Criminal Law II Assignment - Finish

CRIMINAL LAW II BCR 2624 2011/2012

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MULTIMEDIA UNIVERSITY

FACULTY OF BUSINESS AND LAW

(LAW SCHOOL)

BCR 2624

CRIMINAL LAW II

Trimester 2, 2011/2012

Miss Asmida Binti Ahmad

ASSIGNMENT QUESTION NO. 1

1 Anis Adilla Normuhayat 1061103688

2 Nur Lisa Ahmad Zamani 1081100309

3 Ida Shaheeza Ismail 1081105588

4 Nursyahida Zulkifli 1081102957

5 Saiyidah Sakinah Sulaiman 1081102255

6 Mohd Khairul Azly Bin Nasarudin 1061106919

BLT2624 – Law of Tort II


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Based on the question given; there were 4 offender involve which we found that each

offender may be liable for a certain acts that have been perform by them intentionally or

unintentionally; which is Bill, Al, Dick and the security guard. Here we are taking an

approach of discussing each liability by each party one by one.

The first party involve would be Bill. Bill‟s actions would constitute to the act of Abetment.

Abetment is an act of incite/inciting an act of urging; seduce others to do the offence. Three

forms of abetment are recognised in the Penal Code under s 107, namely abetment by

instigation, conspiracy and aiding. Section 107 of the Penal Code stated that:

107. Abetment of a thing.

A person abets the doing of a thing who-

(a) Instigates any person to do that thing; or

(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.

Unlike the English Law at the time which distinguished between principals in the first degree

(the actual perpetrator of the offence), principals in the second degree (those who assist or

encourage the commission of the offence) and accessories before the fact (those who are not

physically present at the commission of the offence) and the between incitement to felonies

and incitement to misdemeanours.1 The offence of abetment under the Penal Code

corresponds with the English common law offence of being an accessory before the fact.

Based on the fact of this case, Bill had known that he could not afford to buy the Tunku

Abdul Rahman‟s golf clubs. In his distress, Bill began to formulate a plan. He summoned his

assistant, Al, to his office. He told Al that the only way to get the clubs would be to break

into Muzium Negara at night and steal them. Bill asked Al to fly to Kuala Lumpur and carry

out the plan that evening. Here; we found out that Bill may be charges with;

1. 107(a) abetment by instigation and / or;

2. 107(b) abetment by conspiracy.

107(A) Abetment by Instigation

Under section 107 (a), a person may abet by instigating another person to do a particular

offence by making positive suggestion or by encouragement or insinuation to commit an

offence. The physical element (actus reus) for abetment by instigation is the act done was by

way of active suggestion/stimulation. It is a complete act once the abettor instigates the other

person whether the other person has committed the crime or not, or whether the person has

1 Stephen, A Digest of the Criminal Law (MacMillan and Co,1st Ed,1877), arts 35,37,39; Nigam, Law of Crimes in India (Asia Publishing House,1965), vol 1,pp 139-142.


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consented or not. But before we go further on physical element under this section2, we shall

look at the section 108 of the Penal Code. Under explanation 2 of this section, it states that to

constitute the offence of abetment, it is not necessary that the act that the act abetted should

be committed, or that the effect requisite to constitute of the offence should be caused.

Back to the physical element for abetment by instigation, direct words need not be used to

express exactly what should be done. In Indian case of R v Mohit Pandey,3 a woman

prepared herself to commit suicide by sati. She was followed up to the funeral pyre and one

of the accused asked the woman to say „Ram, Ram‟. It was held that the accused was guilty

of abetment by instigating her to kill herself by jumping into the fire.

In the case of Hj. Abdul Rahman bin Ishak & Anor v PP,4 in order to constitute abetment,

the abettor must actively suggested or stimulated the principle offender to the act by any

means of language, direct or indirect in the form of hints, insulation or encouragement.

