Edited Ver Mohd Ridzuan Gun Bin Abdullah & Anor V Public Prosecuto

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1. Mohd Ridzuan Gun bin Abdullah & Anor v Public Prosecutor [2021] MLJU 1692
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MOHD RIDZUAN GUN BIN ABDULLAH & ANOR v PUBLIC
PROSECUTOR
CaseAnalysis
| [2021] MLJU 1692
Mohd Ridzuan Gun bin Abdullah & Anor v Public Prosecutor [2021] MLJU 1692
Malayan Law Journal Unreported
HIGH COURT (MUAR)
AWG ARMADAJAYA AWG MAHMUD JC
CRIMINAL APPEAL NO JB-41S-3-06 OF 2020
29 August 2021
Kooi Wei Kit (Kit & Assoc) for the appellant.

Muhammad Azfar bin Mahmod (Timbalan Pendakwa Raya) for the respondent.
Awg Armadajaya Awg Mahmud JC:

GROUNDS OF JUDGMENTINTRODUCTION
[1]These are 2 appeals by both appellants against the decisions handed down by the Learned Magistrate sitting in
Batu Pahat on the 4th June 2020 whereby the Learned Magistrate convicted the appellants under section 160,
Penal Code and sentenced both appellants to pay a fine the sum of RM500-00 each, in default 1 month
imprisonment. The appeals are against both convictions and sentence of the fine.
[2]The Appellants were charged at the instance of the Public Prosecutor and the Charge against the Appellants is
as follows:
Bahawa kamu bersama-sama pada 13/02/2019 jam lebih kurang 09.25 malam bertempat di Jalan Kurnia 8, Taman Kurnia
dalam Daerah Batu Pahat di dalam Negeri Johor Darul Takzim, telah didapati melakukan gaduh gempar. Oleh yang
demikian, kamu telah melakukan satu kesalahan dan boleh dihukum di bawah seksyen 160 Kanun Keseksaan.
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Translation
That you, jointly, on 13 February 2019 at about 9.25 pm, at Jalan Kurnia 8, Taman Kurnia, in the District of Batu Pahat, in
the State of Johore, have committed affray and you thereby committed an offence which is punishable under section 160
Penal Code.
[3]Before these appeals were heard, the 1st Appellant passed away in a road accident and the 2nd Appellant
applied to the Court to be substituted as a party for and on behalf of the 1st Appellant to prosecute the appeal. The
application was made pursuant to the provision of section 320 Criminal Procedure Code, which I shall deal with
later.
[4]The learned Deputy Public Prosecutor being magnanimous, informed the Court that he has no objection to the
application and after considering the law in respect of substitution of parties in a criminal appeal under section 320
Criminal Procedure Code, I allowed the application and hence the 1st Appellant is substituted by the 2nd Appellant
who is also advancing her own appeal and I so order.
[5]The 2 Appellants were jointly charged with 2 others for the same offence as per the Charge above. I am quite
unclear on whether the Charge proffered against the 2 Appellants was in furtherance of common intention under
section 34 Penal Code or jointly charged under section 35 or other provisions of the law.
[6]At 1st instance, I have my strong reservations on the correctness of the Charge. I understand that in an offence
of causing Affray, obviously there must be more than one person. However, that does not relieve the Public
Prosecutor from the duty of stating under which provision of the law that he is acting on, both as a notice to the
Court and the accused persons as well as an indication of what evidence may be adduced to prove his case.
[7]By not stating the provision of the law specifically, this Court is left bewildered on the possible evidence and the
legal requisites that ensues. Young Deputies of the Public Prosecutor should be vigilant on this as it may prevent an
accused person from getting a fair trial and hence vitiate the trial or the conviction (if there is one). For offences
such as affray which, for obvious reasons, involved more than one person, not so much as it is not an offence but
rather the nature of the evidence to be adduced.
[8]This is distinct from offences like gang robbery as defined under section 392 Penal Code which incorporate the
element of mens rea (such as how the consensus ad idem operates in the mind of the accused persons) and
hence, do not require the use of the mens rea provisions such as section 34, 35 Penal Code etc.
[9]The 2 accused persons (of the 4 charged before the Magistrates Court) pleaded guilty at first instance and were
convicted on their own pleas after the Learned Magistrate was satisfied that the 2 accused persons understood the
nature and consequences of the plea and admitted to the facts and their pleas were unequivocal and without any
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qualifications. The 2 accused persons were fined RM500-00 and became prosecution witnesses PW2 and PW3
respectively.
THE FACTS OF THE CASE
[10]PW2 (Teo Ah Song) was a mechanic and stayed at Taman Kurnia for 10 years. On 13 February 2019 at about
9.15 pm, he rode home on a motorcycle with his brother (PW3) Teo Sa Nee and they came home after a whole day
of work but he misplaced his house keys. Both had alcoholic beverages beer and Carlsberg before going home that
night, and were under the influence of alcohol.
[11]Unfortunately, PW2 had a stomach ache at the time but when he called his wife, there was no answer. He went
to the neighbour who is the 1st Appellant and his daughter and demanded to use their toilet but the 1st Appellant
refused to allow PW2 to use the toilet. This is because in the 1st Appellant’s view, PW2 is a violent person and the
1st Appellant has chosen a different life style altogether although they knew each other for 20 years.
[12]At that time, it was after the Isha’ (the Muslim night) prayers when PW2 came and he smelt of alcohol and the
1st Appellant almost threw up. He demanded money from the 1st Appellant and an altercation ensued. The 1st
Appellant called his eldest son by the name of Mohd Daniel Gun who came out of the house. Daniel Gun told PW2
not to raise his voice and asked PW2 to leave their house.
[13]PW3 was just behind PW2. As the both of them were walking out of the compound of the 1st Appellant’s house,
they suddenly turned back and this was when PW2 started to hit the 1st Appellant with a metal object that appeared
to be a motorcycle lock. The 1st Appellant fell to the ground and the 2nd Appellant helped him to get up.
[14]It was here that he saw PW2 jumped on his daughter the 2nd Appellant. The 2nd Appellant screamed that PW2
has bitten her tight, near to her private parts and she cried for help.
[15]The 1st Appellant, wanted to save his daughter, tried to pull his daughter away from PW2 but PW2 held on the
2nd Appellant strongly. The 1st Appellant had to kick him to free his daughter and after getting freed his daughter
from the hold of PW2, the 1st Appellant shouted at Daniel Gun to call the police by which time the 2nd Appellant
has passed out. The police came with an ambulance and the ambulance took Daniel Gun and the 2nd Appellant to
the hospital.
[16]The 2nd Appellant knew PW2 and PW3 since she was a child and once before PW3 almost knocked her down
when she was riding her bicycle.
[17]During the scuffle, PW2 jumped at her and pushed her down and bit her thigh near her private parts and she
was in pain and she screamed for help. She tried to kick him but he held onto her very strongly and the grip was
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stronger than her strength could muster. PW2 bit her again and she tried to kick him and this time she succeeded to
letting loose from his grip. Both the Appellants were injured in the scuffle.
THE ISSUES IN THIS APPEAL
i. Whether an appeal becomes abated upon the demise of an Appellant.
ii. Whether PW2 and PW3 are accomplices.
iii. Whether Private Defence and Sudden Fight are of the same type of defence under the law and are
applicable on the facts of this case.
iv. Whether the Learned Magistrate did consider the private defence put up by the Appellants.
v. Whether a person under the influence of alcohol may commit the offence of criminal trespass or bodily
harm on another person.
I shall with the issues accordingly.

i. Whether an appeal becomes abated upon the demise of the Appellant
[18]It is on record that the 1st Appellant died in a road accident before this appeal was heard. The 2nd Appellant
applied to the Court through her Learned Counsel for the substitution of parties because under section 320 Criminal
Procedure Code, a criminal appeal abates upon the death of parties.
[19]I reproduced section 320 Criminal Procedure Code for ease of reference.
320 Death of parties to appeal
Every appeal under section 306 shall finally abate on the death of the accused, and every other appeal under this Chapter
(except an appeal against a sentence of fine) shall finally abate on the death of the appellant.
[20]The appeal which abates under the law refers to 2 types of appeal.
i. appeal under section 306 by the Public Prosecutor which abates upon the demise of an accused person.
ii. Any other appeal under Chapter XXX of the Code abates upon the death of the appellant except when the
appeal is against the sentence of fine.
a. The first is the appeal by the Public Prosecutor against the acquittal.
[21]Section 306 of the Code speaks of appeal by the Public Prosecutor against an acquittal and I reproduce the
provision for comparison sake.
306 Appeal against acquittal

