Criminal Assignment Question b The issue is whether Othai is criminally liable for abetment under the Penal Code

for helping John, Dick and Harry steals a painting. Under section 107 of penal code1, 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 intentionally aids, by any act or illegal omission, the doing of that thing. Meanwhile section 1082 provides five explanations on what would constitute abetment. Explanation 1the 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. Explanation 2to constitute the offence of abetment, it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused. Explanation 3it 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. Explanation 4the abetment of an offence being an offence, the abetment of such an abetment is also an offence. Explanation 5it 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. In abetment, the abettor is liable even when (a) the act is abetted and a different act is done provided the act was a probable consequence of the abetment (section 111 PC) (b) the offence caused by the act is different from that intended by the abettor (section 113 PC)

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Section 107 Penal Code (Act 574) Section 108 Penal Code (Act 574)

In establishing the criminal liability, the elements of mens rea and actus reus must be present. Under the actus reus of abetment, there are three form of forbidden act or causes a result prohibited by law namely abetment by conspiracy (section 107(b) of PC), Abetment by Instigation and abetment by aiding. Abetment by instigation as in Parimal Chatterji v Emperor3, instigate was said to mean goad, or urge towards or to provoke, incite, urge, or encourage to do an act. While abetment by aiding, there must be shown a positive act of assistance voluntarily done by a person with knowledge of the circumstances constituting the offence. Under abetment by aiding, there are two ways of the aid can be done. One is aid by an act and another is aid by an illegal omission. Aid by act can be referred to the case of Abdul Rahim & Anor v Public Prosecutor4, In this case, the second appellant was held to have abetted by intentionally aiding the first appellant by delivering the three letters to Jabatan Pengangkutan Jalan. It was stated that in abetment by aiding, it must be proven that the accused knew and substantially assisted the culprit towards the commission of the offence. While aiding by illegal omission will include duty to act and the act must be illegal. In proving the mens rea of abetment, it is said that there must be intention on the part of the abettor to aid and he must be shown to have known of the circumstances constituting the crime at the time when he voluntarily did the positive act of abetment. This can see in the case of Public Prosecutor V Datuk Tan Cheng Swee & Ors5. In this case, the first respondent was charged as a public officer in his capacity as Commissioner of the Malacca Municipality with corrupt practices in the approval of plans. The second and third respondents were charged with abetment of the offences. It was held that mere knowledge of surrounding circumstances may also be insufficient for abetment by intentional aid.

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Parimal Chatterji v Emperor (1932) 60 Cal 327 Abdul Rahim & Anor v Public Prosecutor (1997) 4 CLJ Supp 381 5 Public Prosecutor V Datuk Tan Cheng Swee & Ors (1979) 1 MLJ 166

In applying the above law, as in Barenda Kumar Ghosh v Emperor6, abetment involves the complicity of the abettor in the commission of the crime but his complicity need not necessarily involve participation in the actual crime itself. As in the section of 107 (b) it was observed that it was immaterial whether the person instigated commits the offence or not or the person conspiring together actually carry out the object of the conspiracy. It is to say that although Othais only involved in the pre-omission of the crime, his actual participation in the thievery was unnecessary to convict him as an abettor. Same goes, if the three of the thieves did not follow the briefing which he had done. It can be referred to the Explanation 2 to Section 108. In proving the existence of actus reus of Othai, it is crucial to determine what form of abetment he was involved in. As in Public Prosecutor v Datuk Haji Harun bin Haji Idris & Ors 7, advice can be instigation if that the advice was meant to actively suggest or stimulate the commission of the offence. However, in the question, Othai did not suggest nor stimulate the thievery but he was facilitating the commission of the principal offence. Hence, Othai is abetting by providing aid. Hes aiding the three of the thief by using his knowledge as a professional thief to contribute to the success of the operation. Under abetment by aiding, there are two type of aid namely aid by an act or by illegal omission. By referring to Othai situation, he did not commit any illegal omission. Hence, he is said to aid by his act which is by his act of briefing about the whole theft operation. Therefore, Othais actus reus is proven under abetment by aiding and aiding by his act. In order to impose criminal liability towards Othai, there must be mens rea on his guilty act. Means rea is guilty mind accompanying the illegal act. By referring to the case of Public Prosecutor V Datuk Tan Cheng Swee & Ors, the abettor must know what he is aiding is towards the commission of an offence. Which in this case, Othai most likely to have the knowledge that his briefing on how to carry out the theft operation is to be carried out to breach the exhibition hall and to steal the painting. Therefore, mens rea is established.
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Barenda Kumar Ghosh v Emperor AIR 1925 PC 1 Public Prosecutor v Datuk Haji Harun bin Haji Idris & Ors (1977) 1 MLJ 180

In conclusion, Although Othai did not take part in any of the omission regarding the stealing of the painting, he can be liable for abetment under section 107 Penal Code under abetment by aid as all the elements required is fulfilled.