Whereas in the case of Ratnam v Law Society of Singapore,5 involved disciplinary

proceedings against the appellant, a lawyer who argued that he was not properly convicted in

Singapore of the offence of instigating the dishonest removal property. The appellant had, on

the instructions of a managing director of a company which was then subject of a winding up

petition in Singapore, written to the company‟s branch office in Malaysia to dispose of

certain properties belonging to the company. The appellant contended that the word

„instigation‟ implies communication, and there was no communication in Singapore. The

Privy Council held that the offence of abetment by instigation had taken place in Singapore

even though his letter was to be delivered to Malaysia and there was no need for proof that

the contents of the letter were dead. With respect, it is submitted that the appellant should

have been found liable for attempting to abet an offence by instigation. This is because

instigation, by its nature, requires proof of communication. A distinction should be made

between, on the one hand, a person whose communication is not proven to have reached its

intended recipient and, on the other hand, a person who actually communicates his or her

desire to another to commit a crime but the person instigated declines to commit it.6

In DPP v Morgan,7 the three appellants were convicted of rape following a violent attack.

They had been out drinking for the night with a fellow officer in the RAF who invited them

back to his house to have sexual intercourse with his wife while he watched. According to the

appellants, he had told them that his wife would be consenting, although she would protest in

order to enhance her sexual arousal. The circumstances were such that the wife had made it

quite clear she was not consenting and she sustained physical injuries requiring hospital

treatment. The trial judge had directed the jury that the defendants‟ belief in consent had to be

reasonably held. The jury found them guilty.

The general provision is that the accused must have intended that the person abetted carry

out the conduct abetted, and known that such conduct amounts to a crime.8 Furthermore, the

2 Section 107(a) of the Penal Code

3 (1871) 3 NWPR 316

4 (1981) 2 MLJ 230

5 [1976] 1 MLJ 195 6 Criminal Law of Malaysia and Singapore (Professional Law Books,1990), p 234.

7 [1976] AC 182 8 PP v Datuk Tan Cheng Swee [1979] 1 MLJ 166


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person abetted need not have any guilty intention or knowledge him or herself, or even be

capable of committing the offence.9

The mens rea will be looking at the mental element of the abettor and not at the mental

element of the person abetted. It is not necessary for the person abetted to have same guilty

of mind with the abettor. In the case of Periasamy a/l Sinnappan v PP,10

states that the

offence of abetment, when it consists of instigating, constitutes a separate and distinct

offence. Consequently, an abettor who instigates the commission of an offence or conspires

to commit it may be convicted of abetment, notwithstanding that one who is charged with the

principal offence has been acquitted.

In applying to the current situation, Bill had instigates Al when he summoned Al to his office

and told him to break into Muzium Negara and steal the golf clubs. Bill gave active

suggestion/stimulation by giving direct instruction to Al when he asked Al to fly to Kuala

Lumpur and carry out the plan that evening. Bill‟s action has sufficiently fulfilled the

elements of actus reus and mens rea of the abetment by instigation.

107(b) Abetment by Conspiracy

There is another possible charged for Bill which is the abetment by conspiracy under section

107(b) of the Penal Code. To constitute abetment by conspiracy, a mere agreement between

the parties to commit an offence is insufficient. In order to fulfil the element of „in pursuance

of the conspiracy, and in order to the doing of that thing‟, it is important for an act or an

illegal omission to take place. It is important as it creates a distinction between the offence of

abetment by conspiracy and criminal conspiracy which falls under section 120A of the Penal

Code.

It is not abetment by conspiracy unless there is proof that there has been an agreement by

both parties. Such in the case of Lee Yuen Hong v PP,11

although the appellant knew that it

was wrong to take money offered by her superior, there was no agreement between her and

her superior to dishonestly misappropriate the money and hence she was found not guilty of

conspiring with her superior to commit a criminal breach of trust.

Proof of agreement is usually by circumstantial evidence since the agreement happens in

private. As the High Court has held in PP v Yeo Choon Poh,12

there is no requirement in law

that the alleged conspirators should remain in each other‟s company throughout or at all.

There need not be communication between each conspirator and every other, provided that

there is a common design, common to each of them. One method of proving conspiracy is to

show that the words and actions of the parties indicate their concert in the pursuit of a

common object or design, giving rise to the inference that their actions must have been

coordinated by arrangement beforehand. These actions and words do not of themselves

constitute the conspiracy but rather constitute evidence of the conspiracy.

