Abetment

Abetment

Abetment, conspiracy, attempt: inchoate crimes (does not depend on completion of primary crime) Extends liability beyond the actual commission of the defined crime

Abetment

107.A person abets the doing of a thing who (a) instigates any person to do that thing; (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.

Punishment: abetted offense committed

109.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.

Punishment: abetted offence not done

116.Whoever abets an offence punishable with imprisonment shall, if that offence is not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with imprisonment for a term which may extend to one-fourth part of the longest term provided for that offence, or with such fine as is provided for that offence, or with both; and if the abettor or the person abetted is a public servant, whose duty it is to prevent the commission of such offence, the abettor shall be punished with imprisonment for a term which may extend to one-half of the longest term provided for that offence, or with such fine as is provided for that offence, or with both.

Punishment: offences punishable by death or life imprisonment

115.Whoever abets the commission of an offence punishable with death or imprisonment for life, shall, if that offence is not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with imprisonment for a term which may extend to 7 years, and shall also be liable to fine; and if any act for which the abettor is liable in consequence of the abetment, and which causes hurt to any person, is done, the abettor shall be liable to imprisonment for a term which may extend to 14 years, and shall also be liable to fine.
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Abetment: AR & MR

Abetment

Distinct and different AR & MR from principal actor (P)

Instigate Conspire with (act/omission taken in pursuance of conspiracy) Aid

AR

MR

Intend own contribution (instigation, conspire, aid) Appreciate the nature of Ps actions (know of essential facts making Ps actions an offense)
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Abetment: AR Instigation

Balakrishnan and Another

active suggestion, support, stimulation or encouragement

Words or actions; direct/explicit or indirect/implicit

E.g. Ram ram Mohit Pandey Mere presence possible if factually encourages P (question of fact: r/s between A & P, context)

Note: encouragement must be received

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Abetment: AR Conspiracy

Two requirements

Engages in conspiracy with another An act or illegal omission performed

Agreement commonality of purpose not just mere involvement Lee Yuen Hong (A and P collected X amount from client on behalf of F, P wrongfully lent A sum, A treated it as loan, P charged with criminal breach of trust)

Conspiracy

Held: not been proven beyond a reasonable doubt that the appellant and Don Wee had engaged in a conspiracy to commit the offense of criminal breach of trust..evidence in court did not reveal an agreement between the two parties to commit the offense in question
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Abetment: AR Conspiracy

Agreement but dont need to know everyone who is involved or exact details of conspiracy s. 108, Explanation 5.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. A concerts with B a plan for poisoning Z. It is agreed that A shall administer the poison. B then explains the plan to C, mentioning that a third person is to administer the poison, but without mentioning As name. C agrees to procure the poison, and procures and delivers it to B for the purpose of its being used in the manner explained. A administers the poison; Z dies in consequence. Here, though A and C have not conspired together, yet C has been engaged in the conspiracy in pursuance of which Z has been murdered. C has therefore committed the offence defined in this section, and is liable to the punishment for murder.

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Abetment: AR Aid

S. 107, explanation 2

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. If merely trying to help (no actual assistance) may be attempt to aid
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Must have actually assisted

Abetment: AR Aid

Note: includes omissions

S. 32.In every part of this Code, except where a contrary intention appears from the context, words which refer to acts done extend also to illegal omissions. S. 43.The word illegal or unlawful is applicable to every thing which is an offence, or which is prohibited by law, or which furnishes ground for a civil action: and a person is said to be legally bound to do whatever it is illegal or unlawful in him to omit. Omission by non-disclosure: S. 107 Explanation 1- A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Balakrishnan: found that it was incumbent upon WO Balakrishnan to take preventive action when he witnessed the water treatmentfailure to do so was a breach of a legal obligationthe fact that usage of the tub was approved by his superiors did not detract from WO Balakrishnans basic responsibility as a Course Commander, which was, as stipulated by the TMP, to prevent training accident and injury, as well as to administer the discipline and general conduct of the instructorsaided in the commission of that offense by omitting to intervene
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Example of omissions

