime). (2.) the PP must identify either one of the types of Abetment contained in s. 107 (a)(b) & (c) (3.) the PP must prove the intention/knowledge of the Accused 3. Rationale of Punishing those involved in an Abetment -a threat by a group of criminals is greater than by a solo -they tend to succeed because more heads than one  More ideas -a group hardly gives up because they keep encouraging one anor. -Abetment is a crime in itself (includes abetment of an abetment  Refer to Explanation 4 of s. 108 4. Differences between an Abetment & a Common Intention  Similarity  Both involve a mode of participation.  Differences: i. Kind of Offence: Abetment is a specific offence under s. 107. In contrast, Common Intention is not a specific offence & cannot stand alone because it has to be read with other provision(s). ii. The Actus reus & Mens Rea: For Abetment, the PP must prove the individual’s actus reus & mens rea of the Accused. In Common Intention, the PP must prove a pre-arranged plan & need not prove the mens rea of the individual but ONLY the actus reus which was done in furtherance of the common intention. iii. Presence of Accused: For Abetment, the Accused need not be present as an abetment is a preliminary offence. If Abettor is present, charge under s. 114 & s. 34 (common intention) where he shall be deemed to have committed such act/offence. For Common Intention, the Accused must be present at the scene & participate whether passive/active participation.

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Criminal Notes by Tuan Syakeer bin Tuan Besar

iv.

Commission of crime: For Abetment, the crime need not be committed but for Common Intention, the crime must be committed.

5. Types of Abetment: (a.) Abetment by Instigation  s. 107(a) -3 elements need to be proven; (i.) An act of Instigation -Instigation literally means to incite/induce/encourage/persuade/advice. -there must be active instigation & usually done by a positive act & beyond a mere suggestion. -Cases:  Haji Abdul Ghani Ishak -Facts: the 2nd Appellant was charged for abetting the 1 st Appellant (a Melaka exco) for corrupt practice to approve the application for State land. FC HELD: -Evidence vs 2nd Appellant was purely circumstantial  Acquitted. -Raja Azlan CJ: It is an essence of offence of Abetment that the Abettor substantially assists the Principal Offender towards the commission of the offence. The Prosecution must prove that the Abettor ACTIVELY suggested/stimulated the Principal Offender to the act by any means/language, direct/indirect in the form of expressed solicitation/of hints, insinuations/encouragement -the word, “instigates” in s. 107 does not mean merely placing of the temptation to do a forbidden thing but actively stimulating a person to do it.  Datuk Haji Harun Haji Idris HELD: -Instigation consists of acts which amount to active suggestion/support/stimulation for the commission of the main act/offence. -Advice can become an instigation if that advice is meant to actively suggest/stimulate the commission of an offence.

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Criminal Notes by Tuan Syakeer bin Tuan Besar

 R v Taylor HELD: -defines instigation: Instigation is the act of inciting anor to do a wrongful act -one may abets the commission of an offence by counseling/suggesting/encouraging/procuring anor to do an act. -to constitute instigation, some active proceeding towards the perpetration of a crime is necessary. (ii.) The instigation must be communicated from the Abettor to the Principal Offender -there are many ways of communication of instigation: (a.) If both are present, communication must be direct/immediate (b.) If by instantaneous means, i.e. by letter -have some issues  when instigation is deemed to take effect?  When posted  Given to a person (a 3rd party) to hand it over to the person abetted (Principal Offender) -Cases:  Isaac Paul Ratnam v The Law Society -the Appellant is a lawyer in Singapore, charged with abetment by instigation for fraudulently removing/concealing the property under s. 424 of PC -On behalf of his client, he wrote to Kumaran (the Gen Manager of Germini’s brach office in KL) instructing him to remove dishonestly the 5 cars & other movable properties belonging to the Co. -the letter was sent by hand by a 3rd party for personal delivery -whether communication was complete in Spore or not at all? -the Lawsoc got into the picture to struck off the role of the Appellant for breach of ethics & misconduct HELD: -the Accused was convicted -there was nothing more to be done after the letter was handed over to the person in Singapore -applied the postal rule as in the Contract Law  Communication of instigation is complete when the letter is posted (the letter is handed to the 3rd party) to be delivered to the person abetted 4

Criminal Notes by Tuan Syakeer bin Tuan Besar

-does not matter if Principal Offender had knowledge of instigation or not -Basis of decision: (i) Illustration to Section 108A  designed to prevent crimes from being committed abroad & (ii) Based on the case of Treacy in England where the CoA HELD that the communication took place when the letter of unwarranted demand was posted. The Appellant was held liable for Abetment as a matter of policy regardless whether the Principal Offender knows or not the contents of the letter. Molly Cheang criticized Isaac Paul Ratnam’s Case -Relied on 2 old cases  Ranford’s Case (an English case in 1874) & Sheo Dial Mal (an Indian case in 1894) -the principle in both cases  Communication of Instigation would not be complete unless & until the Principal Offender had knowledge of the instigation (iii.) The instigation must refer to what was actually done, NOT what is likely to be done. -instigation by the Abettor must refer to the act committed. -e.g. Instigation of theft  the Principal Offender must commit theft/hurt in the course of committing theft -Cases:  Baby John v State of Travancore Cochin -Facts: the Accused was the leader of an unlawful assembly instigated (strongly suggested) the members of that assembly to use violence to overcome any resistance from the Army/Police. -some members caused damage to property & hurt to Public Authorities in pursuance of that instigation by Accused -Among the offences committed by the members: s. 307 – Attempted Murder s. 324 – Hurting by using a dangerous weapon/means s. 333 – Causing hurt to the public servants to deter s. 427 – Committing mischief & damage