9 Section 108, Explanation 3 of the Penal Code 10 [1996] 2 MLJ 557 11 [2000] 2 SLR 339 12

[1994] 2 SLR 867


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In Er Joo Nguang v PP,13

the second appellant had been convicted together with another on

a charge of abetment by conspiracy to commit an aggravated form of Criminal Breach of

Trust punishable under section 109 read with section 409 of the Penal Code. The value of the

property involved was US$301,763. On appeal, the charge against him was amended by the

High Court to one of cheating under section 420 and his sentence was reduced to four years

imprisonment.

In the Singaporean High Court case of Ang Ser Kuang v PP, the appellant was charged with

abetment by conspiracy to commit armed robbery with hurt. The parties to the robbery had

not discussed whether to use any deadly weapon or cause hurt to the victim. The court

pointing out that, whether applying the objective or subjective test, it was within the

contemplation of all the conspirators that hurt may be inadvertently cause to the victim if he

had struggled in the course of the robbery. However, it was too much to say that the use of a

knife or a sharp weapon to facilitate the robbery was a probable consequence in order to carry

out the appellant‟s instructions. Telling an accomplice to commit robbery did not necessarily

imply that a deadly weapon would have to be used as well as to threaten the victim.14

The

charge was then reduced to conspiracy to commit robbery with hurt.

What is essential is that there must be knowledge of a common design, and it is not necessary

that all the co-conspirators should be equally informed as to the details. They must however

at least be aware of the general purpose of the plot, and the plot must be unlawful. This view

is fortified by Explanation 5 to section 108, which provides that:

It is not necessary to the commission of the offence of abetment by conspiracy that

the abettor should concert the offence with the person who commits it. It is sufficient if he

engages in the conspiracy in pursuance of which the offence is committed

Explanation 5 and illustration (c) make it clear that for a conspiracy charge to be made out, it

is thus not necessary for a person to specifically inform the accused about the identities of the

other parties to the conspiracy, and precise roles that others would play in effecting the

conspiracy.

After proving there is an agreement made by parties involving such conspiracy, there were

another three physical elements of abetment by conspiracy that requires to be proven which

is:

(1) The abettor must engage with one or more persons in a conspiracy;

(2) The conspiracy must be of the doing of the thing abetted;

(3) An act or illegal omission must take place in pursuance of the conspiracy, and in order

to the doing of that thing.

In applying to the fact of the case, Bill not only had instigates by giving him direct

instructions to break into Muzium Negara to steal the golf clubs, but he also had abet Al to

conspire together with him in stealing the golf clubs when Al had agreed to help Bill. This

action has fulfilled the first physical element of abetment by conspiracy as mention above; as

it requires that the abettor must engage with one or more persons in the conspiracy.

13

[2000] 2 SLR 645 14

[1998] 3 SLR 909


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Al knew the nature of the conspiracy is to commit a burglary and such conspiracy had been

abetted by Bill. This had fulfilled the second element of the physical elements mention above.

Last but not least; the third element of physical element that have been proven is when Al has

taken overt steps by consulting his old colleague, Dick, to teach him how to break into a

locked room and Al himself manage to slipped inside the building. As can be seen above, all

possible offences, physical element of both sections 107(a) and 107(b) has been fulfilled to

constitute abetment.

As a conclusion for Bill, he may be held liable under section 109 of the Penal Code,

which states that:

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.

And with this section; it shall be read together with section 378 of the Penal Code which is

Theft as the principal offences when Bills actually want to steal those clubs which he can‟t

afford to buy. And it shall be read together also with section 379 for the punishment.

Next would be the criminal liability for Al. In this case; Al is not an abettor. As we know an

abettor may be define under section 108 of the Penal Code which stated that:

108. Abettor.

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.