Abetment: MR

MR
Must intend his own AR contribution (instigate, conspire or aid) Must appreciate the nature of Ps actions (know of essential facts relating to Ps actions that make those actions an offese)

Note: A does not need to meet the AR and MR of the actual abetted offense elements of abetment liability are independent of the abetted offense
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Abetment: MR

Intention to instigate, conspire or aid

Intends his actual act Intends to instigate, conspire with or aid Ps conduct No need to desire or intend that P commits offense
by omitting to stop the conduct of water treatmentintended to aid the commission of offenses against them The only reasonable inference that I could draw from WO Balakrishnans failure to intervene was that he intended for the treatment to continue
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Balakrishnan

Abetment: MR

What if A acts with more than one intention?

Court will identify dominant intention As applied courts have applied this principle when the two intentions relate to two different offenses Daw Aye Aye Mu: Assisting illegal immigrant to find employment or assisting employer to employ illegal immigrant

Note: s. 107 requires (c) intentionally aids, by any act or illegal omission, the doing of that thing.

Hendricks Glen Conleth: having examined the evidence carefully, I found it could not have been proven beyond reasonable doubt that [A] either knew or should have suspected that there was something improper Introduction of negligence standard? Against explicit PC wording

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Abetment: MR

Note: willful blindness --- you still have to infer actual knowledge Bachoo Mohan Singh v PP [2009] 2 SLR 1037

Abetment by aiding to make a false claim before a court of justice (s. 209, PC) Held: cited case law on knowledge and willful blindness Atwar Singh was cited: actual knowledge of certain facts can be inferred from the evidence that the defendant had deliberately or willfully shut his eyes to the obvious or that he had refrained from inquiry because he suspected the truth but did not want to have his suspicion confirmed However, it has to be remembered that there is a vast difference between a state of mind which consists of deliberately shutting the eyes to the obvious, the result of which a person does not care to have, and a state of mind which is merely neglecting to make inquiries which a reasonable and prudent man would make..

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Abetment: MR

A needs to know the nature of Ps actions But no need to know precise details Sinniah Pillay

A conspired with others to attack and cause grievous hurt to V attack used formic acid A argued did not know would use acid Held: not necessary that A knows all details evidence clearly pointed to the fact that what the appellant wanted done to Ramasamy was that he was to be injured to such an extent that he would be sent to hospital. As explained by Raja Ratnam, the Tamil idiomatic expression must break his hand or leg did not necessarily mean that a hand or leg must, literally, be broken. The expression meant hurt of a serious nature, ie grievous hurt. The appellant had not specified the means to be adopted to cause the grievous hurt. He left it entirely to the discretion of the coconspirators. What was done by the co-conspirators was within the scope of his instructions to cause grievous hurt to Ramasamy so that he would be sent to hospital
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Abetment: comparing the 3 kinds

Difference between the 3 kinds of abetment: instigation, conspiracy, aiding Whang Sung Lin [2010] SGHC 53 (para. 36 37)

Organ transplant - passed organ dealers contact number to his unclein-law whom he knew needed kidney transplant Lower court: abetment by instigation Prosecutor: argued that A made price suggestions to middle man this amounted to instigation Defense: was merely conduit not catalyst High court: all the A was helping to put the two willing parties together or intentionally aiding them within the meaning of s 107(c) of the Penal Code. He could hardly be said to be actively suggesting, supporting, stimulating or encouraging them to do the transactionneither Tang nor Wang needed any goading or encouragement.