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When an accused person has been acquitted by a Magistrate there shall be no appeal except by, or with the sanction in
writing of, the Public Prosecutor.
[22]In SUNNY YAP EU LEONG v. PUBLIC PROSECUTOR [1994] 3 CLJ 118, the appellant was charged at the
Sessions Court for corruptly soliciting a bribe under s. 3(a)(ii) of the Prevention of Corruption Act 1961 (Act 57) and
for corruptly accepting a bribe under s. 4(a) of the said Act. The appellant was acquitted after his defence was
called on the offence under s. 3(a)(ii) but he was convicted of the offence under s. 4(a) of said Act. The appellant
appealed against the conviction and sentence to the High Court. The appellant was sentenced to one day’s
imprisonment.
Unfortunately, the appellant died during the pendency of the appeal and his widow sought to continue the appeal.
[23]The Public Prosecutor appealed against the sentence by the complaint of manifest inadequacy. On 14
December 1993, the public prosecutor withdrew the appeal against acquittal filed by them earlier on, leaving only
the appeal by the appellant against conviction and sentence intact. Unfortunately, the appellant died during the
pendency of the appeal and his widow sought to continue the appeal. The question for decision is whether the
appeal abates upon the death of the deceased appellant. His Lordship Justice Abdul Malik Ishak has this to say,
inter alia, Chapter XXX of the Criminal Procedure Code (“the CPC”) contains provisions governing appeals. The
pertinent section to refer would be s. 320 of the CPC which enacts as follows:
Every appeal under s. 306 shall finally abate on the death of the accused, and every other appeal under this Chapter
(except an appeal against a sentence of fine) shall finally abate on the death of the appellant.
This section seems to lay down, at first brush, that an appeal against an order of acquittal (see s. 306 of the CPC) shall
finally abate upon the death of the accused, and all appeals under Chapter XXX except an appeal from a sentence of fine,
shall finally abate on the death of the appellant. If that is the appropriate interpretation, then there would not be any
problem. But, unfortunately, this section is not free from criticism. The first limb of s. 320 of the CPC deals with appeals
against orders of acquittal, which by necessity must necessarily abate because the accused is dead - gone to meet his
Maker and, consequently, beyond the jurisdiction of the Court. It is a well understood principle of natural justice that no
order should be passed to the prejudice of a person unless he had an opportunity of being heard.
[24]The Encyclopaedia Britannica defines “abatement” as “Abatement, in law, the interruption of a legal proceeding
upon the pleading by a defendant of a matter that prevents the plaintiff from going forward with the suit at that time
or in that form. Pleas in abatement raise such matters as objections to the place, mode, or time of the plaintiff’s
claim. At one time, abatement of proceedings in equity differed from abatement in law in that the former merely
suspended the action, subject to revival when the defect was cured, whereas the latter terminated it, though the
plaintiff could start the action anew. The latter is now the more common usage. The term abatement is also used in
law to mean the removal or control of an annoyance.”
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[25]Black’s Law Dictionary 1 (2d Pocket ed. 2001) defines “abatement” as “the dismissal or discontinuance of a
legal proceeding for a reason unrelated to the merits of the claim.”
[26]In DOVE V. UNITED STATES 423 U.S. 325, 325 (1976) the United States Supreme Court states that it will
dismiss a petition for certiorari which is pending when the defendant dies.
[27]In an article entitled “Dying to Get Away with It: How the Abatement Doctrine Thwarts Justice--And What Should
Be Done Instead” by Timothy A. Razel, (Fordham Law Review, 2007, Vol 75 Issue 4, Article 7) it was discussed
that the origins of the abatement doctrine are unclear. There is little historical writing about the doctrine before the
nineteenth century. Beginning in the late nineteenth century, the earliest American cases dealing with the question
generally treated abatement as the obvious course of action when a defendant died.
[28]In LIST V. PENNSYLVANIA 131 U.S. 396, 396 (1888) (mem.). the Supreme Court acknowledged that the
defendant had died and ordered abatement and dismissal of the writ of error. Its sole rationale was that “it appear[s]
... that this is a criminal case.”
[29]In an 1879 case, MARCH V. STATE 5 Tex. Ct. App. 450 (1879) the Texas Court of Appeals held that a criminal
proceeding was still “pending” while an appeal was being taken. Because the defendant had died before the appeal
was decided, the court declared, without citation to authority, that “the prosecution abate[d] in toto” because the
proceeding was still pending.
[30]In O’SULLIVAN V. PEOPLE, 32 N.E. 192 (Ill. 1892) the Illinois Supreme Court took the view that “[a] judgment
cannot be enforced when the only subject-matter upon which it can operate has ceased to exist.” (Tim E. Staggs,
Note, Legacy of a Scandal: How John Geoghan’s Death May Serve as an Impetus to Bring Abatement Ab Initio in
Line with the Victims’ Rights Movement, 38 Ind. L. Rev. 507, 515 (2005).) The court thus refused to punish the dead
defendant.
[31]It must be noted that there are several interests that are affected by the Abatement Doctrine when courts
consider whether to apply abatement or an alternative doctrine, they consider a myriad of competing interests.
[32]They are:
1. Interests of the Accused Person.
[33]One interest that courts consider would be the Accused Person’s interest in the appeal against his or her
conviction. This right is heavily guarded in our criminal justice system. It is held in such high regard that courts that
use abatement presume the success of such appeal. There is a stigma associated with being mistakenly declared
guilty of a crime, a matter which of course, the Accused Person wants to avoid.
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[34]For some, the good name of himself or the family goes beyond his personal life on earth. In some societies, it
would be a dishonour to have a parent who has tarnish the good name built and guarded over the centuries. In
other instances, it is important for political careers, investor confidence in companies, traditional status in society,
customary titles held, the self-esteem of an appellant held and associations or organisations that are dependent
upon good graces as well as trust of society at large on them.
[35]An example is whether society would allow children to be send to an orphanage that is notorious for its sex
abuses on the minors. Another example is would investors hold their investments in a company that is ridden with
criminal misappropriation. (see Fordham Law Review, 2007, Vol 75 Issue 4, Article 7)
2. Interests of the Accused Person’s Family and Estate.
[36]Another interest accounted for, is the interest of the Accused Person’s heirs and next of kin in avoiding
punishment they do not deserve. In any civilised legal system punishment of the innocent is strictly forbidden. It has
often been said this is one reason why courts are reluctant to collect unpaid fines from the Accused Person’s
estate. Also, the family has an interest in having their loved one’s name cleared if he is truly innocent.
[37]This interest exists not just for the sake of the Accused Person’s reputation because families also have an
interest in avoiding any liability associated with that conviction. If a conviction has been reversed upon an appeal,
the fine if paid would be refunded and these may go to the Estate of the Deceased if the Appellant passed away
before the verdict on the appeal.
[38]Apart from that, a conviction is a stigma that many in traditional societies (especially) would want to avoid. Of
course, this may lead to attempts to subvert the course of justice is not unknown. (see Fordham Law Review, 2007,
Vol 75 Issue 4, Article 7)
3. Victims’ Interests
[39]Victims have interests which have only recently been seriously recognised. They have an interest in receiving
compensation for loss due to criminal activity perpetrated against them.
[40]It is hardly unfair to require a criminal to compensate another for a loss he or she caused by committing a crime.
Victims also have an interest in obtaining retribution against the person who wronged them. This can be expressed
as a need for “closure” or a need to see “justice done.” The perpetrators can be expected to come to terms with the
offence committed in the concept of restorative justice. (see Fordham Law Review, 2007, Vol 75 Issue 4, Article 7).
[41]In PENDAKWA RAYA V WAN SYAHRUL FAHMI BIN WAN MOHD ZIN & ANOR [2021] AMEJ 0518, the High
Court explained the concept of restorative justice as putting the offender and the victim as the axis in the process of
criminal justice. It involves in the empowering the victim and the restitution of any loss or injury suffered, the
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involvement of society in reconnecting the broken human relationship because of the criminal act(s). There are 3
main principles of restorative justice namely:
i. Restoration and restitution. The criminal act that resulted in the destruction and injury (whether it be bodily,
psychological, property, good name) and restorative justice demands the recovery of the victims and the
improvement on any destruction or injured as a result of the criminal act.
ii. Face-to-face meeting between victim and assailant to seek the best resolution for recovery and restoration.
iii. Transformation. There is a need for clear changes in the assailant to correct his ways or the injury(s) he
caused. It must be real attitudinal change and not behavioural change under pressure.
4. Interests of Society
[42]Society itself has several interests at play. Often they are the same interests claimed by others in this context.
For instance, society has an interest in providing a justice system that facilitates error correction (a macro version of
the defendant’s interest in appeal).
[43]A free and just society cannot exist if the state is routinely declaring innocent people to be guilty. Society also
shares the victim’s interest in retribution. It favours retribution not so much to obtain “closure” but to provide a
deterrent effect. In the abatement context, specific deterrence is impossible (the criminal is dead), but general
deterrence is still feasible. (see Fordham Law Review, 2007, Vol 75 Issue 4, Article 7)
[44]In A CHILD V PUBLIC PROSECUTOR (AND ANOTHER APPEAL) [2020] 8 AMR 343, the High Court held
that, “Public interest cannot be better served if a child, repentant of his criminal ways, decided to turn over a new
leaf, seek a path of reform and come back to society, a useful citizen of the country and a good member of his
family. I must say, that this is when the child is deserving and society and the courts must afford him that
opportunity.”
5. Interests of the Court System
[45]The court system is interested in having justice administered as quickly and cheaply as possible. Additionally,
courts have an interest in recouping the costs of criminal proceedings. To this end, some states require defendants
to pay the costs of criminal proceedings against them. Courts also have an interest in only deciding actual cases or
controversies. In other words, they do not want to waste their time holding proceedings and making decisions that
have little to no practical effect. (see Fordham Law Review, 2007, Vol 75 Issue 4, Article 7)
[46]In PP V. JAFA DAUD [1981] 1 LNS 28; [1981] 1 MLJ 315, His Lordship Justice Mohamed Azmi observes as
follows:
A ‘sentence according to law’ means that the sentence must not only be within the ambit of the punishable section, but it
must also be assessed and passed in accordance with established judicial principles. In assessing sentence, one of the
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main factors to be considered is whether the convicted person is a first offender. It is for this purpose that before passing
sentence, a Magistrate is required to call for evidence or information regarding the background, antecedent and character
of the accused. (emphasis added)
[47]On the same principle, His Lordship Justice Augustine Paul (as he then was) in ZAIDON SHARIFF V. PP
[1996] 4 CLJ 441 held as follows:
The phrase “pass according to law” in the subsection adverted to means that the sentence imposed must not only be within
the ambit of the punishable section but it must also be assessed and passed in accordance with established judicial
principles (see RE CHONG CHENG HOE & ORS [1966] 2 MLJ 252, PP V. JAFA BIN DAUD [1981] 1 LNS 28; [1981] 1
MLJ 315 and PHILLIP LAU CHEE HENG V. PP [1988] 2 CLJ Rep 144; [1988] 3 MLJ 107). The right to determine the
quantum of punishment on a guilty party is absolutely in the discretion of the trial court. It will exercise that power judicially
and will not tolerate any encroachment or even semblance of encroachment by either the prosecution or the defence in
respect of that right. (emphasis added)
b. Any other appeal under Chapter XXX of the Code abates upon the death of the appellant except when the
appeal is against the sentence of fine.
[48]Other appeals in the Chapter XXX maybe appeal against convictions, reduction of Charges, sentence which is
viewed as being manifestly inadequate or excessive or any other order that accompanied a conviction, be it in the
original Charge or as amended.
[49]In SUNNY YAP EU LEONG (supra) his Lordship Justice Abdul Malik Ishak further explained-
The second limb of s. 320 of the CPC is controlled by the words “every other appeal under this Chapter.” Now, the question
to ask is this: - what are the other appeals allowed under Chapter XXX of the CPC This necessarily involves an
examination of the said Chapter in question. Thus, s. 305 of the CPC prohibits a convicted person from appealing against
his conviction if he had earlier on pleaded guilty to the charge. He is, however, allowed to appeal as to the extent or legality
of the sentence imposed. Section 307 of the CPC allows “any person” who is dissatisfied with any Judgment, sentence or
order pronounced by any Magistrate’s Court, (which includes the Sessions Court (s. 303A of the CPC) ), in a criminal
matter or case to which he is a party to prefer an appeal to the High Court against such judgment, sentence or order in
respect of any error in law or in fact or on the ground of the alleged excessive severity or of the alleged inadequacy of the
sentence. Next, the powers of the High Court when exercising its appellate jurisdiction are listed in s. 316 of the CPC, in
particular paragraph (b), where in an appeal from a conviction or in an appeal as to sentence, the Judge may reverse the
finding and sentence and acquit or discharge the accused or order him to be re-tried or committed for trial; or alter the
finding, maintaining the sentence, or with or without altering the finding reduce or enhance the sentence or alter the nature
of the sentence. In the present appeal, there is a composite order of sentence combining the substantive imprisonment with
a fine and a penalty. It must be stressed that penalty is considered to be a fine. Would such a composite order of sentence
be construed not to be an appeal from a sentence of fine within the meaning of the second limb of s. 320 of the CPC? It is
common knowledge that an appeal from a composite order of sentence is ordinarily directed against both the substantive
imprisonment and the fine. The imprisonment term and the fine plus the penalty must be considered together and must not
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be dissected into two. Considered together, it would mean that an appeal against the composite order of sentence would
abate on the death of the appellant. The appellant’s widow has no locus standi to prosecute the appeal for the simple
reason that it was her late husband that was convicted and not herself. There is no merit in the argument advanced on her
behalf that she wanted to clear her husband’s name. In construing the law, sentimental interest of the widow has no force of
reckoning at all.
[50]In India, the equivalent of s. 320 of the CPC would be s. 431 of the Indian Code of Criminal Procedure (V of
1898) which reads as follows:
Every appeal under s. 411A, sub-s. (2) or s. 417 shall finally abate on the death of the accused, and every other appeal
under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant.
[51]Both s. 411A, subsection (2) and s. 417 of the Indian Code of Criminal Procedure (V of 1898) relate to an
appeal against an order of acquittal and an appeal to the High Court for enhancement of sentence respectively.
Subsequently, an amendment to s. 431 of the Code of Criminal Procedure (V of 1898) was made. The Law
Commission of India by its 41st report (September, 1969, Vol. 1, pp. 279 to 281) found it germane to replace the
controversial s. 431 of the Code of Criminal Procedure (V of 1898) with s. 394 of the Code of Criminal Procedure
1973, which enacts as follows:
394(1) Every other appeal under s. 377 or s. 378 shall finally abate on the death of the accused.
(2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the
appellant:
Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies
during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to
the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate.
Explanation - In this section, “near relative” means a parent, spouse, lineal descendant, brother or sister.
[52]The newly added proviso provides that an appeal against conviction and sentence of death or imprisonment will
not abate on the death of the appellant if his near relative specified in the explanation obtains leave of the Court to
continue the appeal. (see SUNNY YAP EU LEONG v. PUBLIC PROSECUTOR [1994] 3 CLJ 118).
[53]Section 431 of the Code of Criminal Procedure (V of 1898) and s. 394 of the Code of Criminal Procedure 1973,
viz: BHULAN LAL, APPLICANT V. THE STATE [1954] AIR Allahabad 783, HARNAM SINGH, APPELLANT V. THE
STATE OF HIMACHAL PRADESH, RESPONDENT [1975] AIR SC 236, and Om Prakash etc., APPELLANTS V.
THE STATE OF HARYANA & ANOR, RESPONDENTS [1979] AIR SC 1266 have no relevance in the Malaysian
context, in particular in regard to s. 320 of the CPC for one simple reason. That reason is this. In India, by virtue of
s. 70 of the Indian Penal Code the fine once imposed constitutes a liability on the estate of the deceased and the
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legal representatives on whom the estate devolves are entitled to ward off that liability. Section 70 of the Indian
Penal Code reads thus:
The fine, or any part thereof which remains unpaid, may be levied, at any time within six years after the passing of the
sentence, and if, under the sentence, the offender be liable to imprisonment for a longer period than six years, then at any
time previous to the expiration of that period; and the death of the offender does not discharge from the liability any property
which would, after his death, be legally liable for his debts.
[54]Briefly, s. 70 of the Indian Penal Code enacts a rule of limitation regarding the period within which a fine may be
recovered. The liability of the offender for the fine does not cease even with his death, for, on his death the fine may
still be recovered from “any property which would, after his death, be legally liable for his debts” (STATE V.
KRISHNAN PILLAI MADHAVAN PILLAI [1953] AIR TC 233 at page 234 as explained in (see SUNNY YAP EU
LEONG v. PUBLIC PROSECUTOR [1994] 3 CLJ 118).
[55]The three Indian cases were decided in the context of s. 70 of the Indian Penal Code and certainly could not
and should not be adopted when interpreting s. 320 of the CPC. Our Malaysian Penal Code does not have the
equivalent of s. 70 of the Indian Penal Code. These three Indian cases show a singular principle in that the
representative of a deceased convicted person cannot be allowed to appeal unless he could show a legal interest
as opposed to a “sentimental interest”, for example, clearing the name of the convicted person; the exception is in
the case of a sentence of fine. In India, where the appeal is against fine, the appeal may be permitted to be
continued by the legal representatives of the deceased appellant. In India too, in the case of imprisonment, the
sentence does not affect the property of the deceased accused and so the appeal abates upon his death
(GAJAPATHI RAO [1964] SC 1645). (see SUNNY YAP EU LEONG v. PUBLIC PROSECUTOR [1994] 3 CLJ
118).
[56]On the other end of the scale, under English law, a fine is in the nature of a monetary penalty which is due to
the Crown, and when a man is sentenced to pay a fine, there at once arises a debt of record (that is, by Judgment)
to the Crown. Thus, where an accused was sentenced to imprisonment and fine and the sentence also provided for
imprisonment in default of payment of fine, and when the accused died while serving the imprisonment without
paying the fine, it was held that the fine could be recovered by the Crown from the personal representatives of the
accused even after his death (H.M. TREASURY V. HARRIS [1957] 2 All ER 455). In HODGSON V. LAKEMAN
[1943] 1 KB 15, a fine of 35s. was imposed on Hodgson after the Court convicted him, in his capacity as a Council’s
clerk, for an offence committed by the Cumberland County Council for breaching the Lighting (Restrictions) Order
1940. Hodgson entered an appeal against his conviction and on his application the justices stated a case, but he
died before the appeal could be heard by the High Court. In a short Judgment, Chief Justice Viscount Caldecote
held that when an appeal to the High Court against a conviction by justices has been entered but the appellant dies
before it has been heard, and it appears that his executors have an interest in the appeal, the Court has jurisdiction
to allow the executors to prosecute the appeal. (see SUNNY YAP EU LEONG v. PUBLIC PROSECUTOR [1994] 3
CLJ 118).
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[57]In contrast would be the case of R V. ROWE [1955] 2 All ER 234, where Ivor Clyde Rowe was convicted at
Bedford County Quarter Sessions on 18 February 1955, of false pretences and sentenced to eighteen months’
imprisonment. On 21 February 1955, he gave notice of application for leave to appeal against conviction, but on the
night of 6/7 March 1955, he died in prison. His widow now applied for leave to continue his application. Lord
Goddard CJ after referring to HODGSON V. LAKEMAN (supra) held that the sentence being one of imprisonment
and the prisoner having died, neither his widow nor his executors or administrators had any such legal interest as
would justify the Court’s allowing them to continue the appeal, and accordingly the application was refused. (see
SUNNY YAP EU LEONG v. PUBLIC PROSECUTOR [1994] 3 CLJ 118).
[58]His Lordship, Justice Abdul Malik further opined, “…Likewise, in the present appeal, the widow has no legal
interest in the outcome of the appeal and since the fine and the penalty were paid by the deceased appellant before
his death and without the benefit of an equivalent provision like s. 70 of the Indian Penal Code, the widow has no
locus standi to prosecute this appeal. Section 320 of the CPC needs to be amended to keep up with the times.
Perhaps the Parliamentary Draftsman of the Attorney-General’s Chambers may see fit to amend s. 320 of the CPC
in the near future to delete the words in bracket (“except an appeal against a sentence of fine”) which are clearly
superfluous and redundant in view of the absence of an equivalent s. 70 of the Indian Penal Code in our Malaysian
Penal Code. The composite sentence imposed on the deceased appellant cannot be construed to be a sentence of
fine within the meaning of the second limb of s. 320 of the CPC. Those words in bracket in s. 320 of the CPC relate
to a situation where upon conviction, the sentence imposed was a sentence of fine only.” (see SUNNY YAP EU
LEONG v. PUBLIC PROSECUTOR [1994] 3 CLJ 118).
[59]This must surely be the intention of the legislature for the words preceding it “every other appeal under this
Chapter” would by necessity refer to an appeal against conviction. On convictions, the sentences may take any one
of the following forms:
(1) death.
(2) imprisonment, which may be either be:
(a) imprisonment for life.
(b) imprisonment for a definite period.
(c) imprisonment in default of a fine.
(d) whipping.
[60]Section 291 of the CPC spells out the situation where whipping is finally stopped. In such a situation, the Court
which imposed the sentence needs to revise it and may in its discretion either remit such sentence or sentence the
offender in lieu of whipping or in lieu of so much of the sentence of whipping as was not executed to imprisonment
for a term which may extend to twelve months. This additional term is above any other punishment to which the
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offender has been sentenced for the same offence. Generally, the sentence of whipping is imposed where there is
evidence of violence or brutality (see LIM TIEN HIN & ORS V. R [1953] MLJ 213, MOHAMED ALI V. PP [1956]
MLJ 84 and HOE KIN LUAN V. PP [1959] MLJ 159).
(3) fine, which is defined in s. 2(1) of the CPC to include “any fine, pecuniary penalty or forfeiture or compensation adjudged
upon any conviction of any crime or offence or for the breach of any law for the time being in force by any Court in the
Federation.”
(4) compensation orders and costs.
[61]Section 426 of the CPC gives power to the Court to order compensation to victims of offences and costs of
prosecution. The offender must have been convicted. The payment of compensation may be made “to any person,
or to the representatives of any person, injured in respect of his person, character or property by the crime or
offence for which the sentence is passed”. (See MOHAMED JOHAN MUTALIB V. PP [1978] 1 MLJ 213 PC.)
Section 173A(iii) of the CPC empowers such compensation for injury or for loss (not exceeding the sum of fifty
ringgit) or to pay such costs of the proceedings as the Court thinks reasonable or to pay both compensation and
costs.
[62]Section 294(ii) of the CPC also empowers the Court to direct the offender to pay the costs of the prosecution or
some portion thereof within such period and by such instalments as may be directed.
(5) police supervision (see s. 295 to299 of the CPC).
(6) bonds for good behaviour (see s. 173A and 294 of the CPC); and (7) orders under the Juvenile Courts Act 1947(“the
JCA”). Section 12(1) of the JCA lists the orders which can be handed down. They include: admonish and discharge; a
discharge upon the offender entering a bond to be of good behaviour; committal to the care of a relative or other fit person;
an order for his parents or guardian to execute a bond to exercise proper care and guardianship; a probation order under s.
21 of the JCA; an order of committal to an approved school or Henry Gurney School; an order to pay a fine, compensation
or costs; and imprisonment, if the offender is a young person. (see SUNNY YAP EU LEONG v. PUBLIC PROSECUTOR
[1994] 3 CLJ 118).
[63]In construing a statute, the Court must always be wary and should not attempt to give the statute an effect that it
is a worthless piece of legislation (SMITH KLINE & FRENCH LABORATORIES LTD V. SALIM (MALAYSIA) SDN.
BHD [1989] 2 MLJ 380, 382). It is also germane to state that the Court must give effect to the clear and explicit
language of the enacting words of the section and cannot by any stretch of imagination disregard them unless it is
apparent that some other meaning is intended (PP V. CHO BEOW HIN [1982] 1 MLJ 135). Again, it had been said
that where the meaning of the words in the statute are plain and unambiguous, Judges should not invent fancy
ambiguities (DUPORT STEELS LTD. V. SIRS [1980] 1 All ER 529, 541).
[64]And finally, the first task of the Court is to find out the intention of the legislature for the words of a statute speak
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the intention of the legislature (Maxwell on Interpretation of Statutes, 12 Edn., pp. 1 and 2). Thus, the clear words in
bracket of the second limb in s. 320 of the CPC refer only to an appeal against a sentence of fine and cannot be
read to include a composite sentence of both imprisonment and a fine plus a penalty like the present appeal.
Clearly, therefore the death of the appellant brought an immediate end to his appeal. (see SUNNY YAP EU LEONG
v. PUBLIC PROSECUTOR [1994] 3 CLJ 118).
[65]In CHOO CHENG LIEW v. PUBLIC PROSECUTOR [1997] 1 CLJ 520, the Federal Court was posed with the
questions as follows:
(1) Whether, by reason of s. 320 of the Criminal Procedure Code (‘our Code’) an appeal by an accused to the
High Court from conviction and a composite sentence of fine and imprisonment passed against him by the
Sessions Court, in respect of offences of corruptly accepting and corruptly soliciting a gratification in
contravention of ss. 4(a) and 3(a), respectively, of the Prevention of Corruption Act 1961 (‘the Act’) finally
abates on the death of the appellant during the pendency of the appeal?
(2) Whether, the legality or propriety of such composite sentence of fine and imprisonment necessarily
involves an examination of the validity of the conviction itself?
[66]The Federal Court made the findings as follows:
In our view, the effect of s. 320 of our Code may be stated thus:
The following appeals to the High Court abate on the death of the accused during the pendency of the appeal:
(1) appeals by the Public Prosecutor when an accused person has been acquitted pursuant to s. 306 of our Code,
and
(2) appeals against conviction where the only sentence imposed is that of imprisonment.
The rule of abatement of criminal appeals contained in s. 320 of our Code does not apply to appeals from a sentence of
fine or a composite order of sentence combining the substantive imprisonment with fine.
When considering appeals which survive notwithstanding the death of the accused during their pendency, the legality or
propriety of the sentence of fine is of course, open to challenge and, consequently, the validity of the conviction is also open
to challenge. It follows that if the conviction is unsustainable, the sentence, whatever it may be, would have to be set aside.
In enunciating the above principles, we gratefully acknowledge the assistance we have derived from the judgment of
Chandrachud J (as he then was) in HARNAM SINGH V. THE STATE OF HP AIR [1975] 236, which is precisely in point.
[67]In KARPAL SINGH RAM SINGH v. PP & ANOTHER APPEAL (NO 2) [2016] 8 CLJ 65 the Court of Appeal was
posed with the facts that the appeals were formerly lodged by the late Karpal Singh Ram Singh (‘YB Karpal’)
against both conviction and sentence handed down by the High Court under s. 4(1)(b) of the Sedition Act 1948. YB
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Karpal was fined RM4,000 in default four months imprisonment for the conviction. Before the appeals were heard
and disposed of by this court, YB Karpal had passed away on 17 April 2014. By an order of this court, the appeals
were allowed to be proceeded by the widow of YB Karpal as substitute. The appellant submitted that the trial judge
had misdirected himself on the question of sentence which warranted appellate intervention. The appellant alleged
that the trial judge had failed to consider, inter alia, mitigating factors. The appellant further sincerely prayed that the
fine imposed by the trial judge be reduced to a figure of not more than RM2,000 as anything more than that would
have disqualified YB Karpal as a Member of Parliament which would effectively deprive him of his pension under
art. 48 of the Federal Constitution.
[68]The Court of Appeal ruled (by a majority) –
[2] Before the appeals been finally heard and disposed of by this court, YB Karpal had passed away on 17 April 2014 in a
motor vehicle accident. By virtue of s. 320 of the Criminal Procedure Code (CPC), both the appeals should finally be abated
on the death of the YB Karpal. Nevertheless, by an order of this court dated 10 November 2014, the appeals were allowed
to be proceeded by the widow of YB Karpal as substitutes. Section 320 of the CPC provides:
320. Death of parties to appeal Every appeal under section 306 shall finally abate on the death of the accused, and
every other appeal under this Chapter (except an appeal against a sentence of fine) shall finally abate on the death of
the appellant.
[ 3] On 30 May 2016, by way of majority decision (Justice Tengku Maimun Tuan Mat (dissenting)), we dismissed the appeal
against conviction. For that we have given our reasons for doing so. On the same day, after hearing both parties, we
allowed the appeal against sentence whereby we set aside the fine of RM4, 000 in default of four months imprisonment
imposed by the learned trial judge and we substituted it with a fine of RM1, 800 in default of two months’ imprisonment.
[69]The conviction in this case was overturned by the Federal Court and the issue of substitution of parties was
allowed prior to the hearing of the appeal.
[70]As in our case, the sentence against the 1st Appellant was that only of a fine in the sum of RM500-00 and
hence the 1st Appellant may be substituted by the 2nd Appellant.
[71]However, using the Golden Rule of Interpretation, I am of the considered view that heirs of an accused person
convicted of an offence may apply for substitution of parties if :
a. An accused person convicted of an offence has passed away.
b. The purpose of the substitution of parties is to ensure the appeal may be proceeded with.
c. The appeal is aimed at clearing the good name of the accused party and is not limited to the refund of a
fine imposed by the lower Court.
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d. The party that is substituting the deceased accused person, who is an heir to the accused person or who
would have an interest in clearing the good name of the deceased accused person.
ii. Whether PW2 and PW3 are accomplices
[72]It is in evidence that PW2 (Teo Ah Song) on 13 February 2019 at about 9.15 pm, rode home on a motorcycle
with his brother (PW3) Teo Sa Nee He went to the neighbour who is the 1st Appellant and his daughter and
demanded to use their toilet but the 1st Appellant refused to allow PW2 to use their toilet.
[73]At that time, it was after the Isha’ prayers when PW2 came and he smelled of alcohol and the 1st Appellant
almost threw up. He demanded money from the 1st Appellant and an altercation ensued. At the time, PW3 was just
behind PW2.
[74]After the 1st Appellant’s son by the name of Daniel Gun, shouted at them to leave the house, both of them went
out of the compound of the 1st Appellant’s house but suddenly turned back and hit the 1st Appellant with a metal
object that appeared to be a padlock. The 1st Appellant fell to the ground and the 2nd Appellant helped him to get
up. It was here that 1st Appellant saw PW2 jumped on his daughter the 2nd Appellant. The 2nd Appellant screamed
that PW2 has bitten her tight, near to her private parts and she cried for help.
[75]The 1st Appellant, wanted to save his daughter, pulled his daughter away from PW2 but PW2 held on the
daughter strongly. The 1st Appellant had to kick him to free his daughter and after getting freed his daughter from
the hold of PW3, the 1st Appellant shouted at Daniel Gun to call the police. By this time the 2nd Appellant has
passed out. The police came with an ambulance to bring Daniel Gun and the 2nd Appellant to the hospital.
[76]During the scuffle, PW2 jumped at her and pushed her down and bit her thigh near her private parts and she
was in pain and she screamed for help. She tried to kick him but she held onto her strongly and the grip was
stronger than her strength could muster. PW2 bit he again and she tried to kick him and this time she succeeded to
let loose from his grip. Both the Appellants were injured in the scuffle.
[77]The Cambridge English Dictionary (Cambridge University Press 2021) defines “accomplice” as “a person who
helps someone else to commit a crime or to do something morally wrong”.
[78]The Oxford Advanced Learners Dictionary (Oxford University Press) defines “accomplice” as “a person who
helps another to commit a crime or to do something wrong”.
[79]The word “intention” requires something more than the mere foresight of the consequences. In fact, it is the
purposeful doing of a thing in order to achieve a particular end. The Concise Oxford English Dictionary, 11th edn,
revised and edited by Catherine Soanes and Angus Stevenson at p. 739 defines the word “intention” as:
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an aim or plan, the action or fact of intending, conceptions formed by directing the mind towards an object.
(see MOHD HAIKAL MOHD KHATIB SADDALY & ORS v. PP [2011] 5 CLJ 369).
[80]Acting Chief Justice Kirby in DAVID COLIN WINNER [1995] 79 A Crim R 528 at 542 aptly said:
Because it is impossible for any court, judge or jury, to actually enter the mind of an accused person and search for his or
her intent at the critical time, it is inescapable that the forensic process by which intent is judged... will address the objective
facts from which an inference of intention may be derived. This is why it is often said that a person’s acts may provide the
most convincing evidence of intention. In Richard III, Shakespeare suggested that it is by acts that the observer straightway
shall know the heart. So it is by acts that a court straightway may know the solution to the riddle of intention required by the
criminal law. If it were otherwise intention, absent acknowledgment or reliable confession, could scarcely ever be proved.
[81]The Singapore High Court in SIM YEW THONG V. NG LOY NAM THOMAS AND OTHER APPEALS [2000] 4
SLR 193, 194 defined
“intention” in this way:
Intention, being purely an operation of the mind, can only be proved by drawing inferences from the surrounding
circumstances and the acts of the person... A person is said to intend the natural consequences of his act,...
[82]In JOHNSON V. YOULDER [1950] 1 KB 544, Lord Goddard CJ, at pp. 546-7, said:
Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential
matters which constitute that offence. He need not actually know that an offence has been committed, because he may not
know that the facts constitute an offence and ignorance of the law is not a defence. If a person knows all the facts and is
assisting another person to do certain things, and it turns out that the doing of those things constitutes an offence, the
person who is assisting is guilty of aiding and abetting that offence, because to allow him to say, ‘I knew of all those facts
but I did not know that an offence was committed’ would be allowing him to set up ignorance of the law as a defence. The
reason why, in our opinion, the justices were right in dismissing the information against the first two defendants is that they
found, and found on good grounds, that they did not know of the matters which in fact constituted the offence; and, as they
did not know of those matters, it follows that they cannot be guilty of aiding and abetting the commission of the offence.
[83]Lord Goddard enumerated what it means to be an accomplice which are:
i. The person must at least know the essential matters which constitute that offence’
ii. He aided the other persons in the essential matters that make that act,
iii. Although he need not actually know that an offence has been committed,
iv. f a person knows all the facts and is assisting another person to do certain things,
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v. it turns out that the doing of those things constitutes an offence.
[84]In MCCARTHY [1964] L8 CAR 111, was a case of alleged aiding and abetting the possession of explosives
where the Court of Criminal Appeal (Lord Parker CJ, Winn and Fenton Atkinson JJ) at pp. 114 & 115, said:
In the view of this Court, a man may properly be convicted of aiding and abetting this offence if it is found; (a) that he knew
that the principal offender had explosives in his possession or under his control; (b) that he knew facts giving rise to a
reasonable suspicion that the principal offender did not have such explosives in his possession or under his control for a
lawful object: (c) that he was present actively encouraging or in some way helping the principal offender in the commission
of this offence.
[85]The Federal Court in NAMASIYIAM DORAISAMY v. PUBLIC PROSECUTOR & OTHER CASES [1987] CLJ
Rep 241 has this to say, inter alia,
The main ground touched upon by the fourth appellant’s Counsel was that the learned Judge erred in law in failing to
appreciate that the evidence adduced by the prosecution pertaining to “common intention” was far from satisfactory. In
other words, it was the defence contention that the prosecution had failed to prove that the fourth appellant had committed
the offence “in furtherance of the common intention” of all the four appellants and he should have been acquitted by the trial
Judge at the close of the defence. Section 34 of the Penal Code states:
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 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 (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 in furtherance of that common intention.
Where the prosecution case rest on circumstantial evidence, the circumstances which are proved must be such as
necessarily lead 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. (The Supreme Court (of India) on Criminal Law (1950- 1960) by J.K. Soonavala p. 188 to
193).
[86]It is instructive to refer to the case of AZLAN BIN ALIAS V. PUBLIC PROSECUTOR [2009] 4 MLJ 493 where
the Court of Appeal has this to say, inter alia,
In addition to the enunciation of the relevant principles governing accomplice evidence in these two authorities, we would
respectfully set out the following:
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(1) There is, in the authorities, no formal definition of the term ‘accomplice’. The natural and primary meaning may be
deduced from the cases in which X, Y and Z have been held to be, or held liable to be treated as accomplices
e.g., persons who are called as witnesses for the prosecution being particeps criminis in respect of the actual
crime charged, whether as principal offenders or aiders and abettors: per Lord Simonds in DAVIES V. DPP
[1954] AC 378, 400 HL. See also RAMACHANDRAN V. PP [1972] 2 MLJ 183 HC Singapore per FA Chua J; and
PP V. CHOO CHUAN WANG [1992] 3 CLJ 329 (Rep); [1992] 2 CLJ 1242 HC, per Edgar Joseph Jr J (later FCJ);
and
(2) An accomplice being particeps criminis is one who participates or is associated with another person as a partner
in the commission of a crime. A crime involves two essential elements viz actus reus which is the wrongful act,
and mens rea which is the guilty mind. This is reflected in the maxim “actus non facit reum nisi mens sit rea” (the
act and the mind must concur to constitute the crime). An act does not make a person guilty unless his mind be
guilty. This principle, which applies to the commission of an offence as a principal offender, applies with equal
force to an accomplice.
[85]Hence an accomplice as a person who was with an offender in the commission of an offence who has both the
actus reus and mens rea.
[86]For a person to be an accomplice, he must be one of the following:

A. person (s) having the common intention(s) as defined under section 34 Penal Code.
[87]This is provided for under Section 34 Penal Code which reads as follows:
34 Each of several persons liable for an act done by all, in like manner as if done by him alone
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.
[88]In LEE KOK ENG v. PUBLIC PROSECUTOR [1976] 1 MLJ 125, the Federal dealt with the issue of common
intention as follows:
In his direction to the jury on the question of common intention the learned trial Judge read s. 34 of the Penal Code which
provides:-
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 this act was done by him alone.
He then went on to say:
This means simply that when several people intend to commit a Criminal Act, e.g. robbery, and they confront a person
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and one stands guard with a gun while the others actually remove his possessions, then all are guilty of armed robbery
although some may have been armed and some did not actually take anything away. Similarly, in this case, the
prosecution need not prove actually which of the three who entered the bank fired the shot which killed Jan Mohamed.
If the prosecution prove that they were armed and entered the bank with the intention of robbery and using firearms in
case of any resistance and if in the course of the robbery a person is killed by intentional shooting, then all are guilty of
murder.
Counsel for the appellant submitted that this was a misdirection of the law relating to common intention. We found no
substance or merit in his submission as we were of the opinion that what was said by the learned trial Judge was sufficient
direction on the point. In this particular case he went on to illustrate by giving an example. Whether the pre-arranged plan of
the robbers was merely to frighten and rob and not to kill was a matter for the jury. It seemed clear from the evidence that
the killing of the watchman of the Bank took place as the robbers were rushing out of the bank and in an attempt to free one
of their men who was then being held by the deceased watchman.
[89]Common intention is the state of mind common to all the persons accused of the offence. It is a rule of evidence
and does not create a substantive offence. Common intention may be pre-arranged or arise in the course of the
commission of the offence. Being a state of mind, proof of common intention depends largely on the reasonable
inference to be drawn from the factual circumstances of each case. (See: LEE KWAI HEONG & ANOR. V. PP
[2006] 1 MLRA 1; [2006] 3 AMR 26).
[90]Two preliminary elements are in fact necessary to fulfil the requirements of section 34.
[91]First, there must be evidence (direct or by inference) the accused being present at the scene of the crime.
[92]Secondly, there must be evidence to show that there was prior concert or prearranged plan involving the
accused.
[93]In the case of IBRAHIM BIN MASOD & ANOR V PP [1993] 3 SLR 873, the Singapore Court of Criminal Appeal
held at page 873 that, inter alia,
“… the mere fact that the first appellant was apparently not present on the scene when the deceased was strangled to
death did not absolve him from the liability of the consequences of the strangling, since the strangling was in furtherance of
a common intention of them both …” (emphasis ours)
[94]In the locus classicus case of DATO’ MOKHTAR HASHIM V PP [1983] 2 MLJ 232, their Lordships has this to
say, inter alia,
“…Under section 34 of the Penal Code, to succeed the prosecution must prove that the criminal act was done in concert
pursuant to the prearranged plan or arrangement. In practice it is of course difficult to produce direct evidence to prove the
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intention of an individual. In most cases, however, it can be inferred from his act or conduct or other relevant circumstances
of the case ...” (emphasis ours)
[95]In another case of KHAIRUL EDAM BIN ADAM & ANOR V PP 1992 2 SLR 57, it was held that, inter alia,
“…The common intention must precede the criminal act However it was not necessary to find a pre-arranged plan in
determining whether the ‘criminal act’ was done in furtherance of the common intention’: The position now was that pre-
arrangement need not exist in the sense of a prior plan; the plan could develop on the spot What was required was a
meeting of the minds or acting in concert …” (emphasis ours)
[96]The celebrated case of MAHBOOB SHAH V EMPEROR AIR 1945 PC 118 helps shed light, in the early years
of the Indian Penal Code,
“… To invoke the aid of s. 34 successfully, it must be shown that the criminal act complained against was done by one of
the accused persons in the 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. This being the principle, it is
clear to their Lordships that common intention within the meaning of the section implies a prearranged plan, and to convict
the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the
pre-arranged plan. As has been often observed, it is difficult, if not impossible, to procure direct evidence to prove the
intention of an individual; in most cases it has to be inferred from his act or conduct or other relevant circumstances of the
case …” (emphasis ours)
[97]In MIMI WONG & ANOR V PP [1972] 2 MLJ 75 in which case Chief Justice Wee Chong Jin, in delivering the
judgment of the court, said at 78, second column, letter I:
There is no doubt that for this section [s 34 of the Code] to apply there must be in existence a common intention between
all the persons who committed the criminal act, and that a criminal act be done in furtherance of that common intention.
When these two requirements are proved, each of such persons would be liable for the entire criminal act in the same
manner as if he had done it alone.
[98]The underlying features of common intentions are:
(a) there must be some prior meeting of the minds and some prior concerted act with the common intention to
commit the offence which is the subject of the charge;
(b) that both the accused participated in the commission of the intended offence and that participation is in
furtherance of the common intention;
(c) that common intention may develop on the spot and without any long interval of time between it and the
doing of the act commonly intended;
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(d) that presence at the scene of the crime for the purpose of facilitating or promoting the commission of the
offence tantamount to actual participation in the criminal act and is sufficient to prove common intention;
and
(e) that presence is not necessary to constitute participation in every case for it is sufficient if the accused
have done an act with some nexus to the offence.
(See: NAMASIYIAM DORAISAMY V. PUBLIC PROSECUTOR & OTHER CASES [1987] 1 MLRA 73, FAROSE
TAMURE MOHAMAD KHAN V. PP & OTHER APPEALS [2016] 6 AMR 1, CHEW WAI KEONG & ANOR. V. PP &
ANOTHER APPEAL [2018] 3 CLJ 681 FC).
[99]The Singapore Court of Appeal case of SHAIFUL EDHAM BIN ADAM & ANOR V. PUBLIC PROSECUTOR
[1999] 1 SLR(R) 442 SCM 508 (Chief Justice Yong Pung How), Justice LP Thean, Justice Tan Lee Meng) as
reported in the April 1999 issue of Mallal’s Current Law in the following three passages:
1. Section 34 of the Penal Code embodied the principle of joint liability being the existence of a common
intention. By s. 33 the word ‘act’ denoted a series of omissions as well as a single omission. It followed that
words in s. 34 ‘when a criminal act is done by several persons’ could be construed to mean ‘when criminal
acts are done by several persons’.
2. Thus, where different acts in a criminal enterprise were committed by several participants, such
participants could still be regarded as having done ‘a criminal act’ for the purposes of liability under s. 34.
The raison d’ etre of s. 34 was to meet the situation where it was difficult, if not impossible, to distinguish
between the acts of each individual member of a party or to prove precisely what part was played by each
of them.
3. Section 34 operated to impute liability to a participant whose participation contributed to the result, though
he could not be proved to have committed the actus reus himself.
B. an act(s), which is done with a criminal knowledge or intention, is done by several persons, each of whom joins
in the act with such knowledge or intention, as defined under section 35 Penal Code.
[100]The provision of Section 35 reads as follows:
35 When such an act is criminal by reason of its being done with a criminal knowledge or intention 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 intention.
[101]The Court of Appeal in AZHAR CHE WIL v. PP & ANOTHER APPEAL [2009] 6 CLJ 537, has this to say, inter
alia,
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In the first place, the respondents were not present in the UKK 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 in s. 35 of
the Penal Code). The appellant did the act alone. Hence the respondents 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 respondents
was that they had assaulted the deceased before the deceased was brought to the UKK room. There is evidence that the
deceased was assaulted by the second respondent (Prison Inspector Suhaimi bin Nordin) while the deceased was at Zone
Nenas; and there is evidence that the deceased was assaulted by the third and fourth respondents (prison officers
Mohamad Hamdan bin Mohd Yaakob and Ahmad Rizal bin Ab. Halim) while he was at the football field. There is evidence
that the first respondent (prison officer, Deputy Superintendent Teyun Thian Him) and the third respondent participated in
the assault on the deceased at the main gate of the prison. But when these assaults took place, the appellant was not
present: he was not present either at Zone Nenas or at the football field or at the main gate when the assaults by the
respondents took place. Whatever the respondents did to the deceased, those acts were done independently of the
appellant. In other words, the appellant and the respondents were not acting in concert in relation to the deceased. It is,
however, true that all the incidents happened in the prison compound and on the same day. But the incidents happened at
different locations or areas and at different times and involved different individuals (except that Mohammad Hamdan (the
third respondent) was involved in the football field incident as well as in the main gate incident).
[102]In the same case before the Federal Court, AZHAR CHE WIL v. PP [2010] 8 CLJ 905, it was said,
[26] From the above, it is clear that s. 34 provides for a case in which a criminal act was done by several persons in
furtherance of a common intention. However s. 35 refers to a situation where a number of persons join in an act which is
criminal only by reason of its being done with a certain knowledge or intention and each person is liable for the act to the
extent of his knowledge or intention. Thus, under s. 35, the court has to consider what is the knowledge or intention of each
person which joined in committing the act.
[27]Ratanlal & Dhirajlal’s Law of Crimes in their commentary on s. 35 illustrated the following examples:
A and B beat C who dies. A intended to kill him and knew that the act would cause death. B only intended to cause
grievous hurt and did not know his act would cause death or such bodily injury as was likely to result in death. A is
guilty of murder and B of causing grievous hurt. Where an assault is made with a sharp-edged or piercing weapon or
with a firearm, the assailants may be presumed to know that the result of the causing of injuries with such weapons
will very likely be death, and, if death actually results from the assault, every one of the persons concerned in the act
will be guilty of murder.
[103]We may distilled from AZHAR CHE WIL (supra) that section 35 Penal Code entails the following:
a. a criminal act which is done with a criminal knowledge or intention, is done by several persons,
b. each of such persons who joins in the act with such knowledge or intention,
c. all such persons are liable for the act.

