Joint Liability Flashcards
Distinction from abetment/conspiracy?
This is reserved for those who have associated themselves sufficiently with the person committing the principal offence such that they are deemed to share equally in criminal liability.
This is contrasted with those involved at a minor level (i.e. abettors or conspirators).
Common Intention:
S 34 PC
Each of several persons liable for an act done by all, in like manner as if done by him alone.
Does not create a substantive offence (must be read together with offence-creating provision).
2 categories of JL?
- Common Intention: Parties shared the intention to commit the offence, even though only 1 or more physically perpetrated the offence (JL triggered under s34 PC).
- Common Object: Parties agree to the main goal of the criminal design but did not share the intention of 1 or more members who committed offences which are incidental or collateral to the main goal of the group (does not trigger JL).
Elements of Common Intention -
Daniel Vijay s/o Katherasan and Ors v PP [2010] 4 SLR 1119, SGCA
- Criminal act;
- Common intention (in furtherance of the common intention of all); and
- Participation (a criminal act… done by several persons).
Common Intention:
Lee Chez Kee v PP [2008] 3 SLR(R) 447, SGCA -
1. Criminal Act
[D charged for murder in furtherance of the common intention of himself and 2 others to rob V.]
[136] Criminal Act = “whole of the criminal transaction in which the co-offenders engage themselves by virtue of their common design and not any particular offence or offences that may be committed in the course of such a transaction”.
[236] Criminal act “to be given a wide interpretation”. E.g. for murder, sufficient to know that one in his party might inflict bodily injury sufficient in OCON to cause death.
Common Intention:
Lee Chez Kee v PP [2008] 3 SLR(R) 447, SGCA -
2. Common Intention
[D charged for murder in furtherance of the common intention of himself and 2 others to rob V.]
[236] MR for 2ndary D is subjective knowledge:
Must subjectively know that one in his party may likely commit the criminal act constituting the collateral offence in furtherance of the common intention of carrying out the primary offence. Need not know actual method of execution.
Made more stringent in Danial Vijay.
Common Intention:
Lee Chez Kee v PP [2008] 3 SLR(R) 447, SGCA -
3. Participation
[D charged for murder in furtherance of the common intention of himself and 2 others to rob V.]
[151] Participation (not presence) is the main feature of s34 PC, per Tan Joo Cheng. Mere agreement is insufficient.
[139] Participation can be active or passive:
A. Passive: presence is evidence of participation even though the lack of D’s presence does not necessarily mean that there was no participation.
B. Active: no need actual presence; mere participation in primary criminal act is enough to affix liability for all collateral acts.
Common Intention:
2. Common Intention between Parties:
Requires secondary offender’s intention to have intended to commit act done by primary offender -
Daniel Vijay v PP [2010], SGCA
D, C and B set out to rob a lorry carrying a shipment of mobile phones. D drove in front of V’s lorry in order to force him to stop. Once V alighted, B got out and assaulted V with a baseball bat. V subsequently died. TJ convicted all 3 of them for murder.
Held (CA): Allowed appeals and set aside convictions for murder for D and C.
Rejected the putative approach in Mimi Wong to impute liability to 2ndary offender without the need for common intention b/w them and as long as the act done in furtherance of the common intention was not inconsistent with the criminal act initially intended.
Favoured Barendra test: Criminal act done by the actual doer would be considered to be done in furtherance of the common intention of ALL Ds only if that common intention includes the intention to commit the very criminal act done by the actual doer.
Creates a more stringent test (more exacting requirement that Lee Chez Kee (which only required 2ndary offender to subjectively know)).
Common Intention:
2. Common Intention between Parties:
Requires secondary offender’s intention to have intended to commit act done by primary offender -
Kho Jabing v PP [2011] 3 SLR 634, SGCA
Followed Barendra test used in Daniel Vijay v PP.
[35] No common intention between primary and 2ndary offender unless there is some kind of planning or understanding between them as to what they would do and how they would do it in order to achieve the common intention.
On the facts, Galing’s decision not to inflict more wounds on the deceased demonstrated that it was not his intention to kill.
Common Intention:
2. Common Intention between Parties:
Requires high burden of proof -
PP v Ellary bin Puling [2011] SGHC 214
[101] Must prove 2ndary D shared a common intention with the primary offender to commit the collateral act (a 2nd offence committed in the course of doing the 1st offence).
[73] and [99]: Requires the existence of some kind of planning or understanding between the 2 offenders. A high degree of specificity is demanded of the 2ndary offender’s intent.
Common Intention:
2. Common Intention between Parties:
Requires high burden of proof -
Muhammad Ridzuan bin Md Ali v PP [2014] 3 SLR 721, SGCA
Issue concerned whether common intention to receive drugs extended to receiving, specifically, an additional 7 bundles of heroin for the purposes of trafficking.
Held: Common intention established, applied Daniel Vijay test. 2ndary offenders were found not to have addressed their minds to a specific number of additional bundles (i.e. they were prepared to collect any number of bundles).
Can be distinguished from cases where 2ndary offenders only thought they were transporting a set number of bundles.
Common Intention:
2. Common Intention between Parties:
To find common intention -
PP v Chia Kee Chen [2018] 2 SLR 249, SGCA
- Whether there was an agreement between the parties in furtherance of an act;
- Any evidence supporting a common intention; and
- Any evidence amongst Ds demonstrating common intention.
Common Intention:
3. Participation:
Distinction between participation and presence -
Daniel Vijay v PP [2010], SGCA
Prosecution must show that either:
a. D participated in the specific criminal act committed by the actual doer which gave rise to the offence charged; or
b. D participated in some other criminal act that was done in furtherance of the common intention of all the offenders.
[Common intention of all Ds must include intent to commit the very criminal act done by actual doer - confirmed in Muhamad bin Kadar (2011, CA)]
Common Intention:
3. Participation:
Can be implicated in participation despite lack of presence -
Ibrahim bin Masod v PP [1993] 3 SLR(R) 438
Plan to kidnap V and hold him ransom but D’s accomplice killed V when D was not present at scene.
Held: D guilty of murder. Despite his absence, D nevertheless passively if not actively participated in the killing of V.
(V knew D and friend. D did not release V despite V saying friend may harm him. D received news of V’s death casually. D subsequently helped dispose of the body and personal effects. D confessed he would readily render assistance to friend when needed.)
Common Intention:
Chen Siyuan, “The Final Twist in Common Intention” (2011) -
Almost unanimous academic agreement on S34 purpose?
Citing Hor, “Common Intention and the Enterprise of Constructing
Criminal Liability”, (1999):
[Section 34] has nothing to do with unintended consequences. It deals with
things going according to plan. Where a group of people plan to commit a series of crimes and participates in any of them, and in accordance with that plan, the crimes are committed, all are liable for all the crimes regardless of the precise part they played, provided they possess the required mens rea.