Bill would be precisely to be described as an abettor. Al shall be treated as the principal

offender. As a principal offender; Al may be charge with two charges which is:

(1) Criminal Conspiracy under Section 120A of the Penal Code;

(2) Criminal trespass;

(3) Attempt to theft

Criminal Conspiracy

With reference to the facts of the case, both Al and Bill have an agreement to steal the clubs

from Muzium Negara which constitute to an offence of criminal conspiracy. Criminal

conspiracy cases are defined as cases in which two or more persons agree to commit a crime

or to perpetrate an illegal act. The end result of the plan is legal; however the planned means

are illegal. It is stipulated under s.120A of the Penal Code15

where criminal conspiracy is

define as when two or more persons reached an agreement to commit an offence.16

15

Act 574 16

Articles on conspiracy. <http://criminal-law.freeadvice.com> accessed on 25th

December 2011


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The ingredients of the actus reus of conspiracy depending on the existence of agreement

between the conspirators.17

The meeting of mind between the conspirers is not necessarily a

physical meeting, it is sufficient to prove that they reach a mutual understanding of what is

need to be done.18

The essence of the offence is thus the agreement. There was an agreement

between Al and Bill when they both had planned to break into the Muzium Negara at night in

obtaining the clubs. Bill also did asked Al to fly to Kuala Lumpur and carry out the plan

which amounts to an overt step taken in complimenting the plans made earlier.

In the case of EG Barsay v State of Bombay19

it is illustrated that “The gist of the offence is

an agreement to break the law. The parties to such an agreement will be guilty of criminal

conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an

ingredient of the offence that all the parties should agree to do a single illegal act. It may

comprise the commission of a number of acts”.

While in the case of Lennart Schussler v Director of Enforcement20

the meeting of minds

in the doing of the illegal act or the doing of a legal act by illegal means must be there. If in

the furtherance of the conspiracy certain persons are induced to do an unlawful act with the

knowledge of the conspiracy or the plot they cannot be held to be conspirators, though they

may be guilty of an offence pertaining to the specific unlawful act. The offence of conspiracy

is complete when two or more conspirators have agreed to do or cause to be done an act

which is itself an offence, in which case no overt act need be established. It is also clear that

an agreement to do an illegal act which amounts to a conspiracy will continue as long as the

members of the conspiracy remain in agreement and as long as they are acting in accord and

in furtherance of the object for which they entered into the agreement.

Both Actus reus and Mens rea need to be established in successfully constitute criminal

conspiracy. Here in the context of criminal conspiracy, the related mens rea is intention. It

requires that the parties to the conspiracy have an intention to carry out the agreement. In the

distinguished case of Churchill v Walton21

Viscount Dilhorne states that there must be an

intention for the conspirators to be a party to an agreement to do an unlawful act. In

supporting the case of Churchill, the intention is again the main highlight in the case of Yash

Pal Mital v State of Punjab22

it is emphasise that the conspirators must act with one object

which is to achieve the end results that is intended where the real end of which each of the

conspirators are well aware.

Al did have the sufficient intention in committing the offence where he has taken the overt

steps such as flew to Kuala Lumpur, taking a lesson from Dick in breaking and entering, he

arrived at the Muzium late that night wearing black and carrying the tools with him. All of his

actions did prove he has the intention to achieve the object of the plan which is to obtain the

golf club. Moreover, this again established the ground that both Al and Bill has a unity

among them in completion of their object.

In conclusion, if the prosecution successfully established all the requisite elements required,

Al will be held liable under s.120B to be read together with s.511 of the Penal Code.

17

KL Koh, Criminal Law in Singapore and Malaysia pg 292-293 18

See Explanation 5 of s.108 of the Penal Code 19 [1962] 2 SCR 195 (SC, India) 20

AIR (1970) SC 549 (SC, India) 21 [1967] 1 All ER 497 (HL) 22

AIR (1977) Punjab 189 (SC, India)


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Criminal Trespass

Based on the facts given; both Bill and Al were agreed to steal the clubs by burglary. The

term „burglary‟ is not been used in the Penal Code; the act of entering a building or other

premises with the intent to commit theft shall amount to the act of criminal trespass under section 441 which stated that:

441. Criminal trespass.

Whoever enters into or upon property in the possession of another with intent to

commit an offence or to intimidate, insult, or annoy any person in possession of such

property; or having lawfully entered into or upon such property, unlawfully remains

there with intent thereby to intimidate, insult, or annoy any such person, or with intent

to commit an offence, is said to commit "criminal trespass."