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d. it was as if the act were done by him alone with such knowledge or intention.
C. intentionally cooperating in the commission of an offence as defined by section 37 Penal Code
[104]This is provided for under Section 37 Penal Code reads as follows-
37 Co-operation by doing one of several acts constituting an offence When an offence is committed by means of several
acts, whoever intentionally cooperates in the commission of that offence by doing any one of those acts, either singly or
jointly with any other person, commits that offence.
ILLUSTRATIONS
(a) (a) A and B agree to murder Z, by severally, and at different times, giving him small doses of poison. A and B
administer the poison, according to the agreement with intent to murder Z. Z dies from the effects of the several
doses of poison so administered to him. Here A and B intentionally cooperate in the commission of murder, and
as each of them does an act by which the death is caused, they are both guilty of the offence, though their acts
are separate.
(b) (b) A and B are joint jailors, and as such have the charge of Z, a prisoner, alternately for six hours at a time. A and
B, intending to cause Z’s death, knowingly cooperate in causing that effect by illegally omitting, each during the
time of his attendance, to furnish Z with food supplied to them for that purpose. Z dies of hunger. Both A and B
are guilty of the murder of Z.
(c) (c) A, a jailor, has the charge of Z, a prisoner. A, intending to cause Z’s death, illegally omits to supply Z with food
in consequence of which Z is much reduced in strength, but the starvation is not sufficient to cause his death. A is
dismissed from his office, and B succeeds him. B, without collusion or cooperation with A, illegally omits to supply
Z with food, knowing that he is likely thereby to cause Z’s death. Z dies of hunger. B is guilty of murder; but as A
did not cooperate with B, A is guilty only of an attempt to commit murder.
[105]In EMPEROR VS BARENDRA KUMAR GHOSH (1925) 27 BOMLR 148, the High Court in Bombay had the
occasion to discuss s.37 Indian Penal Code (the equivalent of the same in the Malaysian Penal Code),
By Section 37, when any offence is * committed by means of several acts, whoever intentionally cooperates in the
commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that
offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other
things “they also serve who only stand and wait.” By Section 38, when 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. Read together, these sections
are reasonably plain. Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done
in furtherance of a common intention, each person is liable for the result of them all as if he had done them himself, for “that
act” and “the act” in the latter part of the section must include the whole action covered by “a criminal act” in the first part,
because they refer to it. Section 37 provides that, when several acts are done so as to result together in the commission of
an offence, the doing of any one of them, with an intention to cooperate in the offence (which may not be the same as an
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intention common to all), makes the actor liable to be punished for the commission of the offence. Section 38 provides for
different punishments for different offences as an alternative to one punishment for one offence, whether the persons
engaged or concerned in the commission of a criminal act are set in motion by the one intention or by the other.
[106]The Privy Council discussed on this provision in BARENDRA KUMAR GHOSH V. KING EMPEROR AIR 1925
PC 1 stated the true purport of Section 34 as below:
“The words of Section 34 are not to be eviscerated by reading them in this exceedingly limited sense. By Section 33 a
criminal act in Section 34 includes a series of acts and, further, ‘act’ includes omission to act, for example, an omission to
interfere in order to prevent a murder being done before one’s very eyes. By Section 37, when any offence is committed by
means of several acts whoever intentionally cooperates in the commission of that offence by doing any one of those acts,
either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the
door, it is to be remembered that in crimes as in other things ‘they also serve who only stand and wait’.”
[107]The ingredients of section 37 are as follows:
a. a. an offence is committed by means of several acts,
b. b. anyone intentionally cooperates in the commission of that offence,
c. c. his cooperation is given by doing any one of those acts, either singularly or jointly with any other person,
commits that offence.
[108]The difference between section 37 and 38 Penal Code is rather a thin line but it provides for the Public
Prosecutor a choice to proffer against an accused person who are in cohorts with another.
D. an offence is committed by means of several acts, whoever intentionally cooperates in the commission of that
offence by doing any one of those acts, either singularly or jointly with any other person, commits that offence as
defined by section 38 Penal Code
[109]This is provided for under Section 38 Penal Code which reads as follows:
38 Several persons engaged in the commission of a criminal act, may be guilty of different offences
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.
ILLUSTRATION
A attacks Z under such circumstances of grave provocation that his killing of Z would be only culpable homicide not
amounting to murder. B, having ill will towards Z, and intending to kill him, and not having been subject to the provocation,
assists A in killing Z. Here, though A and B are both engaged in causing Z’s death, B is guilty of murder, and A is guilty only
of culpable homicide.
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[110]His Lordship Justice Ong Hock Sim (speaking for the Federal Court) in NATHAN V. PUBLIC PROSECUTOR
[1972] 2 MLJ 101 as follows:
“... first decide whether a witness is an accomplice, then determine on the evidence whether he is corroborated in any
material particular; and then if he is not corroborated, subject the accomplice’s evidence to a close scrutiny to satisfy
himself that, without corroboration, there is nevertheless evidence which is credible and sufficient to establish the guilt of
the accused.”
[111]The inter-relations of ss 34, 35 and 38 of the Code are also commented on in Ratanlal and Dhirajlal’s Law of
Crimes (23rd Ed) at page 117 as follows:
Sections 34, 35 and 38 deal with the same subject and should be read together. Section 34 treats of acts done with a
‘common intention’, s 38 of acts done with different intentions. A quarrel arose between C on the one side and A and B on
the other. C abused A, whereupon A struck him with a stick, and B struck him down with an axe on the head. He also
received two other wounds with the axe on other parts of the body. Any one of the three axe- wounds was sufficient to
cause death, more especially that on the head. It was held that B was guilty of culpable homicide, while A was guilty of
voluntarily causing hurt.
[112]The Indian Supreme Court case of BHABA NANDA SARMA & ORS V THE STATE OF ASSAM 1977 AIR
default 2252 at para 4 at 2254 which states:
To attract the application of s 34 it must be established beyond any shadow of doubt that the criminal act was done by
several persons in furtherance of the common intention of all. In other words, the prosecution must prove facts to ‘justify an
inference that all the participants of the act had shared a common intention to commit the criminal act which was finally
committed by one or more of the participants’. Section 38 of the Penal Code says:
‘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.’
[113]In AFRAHIM SHEIKH V STATE OF WEST BENGAL AIR 1964 SC 1263; 1964 (2) Cri LJ 350, Justice
Hidayatullah, as he then was, has pointed out that it was possible to apply the ingredients of s 34 in relation to the
commission of an offence under s 304, Part II, even though death is caused with the knowledge of the persons
participating in the occurrence that by their act death was likely to be caused. The sharing of the common intention,
as pointed out in that case, is the commission of the act or acts by which death was occasioned. With reference to s
38, the learned judge observed at 178:
‘That is to say, even though several persons may do a single criminal act, the responsibility may vary according to the
degree of their participation. The illustration which is given clearly brings out that point.’
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[114]Lastly, s 38 provides that the responsibility for the completed criminal act may be of different grades according
to the share taken by the different accused in the completion of the criminal act, and this section does not mention
anything about intention, common or otherwise, or knowledge.
[115]In PENDAKWA RAYA V RESTY AGPALO & 2 ORS [2005] 6 AMR 413, his Lordship Justice Abdul Kadir
Musa succinctly puts it in these words,
The former speaks of “a criminal act is done by several persons “and” in furtherance of common intention of all”, whilst s 38
speaks of “several persons are engaged or concerned in the commission of a criminal act” without mentioning the need of
in “furtherance of common intention of all.” In other words, the essential principle of s 34 is that “of joint liability in doing a
criminal act” irrespective of the degree or nature of individual’s participation in achieving the “common known objective”;
and in the instant case, “to homicidally drown” the deceased in the manner the prosecution boldly printed in their P6.
[116]Section 38 would cover two different situations. One is where several persons act together in furtherance of a
common intention, as in the illustration to the section. In such a situation, the section provides that the court may
convict each person of a different offence, according as circumstances operate to create legal extenuation in
individual cases.
[117]The other situation is where there is action in common but a difference in the several intentions of the
participants. In that case the section is a converse to s 34, and each person is to be found guilty of the particular
offence constituted by his individual act. In the first case, however, the section is a supplement to s 34, not a
converse. This section applies where a criminal act is jointly done by several persons and those persons have
different intentions or states of knowledge.
E. Abetment of the commission of an offence
107 Abetment of a thing
A person abets the doing of a thing who-
(a) (a) instigates any person to do that thing;
(b) (aa) commands any person to do that thing;
(c) (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
(d) (c) intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1 - A person who, by wilful misrepresentation, or by wilful 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.
ILLUSTRATION
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A, a public officer, is authorized by a warrant from a Court to apprehend Z. B, knowing that fact and also that C is not Z,
wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the
apprehension of C.
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.
Explanation 3 - Whoever masterminds the doing of an act is said to command the doing of that act.
ILLUSTRATION
A, the head of an organized criminal group B, masterminds C and D to kidnap E. A is guilty of abetment.
[118]In PUBLIC PROSECUTOR V. DATUK HAJI HARUN BIN HAJI IDRIS & ORS [1977] 1 MLJ 180 the Court
discussed what is meant by abetment as follows:
“Instigation consists of acts which amount to active suggestion or support or stimulation for the commission of the main act
or offence. Advice can also become instigation if that advice is meant to actively suggest or stimulate the commission of an
offence (RAGUNATH DAS V. EMPEROR [1920] 21 Cr LJ 213).
Abetment by conspiracy consists in the combination and agreement of persons to do some illegal act or to effect some
illegal purpose by illegal means. Proof of conspiracy need not be direct proof but can be a matter of inference deducted
from certain criminal acts of the accused done in pursuance of an apparent criminal purpose in common between them
(EMPEROR V. ABDUL HAMID [1945] 46 Cr LR 342). Abetment by aiding takes place when a person by the commission of
an act intends to facilitate and does in fact facilitate the commission of an offence (FAGUNA KANTA NATH V. STATE OF
ASSAM AIR [1959] SC 673.
Where there is shown a positive act of assistance voluntarily done by a person with a knowledge of the circumstances
constituting the offence, the abettor is guilty of abetment by aiding (NATIONAL COAL BOARD V. GAMBLE [1959] 1 QB
11.”
[119]The learned commentators of The Indian Penal Code by Ratanlal and Dhirajlal (24th Ed) at pp 96 - 98 had the
following comments on this section:
Comment - When an offence is committed and several persons take part in the commission of it, each person may
contribute in a manner and degree different from the others to the doing of the criminal act.
The act may be done by the hands of one person while another is present or is close at hand ready to afford help; or the
actual doer maybe a guilty agent acting under the orders of an absent person; and besides these participators, there may
be other persons who contribute less directly to the commission of the offence by advice, persuasion, incitement, or aid. It
is proper to mark the nature and degree of participation which is essential to criminal liability, but it will be seen that the
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several gradations of action above referred to are not always treated as denoting necessarily different measures of guilt
with a view to distinctions in respect of punishment.
For the purposes of the first two clauses of this section it is immaterial whether the person instigated commits the offence or
not or the persons conspiring together actually carry out the object of the conspiracy. It is not necessary for the offence of
abetment that the act abetted must be committed. It is only in the case of a person abetting an offence by intentionally
aiding another to commit that offence that the charge of abetment against him would be expected to fail when the person
alleged to have committed the offence is acquitted of that offence.
[120]In the case of CHANDRASEKARAN & ORS. V. PUBLIC PROSECUTOR [1971] 1 MLJ 153, citing the case of
HUSSAIN UMAR V. DALIPSINGHJI AIR [1970] SC 5, the court states that:
“In order to constitute the offence of abetment by conspiracy there must be a combination of two or more persons to do, or
cause to be done, an illegal act, or an act, which is not illegal, by illegal means and that act or omission must take place in
pursuance of that conspiracy and in order to the doing of that thing. It is not necessary that the abettor should himself be
directly involved as a participant in the offence committed. It is sufficient if he engages in the conspiracy in pursuance of
which the offence is committed. In a conspiracy, there is a common purpose. Each and every one of the conspirators is
aware that he has to play his own part in a united effort to achieve the common purpose, although at times he does not
know all the secrets or the means by which the common purpose is to be achieved. The concept of conspiracy is the
agreement to work in furtherance of the common purpose.”
[121]Three ingredients of abetment by conspiracy must then be proved which are as follows:
i. i. That the abettor must engage with one or more persons in a conspiracy;
ii. ii. The purpose of the conspiracy must be for carrying out the thing abetted;
iii. iii. An act or illegal omission must occur pursuant to the conspiracy in furtherance of the object of that
conspiracy.
(See PUBLIC PROSECUTOR V. DATUK HAJI HARUN BIN HAJI IDRIS & ORS [1977] 1 MLJ 180 whereby
abetment by conspiracy was defined to consist in the combination and agreement of persons to do some illegal act
or to effect some illegal purpose by illegal means.)
[122]The application of this limb is effected even if the abettor is not present when the offence abetted is committed
as held in the case of NOOR MOHAMMAD MOHD. YUSUF MOMIN V. THE STATE OF MAHARASHTRA AIR
[1971] SC 885, the Supreme Court of India commented on the meaning of sections 34 and 109 of the Indian Penal
Code which are in pari materia with our Penal Code that,
“So far as S. 34, Indian Penal Code is concerned, it embodies the principle of joint liability in the doing of a criminal act, the
essence of that liability being the existence of a common intention. Participation in the commission of the offence in
furtherance of the common intention invites its application. Section 109, Indian Penal Code on the other hand may be
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attracted even if the abettor is not present when the offence abetted is committed provided that he has instigated the
commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and
pursuant to that conspiracy some act or illegal omission takes place or has intentionally aided the commission of an offence
by an act or illegal omission.”
[123]In a more complete discussion on abetment, it would have several elements before it may be applied:
i. i. An act is contrary to law
ii. ii. It was committed by a person
iii. iii. For that act to be done, another person does the following to the first person, that is to say
(a) instigates the first person to do that illegal act. “Instigation consists of acts which amount to active
suggestion or support or stimulation for the commission of the main act or offence. Advice can also
become instigation if that advice is meant to actively suggest or stimulate the commission of an offence
(RAGUNATH DAS V. EMPEROR [1920] 21 Cr LJ 213).
(b) commands the first person to do that illegal act;
(c) engages with one or more other person or persons in any conspiracy for the doing of that illegal act, if
an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that
thing. Abetment by conspiracy consists in the combination and agreement of persons to do some
illegal act or to effect some illegal purpose by illegal means. Proof of conspiracy need not be direct
proof but can be a matter of inference deducted from certain criminal acts of the accused done in
pursuance of an apparent criminal purpose in common between them (EMPEROR V. ABDUL HAMID
[1945] 46 Cr LR 342). ‘Conspiracy’ consists in the agreement of two or more (persons) to do an
unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it
is not indictable. When two agree to carry in into effect, the very plot is an act in itself, and the act of
each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful,
is punishable if for a criminal object or for the use of criminal means. It is not necessary 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 the offence. Where parties concert together, and have a common object,
the act of one of the parties, done in furtherance of the common object and in pursuance of the
concerted plan, is the act of all.
(d) intentionally aids, by any act or illegal omission, the doing of that illegal act. Abetment by aiding takes
place when a person by the commission of an act intends to facilitate and does in fact facilitate the
commission of an offence (FAGUNA KANTA NATH V. STATE OF ASSAM AIR [1959] SC 673. Where
there is shown a positive act of assistance voluntarily done by a person with a knowledge of the
circumstances constituting the offence, the abettor is guilty of abetment by aiding (NATIONAL COAL
BOARD V. GAMBLE [1959] 1 QB 11.) A person abets by aiding, when by act done either prior to, or at
the time of, the commission of an act, he intends to facilitate, and does in fact facilitate, the commission
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thereof (vide Explanation 2). For instance, the supplying of necessary food to a person known to be
engaged in crime is not per se criminal: but if food were supplied in order that the criminal might go on
a journey to the intended scene of the crime, or conceal himself while waiting for an opportunity to
commit the crime, the supplying of food would be in order to facilitate the commission of the crime and
might facilitate it. In order to constitute abetment by aiding within the meaning of the third paragraph of
s. 107 of the IPC, the abettor must be shown to have intentionally aided the commission of the crime. A
person may invite another casually or for a friendly purpose and that may facilitate the murder of the
invitee. But unless it is shown that the invitation was extended with a view to facilitate the commission
of the murder, it cannot be said that the person extending the invitation had abetted the murder. The
language used in the section is ‘intentionally aids’ and therefore, active complicity is the gist of the
offence of an abetment under the third paragraph of s. 197 of the IPC. Mere presence at the
commission of a crime cannot amount to intentional aid unless it was intended to have that effect. To
be present and aware that an offence is about to be committed does not constitute abetment unless
the person thus present holds some position of rank or influence such that his countenancing what
takes place may, under the circumstances, be held a direct encouragement, or unless some specific
duty of prevention rest on him, which he leaves unfulfilled, in such wise that he may be safely taken as
having joined in a conspiracy for the preparation of the offence’.”
F. Criminal Conspiracy
[124]This is provided for by section 120A Penal Code which reads as follows:
When two or more persons agree to do, or cause to be done-
(a) (a) an illegal act, or
(b) (b) an act, which is not illegal, by illegal means,
such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some
act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation 1 - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that
object.
Explanation 2 - Where liability for any offence may be incurred without knowledge on the part of the person committing it of
any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of
conspiracy to commit the offence unless he and at least one other party to the agreement intend or know that that fact or
circumstance shall or will exist at the time when the conduct constituting the offence is to take place.
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ILLUSTRATIONS
(a) If A and B agree to embark on a bombing campaign throughout Malaysia, and either one of them commits an act
in furtherance of the agreement such as acquiring Ammonium Nitrate fertilizer or other bomb making components,
they will each be guilty of conspiracy to cause explosions even though no bombing targets were identified and no
bombing was actually attempted.
(b) A wilfully and knowingly joins an enterprise of persons consisting of B, C and D where they share a common
criminal purpose to commit certain offences such as attacking civilian objects, murder and terrorism, and at least
one of them acts on the plan by surveilling targets or securing a weapon to be used in the attacks. All four are
guilty of conspiracy to attack civilian objects, and commit murder and terrorism the moment any one of them acts
on the plan.
(c) A and B agree to cheat the Government on a contract for goods by inflating the price of goods quoted in the
tender document. A and B intend to conceal the real price of the goods to the Government. A and B are guilty of
conspiring to cheat the Government the moment that one of them drafts the fraudulent tender document or
engages in any other act in furtherance of the plan.
(d) A, B and C agree to engage in fraud and misuse of visas, permits or other documents to facilitate a particular act
of terrorism in Malaysia. All three are guilty of conspiracy to provide support for the commission of a terrorist act
the moment any one of them engages in an act in furtherance of the plan, such as acquiring the visas or other
materials necessary to produce the fraudulent documents.
[125]In Ratanlal & Dhirajlal : The Indian Penal Code; 32rd Ed:
“In a criminal conspiracy meeting of minds of two or more persons for doing an illegal act is sine qua non but proving this by
direct proof is not possible. Hence conspiracy and its objective can be inferred from the surrounding circumstances and
conduct of the accused.”
[126]In LING HANG TSYR v. PP [2019] 1 LNS 1573, the Court of Appeal explained the difference between
conspiracy within abetment and criminal conspiracy as follows:
[61] In differentiating between criminal conspiracy under section 120B and abetment by way of conspiracy under section
107 (b), the Court noted that proof of a conspiracy by direct evidence is rarely achieved considering the nature of its
secrecy. It stated that:
“A conspiracy from its very nature is generally hatched in secret. It is, therefore, extremely rare that direct evidence in
proof of conspiracy can be forthcoming from wholly disinterested quarters or from utter strangers. But, like other
offences, criminal conspiracy can be proved by circumstantial evidence. Indeed in most cases proof of conspiracy is
largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent
and subsequent conduct, among other factors, constitute relevant material. In fact because of the difficulties in having
direct evidence of criminal conspiracy, once reasonable ground is shown for believing that two or more persons have
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conspired to commit an offence then anything done by anyone of them in reference to their common intention after the
same is entertained becomes, according to the law of evidence, relevant for proving both conspiracy and the offences
committed pursuant thereto.”
[62] Hence, in proving a conspiracy, one of the method would be to show that the words and actions of the parties indicate
their concert in the pursuit of a common object or design, giving rise to the inference that their actions must have been co-
ordinated by arrangement beforehand. These actions and words do not of themselves constitute the conspiracy but rather
constitute evidence of the conspiracy (PUBLIC PROSECUTOR V. YEO CHOON POH [1993] SGCA 76).
[127]His Lordship Justice Mohd Yusoff in NG SONG LUAK v. PUBLIC PROSECUTOR [1985] CLJ Rep 600 said-
The appellant pleaded guilty to a charge under s. 120B of the Penal Code and was sentenced to five years’ imprisonment.
The charge reads:
That Liew Yoon Choy and Ho Chee Kuan on 11 October 1980 at about 10.15 a.m. at Chai Seng Goldsmith No. 106,
Jalan Trus, in the district of Johor Bahru, in the State of Johor, committed the offence of armed robbery under s.
392/397 Penal Code, and that you on the same day and time at Jalan Trus, Johor Bahru conspired with the said
persons Liew Yoon Choy and Ho Chee Kuan, as a result of your conspiracy the said offence completed, and that you
have thereby committed an offence punishable under s. 392/397 Penal Code, to read together with s. 120B of the
Penal Code.
It is apparent that the charge does not follow the definition of the offence of conspiracy as defined under s. 120A of the
Penal Code. The section defines criminal conspiracy as two or more persons agreed to do or cause to be done an illegal
act to wit, armed robbery in this case.
[128]The Brunei High Court in PP V. KHOO BAN HOCK 7 ORS [1988] 2 MLJ 217 at page 221, explained:
“Section 120(A) is also drafted in plain ordinary language. It is clear on the plain and ordinary meaning of that language and
on principle and on authority, although there is no authority in Brunei, that by its nature a criminal conspiracy within the
section is a continuing offence from the time when two or more agree to the purpose until the time when they cease to
agree. By this, I mean that all the ingredients of the offence will be present once the parties agree (the very gist of the
offence) and the offence will have been committed, but it is not concluded. The offence continues to be committed as long
as the parties continue to agree to carry out the plot.
Further, the parties may agree in one place and continue to agree in another, although this will depend on the evidence.
Therefore, in order to prove the commission of the offence, it is necessary for the prosecution to prove that at the material
time and, more importantly, for these purposes at the material place, the parties were agreeing to do the illegal act.”
[129]In SAJU V. STATE OF KARALA [2001] 1 SCC 378 the Indian Supreme Court said at page 383:
“7. To prove the charge of criminal conspiracy the prosecution is required to establish that two or more persons had agreed
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to do or caused to be done, an illegal act or an act which is not legal, by illegal means. It is immaterial whether the illegal
act is the ultimate object of such crime or is merely incidental to that object. To attract the applicability of Section 120B it
has to be proved that all the accused had the intention and they had agreed to commit the crime. There is no doubt that
conspiracy is hatched in private and in secrecy for which direct evidence would rarely be available. It is also not necessary
that each member to a conspiracy must know all the details of the conspiracy.”
[130]In SURESH CHANDRA BAHRI V. STATE OF BIHAR AIR 1995 SC 2420, the Indian Supreme Court reiterated
that the essential ingredient of criminal conspiracy is the agreement to commit an offence. The Court held that,
‘[A] cursory look to the provisions contained in Section 120-A reveals that a criminal conspiracy envisages an agreement
between two or more persons to commit an illegal act or an act which by itself may not be illegal but the same is done or
executed by illegal means. Thus the essential ingredient of the offence of criminal conspiracy is the agreement to commit
an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in
that event no overt act is necessary to be proved by the prosecution because in such a fact-situation criminal conspiracy is
established by proving such an agreement. In other words, where the conspiracy alleged is with regard to commission of a
serious crime of the nature as contemplated in Section 120-B read with the proviso to subsection (2) of Section 120-A IPC,
then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to
bring about a conviction under Section 120-B and the proof of any overt act by the accused or by any one of them would
not be necessary. The provisions in such a situation do not require that each and every person who is a party to the
conspiracy must do some overt act towards the fulfilment of the object of conspiracy, the essential ingredient being an
agreement between the conspirators to commit the crime and if these requirements and ingredients are established the act
would fall within the trapping of the provisions contained in Section 120- B since from its very nature of conspiracy must be
conceived and hatched in complete secrecy, because otherwise the whole purpose may be frustrated and it is common
experience and goes without saying that only in very rare cases one may come across direct evidence of a criminal
conspiracy to commit any crime and in most of the cases it is only the circumstantial evidence which is available from which
an inference giving rise to the conclusion of an agreement between two or more persons to commit an offence may be
legitimately drawn’.”
[131]In FIROZUDDIN BIN BASHEERUDDIN & ORS V. STATE OF KARALA [2001] 73 LRIU 1 it has been further
explained,
“23. Like most crimes, conspiracy requires an act (actus reus) and an accompanying mental state (mens rea). The
agreement constitutes the act, and the intention to achieve the unlawful objective of that agreement constitutes the required
mental state. In the face of modern organised crime, complex business arrangements in restraint of trade, and subversive
political activity, conspiracy law has witnessed expansion in many forms.
Conspiracy criminalizes an agreement to commit a crime. All conspirators are liable for crimes committed in furtherance of
the conspiracy by any member of the group, regardless of whether liability would be established by the law of complicity. To
put it differently, the law punishes conduct that threatens to produce the harm, as well as conduct that has actually
produced it. Contrary to the usual rule that an attempt to commit a crime merges with the completed offence, conspirators
may be tried and punished for both the conspiracy and the completed crime. The rationale of conspiracy is that the required
objective manifestation of disposition to criminality is provided by the act of agreement. Conspiracy is a clandestine activity.
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Persons generally do not form illegal covenants openly. In the interests of security, a person may carry out his part of a
conspiracy without even being informed of the identity of his co-conspirators. Since an agreement of this kind can rarely be
shown by direct proof, it must be inferred from circumstantial evidence of co-operation between the accused. What people
do is, of course, evidence of what lies in their minds. To convict a person of conspiracy, the prosecution must show that he
agreed with others that together they would accomplish the unlawful object of the conspiracy.”
[132]The elements of criminal conspiracy could be distilled from section 120A which are:
(a) there exist either
i. an illegal act, or
ii. an act, which is not illegal, by illegal means.
(b) parties agreed to do the above do some act(s) in pursuance of such an agreement.
G. being a member of an unlawful assembly in pursuit of a common object
[133]This is provided for under section 149 Penal Code which reads as follows:
149 Every member of an unlawful assembly to be deemed guilty of any offence committed in prosecution of 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.
[134]The Supreme Court in LALJI AND OTHERS V. STATE OF UP AIR [1989] SC 754 explained the principle of
section 149 of the Penal Code in this way:
Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence.
The section creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts
committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the
members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful
assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of
that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his
own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence
committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to
be likely to be committed in prosecution of that object. The basis of the constructive guilt under s. 149 is mere membership
of the unlawful assembly, with the requisite common object or knowledge. Thus, once the court holds that certain accused
persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the
common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution
of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held
guilty of that offence. After such a finding it would not be open to the Court to see as to who actually did the offensive act or
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require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no
obligation to prove it. In other words it is not open to the Court to acquit members of the unlawful assembly for lack of
corroboration as to their participation.
[135]In SUKHA AND OTHERS V. STATE OF RAJASTHAN AIR 1956 SC 513, 518, the Supreme Court of India
held that:
a common object is different from a common intention in that it does not require prior concert and a common meeting of
minds before the attack, and an unlawful object can develop after the people get there.
[136]Gour’s “Penal Law of India” (7th edn) at p. 710 states as follows:
The purpose for which the members of the assembly set out or which they desired to achieve is the object. Each member
may have an object in view and may also have his own idea of the means with which that object is to be achieved and the
extent to which he is prepared to go for attaining it. If the object desired by all the members is the same, the knowledge that
that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to
be achieved; the object then becomes the common object of the assembly. Normally, a determination to achieve an object
includes a resolve to meet with force any resistance to its attainment. A common object may be found by express
agreement after mutual consultations but that is not necessary. It may be formed at any stage by all or some members of
the assembly and the other members may join and accept it. It may be modified or altered or abandoned at any stage.
What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to
be determined by keeping in view the nature of the assembly, the arms it carries and the behaviour of its members at or
near the scene of the incident.
[137]The Singapore Court of Appeal in CHANDRAN & ORS V. PP [1992] 2 SLR 265 said at pp. 269 to 270:
Section 149 does not require proof of a pre-arranged plan and a common intention which a prosecution involving section 34
of the Code would require. The ‘common object’ under section 149 of the Code must not be confused with the ‘common
intention’ under section 34 of the Code. Though they both deal with what may be called ‘constructive liability’ for crime, it is
important to see the distinction and the way both sections operate.
[138]In BARENDRA KUMAR GHOSH V. EMPEROR AIR 1925 PC 1,
Lord Sumner, at p 7 said:
There is a difference between object and intention; for though their object is common, the intentions of several members
may differ and indeed may be similar only in the respect that they are all unlawful while the element of participation in action
which is the leading feature of section 34, is replaced in s. 149, by membership of the assembly at the time of the
committing of the offence. Both sections deal with combinations of persons, who become punishable as sharers in an
offence.
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[139]Hence his Lordship Justice Abdul Malik Ishak (speaking for the Court of Appeal) in MOHD HAIKAL MOHD
KHATIB SADDALY & ORS v. PP [2011] 5 CLJ 369:
[159] To paraphrase all these salient authorities, it is correct to say that in the case of an unlawful assembly, certain
members of that assembly may have in addition to the common object which they share with its other members private
intentions of their own which they only know and which have the quality of being unlawful in common with the common
object. And there may well be circumstances in which “object” and “intention” are the same where the parties act to achieve
a particular result.
[ 160] The statement of the law in Gour’s “Penal Law of India” (7th edn) at p. 710 as reproduced earlier has put to rest and
has answered the question of whether all members of the said unlawful assembly must be present at all times in order to
qualify the usage of s. 149 of the Penal Code. The answer is in the negative in that the members may change because of
the words, “It may be formed at any stage by all or some members of the assembly and the other members may join and
accept it.”
[ 161] As much as the “common object” may change, so does the attendance of “membership” of the unlawful assembly.
Thus, there is no necessity to have a total of five or more persons at any one time, so long as the total number of the
unlawful assembly over the whole duration constitutes five or more that would be sufficient to attract s. 149 of the Penal
Code.
The convictions under section 302 Penal Code in this case was later substituted by the Federal Court to section
304(b) of the same Code but the discussion on section 149 Penal Code was left untouched and is still good law).
[140]His Lordship Justice Sofian in PP v. INTHIRAN RENGANATHAN & ORS [2007] 10 CLJ 563 said
[4] Section 302 Penal Code provided ‘whoever commits murder shall be punished with death.’
Section 149 Penal Code provides:
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 the offence, is a member of the same assembly, is guilty of that
offence.
[ 5] Section 149 Penal Code contains two limbs, which may be outlined as these:
First Limb:
i) The accused persons were members of an unlawful assembly;
ii) The members of the unlawful assembly had a common object; and
iii) The offence was committed in the prosecution of the common object.
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Second Limb:
i) The accused persons were members of an unlawful assembly;
ii) The members of the unlawful assembly had a common object;
iii) The members of the unlawful assembly, including the accused persons knew that the offence in question is likely
to be committed in prosecution of the common object; and
iv) The offence was committed in the prosecution of that object.
[141]I have given the evidence adduced by the prosecution and I take note that there was a fight. But the fight came
about when PW2 wanted to force his way into the house of the Appellants. It is not in dispute that the Appellants
were in their own house, the Appellants did not venture to go to the house of PW2 or PW3. Neither did the
Appellants invite PW2 and PW3 into their compound or house. PW2 and PW3, instead were the ones who forced
their way, for whatever reason is secondary. Both PW2 and PW3 are trespassers, unwelcomed in the compound
and house of the Appellants. When the Appellants refused to allow them in, they attacked the 1st Appellant (first by
PW2 and followed by PW3) and they also attacked the 2nd Appellant.
[142]There is no consensus ad idem between PW2 and PW3 on one hand and the Appellants on the other. None of
the meeting of the minds (in some parts or the other) could be traced to the Appellants (in the smallest measure). I
cannot see how 2 people defending their home and compound could be accomplices to the attackers.
[143]That being said, the Appellants are the victims in the facts and circumstances of this case. I find no
corroboration in the story of PW2 or PW3 but it must be borne in mind, being accomplices to each other (only) PW2
cannot lend support to the evidence of PW3.
[144]I also keep in mind the provision of section 133 Evidence Act 1950 which reads “An accomplice shall be a
competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice.”
[145]In BERENG GRIFFITH LEROTHOLI & ORS. V. THE KING [1950] AC 11 the appellants were found guilty of
murder and sentenced to death for the murder (alleged to be a ritual murder) on 4 March 1948 of one Meleke Ntai,
a brother or cousin of one of the appellants, who was alleged to have sold Meleke Ntai for £100 as “medicine”. Lord
Reid in delivering the judgment of the Privy Council said at p. 13-14:
The law in Basutoland with regard to accomplice evidence enacted in s. 231 of the Basutoland Criminal Procedure and
Evidence Proclamation 1938; that section was amended by the Basutoland Criminal Procedure and Evidence
(Amendment) Proclamation 1944 and the amended section is as follows:
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‘Any Court which is trying any person on a charge of any offence may convict him of any offence alleged against him
in the indictment or summons on the single evidence of any accomplice:
Provided that the offence has, by competent evidence, other than the single and unconfirmed evidence of the
accomplice, has proved to the satisfaction of such Court to have been actually committed.’
[146]At p. 21 Lord Reid continued:
It is not disputed, and there is no doubt, that a Judge in Basutoland, as elsewhere, must always have in mind the danger of
accepting accomplice evidence which is uncorroborated by independent evidence: the question is whether a Judge in
Basutoland must apply the rule of English practice as laid down by the Court of Criminal Appeal in REX V. BASKERVILLE
[1916] 2 KB 658. In the present case the learned Judge who convicted the appellants the appellants was referred to the
cautionary rule which is followed in South Africa and he appears to have been guided by it. That rule has been stated by
Schreiner J. in REX V. NCANANA [1948] 4 SALR 399 in the following terms: ‘The cautious Court or jury will often properly
acquit in the absence of other evidence connecting the accused with the crime, but no rule of law or practice requires it to
do so. What is required is that the trier of fact should warn himself, or, if the trier is a jury, that it should be warned, of the
special danger of convicting on the evidence of an accomplice; for an accomplice is not merely a witness with a possible
motive to tell lies about an innocent accused but it such a witness peculiarly equipped, by reason of his inside knowledge of
the crime, to convince the unwary that his lies are the truth. This special danger is not met by corroboration of the
accomplice in material respects not implicating the accused, or by proof aliunde that the crime charged was committed by
someone; so that satisfaction of the requirements of s. 285 (the section in the South African Act corresponding to s. 231 in
Basutoland) does not sufficiently protect the accused against the risk of false incrimination by an accomplice. The risk that
he may be convicted wrongly although s. 285 has been satisfied will be reduced, and in the most satisfactory way, if there
is corroboration implicating the accused. But it will also be reduced if the accused shows himself to be a lying witness or if
he does not give evidence to contradict or explain that of the accomplice. And it will also be reduced, even in the absence
of these features, if the trier of fact understands the peculiar danger inherent in accomplice evidence and appreciates that
acceptance of the accomplice and rejection of the accused is, in such circumstances, only permissible where the merits of
the former as a witness and the demerits of the latter are beyond question.’
[147]Lastly, Lord Reid observed at p. 23:
The cautionary rule is concerned neither with the admissibility of evidence nor with the competency, examination or cross-
examination of witnesses, and this section cannot therefore be authority for requiring the adoption of the English cautionary
rule. No other legislative provision in force in Basutoland was suggested as containing such authority. Their Lordships are
now satisfied that the South African cautionary rule is properly applicable in Basutoland, and that it was present to the mind
of the learned Judge who convicted the appellants and properly applied by him in his case. The appeal must therefore fail
on this ground also.
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[148]Since PW3 cannot corroborate PW2 and the Court, as a matter of prudence, should not act on the evidence of
PW2 alone or PW3 alone to prove that the 2 Appellants indeed initiated the fight within the meaning of “affray”
pursuant to section 159 Penal Code, I found no evidence to show that the 1st Appellant or the 2nd Appellant (jointly
or severally) initiated the fight. Hence it cannot be said that the 2 Appellants had committed affray.
“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 (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 in furtherance of that common intention” (see (1)
NAMASIYAM (2) RAJINDRAN (3) GOH CHIN PENG, AND (4) NG AH KIAT V. PUBLIC PROSECUTOR [1987] CLJ Rep
241; [1987] 2 MLJ 336)
[149]On this ground alone, the Appellants should be acquitted.

