Accessorial Liability

Question 1

Abetment:
S 107 PC

[Types of Abetment]

Answer 1

An abettor:
a. By instigation: Instigates any person to do that thing;

b. By Conspiracy: Engages with one or more person(s) 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. By Aiding: Intentionally aids, by any act or illegal omission, the doing of that thing.

Question 2

Abetment:

S 108 PC

Answer 2

A person 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.

Abetment and criminal conspiracy can be far removed from the substantive offence.

Question 3

Abetment:
Abettor refuses to do act -
PP v Ng Ai Tiong [2000] 1 SLR(R) 1

[N abetted O by instigating O to give false evidence (that O had taken a loan from Y) (s193 PC) in a civil suit. N had not expressly asked O to provide a statement for N’s use in the civil suit. O ultimately did not give the false evidence desired.]

Answer 3

[12] Abettor can still be guilty even if the person abetted refuses to do/does not do the act.

Question 4

Different liabilities for Abettor v Accomplice?

Answer 4

Abettor: Act of supporting the commission of the crime that is the offence.

Accomplice: Share a common intention or object, and have joint liability for the crime as they actively assist in the commission of the crime.

Question 5

Abetment:

Test?

Answer 5

1. Determine the principal offence. (intended offence, and not the committed offence)
2. Determine the parties involved.
   a. Who is the principal offender and who is the abettor? Only abettor can be charged under abetment.
   b. The principal offender can be charged with –
   - the principal offence (if committed);
   - the attempted offence (if merely an attempt);
   - abetment by conspiracy (not attempted but agreed and overt act committed); and/or
   - criminal conspiracy (not attempted but actually agreed between the parties).

** Note: Absence/acquittal of principal offender is irrelevant to the abettor’s liability. [Balakrishnan S v PP [2005] at [109]]

The position is the same for co-conspirators. [Quek Hock Lye]

Question 6

Abetment:

Punishment?

Answer 6

S 109 PC: If act abetted is committed, use punishment provided for the offence.

S 110 PC: If different intention/knowledge from principal, use punishment provided for the offence which would have been committed if the act had been done with the intention or knowledge of the abettor.

Question 7

Abetment:
Instigates (S107(a)) -
General?

Answer 7

Instigation must refer to the thing done, not the thing likely to have been done by the instigated person [Baby John v State].

S107 PC Ex 1: May include wilful misrepresentation / wilful concealment of material facts that D is bound to disclose.

Question 8

Abetment:
Instigates (S107(a)) -
PP v Lim Tee Hian [1992] 2 SLR(R) 393

Answer 8

D instigated V (gf) to commit suicide so that he could collect $5,000 from two policies he had procured on V’s life.

1. PP must show that D made active support, stimulation, and encouragement for the commission of the main act.
2. [51] Mere acquiescence or silence insufficient to constitute abetment by instigation.

Question 9

Abetment:
Instigates (S107(a)) -
Mere presence does not amount to instigation - PP v Tee Tean Siong and 8 Ors [1963] MLJ 201

Answer 9

9 people involved in paying guy to exhibit porn reels.

1. Must be shown that abettor’s presence was neither causal nor accidental but deliberate to constitute suggestion, stimulation or encouragement, unless in special circumstances [Balakrishnan S v PP [2005] 4 SLR(R) 249].

Question 10

Abetment:
Instigates (S107(a)) -
Mere presence does not amount to instigation: Special Circumstances + MR -
Balakrishnan S v PP [2005] 4 SLR(R) 249, SGHC

Answer 10

Ds were CO and supervising officer of a commando course. 1 soldier died and another seriously injured due to dunking. D2 (supervising officer) failed to intervene when witnessing the conduct of D1.

Capt Pandiaraj: Abetment by instigation.
WO Balakrishnan: Abetment by illegal omission.

Held:
1. [73] Pandiaraj’s presence, coupled with indifference to the dunking, signified (1) his intention that his instructions be carried out; and (2) his support and encouragement of the instructors’ actions.