The element of actus reus for burglary is an unlawful entering or remaining on property in

another person‟s possession which have been establish in the case of PP v Murugan a/l

Subramanian23

. The „property‟ in this context will include fields, gardens and land in

general. The act of Al entering the Muzium Negara without consent by taking lesson from

Dick as how to burglary clearly indicates the non – consented given to entering the building

and Al had satisfy this element.

As for the mens rea of criminal trespass is entering or remaining on property in another

person‟s possession. The fault element is intending;

(a) To commit an offence, or

(b) To intimidate, insult or annoy the other person.24

Here; Al mens rea would falls under the burglary with the element of burglary which

intending to commit an offence. Such offences shall be read under section 40 which stated

that any offences that is punishable under the code itself. Al purpose for entering the premises

by burglary is to commit theft as we know that at the first time; Bills had plan to steal those

clubs. Theft under section 378 of the Penal Code falls under the definitions of the term

„offences‟ mention under section 40. Therefore; Al had satisfy this criteria also.

If the prosecution can proved all the elements that have been discuss above without any

reasonable doubt; Al shall be liable under Section 120A for Criminal Conspiracy which the

punishment laid down been mention under section 120B; and section 441 for the Criminal

Trespass with the punishment been mention under section 447 of the Penal Code.

Attempt to theft

From the facts, it is apparent also that Al had attempted to commit theft. This is because Al

had entered the building and had done all the steps required for theft to occur but he

withdraws his action just right before he could take the property out from the possession of

23

[1996] MLJU 610 24

As in the case of Yeo Thiam Chye v PP [1962] MLJ 391


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the owner. Attempt is defined as intentional acts which the person does towards the

commissions of the offence but fails. It is objective through circumstances independent of

violation of that person. It consist of some physical helps and helps in a sufficiently

proximate degree towards carrying out a punishable crime that is contemplated. Therefore, Al

fit into the definition of the crime of attempt.

Although he seems to be a bit reluctant at first in doing the crime, however, he still go

through with the plan. There is no exact provision for the offence of attempt. S. 511 of Penal

Code states that whoever attempts to commit an offence punishable by this Code shall be

punished with the same punishment for as the person who commits the offence.

To constitute someone for the offence of attempt, one must know the actus reus and mens rea

of the offence. The actus reus of the offence is that the accused person must have done more

than preparatory acts. In other words it said that the accused person must done an act that is

sufficiently close to the contemplated offence. In this case, Al did an offence that is

sufficiently close and can amount to the offence of theft that can be found under s.378. In the

case of R v Eagleton25

, it was said that acts remotely leading towards the commission of an

offence are not to be considered as attempts to commit it, but acts immediately connected

with it are. For example, an accused would be guilty of attempted robbery if he or she has the

victim in view and weapon at hand, and is in a position to rob the victim unless prevented

from doing so. Applying the case of R v Eagleton to the situations of Al, it is very apparent

that Al had done acts that are very close to the offence of theft. The test of proximity was

accepted in the Malaysian High Court in the case of Thiangiah v PP26

, the court said:

“There must be some overt act on the part of the offender which is directed towards

the actual commission of the crime and which is immediately and not remotely

connected with the crime in order to constitute an attempt within the meaning of s.511

of the Penal Code.”

However, the current test that is used is the substantial step test. In the substantial step test,

the accused person must have done some progress and the accused person must have

substantial way towards the completion of the offence. In the case of R v Roberts27

, an

attempt is an act directly proximately to the commission of an offence. This test required the

court to consider how much has the accused person already done rather than how much more

needs to be done in order to commit the crime. Al had done substantial act to commit the

offence of theft and for this he can be charged for an attempt to theft.

Another element that needs to be proven is the mens rea of the act. In common law, a person

can be held liable for an attempt if there is an intention. In this situation, we can see that Al

was reluctant to do it at first but he went through the plan because he thought by helping Bill,

it could help his career. In the end, he went ahead with the plan to steal the valuables.

Therefore, one can say that he has the intention of doing the act.

