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ASM - Penal Code (Act 574) (Revised 1997)/PENAL CODE/PENAL CODE (Act 574) (Revised
1997)/Chapter V ABETMENT

Chapter V

ABETMENT

107 Abetment of a thing

A person abets the doing of a thing who

1a) instigates any person to do that thing;

1aa) commands any person to do that thing;
[Ins Act A1430 s 3 ]
1b) 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
1c) 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

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.

[Ins Act A1471 s 4 ]

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Paragraph (aa) was inserted by Penal Code (Amendment) Act 2012 (Act A1430) s 3 wef 31 July 2012 vide
PU (B) 253/2012.
Explanation 3 was inserted by the Penal Code (Amendment) Act 2014 (Act A1471) s 4 wef 31 December
2014.
General note. See further 9(1) Halsbury's Laws of Malaysia CRIMINAL LAW (2012 Reissue) [230.060],
[230.061]. The offence of abetment may be committed by three methods, which are:

1) by instigating;
1) by engaging in conspiracy to commit it; or
1) by intentionally aiding a person to commit it.
This Chapter deals with situations where there is a combination of effort by two or more persons where the
principal urges the other person as his agent in committing a particular criminal offence. The principal himself
will not execute the intended offence but instead will urge his agent by procuring or instigating the agent in
the execution of his intended criminal doings. Hence, under this Chapter, persons who render any form of
assistance to the criminal will be punished. The provisions of this chapter is clear in that the intended crime
need not be actually committed before the abettors or his agents can be made punishable. It is sufficient to
show that the abetment existed and that it was urged by the abettor and carried out or in the process of
carrying out the intended criminal act by the abetted person. Punishment is not only meant for the abettor as
the leader of the pack but also for a person who abets. As when an abetted person instigates another person
in the commission of a crime which was originally urged by the principal abettor.
It should be noted that the offence of abetment is only at the stage of preparation of a crime. Invariably, the
abettor is caught or punished when the intended criminal act fails or is foiled without even reaching the stage
of attempt. Jeremy Bentham in Jeremy Bentham's Works Vol I Part III, Ch XV, p 560 says: 'The more these
preparatory acts are distinguished, for the purpose of prohibiting them, the greater the chance of preventing
the execution of the principal crime itself. If the criminal be not stopped at the first step of his career, he may
at the second, or the third. It is thus a prudent legislator, like a skilful general, reconnoitres all the external
post of the enemy, with the intention of stopping his enterprises. He places in all his defiles, in all the
windings of his route, a chain of works, diversified according to circumstances, but connected among
themselves, in such a manner that the enemy finds in each, new dangers and new obstacles'.
The question that normally attracts most discussions is whether the charge of abetment fails if the
substantive offence is not established. For example if the abettor urges an insane person who is incapable of
committing any offence to commit murder against a third person. If the third person dies, the insane person is
immune under s 84 ante but a charge of abetment against the abettor does not fail due to the incapacity of
the insane person. [See s 108 post Explanation 3 and illustrations (a) and (b) ante].
Indeed it is the very essence of the offence of abetment under the Code that the abettor's participation is at
the point of time prior to the actual execution of the intended crime and that he substantially assisted or
urged such commission or omission. Though his hands may not be stained with the blood of the murdered,
his guilt is as good as it gets. Hence, abetment may not in itself involve an actual commission of the crime
abetted.

Abetment. This word is not defined in the Code. Abetment of an offence is a distinct offence from the offence
itself. Thus, it does not follow that if the charge against the principal offender could not stand, the case
against the abettor must fall as well; see Rejab bin Lebai Man & Anor v Public Prosecutor [2001] 4 MLJ 106.
In Public Prosecutor v Datuk Haji Harun Haji Idris & Ors [1977] 1 MLJ 180 at 196 per Abdoolcader J:
'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 knowledge of the circumstances
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constituting the offence, the abettor is guilty of abetment by aiding : National Coal Board v Gamble [1959] 1
QB 11.
Ajaib Singh J in Public Prosecutor v Datuk Tan Cheng Swee & Ors [1979] 1 MLJ 166 at 171-173 respectively
said that: 'Under the third class of abetment by intentional aid there must be evidence to show that by some
act done by the abettor he had intended to aid or facilitate the commission of the principal offence (see
generally the commentary on ss 107 to 109 ante in Ratanlal and Dhirajlal's Law of Crimes Vol 1 (22nd Edn).
Briefly to constitute the offence of aiding and abetting the prosecution must prove intention on the part of the
abettor to aid and he must be shown to have known the circumstances constituting the crime at the time
when he voluntarily does a positive act of assistance'.
Para (a)