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Abetment: comparing the 3 kinds

Whang Sung Lin [2010] SGHC 53 (para. 39)

High Court: the appellant is not correct in suggesting that abetment by aiding is a lesser crime than abetment by instigation. Although it is established that for the purposes of sentencing, the extent of the accused persons role in the offence is a relevant consideration there is no reason why a person who aids in an offence is necessarily less morally culpable than one who instigates the offence. Section 107 of the Penal Code draws no distinction among the three categories of abetment and s 109 does not make any distinction in the courts sentencing powers. The legal culpability remains the same for the three forms of abetment. Ultimately, the court has to examine the role played by an accused person in any particular set of facts. One who aids by practically paving the groundwork for an offence may well be punished more severely than one who merely instigates the commission thereof by a nod or a nudge.

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Abetment: supplementary principles

P need not commit the offense abetted S. 108, explanation 3

It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.

Chua Kian Kok

Note: this decision corrects Ong Ah Yeo, Yenna (that decided that for abetment by aiding, crime must actually be committed)
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Abetment: supplementary principles

A may be guilty of abetment even if P lacks MR or has a defense and cant be convicted S. 108, explanation 3: various illustrations

P is of unsound mind (a), (c) P is underage (b) P does not have MR of offense (d) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of Bs rage, and to cause him to kill Z, puts a knife into Bs hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder.
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S. 300, exception 1, illustration (f)

Abetment: supplementary principles

Can abet an abettor S. 108, explanation 4

The abetment of an offence being an offence, the abetment of such an abetment is also an offence.

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Abetment: supplementary principles

A may be guilty of abetting a crime though P could not have legally committed it S. 108 & explanation 1

108.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. Explanation 1-The abetment of the illegal omission of an act may amount to an offence, although the abettor may not himself be bound to do that act.

E.g. offense of rape (s. 375) can only be committed by a male against a female --- female cant commit rape as P but can abet

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Abetment: supplementary principles

A may not be guilty of abetting a crime that was criminalized to protect people in As position This is a common law principle

Not yet clear if applies in PC context no case law

R v Tyrell [1894] 1 QB 710: A under 16, charged with aiding and abetting P to have unlawful sexual intercourse with minor she had consented

Held: the applicable law was passed for the purpose of protecting women and girls against themselves

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Divergence

What if act committed diverges from that A intends to abet? S. 111: act abetted differs from act done S. 113: act abetted has different effect

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Different act done

111.When an act is abetted and a different act is done, the abettor is liable for the act done, in the same manner, and to the same extent, as if he had directly abetted it: Provided the act done was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment.
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Different act done: punishment

112.If the act for which the abettor is liable under section 111 is committed in addition to the act abetted, and constitutes a distinct offence, the abettor is liable to punishment for each of the offences.

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Different effect

113.When an act is abetted with the intention on the part of the abettor of causing a particular effect, and an act for which the abettor is liable in consequence of the abetment causes a different effect from that intended by the abettor, the abettor is liable for the effect caused, in the same manner, and to the same extent, as if he had abetted the act with the intention of causing that effect, provided he knew that the act abetted was likely to cause that effect.

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Comparing ss 111 and 113

S 111: the act was a probable consequence of the abetment S 113: D knew that the act abetted was likely to cause that

Since the tests are different for these two provisions, it is assumed that there is a material distinction between a different effect and a different act. Is there really such a distinction? Most results can be categorized as an effect or act. E.g. intend to abet grievous hurt but death results causing death can logically be categorized as not just a different effect but a different act Same test should apply to both - seriousness of abetment liability should be of subjective knowledge adopted by.

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s. 111 & 113: comparing MR

S. 111 probable consequence vs. s.113 knew likely to cause that effect

Is s. 111 objective or subjective?

Indian case law: some hold objective Spore case law:

Pre-2008: left it open (e.g. Ang Ser Kuang) 2008: CA definitively held in Lee Chez Kee that both s. 111 and s. 113 should be subjective (A must know that different act and effect likely to occur)
Agrees with academic commentary (e.g. YMC) Structure of other joint liability offences in the PC Cited Commonwealth examples (UK, Australia)
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Lee Chez Kee [2008] 3 SLR 447, para. 238 242