S.

38 on the Penal Code provides that where several persons are engaged or concerned in the
commission of a criminal act, they may be guilty of different offences by means of that act. By s.
34, when a criminal act is done by several persons, in furtherance of the common intention of
all, each of such persons is liable for that act in the same manner as if the act were done by him
alone. In other words each of several persons liable for an act done by all, in like manner as if
done by him alone.

S. 34 of the Code carves out an exception from the general law that a person is responsible for
his own act, as it provides that a person can also be held vicariously responsible for the act of
others if he has the "common intention" to commit the offence. The phrase "common intention"
implies a prearranged plan and acting in concert pursuant to the plan. Thus, the
common intention must be there prior to the commission of the offence in point of time. The
common intention to bring about a particular result may also well develop on the spot as
between a number of persons, with reference to the facts of the case and circumstances existing
thereto.[1]

In law, common intention requires a prior meeting of the minds and presupposes some prior
concert. Proof of holding the same intention or of sharing some other intention, is not enough.
There must be proved either by direct or by circumstantial evidence that there was:[2]

(a) a common intention to commit the very offence of which the accused persons are sought to
be convicted; and

(b) participation in the commission of the intended offence of that common intention.

Looking at the first postulate pointed out above, the accused who is to be fastened with liability
on the strength of s. 34 should have done some act which has a nexus with the offence. Such act
need not be very substantial, it is enough that the act is only for guarding the scene for
facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is
enough, provided such a covert act is proved to have been done by the co-accused in furtherance
of the common intention.[3]

S. 34 of the Penal Code does not create a substantive offence. It lays down only a rule of
evidence to infer joint responsibility.[4]In the absence of s. 34having been invoked in aid, it
would therefore mean that the prosecution would have to prove the charge against each of the
two accused persons separately and individually. The evidence led must distinctively prove that
a prima facie case had been established by the prosecution at the end of the prosecution case.[5]

Instances whence it is imputed that intention is common normally occurs when there are 2 or
more individuals committing different acts in furtherance of one criminal act. This is different
from when one criminal act leads to another crime like an intended robbery turns to
murder. In the latter, the principle of aiding and abetting may apply to an accomplice to the
principal crime. The aiding individual may either be acting in concert or aiding coherence of a
particular crime. Acting in concert has been thought to encapsulate a common intention.
The issue of whether an accused person is a primary or a secondary participant on account of his
degree of participation in the commission of the offence does not arise at all in such
determination. All of them are equally as guilty as long as they contribute acts which are
done in furtherance of their common intention. Once that pre-condition is fulfilled, then any act
done by any of them in furtherance of that common intention, is deemed as 'shared' among them.
If at all, the different degrees of participation among the accused persons may be considered by
the Court, in passing sentence, if they are found guilty and are convicted by the Court. In other
words, it may be relevant in mitigation. But in terms of attaching liability, a consideration of the
degree of participation by the various accused persons in the commission of the offence, with
respect, ought not to happen.[6]

The essence of the liability is to be found in the existence of a common intention by the accused
leading to the doing of a criminal act in furtherance of such intention. It must be shown that
the criminal act complained against was done by one of the accused persons in furtherance of the
common intention of all; if this is shown, then liability for the crime may be imposed on any one
of the persons in the same manner as if the act were done by him alone.[7]

The appellant inMohd Shamsul Bin Abdul Aziz @ Abdul Azis,[8] for example, had only seen the
stabbing. But there was no evidence to show what act she had done in the direction leading to the
murder of the deceased. She had no knowledge that the accused had carried with him a knife. If
there was such evidence then perhaps such an inference may be drawn. Also such an inference
may not be readily made in the absence of any other incriminating evidence. In this particular
case, prosecution on appeal was said to be candid and frank enough to admit during submission
that there was no such evidence. Alternatively, had there been knowledge then the question of
accomplice abetting needs consideration.

InKhairul Adli bin Ramli,[9] the manner in which the three accused tracked down the deceased and
got down from their car and then one by one hit the deceased showed that indeed the blows were
not unintentional or accidental. Not only did they have a common intention but were catorized as
accomplices. The intention or knowledge of the three accused was not something which could
be seen but should be assessed as a whole. The question will change according to the facts of the
case and the circumstances surrounding the case.