iii. Whether Private Defence and Sudden Fight are the same type of defence under the law and are applicable on
the facts of this case
[150]I am taking note that the Charge is one of causing affray, an act contrary to section 160 Penal Code which
reads,
Whoever commits an affray shall be punished with imprisonment for a term which may extend to six months, or with fine
which may extend to one thousand ringgit or with both.
[151]The definition of this offence of affray is given under section 159 of the same Code and it reads,
When two or more persons, by fighting, in a public place, disturb the public peace, they are said to “commit an affray”.
[152]The learned authors of Ratanlal and Dhirajlal in the acclaimed book entitled ‘The Law of Crimes’ (24th Edition)
where it was stated therein as regards the element of a sudden fight, as follows:
“The word ‘fight” is used to convey something more than a verbal quarrel. “Fight” postulates a bilateral transaction in which
blows are exchanged. It takes two to make a fight. A fight is a combat between two persons. It is not necessary that
weapons should be used in a fight. An affray can be a fight even if only one party in the fight is successful in landing a blow
on his opponent. In order to constitute fight, it is necessary that blows should be exchanged even if they do not all find their
target. The word “sudden” implies that the fight should not have been pre- arranged”.
[153]Their Lordships define “affray” as “where persons fight together in the presence of other persons so that those
persons are put in fear” In TAYLOR V DIRECTOR OF PUBLIC PROSECUTIONS, [1973] 3 W.L.R. 140; [1973]
A.C. 964; the appellant and a co-accused were charged with making an affray in that they, and only they, fought
police officers who were questioning the appellant in a club. The defence was that, for all practical purposes, the
officers started the fight and, insofar as the appellant and the co-accused participated, it was in self-defence. The
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co-accused was acquitted; the appellant was convicted. The Court of Appeal having affirmed the conviction, the
appellant appealed to the House of Lords:-the House of Lords elucidated on the offence of “affray” in the following
words:
The offence of affray is a very old one in our law. The number of decided cases is comparatively few and the early learning
on the topic is found in the textbook writers in the 15th, 16th, 17th and 18th centuries.
…..
The violence, the authorities show, may be of two kinds. It could arise by fighting in the ordinary sense, and that means the
actual preparation for the delivery of blows and the delivering of blows; taunting by words was never sufficient. At the same
time as exemplified by the Statute of Northampton, 1328 (3 Edw. 3, c. 3) , going armed in an unusual and terrifying fashion,
particularly into the market place or fairgrounds, was also an example of affray.
…..
One looks to see at once as to whether one person could be guilty of affray in those circumstances because it is obvious
that in the ordinary course of events fighting involves two people being engaged at least. I can start with Hawkins’ Pleas of
the Crown and I do that because it was with Hawkins that the error which was corrected in REG. V. BUTTON; REG. V.
SWAIN [1966] A.C. 591 originated. It will be found that the true origin was in Hawkins’ description of affray, where he said
(1824 ed.), c. 28. p. 487:
“In treating of affrays, I shall consider, 1. What shall be said to be an affray. 2. How far it may be suppressed by a
private person. 3. How far by a constable. 4. How far by a justice of peace. 5. In what manner the several kinds of
affrays may be punished.”
In dealing with the first point he said, at p. 487:
“Sect. 1. It is said, that the word ‘affray’ is derived from the French word effraier, to terrify, and that, in a legal sense, it
is taken for a public offence to the terror of the people. From this definition it seems clearly to follow, that there may be
an assault which will not amount to an affray; as where it happens in a private place, out of the hearing or seeing of
any, except the parties concerned; in which case it cannot be said to be to the terror of the people; and for this cause
such a private assault seems not to be inquirable in a court leet, as all affrays certainly are, as being common
nuisances. . . . Sect. 2. Also it is said, that no quarrelsome or threatening words whatsoever shall amount to an affray;
and that no one can justify laying his hands on those who shall barely quarrel with angry words, without coming to
blows; yet it seemeth, that the constable may, at the request of the party threatened, carry the person, who threatens
to beat him, before a justice, in order to find sureties.”
He deals with certain special kinds of affray with which we are not concerned, such as quarrelling in a churchyard which in
those days was regarded as an extremely grave offence. But in dealing with how far an affray may be suppressed by a
constable, Hawkins said, at p. 490:
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“Sect. 14. And it is said, that if a constable see persons either actually engaged in an affray, as striking, or offering to
strike, or drawing their weapons, &c. or upon the very point of entering upon an affray, as where one shall threaten to
kill, wound, or beat another, he may either carry the offender before a justice of the peace, to the end that such justice
may compel him to find sureties for the peace. . . .”
….
It is sufficient to say that, for the reasons given by Lord Parker C.J. in REG. V. SCARROW (1968) 52 Cr.App.R. 591 , this
court is clearly of the opinion that one unlawful fighter in circumstances such as this can properly be charged with and
convicted of affray, and that where two people are charged, as was done in the present case, and one is acquitted, it is
perfectly proper to convict the other. The judge’s direction to the jury, therefore, was the correct direction to give and there
was no misdirection. The appeal, therefore, against conviction must be dismissed.
[154]In BLACKSTONE’S COMMENTARIES ON THE LAWS OF ENGLAND, 16th ed. (1825), vol. IV, p. 145:
“AFFRAYS . . . are the fighting of two or more persons in some public place, to the terror of his majesty’s subjects: for, if the
fighting be in private, it is no affray but an assault. Affrays may be suppressed by any private person present, who is
justifiable in endeavouring to part the combatants, whatever consequence may ensue.”
[155]In REG. V. SUMMERS [1962] Crim.L.R. 635 What happened was that the appellant Summers had a grudge
against a man named Manning whom he thought was responsible for cutting and scarring his wife. He engaged the
services of the other two appellants, Burns and Bond, who were two long-term prisoners on licence, to go and do
his dirty work for him. He drove them to Manning’s address where Manning was in his flat upstairs with his
housekeeper and four children. The two men Burns and Bond broke in, one armed with a knife. Manning did not
fight at all. He retreated; no retaliation. Someone grabbed the housekeeper’s arm. The brave woman bashed her
fist through the window and yelled for the police and the two men ran away. Lord Justice Edmund Davies said:
“The question therefore arises as to what exactly is meant by an ‘affray’. We respectfully approve of and adopt a passage
which appears in Smith and Hogan Criminal Law, 2nd ed. (1969), p. 539: ‘Affray is a common law misdemeanour which,
after a long period of desuetude, has not only been brought back into regular use, but greatly expanded in scope by judicial
decision’ - and then follows the definition proper – “Its elements are (1) fighting by one or more persons: or a display of
force by one or more persons without actual violence; (2) in such a manner that reasonable people might be frightened or
intimidated.”
[156]In the book Smith and Hogan Criminal Law, 2nd ed. (1969), p. 539: Professors Smith and Hogan thought it too
obvious to need stating: “fighting by one or more persons has to be qualified”– ‘unlawful’ fighting by one or more
persons.”
[157]An earlier case in REG. V. SHARP [1957] 1 Q.B. 552, namely, when Johnson seized the razor. Thereafter the
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same fight, which has been undoubtedly frightening as far as the public was concerned, has turned into an affray
because the person has now lost his shield of self-defence and is an unlawful fighter because he has used too
great force. What happened in the instant case because it has been conceded on behalf of the Crown that the
appellant’s conviction must be looked at on the basis that he fought unlawfully in that he overdid defending himself
against the assault by the police officers. (see TAYLOR V DIRECTOR OF PUBLIC PROSECUTIONS, [1973] 3
W.L.R. 140; [1973] A.C. 964)
[158]Lord Parker C.J, presiding over the division of the court in REG. V. SCARROW, (1968) 52 Cr.App.R. 591,
594, said:
“The second and more difficult point possibly is, as Mr. Martin puts it, that fighting, for the purpose of constituting an affray,
means a true combat in which there is a reciprocity, as he puts it, of violence. On the evidence here, he says, those who
were attacked did not retaliate and accordingly there was no reciprocity of violence, and, while each of the appellants might
be guilty of an assault in some form, it cannot be said that they are guilty of an affray. It is clear, as Mr. Martin says, that
there is no direct authority on this matter whatsoever and he invites this court to hold that unless there is a true fight in
which there is reciprocity of violence there can be no affray. The court can see no ground whatever for limiting the nature of
the offence in that way. As the learned chairman said in ruling against the appellants in this matter: ‘It is argued that if a
number of people or members of two gangs fight one against another an offence is committed, but that when they set upon
members of the public no offence of affray is committed; but my common sense rebels against it and I propose to overrule
this submission and leave this count to the jury.’
“This court entirely agrees with the learned chairman when one bears in mind, as I have already pointed out, that many
forms of conduct other than actual fighting may constitute an affray and in SHARP AND JOHNSON (1957) 41 Cr.App.R.
86; [1957] 1 Q.B. 552,
Lord Goddard C.J. (at pp. 91 and 559 of the respective reports) referred to passages in BLACKSTONE AND HAWKINS
which show that there may be an affray where there is no actual violence, as where a man arms himself with dangerous
and unusual weapons in such a manner as will naturally cause a terror to the people.”
[159]It will be seen that in BLACKSTONE we have two or more people fighting unlawfully. I point out that in the
earlier authorities there is no reference to two people as such. The first reference to any numbers at all is to be
found in RASTELL’S LES TERMES DE LA LEY (1721 ed.), p. 28, where it is “many people fighting together,” but
that disappears from the books and what is left is the modern definition of “the fighting of many together” (see
TAYLOR V DIRECTOR OF PUBLIC PROSECUTIONS, [1973] 3 W.L.R. 140; [1973] A.C. 964).
[160]In REG. V. BUTTON; REG. V. SWAIN [1966] A.C. 591, the two appellants who were convicted went into a
dance hall where a dance was being given by a darts club and they fought and made an affray. The real question
was whether it was a public place and whether that was a necessary ingredient of the offence. Nevertheless when
the Court of Criminal Appeal certified the matter to the House of Lords the House of Lords were asked to rule that a
point of law of general public importance was involved in affray itself, namely, as to the true ingredients of the
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offence of affray. Nevertheless the whole of the argument and indeed the review of the authorities turned on the
question whether the affray must take place in a public place, and so when we come to the matter in the speech of
Lord Gardiner L.C. he said, at p. 625: “The essence of the offence is that two or more fight together to the terror of
the Queen’s subjects” (see TAYLOR V DIRECTOR OF PUBLIC PROSECUTIONS, [1973] 3 W.L.R. 140; [1973]
A.C. 964).
[161]What we may distilled from the above discussions is that there are differences between “affray” and voluntarily
causing hurt (or grievous hurt, as the case may be) or other types of fighting, as we do see fighting matches in
boxing or wrestling competitions.
[162]The characteristics of “affrays” are:
i. i. there is fighting between 2 or more people.
ii. ii. the fighting is illegal.
iii. iii. the fighting causes terror in the hearts of the public.
[163]In T PARAMASPARAN THANIGAJALAM v. PP [2012] 4 CLJ 309, the Court of Appeal discussed the issue of
“sudden fight” as follows:
[39] The defence of sudden fight is housed in Exception 4 to s. 300 of the Penal Code. It reads as follows:
Exception 4 - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of
passion upon a sudden quarrel, and without the offender having taken undue advantage or acted in a cruel or unusual
manner.
Explanation - It is immaterial in such cases which party offers the provocation or commits the first assault.
[40] Now, to come within the exception of sudden fight, the following four facts must be proved:
(a) (a) that there is a sudden fight in the heat of passion upon a sudden quarrel;
(b) (b) that there is no premeditation;
(c) (c) that the offender does not take undue advantage or act in a cruel or unusual manner; and
(d) (d) it is immaterial who started the fight first.
[ 41] Because of the use of the word “sudden”, if there is a fight that fight is not pre-arranged. In other words, there should
not be a lapse between the quarrel and the fight. If there is such an intervening period, it means that “reason” would by then
overcome “passion” and the fight is said not to be sudden. This seems to be the view of Dr Sir Hari Singh Gour, The Penal
Law of India (Diamond Jubilee - 10th edn., vol. III, 1983), at p. 2368, where the learned editors had this to say:
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Heat of passion requires that there must be no time for the passion to cool down...
[42] However, the Penal Code does not define the meaning of the word “fight”. “Britannica World Language Edition of the
Oxford Dictionary” defines “fight” as “the action of fighting”. It takes two to start a fight. If blows are exchanged then there is
a fight. But if it is only a one-sided attack with no response from the adversary, then it is not a fight. And if the adversary
dies as a result of the blow, the attacker cannot take advantage of Exception 4 because at the time when the attacker gives
the fatal blow, there was no fight.
[43] There must be no premeditation. The killing must be in the heat of passion upon a sudden quarrel. You can prove
premeditation by way of direct or circumstantial evidence.
[164]Guidelines have been laid down by the Privy Council in MOHAMED KUNJO V. PP [1977] 1 LNS 74 in respect
to the reception of Exception 4 to s. 300 of the Penal Code. The facts of that case may be stated as follows. Two
good friends were drinking together when a quarrel broke out. They fought one another. They grappled each other
and fell to the ground and they continued to wrestle and exchanged punches. Both of them were drunk and
because of that they both fell down and got up again several times. Suddenly the accused disengaged himself from
the fight and ran towards the store where a motor lorry was parked and there the accused picked up the exhaust
pipe of a motor vehicle and used it as a weapon. Armed with the exhaust pipe, the accused attacked the deceased
who was at that time on a standing posture and delivered a blow to the head of the deceased. The deceased tried
to ward off any further blows by using his hands but failed to do so and fell to the ground. The accused continued to
hit the deceased on the head three or four times with the exhaust pipe. When the ambulance arrived, the deceased
was already dead. An autopsy was done and it was revealed that the deceased had died of a fractured skull. The
autopsy also showed that one of the fractures was incurred after the deceased had died. Lord Scarman delivering
the judgment of the Privy Council in MOHAMED KUNJO V. PP (supra) and based on the evidence held that the
blows were struck “in a sudden fight in the heat of passion upon a sudden quarrel” (see p. 54). According to Lord
Scarman the act that caused the death was done without premeditation. His Lordship quoted with approval the
definition of “premeditation” as postulated by Justice Bhandari in KIRPAL SINGH V. THE STATE AIR 1951 Punjab
137, at p. 140 and concluded that in order to constitute a premeditated killing, there must be “an element of design
or prior planning”. (see PARAMASPARAN THANIGAJALAM V. PP [2012] 4 CLJ 309)
[165]Lord Scarman was of the opinion that the accused cannot explain that the act which caused the death was
done “without the offender having taken undue advantage or acted in a cruel or unusual manner” (see p. 54). Lord
Scarman also defined “undue advantage” to mean an “unfair advantage” by adopting the definition as suggested by
Justice K Sahai in SARJUG PRASAD V. THE STATE AIR 1959 Patna 66, at p. 69. Lord Scarman was obviously
influenced by the fact that the accused had disengaged himself from the fight in order to secure a weapon - the
exhaust pipe, and His Lordship described this as “truly murderous” when the accused attacked the defenceless
deceased. Lord Scarman also noted that the deceased was taken by surprise and was attacked using an exhaust
pipe and a heavy blow on the head could reasonably be expected to be lethal. Lord Scarman was constrained to
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hold that the accused had taken undue advantage or acted in a cruel or unusual manner and accordingly rejected
the plea of sudden fight.
(see PARAMASPARAN THANIGAJALAM V. PP [2012] 4 CLJ 309)
[166]In DAUD PASARRIN v. PP [2016] 10 CLJ 32, the accused was charged under s. 302 of the Penal Code and
sentenced to death by the High Court for the murder of the deceased. The facts revealed that the incident took
place in a shared worker’s quarters. Vide his defence, the accused pleaded the defence of sudden and grave
provocation and self-defence since it was alleged that the deceased had called the accused and his parents ‘dogs’
in a rude and loud manner. The accused claimed that the deceased was the one who started to attack the accused
by swinging a parang at the accused person’s head but missed it. According to the accused, both of them struggled
and the accused managed to get hold of the parang when he then slashed the deceased a number of times with
the said parang. Dissatisfied with the decision of the High Court, the accused filed an appeal to this court. Among
the grounds raised were that the trial judge failed to (i) consider the evidence that the deceased still continued
attacking the accused after the latter got hold of the parang and the fact that the deceased tried to snatch the
parang; (ii) consider the action of the deceased in swinging the parang at the accused which amounted to grave
and sudden provocation; and (iii) evaluate the evidence and report by the psychiatrists to show that the accused
was a credible witness. The Deputy Public Prosecutor on the other hand submitted that the defence did not meet
the pre-requisites of a defence of a sudden fight namely: (a) there is fight that started from the deceased; (b) the
accused was not exercising his right of private defence; (c) the accused did not have undue advantage or acted in a
cruel manner; and (d) the deceased contributed to the fight and invited its escalation. It was also submitted by the
learned deputy that the defence had failed to fulfil the four cardinal justification before the killing can be justified in a
plea of self- defence as follows: (a) the accused must be free from fault in bringing about the encounter; (b) there
must be present an impending peril to life or of great bodily harm either or so apparent; (c) there must be no safe or
reasonable mode of escape by retreat; and (d) there must have been a necessity of taking life. The prosecution
also submitted that the defence failed to make out the defence of grave and sudden provocation as there was no
provocation at all. If there had been any, it was neither grave nor sudden.
[167]The Court of Appeal held that,
[28] Applying this test to the facts as could be deduced from the evidence adduced before him, the learned trial judge had
concluded that there was no grave and sudden provocation known in law that could be established therefrom. In coming to
that conclusion, he had alluded to the evidence coming from the accused person himself. It was impressed upon us that the
reason behind the accused person’s fatal blows with the parang against the deceased had been because of the so-called
derogatory words allegedly used by the deceased in describing the accused person and his parents as ‘dogs’. However,
the evidence had suggested nothing of that sort.
….
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[168]The case of LORENSUS TUKAN V. PP [1988] 1 CLJ 143; [1988] 1 CLJ Rep 162 where it was held as follows:
The test of ‘grave and sudden’ provocation is whether a reasonable man, belonging to the same class of society as the
accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control (see
NANAVATI V. STATE OF MAHARASHTRA AIR [1962] SC 605).
[169]In IKAU ANAK MAIL V. PP [1973] 2 MLJ 153 where the Federal Court had also reiterated similar view on the
matter of grave and sudden provocation.
[170]Dr Hari Gour, in his acclaimed work embodied in the book Penal Law of India, Vol 3, 1st edn, at p. 2011, had
likened the immediate preceding act amounting to a ‘grave and sudden provocation’ as a situation akin to the
proverbial last straw that breaks the camel’s back.
[171]The learned authors of Ratanlal and Dhirajlal in the Law of Crimes had also commented that “in determining
that question the court may also consider, along with other factors, the nature of the retaliation by the accused,
having regard to the nature of the provocation”.
[172]The Court of Appeal in ENTHIRAN RAJOO v. PP [2015] 8 CLJ 503, discussed the issue of private defence.
The appellant was charged at the High Court for murder, an offence under s. 302 of the Penal Code. The
prosecution’s case stipulated that the deceased came to the appellant’s house and the two consumed alcohol. The
appellant’s daughter (‘SP13’) testified that she was sleeping when she realised the deceased was lying next to her
but he did not molest her. The appellant shouted at the deceased and the latter left SP13’s room. Even though
SP13 could not see what was happening, she heard the appellant scolding the deceased and a faint sound of an
object being thrown. The next day, the deceased’s body was found in a dried-up ditch. A post-mortem conducted on
the deceased’s body revealed that the cause of death was due to injuries to the neck caused by blunt trauma.
Following the arrest of the appellant, a bloodstained hammer was recovered from the kitchen cabinet of his house.
The DNA profile from the blood matched with that of the deceased. In court, the appellant testified that the
deceased tried to rape his daughter and therefore he had hit the deceased using a hammer and later dumped the
deceased’s body into the ditch. However, the appellant’s defence was that (i) he was drunk; (ii) he had acted upon
a grave and sudden provocation upon seeing the deceased attempting to rape his daughter; (iii) he was acting in
self-defence upon being assaulted by the deceased with a steel chair; and (iv) he struck the deceased with the
hammer only once and it happened out of sudden fight with the deceased.
[173]It was held that,
Defence of Sudden Fight under Exception 4
[39]Exception 4 of s. 300 of the PC provides:

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Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a
sudden quarrel, and without the offender having taken undue advantage or acted in a cruel or unusual manner.
The learned authors in RATANLAL & DHIRAJLAL’S LAW OF CRIMES, 25th edn, at p. 1363 postulates that four requisites
must be satisfied to invoke this Exception:
(i) it was a sudden fight;
(ii) there was no premeditation;
(iii) the act was committed in a heat of passion; and
(iv) the assailant had not taken any undue advantage or acted in a cruel manner.
[40] The appellant’s reliance on Exception 4 also suffered the same deficiencies as was his reliance upon Exceptions 1 and
2. This mode of defence was raised for the first time only at the defence stage. He failed to avail himself of the opportunity
to put his essential and material case in cross-examination of the prosecution witnesses.
[41] More importantly we were of the view that this defence has no leg to stand on account that there was no evidence of
any heated quarrel before the fight and that the appellant had indeed taken undue advantage of the deceased’s
haplessness and had equally acted in a very cruel or unusual manner as enumerated in paras. 34, 35, 36 and 37 above.
The manner the hammering blows were inflicted by the appellant upon the deceased as described by SP9 and reproduced
at para. 37 are most telling.
[174]“Sudden fight” is not “affray” because it is not meant to intimidate the people other than those involved in the
fight. Hence the element of causing fear in the hearts of others does not arise.
[175]“Sudden fight” often arose from matters arising between 2 or more persons that the use of the reasoning
faculty has taken the back seat. Motivated by emotions and driven by force, “sudden fight” is often unbridled and
resulted in one act too many especially where it caused more injury(s) than what was intended. Hence it slide the
act into something of a lesser culpability because of the loss of the reasoning faculty. It is a species of diminished
responsibility. However to qualify for such a defence, the 4 requisites to be fulfilled are as follows:
(i) it was a sudden fight;
(ii) there was no premeditation;
(iii) the act was committed in a heat of passion; and
(iv) the assailant had not taken any undue advantage or acted in a cruel manner.
[176]The evidence in our instant case was that PW2 (Teo Ah Song) on 13 February 2019 at about 9.15 pm, rode
home on a motorcycle with his brother (PW3) Teo Sa Nee He went to the neighbour who is the 1st Appellant and
his daughter and demanded to use their toilet but the 1st Appellant refused to allow PW2 to use their toilet.
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[177]At that time, it was after the Isha’ prayers when PW2 came and he smelled of alcohol and the 1st Appellant
almost threw up. He demanded money from the 1st Appellant and an altercation ensued. At the time, PW3 was just
behind PW2.
[178]After the 1st Appellant’s son by the name of Daniel Gun, shouted at them to leave the house, both of them
went out of the compound of the 1st Appellant’s house but suddenly turned back and hit the 1st Appellant with a
metal object that appeared to be a padlock. The 1st Appellant fell to the ground and the 2nd Appellant helped him
to get up. It was here that 1st Appellant saw PW2 jumped on his daughter the 2nd Appellant. The 2nd Appellant
screamed that PW2 has bitten her tight, near to her private parts and she cried for help.
[179]Having perusing over the evidence in the Appeal Record, I find that PW2 (with PW3 in tow) tried to force their
way through into the house of the Appellants. Keeping in mind, that the 1st Appellant refused to allow him through,
PW2 attacked the 1st Appellant.
[180]It is not lost on us that the actus reus of PW2 squarely falls within the meaning of “Criminal Trespass” under
section 441 which stipulates “Whoever enters into or upon property in the possession of another with intent to
commit an offence or to intimidate, insult or annoy any person in possession of such property; or having lawfully
entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any
such person, or with intent to commit an offence, is said to commit “criminal trespass”.
[181]If PW2 has committed criminal trespass, then it cannot be affray but assault as BLACKSTONE’S
COMMENTARIES ON THE LAWS OF ENGLAND, 16th ed. (1825), vol. IV, p. 145, writes:
“AFFRAYS . . . are the fighting of two or more persons in some public place, to the terror of his majesty’s subjects:
for, if the fighting be in private, it is no affray but an assault. Affrays may be suppressed by any private person
present, who is justifiable in endeavouring to part the combatants, whatever consequence may ensue.”
[182]In which case, the Appellants whom are now assaulted with physical injuries by PW2 and PW3 are victims of
assaults and not participants of “affray”.
iv. Whether the Learned Magistrate did consider the private defence:
[183]Private defence is provided for under section 96 Penal Code which reads as follows: “96 Nothing done in
private defence is an offence”.
[184]It has to be read together with sections 97 and 104 Penal Code which I reproduced for ease of reference.
97 Right of private defence of the body and of property

