ABETMENT

 Section 107 (types of abetments)

 Section 108 (abettor)
o Explanation 1,2,3,4,5
 Instigation
o Active suggestion, the words must be clear, communication.
o Mens rea: intention to instigate or knowledge to instigate (matter of
question of facts)
o Issac Paul Ratnam (via letter):
 Instigation by letter can amount to abetment or not? If yes, when does
the abetment start?
 Held: The moment you wrote the letter it was already considered as an
abetment plus abetment is a conduct crime. No need for the reader to
read the letter.
o Mohit Pande:
 The abettor said Ram Ram Ram can amount to active suggestion to
instigate the victim to jump into the fire. Abetment of suicide.
o Protima Dutta:
 The wife was mentally abused by husband and mother-in-law. Held:
both had actively suggested the wife to commit suicide and guilty for
abetment by instigation. The court considered all series of abuse, and
the customs may amount to abetment by instigation to commit suicide.
 Command
o Originated from instigation but involves strong relationship between the
parties.
o Abettor had dominant position.
o Take into consideration the words used “AKU NAK KAU”
o Is there any consideration involved? Upah buat kerja
 Conspiracy
o Theoretically speaking abetment by conspiracy and criminal conspiracy are
similar.
o If abetment happened after the commission, it is not abetment because it is
inchoate crime

Abetment by conspiracy Criminal conspiracy

 S.107(b), s.108  S.120A (cannot stand on its own)
 Need to identify the principal  Do not need to identify the principal offender
offender and abettor and abettor.
 Much easiear
 Elements:  elements:
 Must have a conspiracy (a/r)  must prove criminal conspiracy (a/r)
 Must have any act done in  does not matter whether the act done or not.
 pursuance of that conspiracy  must have two or more persons agree to do
(a/r) an illegal act or not illegal by illegal means.
 agreement is sufficient.

 In practice, it is difficult to prove agreement

without any act done.
 Jurists’ opinion – theoretically different but to
some extent there are similar.
o NMMY Momin (1971):
 Underlines the elements of abetment by conspiracy which are the
abettor must engage with one or more in a conspiracy, there must be a
conspiracy and there must be act pursuance to the conspiracy.
 Intentional aiding
o Mens rea: intention to help the commission of the crime.
o The most serious because you help the commission of the offence.
o The act can be either prior or at the time of the commission which is different
from the other types of abetments.
o Some opinions said liability of the abettor depends on the liability of the
abetted person. (exception to the general rule). The crime must be committed
in order for the abettor to be guilty.

o Balakrishnan v PP:
 Abetment by intentional aiding by staying silence and not assist the
victim since the training is vigorous.
 The court took into consideration that they did not do anything.

o Faguna Kanta:
 The principal offender was found not liable, but the abettor was found
liable for abetment. Abettor argued since the principal offender was not
found liable, she should not be liable too. The court held that because
of the wording of the provision “abets the doing of that thing”, the
accused cannot be liable for intentional aiding.
 In reality, this is more favorable to the defense counsel.

o Ong Ah Yeo Yenna

 Held: Abetment regardless of the type, it is very clear that the liability
does not depend on the principal offender based on explanation 2 of
section 108 but to justify this, the prosecution needs to prove that the
crime was committed, and it was the abettor that had abetted the
commission of the crime. Siapa yang commit x penting! Walaupon
dia x bersalah untuk murder tapi murder tu ada sebab ada org
mati.