However, one should consider the fact that he withdraws himself from doing the act of taking

the valuables at the very last minute. In the case of Chua Kian Kok v PP28

, it is stated that a

person who tries but fails to inflict hurt on a victim can only be convicted of an attempt to

25

(1855) Dears 376, 169 ER 766 26 [1977] 1 MLJ 79 27 (1855) Dears 539 28

[1999] 2 SLR 542


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cause hurt if he or she is proven to have the intention to cause hurt. Although in this situation

Al did not hurt anyone, but the concept can still apply. Here, he fails to take the valuable

away because he withdraws himself from doing the offence of theft. However, he had done

all the necessary steps that are required to commit theft and thus he can be charged with the

offence of attempt to theft. Section 511 as the residual provision of an attempt shall be read

together with section 378 and 379 of the Penal Code for the punishment for theft.

But take note based on the facts given; even though Al was an avid follower towards Bill

instructions in obtaining the golf club by robbing the Muzium Negara. He did withdraw from

his acts voluntarily, when he thought “I must be crazy. If I get caught, my career will be

ruined.” He then put away his tools, left the building and reported his acts to the nearest

police station.

Repentance after the commission of an offence only serves to mitigate the punishment and

does not negate the liability of the offence with regards to the general principle in criminal

offences.29

For instance as in the situation of Al where he withdraws from pursuing his act to

steal the golf club from Muzium Negara; would he still be held liable for the crime he did not

pursue where at the final moment of completing his act, he withdraws from it? Another

element to voluntary withdrawal is that the accused abandon the object and give reasonable

assistance to the authorities to prevent the crime from occurring.

A person may be held not liable for the offence that he withdraws himself from, only if he

has taken the necessary act to prevent the offence from happening even if at the initial stage

he did gave his consent towards the object of the agreement. In the case of Amrita v Govind30

if the conspirator, before the accomplishment of his or her criminal purpose, abandons it the

abettor could not be held liable.

But in our opinion, Al repentances are not amounted to negate the liability or point of

defences for him after committing the burglary; but instead, it shall be treated as to mitigate

the punishment itself.

As to Dick and the security guard; both shall be likely liable under subsection (c) of section 107

of the Penal Code.31

Here; the words „aiding‟ itself shall refer to any act of aiding or;

assisting or; facilitating the commission of the act and the aid must be given prior to or at the

time of the commissions of the offences. As stated in the case of PP v Datuk Tan Cheng

Swee that under the third class of abetment by intentional aid, there must be evidence to show

that by some act done by the abettor, he had intended to aid or facilitate the commission of

the principal offence. Here; the act of aiding by Dick is when he gave a lesson to Al on how to commit burglary; while for the security guard; the act of aiding arose when he was intentionally looked the other way when he noticed Al had trespass into the building and the act of temporarily deactivated the alarm system

during Al in the stage of committing such offence. Both Dick and the security guard shall to satisfy

the two important elements of a crime which are actus reus and mens rea.

First is the element of actus reus. Under this element, there must be an act of aiding or

assisting or facilitating the commission of the act and the aid must be given either prior to or

29

Stanley Yeo, Neil Morgan, Chan Wing Cheong, Criminal Law in Malaysia and Singapore, LexisNexis pg 863 30 (1873) 10 Bom HCR 497, 500 31 Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act and thereby facilitates the commission thereof is said to aid the doing of that act.


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at the time of the commission of the offence. Aiding under this element can also meant where

a person provide some sort of instrument. When Dick gave Al a lesson in breaking and

entering a locked room and suggesting some tools to be use by Al during committing the

crime would reasonably amount to satisfying this first element. Whereas for the security

guard; his intentionally action on looking the other way when he saw Al burglary the building

and deactivate the alarm system temporarily is enough to be said as purposely abetment by

aiding Al to commit such crime.

In the case of Varatharajalu v PP32

where the court held that the aid must be given either

prior to or at the time of commission of the act. In applying this case in our present situation,

we can see that the aid was given prior to the time of commission of the act. However, bear in

mind that abetment by aiding can only take place when the abettor intends to facilitate and

does facilitate the commission of an offence. This was stated in the case of PP v Datuk Haji

Harun Bin Haji Idris.33

Other supporting cases will be the case of PP v Datuk Tan Cheng

Swee34

and Ram Nath [1924] 27 All 268, 27535

.