InMohamad Shahrudin Md Isa,[10] on the other hand, there was no aiding, abetting or intention to
act in furtherance of a criminal act. It was thought, inthis case, at its highest, the evidence led by
the prosecution had shown that the second appellant was present inside the car with the first
appellant and that he looked nervous when the car was stopped. No other overt act was adduced
by the prosecution against him. In such circumstances, it would be difficult for the court to infer
anything culpable against the second accused in relation to mens rea possession of the impugned
drugs. In any event in this case a reference to the opening speech by the prosecution, in this case
however, revealed that the prosecution had not intended to invoke s. 34in order to
attach criminal liability against both the accused persons by using in aid such provision.
There must, therefore, be "a pre-arranged plan' and the crime must be 'done' in concert pursuant
to the 'pre-arranged plan'[11] or 'a prior meeting of the minds and presupposes some prior
concert'.[12]

Common knowledge

S. 35 of the Code goes further to provide, whenever an act, which is criminal only by reason of
its being done with a criminal knowledge or intention, is done by several persons, each of such
persons who joins in the act with such knowledge or intention, is liable for the act in the same
manner as if the act were done by him alone with that knowledge or intent. There is no need for
common intention ins. 35.

Knowledge in cases of culpable homicide are caught within s. 299 and s. 300(d) of the Penal
Code. As for s. 299, whoever causes death by doing an act with the intention of causing death, or
with the intention of causing such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, commits the offence of culpable
homicide. Section 300(d) further defines culpable homicide as murder if the person committing
the act knows that it is so imminently dangerous that it must in all probability cause death, or
such bodily injury as is likely to cause death, and commits such act without any excuse for
incurring the risk of causing death, or such injury as aforesaid.

InAzhar Bin Che Wil,[13] there was evidence that the deceased was assaulted by several prison
officers in several other places when he was brought to the UKK Room. The other officers were
not present in the room when the appellant assaulted the deceased. This means the act of assault
by the appellant cannot be said to be an act 'done by several persons' (the phrase used insection
35 of the Code). The appellant did the act alone. Hence the co-accused could not be associated
with what the appellant did and could not be held criminally liable for what happened in the
UKK room. The only evidence against the other officers was that they had assaulted the
deceased before the deceased was brought to the room. Though there was no intention,
knowledge that the injury would cause death was imputed on the appellate. The trial judge went
on to say:

Every Tom, Dick and Harry, as human beings, is fully aware that the head is a vulnerable and
vital part of a human being. One need not be inthe medical field to know such basic fact. It
therefore flows that any hard kicking and stomping of the head and especially repeatedly against
a hard surface like a concrete wall or a concrete floor, can cause injuries that are sufficient to
cause death in the ordinary course of nature.

Pre-arranged Plan

Once common intention is shown to exist, thereby connoting a pre-arranged plan among the
accused persons, then, any act however small done by any one of them, as long as it is
done in furtherance of a common intention, he is liable for the offence, as if the offence is
committed by him alone. That is the process under s. 34in order to determine liability of persons
acting in furtherance of a common intention.[14] There must be a prior meeting of the minds and
presupposes some prior concert. In order for the charge to succeed the prosecution must prove
two elements:[15]

(1) she was either committing the crime or at the scene of the crime, and

(2) there must be evidence of a common intention.

The element of mens rea, like that inKhairul Adli bin Ramli,[16] must then be considered and also
the question of applying s. 34 of the Code or common intention to commit an act where the act
had caused death. The intention or knowledge of the three accused were not something which
could be seen but should be assessed as a whole. The question will change according to the facts
of the case and the circumstances surrounding the case. The act of the three accused, including
using the tools that they used and causing the injury suffered by the deceased ought to be taken
into account.

