Abetment by Conspiracy

Act of conspiracy is one of the type of abetment which has been mentioned in the
Penal Code. By virtue to the Section 107(b) of the Penal Code1, it is stated that:

“A person abets the doing of a thing who 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.”

Based on the provision above, the offence can be constituted as abetment by

conspiracy when the accused is engaged with one or more people in agreement to do either
illegal act or legal act with illegal means. The act must take place in pursuance of the said
agreement and conspiracy between those people. As the abetment is an inchoate offence, it is
not required the abettor to concert the offense with the principal offender nor engage in the
commission of the illegal act. It is adequate if the person engages in the conspiracy with the
common intention to commit the illegal act which asserted from the Explanation 5 of the
Act.2

For instance, John engages a plan for poisoning Zayn with Smith. It reached into
agreement which John shall execute their plan. Then, Smith tells their plan to Justin, that a
third person is going to poison Zayn without disclosing John’s name. At that time, Justin
agrees to obtain the poison and gives it to Smith for the purpose of its being used to poison
Zayn. Later, John executed the plan and Zayn dies in consequence. Although John and Justin
do not conspire together, Justin has been engaged in the conspiracy in pursuance to the
commission of the act of poisoning Zayn. Thus, Justin has committed the offence of
abetment by conspiracy under the Penal Code.

In the case of Public Prosecutor v Ling Hang Tsyr,3 the accused was charged with
the offence of abetment by conspiracy to commit the murder of the deceased under Section
109 and 302 of the Penal Code. The deceased and the accused were husband and wife since
2005. Unfortunately, their marriage started to crack in 2011 for certain reasons. The
deceased requested for a divorce, but it was rejected by the accused. Then, the accused
turned to another man, Andrew for companionship. Later on, Andrew made an offer to PW5,

1
Malaysia. 1997. Penal Code. (Act 574). Section 107(b).
2
Ibid. Section 108.
3
[2018] 11 MLJ 253.
which his debt to Andrew is considered settle if he agreed to kill the deceased. On that day,
Andrew ordered PW5 to enter from the back door as it was not locked nor CCTV coverage.
Andrew also instructed PW5 to enter the master bedroom on the first floor and stabbed the
deceased.

The Court held that the death of the deceased was occurred due to the act of PW5,
abetted by Andrew and the accused. The intention to kill shown when Andrew searched for a
hired killer. Andrew had no reason to kill the deceased, but the accused who had connection
with Andrew had reason to do so. On the defense, the accused alleged that her relationship
with Andrew were just friends who only talk about work. The Court at its findings found that
there was active communication between them which shown that they were lovers.
Furthermore, it is odd for Andrew, who barely know the accused had access to her house.
Based on the circumstantial evidence, there were communications between Andrew and
PW5 and Andrew and the accused before and after the murder that shown their conspiracy to
murder the deceased.

Nonetheless, there is a decisive indication that must take into consideration, which
Section 107(b) of the Penal Code is diverse from the Section 120A of the said statute. As
these both provisions come from the different sections, they bring the separate type of
offences. According to the Section 120A of the Penal Code 4 which emphasizes on criminal
conspiracy, it is stated that:

“When two or more persons agree to do or cause to be done an illegal act; or

an act, which is not illegal, by illegal means, such an agreement is designated
a criminal conspiracy.”

By having a bear on these provisions, Section 107(b) is emphasized on the offence of

abetment while the Section 120A is a substantive offence of conspiracy. In the Section
107(b), the act either illegal act or legal act with illegal means should take place pursuant to
the conspiracy in order to succeed in establishing the prima facie case. This provision has no
exhaustive effect in its application as it is only applying to the abettor, not to mention the
degree of difficulty in proving this offence.

Unlike Section 107(b), Section 120A is wider in the scope of conspiracy, as this
provision can charge all person who are involved in the conspiracy. In this provision, mere
agreement is sufficient to be proven if that agreement is to commit the offence. In order to
4
Malaysia. 1997. Penal Code. (Act 574). Section 120A.
charge the accused for abetment by conspiracy, prosecution is required to prove that the
accused is redundant to the Section 120A. Therefore, a criminal conspiracy which develop
into an abetment under Section 107(b) should not necessarily invoke the provision under the
Section 120A of the Penal Code.5

Abetment by Intentional Aiding

The third category of abetment is by the intentional aiding. Aiding, in general

brought the meaning of helping someone in the achievement of something. According to the
Section 107(c) of the Penal Code,6 it is stated that:

“A person abets the doing of a thing who intentionally aids, by any act or
illegal omission, the doing of that thing.”

In consequence with the Section 107(c) of the Act, the abettor must ‘intentionally’
aid any act or illegal omission to the commission of the offence. A person is said to abet in
an offence if that person deliberately facilitates to the commission of the offense. As this
provision used the term of ‘intentionally aids’, active complicity should be the gist of this
offence. Thus, there must be part of active conduct on behalf of the abettor to facilitate the
commission of the act. Furthermore, subject to the Explanation 2 of the Act, 7 the conduct of
abettor to facilitate the principal offender should take place before the commission of the
offense or at the time thereof. It could not be constituted as abetment by way of aiding if the
act of abettor take place after the commission of the offence.

In the case of Ooi Juan Seng v Public Prosecutor,8 the appellant was convicted for
abetting the criminal breach of trust. In this case, the appellant helped the offender to commit
criminal breach of trust on the company’s collection from its customers by manipulating the
company’s account system. Those payments had been extracted off and shared between
them. Consequently, the appellant was charged for aiding the offender in the commission of
the criminal breach of trust by manipulating the company’s account. Then, the appellant
made an appeal and contended that the charge against him could not be preserved because
the said conduct could not amount to abetment by aiding in law.
5
Nishi Kumari. n.d. “Abetment and Criminal Conspiracy: An Analysis”. Legalpedia Journal. Punjab: Rajiv
Gandhi National University of Law. Vol. 1. p. 58-71.
6
Malaysia. 1997. Penal Code. (Act 574). Section 107(c).
7
Ibid.
8
[2011] 7 MLJ 409.
 The offence of criminal breach of trust is complete when a person who entrusted with
the custody of the property, dishonestly misappropriates that property. Any conduct of
abetment by way of intentional aiding must be done at any time before or at the time when
the criminal breach of trust is completed, not after the commission of the offence. In this
case, the offence of criminal breach of trust is completed although before the appellant aided
the offender by keying-in the false information into the system.

Furthermore, mere presence at the commission of a crime could not develop into
abetment by intentional aiding unless that act was deliberated. In the case of Public
Prosecutor v Tee Tean Siong & Ors, 9 the nine accused, who were audiences at a blue film
exhibition, were arrested when the premises were raided by police. Police found four reels
of films at the premises and the accused were charged under Section 109 and 292(a) of the
Penal Code. The reels of films were screened at the Magistrate Court. The learned
Magistrate was satisfied the obscenity of those films and convicted the accused under the
said Act.

On the revision, the act of the accused was in no way aiding the principal offender.
In order to succeed in proving the abetment by intentional aiding, the prosecution must prove
the presence of the accused as audiences at the premises were more than coincidence. Since
the accused were pleaded guilty, the prosecution had no opportunity to prove the case. Upon
the inadequacy of the other evidence, mere attendance at the premise where the 'blue films'
were exhibited did not amount to the abetment.

9
[1963] 1 MLJ 201.