2. [64] Must prove abettor’s intention to aid in the offence, as well as knowledge of the circumstances constituting the offence. Pandiaraj lay down “4 dunks, 20 secs” guideline, responsible for the exercise.

Question 11

Abetment:
Instigates (S107(a)) -
Abettor need not directly express what needs to be done -
PP v Ng Ai Tiong [2000] 1 SLR(R) 1, SGCA

Answer 11

N abetted O by instigating O to give false evidence (that O had taken a loan from Y) (s193 PC) in a civil suit. N had not expressly asked O to provide a statement for N’s use in the civil suit. O ultimately did not give the false evidence desired.

Held: N’s persistence in continuing to question O despite the unequivocal reply and his attempt to trap O into making the false statement by lying about what Y had said, all went beyond active suggestion for O to admit to the falsehood.

Not necessary for Abettor (“Aor”) to express directly to the Abettee (“Aee”) what exactly was to be done, but must be more than mere advice.

Question 12

Abetment:
Instigates (S107(a)) -
More appropriate to be abetment by aiding if D had prior knowledge -
Ali bin Mohamed Bahashwan v PP [2018] 1 SLR 610, CA

Answer 12

Rule in Liew Zheng Yang was endorsed (consuming-recipient has no MR to commit offence of abetting conspiracy to traffic - both buyer and seller must have common intention to traffic).

A incurred no criminal liability under s5 read with s12 of the MDA for abetting another to traffic in drugs to himself if the drugs were intended for his own consumption (consuming-recipient). Would be so liable only if PP was able to prove beyond a reasonable doubt that he himself intended to traffic the drugs.

Question 13

Abetment:
Conspires (S107(b)) -
Elements for AR -
Hwa Lai Heng Ricky v PP [2005] SGHC 195

Answer 13

1. Abettor must engage with one or more persons in a conspiracy, where the essence of a conspiracy is an agreement.
2. The conspiracy must be for 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.

Question 14

Abetment:
Conspires (S107(b)) -
Principal Offender + Agreement -
Er Joo Nguang & Anor v PP [2000] 1 SLR(R) 756

Answer 14

B2 ordered goods from PW13, PW13 shipped to B1. B2 convinced B1 to release goods to him but not paying. Abetment of CBT dropped for B1.

1. [30] No need principal offender, can charge 2 accessories for abetting each other by conspiracy.
2. [35] Conspiracy is generally deduced from Ds’ acts, done in pursuance of an apparent common criminal object.
   - Surrounding circumstances, words and conduct of parties before + after the alleged crime will be useful in drawing an inference of conspiracy. [Yeo Choon Poh]
   - Inference must be inexorable and irresistible, and accounted for by all facts of the case.

Must show “meeting of minds”: both parties must have been aware of the general purpose of the conspiracy.

Question 15

Abetment:
Conspires (S107(b)) -
Agreement -
PP v Yeo Choon Poh [1993] 3 SLR(R) 302, SGCA

Answer 15

[21] Presence of agreement has to be inferred from all the circumstances (i.e. words and actions of the party which demonstrate that they were acting in concert).

This just provides proof that there was a conspiracy.

Question 16

Abetment:
Conspires (S107(b)) -
Agreement -
Hwa Lai Heng Ricky v PP [2005]

Answer 16

D allegedly conspired with C and J to cheat DBS into disbursing $1.9mil to Y Ltd. C and J found to have conspired to cheat DBS. Issue was whether D was a co-conspirator as well. At all material times, J did not explicitly convey to D her intention to cheat DBS.

Held (HC): Can establish a conspiracy if there was an inference (from the facts) of an agreement, but a tacit agreement on its own is insufficient to constitute a conspiracy.

Separate intentions which coincide is likely overextending the law and should be rejected.

Question 17

Abetment:
Conspires (S107(b)) -
Test of Guilt -
Nomura Taiji & Ors V PP [1998] 1 SLR(R) 259, SGHC

Answer 17

Test is not what D’s object was, but whether having regard to the immediate object of the instigation/conspiracy, the act done by the principal is one which according to ordinary experience and common sense, the abettor must have seen as foreseeable.