InChua Kim Hock,[17] the appellants were jointly charged for an offence under s. 302 of the Code
as there was evidence that, earlier on in the evening before the incident, a witness had seen them
bringing items which she later saw were used by the appellants to beat up the deceased. Further,
there was the uncontroverted evidence that she saw the appellants rushing out from their ambush
position from under a nearby mango tree thereupon they had pounced on the deceased. That, it
was held, had constituted a clear pre-arranged plan on the part of the appellants. Further the court
held that under s. 34 it matters not who among the appellants had inflicted that fatal injury. As it
was inflicted by one of them in furtherance of their common intention, all the appellants were
criminally responsible, under the law, for the death of the deceased.

The first appellant inNamasiyiam,[18] on the other hand, was seated at the driver's seat and had
come out to open the boot for the second appellant who accompanied PW1 to the car to enable
PW1 to take possession of the heroin in the boot followed by the third appellant going to PW1's
car for the purpose of taking delivery of the money and, the fourth appellant in giving a signal to
him to finalise the transaction, led to one and only one inference viz. that there was a
common intention to commit the very offence with which the appellants were convicted of and
the commission of the intended offence was done in furtherance of that common intention.

However inLee Chee Meng[19] there was no evidence to infer that the first and second accused
had a prior meeting of the minds to commit the said crime. The second accused was a girlfriend
of the accused; there were no exhibits besides a blue shirt found in the room that were proved to
belong to the second accused and she was not the occupier or had care and control of the room.
Under these circumstances the second accused was acquitted without being called upon to make
her defence.

There is a need to establish that there was a pre-arranged plan among all of the appellants to
commit the crime. Once that is established, then any act done by any of them is
done in furtherance of their common intention,[20] The plan, however, could develop on the spot.
What was required was a meeting of the minds or acting in concert.[21] To invoke the aid of s.
34 successfully, it must be shown that the criminal act complained against was done by one of
the Appellant persons in the furtherance of the common intention of all; if this is shown, then
liability for the crime may be imposed on any of the persons in the same manner as if the act
were done by him alone.[22]

InMohammed Seddiki,[23] for instance, only one (the first appellant) of the three passengers
picked up his bag and proceeded to the green lane. The other two appellants repeated what the
first appellant said that the first appellant was their good friend and were happy to go on a free
vacation to Malaysia. They gave the same accounts in their cautioned statements. More
importantly, their defence was corroborated by the prosecution's own witness in his
examination in chief when he said: "Saya dapati penumpang kedua dan ketiga macam tidak puas
hati dengan penumpang satu, kedua-dua penumpang ini bagi tahu penumpang yang pertama
yang mengajak mereka datang ke Malaysia dalam Bahasa Inggeris."

The learned trial judge inMohammed Seddiki came to the following conclusion:

"There was no doubt that the versions given by the second and third accused were not only
mutually consistent but also consistent with the first accused's cautioned statement D100 and
written statement D103 which totally exculpated the second and third accused. There was no
denial at all that it was the first accused who gave the two bags to the second and third accused
who knew nothing about Toni and the stuff hidden therein. In most cases of the same nature
involving more than one accused, the blaming game would have been the norm. On the
contrary in the present case, the first accused reiterated in D103 that the other two accused were
innocent and he did not want them to suffer for something they had not done and were not aware
of. Their cautioned statements were corroborative of the sworn testimony of the second and third
accused in the course of their defence that was further supported by the evidence of the first
accused, D100 and D103 which not only totally exonerated them from any involvement with the
drugs but also underscored at this stage the absence or dissolution of any evidence to establish or
infer the s. 34 common intention of a pre-arranged plan to commit drug trafficking".

Vicarious Liability

S. 34 recognizes the principle of vicarious liability in criminal jurisprudence. It makes a person

liable for action of an offence not committed by him but by another person with whom he shared
the common intention. It is a rule of evidence and does not create a substantive offence. The
section gives statutory recognition to the commonsense principle that if more than two persons
intentionally do a thing jointly, it is just the same as if each of them had done it individually.
There is no gainsaying that a common intention pre-supposes prior concert, which requires a
pre-arranged plan of the accused participating in an offence. Such a pre-concert or pre-planning
may develop on the spot or during the course of commission of the offence but the crucial test is
that such plan must precede the act constituting an offence. Common intention can be formed
previously or in the course of occurrence and on a spur of moment. The existence of a
common intention is a question of fact in each case to be proved mainly as a matter of inference
from the circumstances of the case.[24]
Under the provisions of s. 34 the essence of the liability is to be found in the existence of a
common intention by the accused leading to the doing of a criminal act in furtherance of
such intention. As a result of the application of principles enunciated ins. 34, when an accused is
convicted under s. 302read with s. 34, in law it means that the accused is liable for the act which
caused death of the deceased in the same manner as if it was done by him alone. The provision is
intended to meet a case in which it may be difficult to distinguish between acts of individual
members of a party who act infurtherance of the common intention of all or to prove exactly
what part was taken by each of them.[25]

