Criminal Conspiracy Abetment PDF

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Summary

Criminal Conspiracy An agreement between two or more person to do an unlawful act or do a lawful act in an unlawful manner. Criminal conspiracy is a continuing offence and continues to be committed as long as the parties continue to agree to carry out the plot.  R v Liyanage, Re Hussain Umar Sectio...

Description

Criminal Conspiracy -

An agreement between two or more person to do an unlawful act or do a lawful act in an unlawful manner.

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Criminal conspiracy is a continuing offence and continues to be committed as long as the parties continue to agree to carry out the plot.

 R v Liyanage, Re Hussain Umar -

Section 120A provides the substantive offence of criminal conspiracy, whereas Section 120B provides the punishment for the offence.

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Prior to the insertion of 120A&120B, conspiracy has always been dealt with the principle of abetment under Section 107(b) – where to elements must be proven: i.

Two or more person engaged in a conspiracy to do something.

ii.

Some act or illegal omission in pursuance of the conspiracy.  Hence, under 107(b), if the act is not pursued, then the person will not be liable of an offence.

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Criminal conspiracy is said to be continued to be committed as long as the parties continues to agree to carry out the plot.

 PP v Khoo Ban Hock -

Elements: i.

There should be agreement between two or more persons.

ii.

The defendants had agreed to carry out the criminal act.  PP v Sumustapha Suradi – the defendant must have come to some kind of consensus; therefore, a mere discussion does not constitute to an agreement.

iii.

It must be shown that the defendants had an agreement by proving that there was a meeting of the mind (common intention).

 R v Chew Chong Jin iv.

The defendants had the intention to carry out the wrongful acts.

 Yash Pal Mital v State of Punjab AIR -

It is unnecessary that all the conspirator knew each other, or the details of the conspiracy,

 Re RK Dalmia

Abetment -

An offence where the defendant (secondary offender) had provided some kind of assistance to the principal offender.

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The Penal Code recognises the various forms of abetment under the subsection of Section 107.

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S.107 cannot stand alone, this section under its subsections identifies the methods of the secondary offender could abet the principal offender.

1. Abetment by instigation -

Instigation generally means that incitement, urging, giving incentive, stimulus or spur.

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If the defendant instigates, encourages or induces the principal offender to carry out the wrongful act, then he would be liable because he had aided or abetted the commission of the crime.

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Raj Kumar v State of Punjab  Whether silence could amount to an instigation?  Husband and wife had problems and the husband left the matrimonial home. Wife then threatened to commit suicide if the husband did not return and the husband did not return home. The wife committed suicide.  Court held that the act of him not returning home does not amount to an instigation, thus silence cannot constitute to a form of instigation under this provision.

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R v Mohit Pandey  Gesture amounts to an instigation.  The defendant was held liable for aiding to an offence of committing suicide by clapping and chanting towards the principal offender.

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Isaac Paul v The Law Society of Singapore  Instigation could also take effect if the communication was by letter.

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Whang Sung Lin v PP  Merely passing information does not amount to instigation.

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Mens Rea:  Intention or knowledge, but it depends on the mens rea of the instigator only and not the person abetted.  PP v Datuk Tan Cheng Swee – not necessary that the person abetted need to have the same guilty mind as the abettor.  S.108, Explanation 3.

2. Abetment by Conspiracy -

If the facts show that the defendants had conspire, the relevant section would be s.107(b) and 120A.

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Under s.107(b), similar elements must be established as s.120A. i.

The person abetting must engage with one or more person.

ii.

Conspiracy must be for doing of the thing abetted.

iii.

An act or illegal omission must take place pursuance to the conspiracy.

If the conspirators had conspired and they did not carry out their agreement, they could be punished under s.120B. But if the evidence shows that they had actually carried out what they agreed, then they could be punished under s.109.

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Not necessary the abettor should himself be directly involved as a participant; it is sufficient is he is engaged in the conspiracy.

 Chandrasekaran v PP 3. Abetment by Command -

Section 107(aa) provided for when the secondary offender commanded the principal offender to carry out the crime.

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The secondary offender should be in a place where he has the power or authority to give command to the principal offender.

4. Abetment by Intentional Aid -

S.107(c) covers situation where the secondary offender provides physical assistance to the principal offender to carry out the crime.

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Explanation 2 further explains the adding of the commission of the crime.

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Actus Reus: Assisting in the commission of an offence by either doing an act or illegal omission.  Chuan Keat Chan Ltd v PP

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Facilitating the commission of an act either prior to or during the commission of a act may also amount to aiding (Explanation 2).  Varatharalaju v PP

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Mens Rea: Intention or Knowledge  PP v Datuk Tan Cheng Swee – prosecution must prove the intention on the part of the abettor to aid and it must be shown that the abettor have known the circumstances constituting the crime at the time when he voluntarily does the act of assistance.

Should the secondary offender still be liable if the principal offender is acquitted? -

Chuan Kian Kok v PP  A person who abets by intentional aid may be liable even though the principal offence is not committed.

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Periasamy Sinnapan v PP  Suggested that the abettor should be acquitted if the principal offender is acquitted.

Should the abettor still be liable if he withdraws? -

Queen v Budhan  He agreed to commit the offence but decided to come out of the agreement but was still present during the commission of the act.  The court still found the abettor liable.

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R v Amrita Govind

 Abettor withdraws at the initial stage, before the commission of the crime, or

before accomplishing the criminal purpose then it is agreed that he may not be held liable....