Need not know the exact details of the conspiracy or be informed of all the details of the common design.

Question 18

Abetment:
Conspires (S107(b)) -
Agreement -
Goh Kah Heng v PP [2010] 4 SLR 258

Answer 18

Acting in concert in pursuit of a common object to defraud can constitute abetment by conspiracy.

Look at words and conduct of the parties allegedly in concert.

Question 19

Abetment:
Conspires (S107(b)) -
Can Abet Non-offender?

Answer 19

Yes, once there is conspiracy/agreement to commit an offence [Chua Kian Kok].

Arises even if offence is/has not been committed [s108 PC Explanation 2].

Question 20

Abetment:
Conspires (S107(b)) -
MR for Abetment by Conspiracy -
Johnson v Youden [1950] 1 KB 544 (endorsed by Nomura Taiji)

Answer 20

MR only an essential ingredient in conspiracy in so far as there had to be an intention to be a party to an agreement to do the unlawful act.

Must be knowledge of a common design, but it is not necessary that all the co-conspirators should be equally informed as to the details.

Question 21

Abetment:
Aids (S107(c)) -
AR -
Jimina Jacee v PP [1999] 3 SLR(R) 826

Answer 21

D, in a scheme to get Sri Lankans to AUS illegally, procured and distributed air tickets for principal offenders, who then used them to obtain boarding passes which were then passed to others to board the flight. D then paid principal offenders for their role. D was charged with four counts of ABI of cheating.

Held: Charge was changed to abetment by intentionally aiding. Requires active complicity and intervention, or aid must be given with the intention to aid/facilitate the commission of a crime.

Mere proof that the crime could not have been committed without the intervention of abettor is insufficient to establish abetment.

Question 22

Abetment:
Aids (S107(c)) -
AR -
Chan Heng Kong and Anor v PP [2012] SGCA 18

Answer 22

Held that there was abetment by intentionally aiding as D gave C money which was paid to third party in order to take the drugs.

Question 23

Abetment:
Aids (S107(c)) -
AR -
Balakrishnan S v PP [2005], SGHC

Answer 23

WO Balakrishnan: Abetment by illegal omission.

1. [112] To prove abetment by illegal omission, it has to be shown that D intentionally aided the commission of the offence by his non-interference, and that the omission involved a breach of legal obligation.
2. [116] Legal obligation: Duty as Course Commander, which was to prevent training accident and injury, and administer the discipline and general conduct of the instructors.

Question 24

Abetment:
Aids (S107(c)) -
MR -
PP v Hendricks Glen Conleth [2003]

Answer 24

Defendant must have had knowledge of the circumstances constituting the offence abetted.

Question 25

Abetment:
Aids (S107(c)) -
MR -
Balakrishnan S v PP [2005], SGHC

Answer 25

D must have the necessary knowledge that an offence was being committed, and he intentionally aided the commission of that offence by failing to intervene.

Question 26

Abetment:
Aids (S107(c)) -
MR -
Hwa Lai Heng Ricky [2005]

Answer 26

All that is required is the intention to aid/facilitate the commission of the offence. (citing Jimina Jacee v PP [2000]).

Question 27

Criminal Conspiracy:

S 120A PC

Answer 27

(1) Agrees with another to commit an offence or cause offence to be committed.
(2) Can have conspiracy if conspirator knows it’s an impossible offence.
(3) Can have conspiracy even if other party does not intend to carry out agreement.

Question 28

Criminal Conspiracy:

S 120B PC

Answer 28

Punishment:

Same manner as if he had abetted the offence that is the subject of the conspiracy.

Question 29

Criminal Conspiracy v Abetment by conspiracy?

Answer 29

1. Overt Acts
   ABC requires a further overt act done in pursuance of that conspiracy; mere conspiracy insufficient.

CC (in the case of an agreement to commit an offence) requires an agreement alone.