Thus to attract s. 34 two postulates are indispensable:[26]

(1) the criminal act (consisting of a series of acts) should have been done, not by one person, but
more than one person;

(2) doing of every such individual act cumulatively resulting in the commission of
a criminal offence should have been in furtherance of the common intention of all such persons.

Where the prosecution case rests on circumstantial evidence, the circumstances which are proved
must be such as necessarily leads only to that inference. Direct evidence of a prior plan to
commit an offence is not necessary in every case because common intention may develop on the
spot and without any long interval of time between it and the doing of the act commonly
intended. In such a case, common intention may be inferred from the facts and circumstances of
the case and the conduct of the accused.[27]

However, since the charge against the appellant inYau Heng Fang, had reference to s. 34 of the
Code, it is unnecessary for the prosecution to prove which particular stab wounds were inflicted
by which assailant. So long as it is shown that the criminal act was done by one of the
assailants in furtherance of a common intention of all, then liability for the crime would be
imposed on anyone of the persons in the same manner as if the act were done by him alone.[28]

The heart of the prosecution case was OKT1 and the appellant each carrying P14 on either side.
The dangerous drugs were found in P14. That vital aspect of the prosecution case was
demolished when the learned Judicial Commissioner accepted the truth of OKT1's denial that he
was carrying P14 together with the appellant. Elementary logic dictates that it was not open to
the learned Judicial Commissioner to then apply a totally opposite finding that the appellant was
carrying P14 together with OKT1 and convict the appellant on that finding, more so when the
appellant was jointly charged together with OKT1 for committing the criminal act in the two
charges in furtherance of the common intention of both of them. It stood to reason, therefore, the
essential ingredient of common intention in both charges was also rendered non-existent.
Understandably the essential element of common intentionwas not addressed by the learned
Judicial Commissioner. He was plainly wrong when he did not apply the finding in respect of the
heart of the prosecution case in respect of OKT1 to the appellant as well. The benefit of the
finding given to OKT1 must also be accorded to the appellant. After all, what is sauce for the
goose is sauce for the gander.[29]
Active Participation

InLee Kwai Heong based on the evidence of a witness that he saw both the appellants with two
others chasing the deceased, the issue of common intention was well established. The
information given under s. 27 by the appellants, albeit separately, was also referred to as
supporting the finding of common intention. The court held that the crucial ingredient to prove
common intention was the existence of pre-concert or pre-planning which may develop on the
spot or during the course of commission of the offence but the crucial test is that such plan must
precede the act constituting an offence. The test for common intention is a question of fact.[30]

The facts of Tarmizi bin Yaacob showed that the arrest of the appellants was the result of a sting
operation by the police force. The preparatory act for the purpose of trafficking drugs, it was
held, covers a number of continuing acts. The court held that it started from the second an
agreement was reached to traffic the said drugs and it covers whatever action done by a party to
carry out the said purpose and would include getting the supply, wrapping, sending and meeting
between the parties, if necessary until they succeeded in handing it over to another party. In the
context of this case, the trafficking meant is the sale of ganja or cannabis or the purchase of it by
an officer posing as a purchaser. What occurred lastly was the final chapter in the preparation to
traffic the drugs. It was held to constitute the supply and delivery of ganja by the first appellant
for the purpose of both appellants jointly handing it over to the officer as was agreed beforehand
to obtain the sum agreed upon.[31]