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Criminal Notes by Tuan Syakeer bin Tuan Besar

HC HELD: -the Accused was convicted by the trial Ct for Abetment by instigation for all the offences CoA HELD : -the Accused not liable because he did not specifically suggested the member of the assembly to do the damage to property. He only suggested them to use force if resisted by Army/Police. -the charge was therefore, substituted with abetment by instigation to cause a riot -Instigation must refer to what was actually done, not what was likely to be done. KL Koh criticized Baby John’s Case -said that the Judge was not brought to s. 111 & s. 113 -s. 111 provides the liability of Abettor when one act is abetted & a differ act is done (the Abettor knows the probable consequence) -s. 113 provides that if the act for which the Abettor is made liable under s. 111 committed in addition to an act abetted & constitute a distinct offence  the Abettor will be liable for each offence.  Prottima Dutta v State -Facts: the mother-in-law & the husband treated the victim cruelly & verbally abusing her & telling her that she is not worth living thus, she better dies. Later, she committed a suicide. HELD: -the Accused is liable for instigating a suicide.  Queen v Mohit -In India, the practice of the Hindu wife to jump into the fire when a husband dies -the Accused was chanting a chant repeatedly & when the husband had died, he caused the wife to jump into the fire & caused her death. HELD: -the Accused is liable for instigating a suicide.

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Criminal Notes by Tuan Syakeer bin Tuan Besar

(b.) Abetment by Conspiracy  s. 107(b) -Differences with s. 120A of Criminal Conspiracy: (i.) In Differ sections  Differ offences (ii.) Kind of Offence: s. 120A is a substantive offence of conspiracy (added after 1941) while s. 107(b) is an offence of abetment. (iii.) Exhaustiveness of Provision: s. 107(b) is not exhaustive in its application  Applies to the Abettor only. S. 120A is wider in scope  Can charge all persons involved in the conspiracy. (iv.) s. 120A provides for 2 types of conspiracy such as an illegal act/a legal act by illegal means (illegal omission) -the word, “illegal” refers to s. 43 to mean, everything which is an offence, prohibited by law OR furnishes ground for a civil action. (v.) s. 120A  Easier to prove because the PP needs to prove that there is an agreement. S. 107(b)  Difficult to prove because the PP needs to identify the Abettor redundant to s. 120A. (proving by means of direct evidence/facts & circumstances/circumstantial evidence)  NMMY Momin (1971) - Underlines the elements of Abetment by Conspiracy under s. 107(b) which requires: a) The Abettor must engage with one/more other persons in a conspiracy b) An conspiracy c) An act/illegal omission in pursuance of the conspiracy

 R v Chew Chong Jin -Facts: the Accused is charged for Abetment by conspiracy in illegal imports of gold into Singapore. The Accused was wearing a waistcoat with many pockets & made several trips to the hanger to hide the parcel containing the gold. -Accused is acquitted at 1st instance since there was no prima facie case because not know with whom he worked with CoA HELD: -Whether there was an Abetment by conspiracy on the part of the Accused & with whom did he conspire with when no one else was arrested? -PRINCIPLE to prove an Abetment by Conspiracy: 7

Criminal Notes by Tuan Syakeer bin Tuan Besar

-the Judge looked at the facts & circumstances of the case & took into account that the Accused was an employee of the airways (has the right to go up on plane & at the moment the plane landed) -the value of the gold would only be handled by someone who had been entrusted by importers (costing RM80k) -Accused act wearing the special waistcoat showed that he was prepared to do what he was commanded to do but the other conspirators were not known. -ordered a retrial. (c.) Abetment by Intentional Aiding  S. 107 (c) -2 types of Abetment by Intentional Aiding: (i) A positive act (ii) An illegal Omission -Explanation to s. 107 (c)  Doing of the act:  the aid prior to/at the time of commission of an act  in order to facilitate the commission of that act 

facilitates the commission of thereof

-Cases:  PP v Tee Tean Siong -Facts: A group of people was arrested by the Police as audience of a blue film shown in a house. The Principal Offender was charged with exhibiting an obscene object under s. 292. The audience was charged for abetting by aiding & they pleaded guilty. -how did they aid by only being present? -since they pleaded guilty, cannot appeal against the punishment (right has been waived by the Accused) -the case was drawn by review by the HC. HC HELD: -their act is in no way aiding the Principal Offender -to succeed in s. 107 (c)  the PP must prove that their presence was more than coincidence -PP has no opportunity to prove the case since the Accused persons had pleaded guilty