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Every person has a right, subject to the restrictions contained in section 99, to defend-
(a) (a) his own body, and the body of any other person, against any offence affecting the human body;
(b) (b) the property, whether movable or immovable, of himself or of any other person, against any act which is an
offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit
theft, robbery, mischief or criminal trespass.
[104]When such right extends to causing any harm other than death
If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private
defence, is theft, mischief or criminal trespass, not of any of the descriptions enumerated in section 103, that right does not
extend to the voluntary causing of death, but does extend subject to the restrictions mentioned in section 99, to the
voluntary causing to the wrongdoer of any harm other than death.
[185]In DAUD PASSARIN (supra) the issue of self-defence was also discussed. Their Lordships held, inter alia,
[31] As regard the defence of self-defence, the law as contained under the Penal Code is also clear. The right of private
defence resides in s. 96 of the Penal Code. That section stipulates that “Nothing is an offence which is done in the exercise
of the right of private defence”. The right covers both the defence of property as well as of the person, from unjustified
intrusion. Again the onus lies with the accused person to show to the court that such circumstances existed thereby
bringing his case within the general exception in the Penal Code, including the defence of self- defence. (See also the case
of RIKKY PURBA V. PP [2014] 3 CLJ 607). We noted that the learned trial judge had stated the law correctly in paras. 34-
40 in his grounds of judgment. We did not propose to add on to what had been rightly spelt out by him in those paragraphs
referred to above. Suffice to say that the right of self-defence is not a carte blanche right to unnecessarily inflict bodily harm
or injury onto others at the slightest opportunity. Indeed the law has set out strict parameters within which that right may be
invoked and when it should cease to be pursued by the accused person. Among others, in the context of this case before
us, there must exist the necessity to take away a person’s life. As such, that right of self-defence does not extend to
inflicting more harm than is necessary. Section 102 of the Penal Code expressly stipulates:
The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body
arises from an attempt or threat to commit the offence, though the offence may not have been committed; and it
continues as long as such apprehension of danger to the body continues.
[ 32] Essentially it is but a shield, and only in grave circumstances can it legitimately partake or assume, as it were, the role
of a sword. The exercise of that right is therefore fully circumscribed. It is a right born out of necessity in the form of self-
help to protect oneself from harm’s or danger’s way.
[186]In the case of MUSA BIN YUSOF V. PUBLIC PROSECUTOR [1953] MLJ 70 the Court of Appeal held that:
The law in this country gives greater latitude to a person who is attacked than does the law in England. The question in
such cases is not whether there was an actual continuing danger, but whether there was a reasonable apprehension of
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danger. If such a condition exists, the person attacked is not obliged to retreat, but may pursue his adversary till he finds
himself out of danger; if in a conflict between them, he happens to kill, such killing is justifiable.
[187]His Lordship, Justice Ajaib Singh in PUBLIC PROSECUTOR V. NGOI MING SEAN [1982] 1 MLJ 24
explained the provisions of the right of private defence at page 25 (H):
The Penal Code provides that nothing is an offence which is done in the exercise of the right of private defence of a
person’s body. But there is no such right where the person has time to seek the protection of the public authorities. Nor will
this right of private defence extend to the inflicting of more harm than is necessary for the purpose of defence. Subject to
these limitations the right of private defence of the body extends even to the voluntary causing of death or any other harm
to the assailant if the person who exercises his right of private defence is under a reasonable apprehension that death or
grievous hurt would be caused to him by the assailant. The right of private defence commences as soon as there is
reasonable apprehension of danger to the body and this right continues so long as such apprehension of danger continues.
(See s. 96 to 102 of the Penal Code). And it goes without saying that the right of private defence ceases and is not
available when there is no more apprehension of danger to the body.
[188]The Supreme Court of India made the following observations in the case of JAI DEV V. STATE OF PUNJAB
AIR 1963 SC 612:
The law of private defence does not require that the person assaulted or facing an apprehension of an assault must run
away for safety.
[189]The right of private defence is one of the General Exceptions set out in Chapter IV of the Penal Code, proof of
which by virtue of s. 105 of the Evidence Act, rests on the accused, and the burden is not a heavy one.
[190]His Lordship Justice Spenser Wilkinson in RAMAN V. PUBLIC PROSECUTOR [1948-49] MLJ Supp. 146,
said:
In criminal matters, whilst it is true that s. 105 of the Evidence Enactment casts the burden upon an accused person of
proving the existence of circumstances bringing the case within any special exception contained in the Code, it has always
been held, not only that this burden is not a heavy one but also that the accused is entitled, if he can, to bring himself within
the exceptions by reference to facts proved by the prosecution evidence.
[191]Having considered the provisions in the Penal Code on the right of private defence, and its principles in the
cases aforesaid, the Court has to decide whether the appellant was acting under a reasonable apprehension that
death or grievous hurt or hurt would be caused to him by the assailants. Whether the apprehension was reasonable
or not is a question of fact. The weapon used, the manner of using it, the nature of assault and other surrounding
circumstances are to be taken into account (see Ratanlal: The Law of Crime 22nd Edition page 220).
[192]It is in evidence that PW2 (followed by PW3) went to the house of the Appellants and demanded the use of the
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latrine in their house, a demand that the 1st Appellant refused to accede to. Then PW2, in an attempt to force his
way into the house of the Appellants assaulted the 1st Appellant. When the 2nd Appellant came to assist the 1st
Appellant, she too was assaulted and PW2 even tried to violate her by touching her private parts, which included a
bite mark.
[193]The 1st Appellant tried to help but was further assaulted by PW2.
[194]The Learned Magistrate in his Grounds of Judgment as may be found in Enclosure 8, has this to say,
“The Court accepted that to certain extent the accused had the right to use self-defence. The court accepted the fact that
SP2 and SP3 were drunk at the time of the incident. They were there asking to use the toilet and any reasonable man
would refuse any strangers who were drunk to enter his house;
At this juncture of SP2’s and SP3’s action would cause or amount to create a reasonable apprehension or bodily harm to
the accused, self defense could be a good defense for the court to consider. But in this case, even though SD1 in his
testimonies said that he was attacked by SP2 using a motorcycle lock, the court decided that SD1 was not threatened nor
that he was attacked by any weapons as there was no evidence to show the existence or use of any weapons during the
fight…”
[195]With the greatest respect to the Learned Magistrate, I found that apart from misinterpretations of the law, there
are quite a few inconsistencies in the judgment.
[196]They are:
i. i. PW2 gave evidence that he attacked the 1st appellant to force his way into the 1st Appellant’s house
purportedly to have the use of the latrine.
ii. ii. The 1st Appellant refused to allow him and hence used force to stopped him from entering the house.
iii. iii. PW2 admitted in evidence that he has been drinking. He was tipsy and this was confirmed by the 1st
Appellant.
iv. iv. When PW2 attacked the 1st Appellant, the 2nd Appellant came to help but was assaulted by PW3.
v. v. PW3 went further to bite the 2nd Appellant at her thigh and bit her at a place which is very near her
private part.
vi. vi. PW2 admitted using a motorcycle lock to hit the 1st Appellant.
[197]Not only I am of the view that there was no affray, it is the finding of this Court that there were assaults by PW2
and PW3 against the Appellants. The assaults were not for a lawful purpose but to commit criminal trespass, which
is unjustified by law.
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[198]The assaults were committed by a weapon namely a motorcycle lock used to hit the 1st Appellant. PW3
entered the frame by assaulting the 2nd Appellant and committed the offence of using criminal force to outrage her
modesty.
[199]Further the Appellants were threatened by the conduct of PW2 and PW3 who forced their way ini, not so much
because they need the toilet but to take advantage of the 2nd Appellant.
[200]After scrutinising the Grounds of Judgment of the Learned Magistrate I found that the Learned Magistrate
erred in law and in fact, in analysing the facts and applying the law into the facts. The assaults and battery of the
Appellants as well as outraging the modesty of the 2nd Appellant were as clear as the morning sun. It is staring at
us and we cannot turn a blind eye from the elephant in the room. The sum total is that the Learned Magistrate
misdirected himself on the evidence as well as the law on private defence and was quite confused between affray
and assault / sudden fight.
[201]This Court keeps in mind, the law does not demand a person within the sanctuary of his abode to leave his
place of abode in order to qualify for the right of private defence. This is even more so when the assailants (in our
case PW2 and PW3) were the ones who decided to pay the unwanted visit.
[202]This is clearly stated in section 97, Penal Code that subject to section 99, every person has a right to defend
his own body, and the body of any other person, against any offence affecting the human body; or the property,
whether movable or immovable, of himself or of any other person, against any act which is an offence falling under
the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery,
mischief or criminal trespass.
[203]The failure of the Learned Magistrate to appreciate this has caused a serious miscarriage of justice.
v. Whether a person under the influence of alcohol may commit the offence of criminal trespass or bodily harm on
another person.
[204]The issue of intoxication is detailed under section 85 Penal Code which stipulates:
85 Intoxication when a defence
(1) (1) Save as provided in this section and in section 86, intoxication shall not constitute a defence to any criminal
charge.
(2) (2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of
the act or omission complained of did not know that such act or omission was wrong or did not know what he was
doing and-
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(a) (a) the state of intoxication was caused without his consent by the malicious or negligent act of another
person; or
(b) (b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act
or omission.
[205]The law provides for a defence albeit a qualified one and subject to certain pre requisites before it may be
invoked as a defence.
[206]In CHEONG KAM KUEN v. PP [2012] 8 CLJ 537 the Federal
Court has this to say, “On the defence of intoxication under ss. 85 and 86 of the Penal Code, the learned trial judge
found that the appellant was not too intoxicated as not to know what he was doing or that the act was wrong. This
was based on the fact that the appellant was able to tie up the deceased and had blocked the entrance to the room
preventing other people access to the room.”
[207]The Federal Court in PP v. MOHD NOR RIZA MAT TAHAR [2009] 4 CLJ 691 said –
[11] On the defence of intoxication, s. 85 of the Penal Code clearly spells out when intoxication could be a defence “if the
person charged at the time of the act... complained of did not know that such act... was wrong or did not know what he was
doing and
(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or
(b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act...
[ 12] But it is clear from the evidence adduced that it was the respondent who voluntarily consumed a can of beer just
before the incident. Self-induced intoxication is not a defence under s. 85(ii)(a) of the Penal Code. Moreover in this instant
appeal, there was no scientific evidence to support any intoxication of the respondent, having considered his conduct
before and after the commission of the crime. It was obvious that the respondent knew what he was doing. (See: FRANCIS
ANTONYSAMY V. PP [2005] 2 CLJ 481).
[208]But it must be remembered that the above provision and authorities are when intoxication is used as a
defence. In such instances, the pre requisites of the defence (though not absolute but a diminished responsibility)
are :
a. The accused person was intoxicated against his will or without his consent. Hence if he voluntarily drinks
alcoholic drinks or take intoxicants, he may avail this defence for his purpose.
b. Because of the intoxication, he is unable to distinguish the right from wrong and has acted contrary to law.
c. This merely a defence of diminished responsibility category.