2. Wider in scope of liable acts
   ABC covers offences only.

CC covers both (i) an agreement to commit an offence / illegal act, and (ii) an act which is not illegal, but done with illegal means.

3. Meeting of Minds
   ABC does not require any concert with principal.

CC requires meeting of minds of all parties = Higher threshold.

Question 30

Criminal Conspiracy:
Elements -
Kannan s/o Kunjiraman v PP [1995] 3 SLR(R) 294

Answer 30

D1 and D2 conspired with goalkeeper to fix a football match. D2 agreed but did not carry out the plan. D2 did not communicate the offer to the goalkeeper and was a pretence conspirator.

Held: Not guilty of conspiracy.

1. Conspirators must have the intention to agree and this agreement must be complete;
2. Must also be a common design to do something unlawful/lawful by illegal means; and
3. To complete the crime, there must an intention to put the common design into effect.

Question 31

Criminal Conspiracy:
Elements -
Actus Reus: Agreement of Common Design?

Answer 31

1. Parties must know of the general purpose of the agreement and have meeting of minds, but no need to be equally informed about the details.
   - Purpose must be unlawful – commit an offence/illegal act/legal act through illegal means
2. Conspirators do not need to be in each other’s company throughout [Ang Ser Kuang].
   - Can “join” the agreement at any stage prior to carrying out of the offence.
3. Conspirators must have some role to play [Lau Song Seng].
   - Mere knowledge or consent to a criminal scheme is insufficient.

Question 32

Criminal Conspiracy:
Elements -
Requires 2 or more persons -
Quek Hock Lye v PP [2012] 2 SLR 1012, SGCA

Answer 32

At [34].

[In possession of 62.14g diamorphine, co-conspiracy to traffick with Winai. Sentenced to death, appeal to change death penalty in 2015 dismissed.]

Question 33

Criminal Conspiracy:
Elements -
Impossibility for criminal conspiracy (position unclear under SG law) -
DPP v Nock [1998] AC 979 (UK Position)

Answer 33

D agreed to produce cocaine from a substance, but unknown to the conspirators, the substance could not have produced cocaine under any circumstances. D charged with criminal conspiracy to produce cocaine.

Held: Not liable for criminal conspiracy.

To agree to pursue a course of conduct which, if carried out in accordance with the intention of those agreeing to it, would not amount to or involve the commission of any offence, cannot be seen to be criminal conspiracy at common law or in statute.

Question 34

Criminal Conspiracy:
Elements -
Impossibility for criminal conspiracy (position unclear under SG law) -
Emperor v SG Hiremath AIR 1940 Bom. 365 (IN Position)

Answer 34

D in this case was charged, inter alia, with conspiracy to murder by way of witchcraft.

Held: Guilty for criminal conspiracy.

Real agreement was to cause the death of V by witchcraft, the nature of which none of Ds understood, when they entered into the conspiracy.

If conspiracy is merely to do an act which is not illegal, though in the hope and belief that that act may result in the death of or injury to some person, does not amount to a conspiracy to do an illegal act.

But if agreement is to commit the murder of X, and the first means to that end is to induce Y to point his finger at X, then I think the agreement being in its essence to cause the death of X and the means being subsidiary there is a conspiracy to commit an offence.

Question 35

Criminal Conspiracy:
Elements -
Absence/acquittal of co-defendant is immaterial -
Quek Hock Lye v PP [2012] 2 SLR 1012, SGCA

Answer 35

[40] Where sufficient evidence can be adduced to prove the underlying agreement between the co-conspirators beyond reasonable doubt, the outcome per se of the proceedings of a co-conspirator, or the death/disappearance of the co-conspirator is not ipso facto a reason to set aside the conviction or amend the charge preferred against the other.

[37] However, note that Stanley Yeo mentioned that conviction for criminal conspiracy is improper if the acquittal of the co-defendant relates to inability to prove elements of criminal conspiracy for that co-defendant.