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Criminal Notes by Tuan Syakeer bin Tuan Besar

-the case would be different if one of them owned the house & agree to use as a place to exhibit OR if they shared some money to obtain the material. -it was unfair to convict Accused.  Latif Khan -the Accused was charged with abetment by intentional aiding by failure to arrest (an illegal omission on his part as a police officer) HELD: -Every police officer is bound to protect the person in custody & arrest the person who commits an assault  Omission on this duty which is an abetment by omission.  Chuan Keat Chan v PP -Whether there was an illegal omission on the part of the driver? -Facts: the 1st Accused is the lorry’s owner (Principal Offender) & the 2 nd Accused is the lorry driver (Aider) -Charged for not hiring a lorry attendant at rear vehicle. HELD: -No law put duty on the driver not to driver w/o an attendant thus, there is no illegal omission on his part. -No evidence of Abetment. -The 2nd Accused was held not liable for abetment by intentional aiding.  Faguna Kanta Nath v State of Assam -Facts: the Complainant took the paddy to tehe market & was stopped by the paddy checking inspector, Khalilurrahman accompanied by the Appellant, Faguna. -KR demanded money as a bribe or he would confiscate the paddy if refused -Appellant Faguna was charged for abetment by intentional aiding by receiving the money demanded by KR from the Complainant & counted the money -At 1st trial  Both were convicted. APPEAL HELD: -How can KR be liable for bribery when he had not accepted the money? -In cases of Abetment by intentional aiding, the Abettor’s liability depends on the Principal Offender’s liability. 9

Criminal Notes by Tuan Syakeer bin Tuan Besar

-therefore, the conviction vs the Abettor (Faguna) was quashed because the conviction vs the Principal Offender (KR)was quashed.  National Coal Board v Gamble (an English case) -applied the principle in Faguna Kanta Nath’s Case where the Abettor by intentional aiding can only be liable if the Principal Offender was also held liable.  Datuk Tan Cheng Swee (a Malaysian case) -applied the principle of Faguna Kanta Nath’s Case -the Prosecution must prove the intention of the Abettor (Aider) to aid the crime. 6. Explanation 2 of s. 108 & Explanation 2 of s. 107 -Exp 2 of s. 108: To constitute an Abetment, it is not necessary for the act abetted should be committed or the effect requisite to constitute the offence should be caused. (Abetting is an offence by itself  Exp 4 of s. 108)-Exp 2 of s. 107: Facilitates the commission thereof -How to reconcile these two explanations? -A: Exp 2 of s. 108 only applies to Abetment by instigation & conspiracy  Argument does not hold water but it does not specifically says which kind of Abetment, may cover all. -Exp 2 of s. 107 only applies to Abetment by intentional aiding under s. 107 (c) According to Shelly Wright: 1. Not necessary for the Principal Offender to be liable for the offence instigated before the aider can be liable for abetting him. 2. Sufficient if can show that there were some acts which had been done by the Principal Offender which were facilitated by the Abettor (Aider). E.g. buying some poison to give it to B to kill C  B puts poison in C’s food (PO did some act by putting poison in food + facilitated by Accused by buying the poison) 3. -Exp 2 of s. 107 mentions the word, “act” not offence unlike Exp 2 of s. 108, this indicates that it shows that it is enough to show the Aider aided the Principal Offender to do some act. Thus, the Abettor may still be liable for aiding. 10

Criminal Notes by Tuan Syakeer bin Tuan Besar

4. -it is wrong for the Judge in Faguna’s Case to equate the word, “act” with “offence”.

 Jamuna Singh v State of Bihar (an Indian case in 1967) -followed the principle in Faguna.  Chua Kian Kok v PP -An Aider can be criminally liable even if the actual offence is not committed. -It is a serious problem if we make the liability of the Principal Offender a condition precedent to the Abettor’s liability. -did not follow Faguna’s Case.

 Periasamy v PP (a Malaysian case in 1996) -An Abettor of an instigation/conspiracy shall be liable notwithstanding the acquittal of the Principal Offender. -In Abetment by intentional aiding, the acquittal of the Principal Offended must result in acquittal of Abettor. 7. Other Relevant Provisions: (1.) S. 108  Defines an Abettor, abets commission of an offence/commission of an act would be an offence if committed by a person capable by law. (2.) S. 109  If act abetted committed & NO express provision is made in the PC, Abettor shall be punished with punishment provided for the offence. (3.) S. 110  Punishment for Abettor being the same with Principal Offender if the latter committed the act different from what intended by the former. (4.) S. 115  Abetment of offence punishable with death/imprisonment for life. 7 years & fine – if act not committed & 14 years & fine if act abetted committed. (5.) S. 116  Abetment of offence punishable with imprisonment. ¼ of the punishment if act not committed/fine/or with both. The public servant, ½ of punishment/fine/with both.

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