On the other hand inSyed Ahmad Saifuddin Bin Syed Ali, the evidence was only that the three
accused were in the car from the time the car left the house until it was stopped 30 minutes later.
There was no evidence at all about what had happened in the car throughout that 30 minutes
although the car was tailed by the investigating teams in three cars. The prosecution had failed to
prove the existence of the common intention of the three accused or any of the accused. There
was also not enough evidence to show that the three accused or any of the accused knew about
the black plastic sacks which were found in car. The car was bought and was in the ownership of
the first accused but the facts of the case did not disclose who was the one who had placed and
when the black plastic sacks were placed into the car.[32]

Passive Participation

InSabarudin bin Non the second and third accused were thought to be present and
participated in the crime of abduction. When the victim was then removed to another place and
assaulted and strangled, neither the second nor the third accused lifted a finger to save or to
rescue her. Further, they assisted in the disposal of the body. The two accused also attempted to
wash themselves of criminality with a story which did not raise a reasonable doubt.[33]

The main point emphasised by the fourth and fifth accused inSabarudin bin Non is that there
must be presence and participation for s. 34 to bite. Here it was argued that neither of their
clients was present at either the scene of the abduction nor at the place where the deceased was
done unto death, nor at the scene where her body was cast into the ravine. The court on the other
hand held that presence in every case is not necessary for s. 34 to apply. Instead s. 34 should be
interpreted having regard to modern technological advances. It was also held that early decisions
on the section, admittedly by the Privy Council, that held presence to be essential for s. 34 to bite
were handed down at a time when modes of communication were not as advanced as today.
Therefore it would be a perversion of justice if the courts now were required to cling on to an
interpretation of the section made at a time when science was at a very early stage of
development. The fourth and fifth accused were, on the evidence already rehearsed,
acting in concert by means of the cell-phone and other conversations. Also in this case there was
abetment.[34]

Even an omission can, in certain circumstances, amount to an act. This is the purport of s.
32 which provides, 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. The operative words
of s. 32 may not be 'omission' but rather 'illegal'. Section 32 considers illegal omission as the
same category as an illegal act. Indeed the heading to s. 32 provides, to wit, words referring to
acts include illegal omissions.

So the act mentioned ins. 34need not be an overt act, even an illegal omission to do a certain
act in a certain situation can amount to an act, eg a co-accused, standing near the victim face to
face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The
co-accused, who could have alerted the victim to move away to escape from the onslaught
deliberately refrained from doing so with the idea that the blow should fall on the victim. Such
omission can also be termed as an act in a given situation. Hence an act, whether overt or covert,
is indispensable to be done by a co-accused to be fastened with the liability under the section.
But if no such act is done by a person, even if he has a common intention with the others for the
accomplishment of the crime, s. 34 cannot be invoked for convicting that person. In other words,
the accused who only keeps the common intention in his mind, but does not do any act at the
scene, cannot be convicted with the aid of s. 34.[35]

With regard to the proof of common intention, it was held inLee Ah Seng & anor that
common intention may be inferred from the facts and circumstances of the case which are
found in the testimony of witnesses like an eye witness account of seeing both the appellants
together with two others at the scene, both holding something which resembled a piece of wood
(P9(a)) and seeing both the appellants chasing the deceased.[36]

Common act

Common intention of s. 34 is to be understood in a different sense from the "same intention" or

"similar intention" or "common object". The persons having similar intention which is not the
result of the prearranged plan cannot be held guilty of the criminal act with the aid of s. 34.[37]

Care must be taken not to confuse same or similar intention with common intention; the
partition which divides their boundaries is often very thin, nevertheless, the distinction is real and
substantial and if overlooked will result is miscarriage of justice. The plan need not be elaborate,
nor is a long interval of time required. It could arise and be formed suddenly. But there must be
pre-arrangement and premeditated concert.[38]
Abetting towards a common object on the other hand may also have an element of
common intention. Section 108 of the Code provides that 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.

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. However; this is only where
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.[39]

Section 149 of the Code specifically refers to the offence of unlawful assembly where, every
member of an unlawful assembly is deemed guilty of any offence committed in prosecution of a
common object. If an offence is committed by any member of an unlawful
assembly in prosecution of the common object of that assembly, or such as the members of that
assembly knew to be likely to be committed in prosecution of that object, every person who, at
the time of the committing of that offence, is a member of the same assembly, is guilty of that
offence.