As for the case of Ram Nath, it was said that the intention should be to aid the commission of

the crime. A mere giving of aid will not make the act an abetment of an offence, if the person

who gave the aid did not know that an offence was being committed or contemplated. The

court went on to say that the intention should be to aid an offence or to facilitate the

commission of an offence. After considering these two cases, there is one similarity which is

that the intention should be to aid an offence or to facilitate the commission of an offence. In

bringing this requirement in our case in hand, we can see that in the first place, Dick gave Al

a lesson of breaking and entering into a locked room. Knowing of Bill‟s affection for Tunku

Abdul Rahman, Dick then wondered if Bill and Al were planning to steal something from the

Muzium Negara, but then went on to think that they can‟t be that stupid. The act of Dick in

giving the lesson in itself already indicates that there is an intention to aid an offence or to

facilitate the commission of an offence. Given the situation, any reasonable person would

think that such lesson would probably lead to any kind of criminal offence such as theft or

robbery. The fact that Dick didn‟t know about the plan to steal the golf set and his assumption

that Bill and Al are not that stupid to steal anything from the Muzium Negara cannot be used

as an excuse because Dick should know that the purpose of his lesson is not a good one and

the lesson itself is an abetment by intentional aid. In another situation, Dick also has

suggested the tools for commission of such offence to Al. this has strengthened the fact that

Dick actually know that an offence will be committed and he has the intention in the first

place to aid an offence or to facilitate the commission of an offence. Under the element of

actus reus, we also need to prove that there is a positive act of assistance voluntarily done by

a person with knowledge of the circumstances constituting the offence. Back to the facts of

the question, Dick was voluntarily giving the lesson to Al and by looking at the purpose and

type of the lesson, Dick is likely to have the knowledge of the circumstances constituting the

offence.

The second element is mens rea. Under this element, the accused must have intended that the

person abetted carry out the conduct abetted and know that such conduct amounts to a crime. 32 [1960] MLJ 158 33 [1977] 1 MLJ 180 34 [1979] 1 MLJ 166 35 Lee Chong Fook, Che Audah Hassan, Introduction to Principles and Liabilities in Criminal Law (LexisNexis, 2006) pg 166


12 | P a g e

This was stated in the case of PP v Datuk Tan Cheng Swee. In applying this particular case

in our present situation, we can see that Dick have the intention because he should know that

Al will practiced what he has learned from Dick and such act will amounts to a crime.

Furthermore, such intention can be seen by the suggestion of the tools that need to be used to

break a locked room by Dick for Al. And the security guard also had the intention for Al

carry out such offences when he try to ignore him intentionally and deactivate the alarm

system purposely.

Having satisfied both elements, such question will arise. Can Dick still be held criminally

liable since Al does not complete the principal offence intended at first which is to steal the

clubs from the Muzium Negara? Even though Al does not steal anything, he was unlawfully

breaking and entering the Muzium Negara. This offence would likely to fall under criminal

trespass under section 441 of the Penal Code. In the case of PP v Datuk Tan Cheng Swee, it

was held that in the abetment by intentional aid, it must be shown that the unlawful act would

have been committed. In applying this case in our present situation, we can see that even

though the offence is not completed, there is still an unlawful act. It is unlikely for Dick to

rely on any defence, for example the defence of mistake of fact under section 79 of the Penal

Code. This is because even though he believed that the act of giving the lesson is justified by

law, this belief is not conclusive enough to excuse him from the offence. As a reasonable

man, he should know that such lesson might lead to an unlawful act. As for the security

guard; the facts given is clearly indicates that he is intentionally abets such commissions of

act by giving aids to Al.

The principle laid down in the penal code stating that an abettor can be criminally liable even

though himself not the who commits the act or even the act abetted is not committed36

shall

resulted to make Dick and the guard liable for Al‟s actions. For a better understanding, we

can refer to illustrations (a) and (b) of section 108 of the Penal Code. Therefore; if all the

elements have been satisfy for Dick and the guard; both of them shall be liable under section

107 (c) abetment by aiding which shall be read together with section 109 for the punishment;

which also shall be cross refer to section 378 as the principle offences and 379 as for the

punishment itself.

36

Explanation 1 and 2 of section 108 of the Penal Code

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