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d. However, if it can be shown that a third party deliberately (either by deception or coercion or under extreme
duress) caused the assailant to be intoxicated against his will, any action contrary to law done by the
assailant, must be ascribed to the third party and this includes murder. The third party has abused the law
on the defence of intoxication to commit crimes and the assailant is a mere conduit pipe which otherwise
would be committed by the third party himself.
[209]In our instant appeal, the assailants were intoxicated (whether to the extent of losing his control of his cognitive
and mental faculties) and not the Appellants.
[210]Our instant case is more of defence against violation or trespass of property, one under section 105 Penal
Code which stipulates as follows:
105 Commencement and continuance of the right of private defence of property
(1) The right of private defence of property commences when a reasonable apprehension of danger to the property
commences.
(2) The right of private defence of property against theft continues till the offender has effected his retreat with the
property, or till assistance of the public authorities is obtained, or till the property has been recovered.
(3) The right of private defence of property against robbery continues as long as the offender causes or attempts to
cause to any person death, or hurt, or wrongful restrain, or as long as the fear of instant death, or of instant hurt,
or of instant personal restraint continues.
(4) The right of private defence of property against criminal trespass or mischief, continues as long as the offender
continues in the commission of criminal trespass or mischief.
(5) The right of private defence of property against housebreaking by night continues as long as house-trespass
which has been begun by such housebreaking continues.
[211]However in murder cases, four cardinal justifications must exist before the killing of an assailant can be
justified in a plea of self- defence. These are described in Ratanlal and Dhirajlal’s Law of Crimes 25th edn. as:
i. i. The accused must be free from fault in bringing about the encounter,
ii. ii. There must be present an impending peril to life or of great bodily harm either real or so apparent,
iii. iii. There must be no safe or reasonable mode of escape by retreat, and
iv. iv. There must have been a necessity of taking life.
[212]These justifications must also be read together with the provisions of s. 99 Penal Code in particular s. 99(4)
which states that:
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the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of
defence. (emphasis added).
[213]This particular defence will thus need to be considered against the particular facts and circumstances of the
case.
[214]In this case, we had considered this defence from two aspects.
Firstly whether the use of force by the appellant was completely necessary and secondly, whether the fight with the
assailants was in the circumstances, justified (see LEE THIAN BENG V. PUBLIC PROSECUTOR [1971] 1 LNS 61;
[1972] 1 MLJ 248).
[215]This LEE THIAN BENG (supra) is in the extreme case of murder.
Ours was not of that nature but since for such an extreme case, defence of property is allowed, what more of a far
lesser nature as in our facts.
[216]Now, the criminal law adheres in general to the principle of proportionality in prescribing liability according to
the culpability of each kind of criminal conduct. Proportion between crime and punishment remain an important
consideration in the determination of sentence. The practice of punishing all serious crimes with equal severity is
not known to civilized society. (See PP LWN. ABDUL HALIM ISHAK & SATU LAGI [2013] 9 CLJ 559).
[217]The question is whether the Appellants succeeded in conjunctive requirements as provided under ss. 96 -106
of the Penal Code. (See SS MUJEBUR RAHMAN MOHD SULTAN V. PP [2012] 1 LNS 1301; TAN CHOR JIN V.
PP [2008] 4 SLR (R) 306).
[218]I find that the Appellants did.

CONCLUSION
[219]Before I conclude, I would like to say something concerning the interference of the finding of fact of the trial
judge by appellate court. Generally speaking, an appellate court will not ordinarily disturb the findings of a
subordinate court unless such findings are plainly wrong or there had been an insufficient judicial appreciation of
the evidence before it. However, upon careful perusal of the appeal records, after having heard the parties at great
length, and giving my most anxious considerations, I am of the considered opinion that this is a case in which
appellate intervention is warranted.
[220]In the case of DATO’ SERI ANWAR IBRAHIM V. PP & ANOTHER APPEAL [2004] 3 CLJ 737, his Lordship
Federal Court Justice Abdul Hamid Mohamed (as he then was) observed as follows:
Page 57 of 57
Clearly, an appellate court does not and should not put a brake and not going any further the moment it sees that the trial
judge says that that is his finding of facts. It should go further and examine the evidence and the circumstances under
which that finding is made to see whether, to borrow the words of H.T. Ong (CJ Malaya) in HERCHUN SINGH’s case
(supra) “there are substantial and compelling reasons for disagreeing with the finding.” Otherwise, no judgment would ever
be reversed on question of fact and the provision of s. 87 CJA 1964 that an appeal may lie not only on a question of law but
also on a question of fact or on a question of mixed fact and law would be meaningless.
(See also JAGATHEESEN S/O KRISHNASAMY V. PP [2006] 4 SCR 45; PP V. SELVARAJOO A/L
RAMACHANDRAN [2005] 6 CLJ 114; [2005] 5 MLJ 282; P’NG HUN SUN V. DATO’ YIP YEE FOO [2013] 1 LNS
320; [2013] 6 MLJ 523).
[221]For the reasons aforesaid, I found that the convictions are not safe and I set aside the convictions of both
appellants and the fines, if paid, are to be refunded.
End of Document

Edited Ver Mohd Ridzuan Gun Bin Abdullah & Anor V Public Prosecuto

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Edited Ver Mohd Ridzuan Gun Bin Abdullah & Anor V Public Prosecuto

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Date and Time: Saturday, 13 November 2021 12:56:00 AM +08

Job Number: 157660687

HIGH COURT (MUAR)

AWG ARMADAJAYA AWG MAHMUD JC

CRIMINAL APPEAL NO JB-41S-3-06 OF 2020

Kooi Wei Kit (Kit & Assoc) for the appellant.

Awg Armadajaya Awg Mahmud JC:

i. Whether an appeal becomes abated upon the demise of an Appellant.

ii. Whether PW2 and PW3 are accomplices.

I shall with the issues accordingly.

320 Death of parties to appeal

306 Appeal against acquittal

(2) imprisonment, which may be either be:

(a) imprisonment for life.

(b) imprisonment for a definite period.

(c) imprisonment in default of a fine.

(4) compensation orders and costs.

(5) police supervision (see s. 295 to299 of the CPC).

[66]The Federal Court made the findings as follows:

[68]The Court of Appeal ruled (by a majority) –

a. An accused person convicted of an offence has passed away.

ii. Whether PW2 and PW3 are accomplices

“intention” in this way:

[83]Lord Goddard enumerated what it means to be an accomplice which are:

v. it turns out that the doing of those things constitutes an offence.

[86]For a person to be an accomplice, he must be one of the following:

He then went on to say:

[98]The underlying features of common intentions are:

[100]The provision of Section 35 reads as follows:

c. all such persons are liable for the act.

C. intentionally cooperating in the commission of an offence as defined by section 37 Penal Code

[104]This is provided for under Section 37 Penal Code reads as follows-

[107]The ingredients of section 37 are as follows:

a. a. an offence is committed by means of several acts,

b. b. anyone intentionally cooperates in the commission of that offence,

107 Abetment of a thing

A person abets the doing of a thing who-

(a) (a) instigates any person to do that thing;

(b) (aa) commands any person to do that thing;

i. i. An act is contrary to law

ii. ii. It was committed by a person

(b) commands the first person to do that illegal act;

When two or more persons agree to do, or cause to be done-

(a) (a) an illegal act, or

(b) (b) an act, which is not illegal, by illegal means,

such an agreement is designated a criminal conspiracy:

(a) there exist either

ii. an act, which is not illegal, by illegal means.

G. being a member of an unlawful assembly in pursuit of a common object

[136]Gour’s “Penal Law of India” (7th edn) at p. 710 states as follows:

[138]In BARENDRA KUMAR GHOSH V. EMPEROR AIR 1925 PC 1,

Lord Sumner, at p 7 said:

Section 149 Penal Code provides:

i) The accused persons were members of an unlawful assembly;

i) The accused persons were members of an unlawful assembly;

ii) The members of the unlawful assembly had a common object;

iv) The offence was committed in the prosecution of that object.

[146]At p. 21 Lord Reid continued:

[147]Lastly, Lord Reid observed at p. 23:

[149]On this ground alone, the Appellants should be acquitted.

In dealing with the first point he said, at p. 487:

[162]The characteristics of “affrays” are:

i. i. there is fighting between 2 or more people.

ii. ii. the fighting is illegal.

(b) (b) that there is no premeditation;

(d) (d) it is immaterial who started the fight first.

(see PARAMASPARAN THANIGAJALAM V. PP [2012] 4 CLJ 309)

[167]The Court of Appeal held that,

[173]It was held that,

Defence of Sudden Fight under Exception 4

[39]Exception 4 of s. 300 of the PC provides:

(i) it was a sudden fight;

(ii) there was no premeditation;

(iii) the act was committed in a heat of passion; and

(i) it was a sudden fight;

(ii) there was no premeditation;