Instigation. This word is not defined in the Code. In Haji Abdul Ghani bin Ishak v Public Prosecutor [1981] 2
MLJ 230 at 248, FC, Raja Azlan Shah CJ stated: 'It is of the essence of the offence of abetment that the
abettor should substantially assist the principal offender towards the commission of the principal offence. In
fact it is an essential ingredient in a prosecution for abetment that there must be some evidence to show that
the abettor actively suggested or stimulated the principal offender to the act by any means or language,
direct or indirect, in the form of 'expressed solicitation' or of 'hints, insinuations or encouragement'. There
must also be common purpose or intent to aid or encourage the person who commits the principal crime and
either an actual aiding or encouraging or a readiness to aid or encouraging will be required. The word
'instigates' in s 107 of the Penal Code does not merely mean placing of temptation to do a forbidden thing but
actively stimulating a person to do it '. In Parimal Chatterji [1932] 60 Cal 327, the word 'instigate' was said to
mean to goad or urge forward or to provoke, incite, urge or encourage to do an act. Generally, it connotes
communication, but if it is used loosely, may amount to 'demand' (Treacy v Director of Public Prosecutions
[1971] AC 537); see also Isaac Paul Ratnam v Law Society of Singapore [1976] 1 MLJ 195, PC per Lord
Simon of Glaisdale which involved abetment by instigation by way of communication by letter sent to Kuala
Lumpur from Singapore. The instigation was said to be committed at the moment the letter was handed over
by the abettor to the person who was to deliver the same to the person abetted, thus circumventing the issue
of jurisdiction in Singapore.
At the same time a mere acquiescence or permission, does not amount to instigation; Public Prosecutor v
Lim Tee Hian [1992] 1 SLR 45 (mere acquiescence or silence is not sufficient; the prosecution must show
that there was active suggestion, support, stimulation or encouragement). Nor can deliberate absence from
the scene of the offence amount to instigation; see Etim Ali Majumdar [1900] 4 CWN 500.
In Public Prosecutor v Datuk Haji Harun Haji Idris [1977] 1 MLJ 180 at 196 , per Abdoolcader J: 'Instigation
consist 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'.
In Public Prosecutor v Datuk Tan Cheng Swee & Ors [1979] 1 MLJ 166 at 171, FC, per Ajaib Singh J, the
court said: 'Abetment by instigation means that the abettor actively suggests or stimulates the commission of
the principal offence. An advice can amount to instigation if it is intended to actively suggest or stimulate the
principal offence. The abettor also must necessarily know all the facts which constitute the offence.
Instigation by wilful misrepresentation is well illustrated under Explanation 1 of section 107. Instigation by
wilful concealment of a material fact occurs only where there is some duty imposed by law which a person is
obliged to disclose. It must involve a breach of duty imposed by law and not merely a breach of a
departmental rule of conduct or discipline'.
Para (aa). This paragraph was added to tackle the situation currently faced by the police with regard to the
mastermind who commands others to carry out criminal acts. The current position on abetment does not
cover those who instruct. In an organized crime scenario, it is difficult to connect the person who instructs to
the evidence of the crime committed. Thus, the proposed new provision seeks to make any person who
commands another to do a criminal act an abettor.
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See further 9(1) Halsbury's Laws of Malaysia CRIMINAL LAW (2012 Reissue) [230.061].
Para (b). The necessary ingredients of abetment by conspiracy are: (1) the abettor must engage with one or
more persons in a conspiracy; (2) the purpose of the conspiracy must be for carrying out the thing abetted;
(3) an act or illegal omission must occur pursuant to the conspiracy in furtherance of the object of that
conspiracy. See R v Chew Chong Jin [1956] 1 MLJ 185; Chai Chien Wei Kelvin v Public Prosecutor [1999] 1
SLR 25, CA (Sing); and Chandrasekaran v Public Prosecutor [1971] 1 MLJ 153 at 154, per Raja Azlan Shah
J, where the elements of the offence of conspiracy were described as follows: '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'. See also Datuk Tan Cheng Swee v Public
Prosecutor [1979] 1 MLJ 166 at 171, FC (under the second class of abetment by conspiracy there must be
evidence of some agreement to do some illegal act or effect a legal transaction by illegal means); Loo Weng
Fatt v Public Prosecutor [2001] 3 SLR 313 (the two requirements needed to support a charge for abetment
by conspiracy are that (1) there must have been an agreement to do the criminal act; and (2) some further
act was done pursuant to that agreement). See also Ratanlal and Dhirajlal's Law of Crimes Vol 1 (24th Edn,
1997) pp 401-404.
The fact that the principal offender was not convicted or charged is not a bar to a charge of abetting such
person: see Roy S Selvarajah v Public Prosecutor [1998] 3 SLR 517.
In relation to the mens rea of the abettor, it is not necessary that all co-conspirators should be equally
informed as to the detail of the conspiracy, they have to be aware of the general purposes of the plot and that
it is unlawful: Gan Bee Hua v Public Prosecutor (unreported, 16 April 1998; Magistrate's Appeal No 7/1998),
digested at 4 Mallal's Digest (4th Edn, 2000 Reissue) para 1779.

Conspiracy. This word is not defined in this section. See notes to s 120A post.
The difference between the offence of conspiracy under this section and criminal conspiracy under s 120A
post is that in s 120A post there is a mere combination of persons or agreement between them which is not
sufficient to constitute an offence. There must be something more as where an act or illegal omission must
take place in pursuance of the conspiracy and in order to doing the thing conspired for. Whereas, in para (c)
of this section, the conspiracy is established if there exists an agreement to commit an offence.
See NMMY Momin (1971) Cr LJ 793 at 796 where the Supreme Court of India held: 'Criminal conspiracy
postulates an agreement between two or more persons to do, or cause to be done, an illegal act or an act
which is not illegal, by illegal means. It differs from other offences in that mere agreement is made an offence
even if no step is taken to carry out that agreement. Though there is close association of conspiracy with
incitement and abetment the substantive offence of criminal conspiracy is somewhat wider in amplitude then
abetment by conspiracy as contemplated by the Indian Penal Code s 107. Abetment by conspiracy is
confined to conspiracies to commit an offence and requires some further act to be done pursuant to the
conspiracy'. See also Chua Kian Kok v Public Prosecutor [1999] 2 SLR 542 at 559 (court held that it must
also not be forgotten that unlike criminal conspiracy under s 120A post, abetment by conspiracy also requires
that an act is done in consequence of the abetment and this requirement is founded on s 109); Sim Cheng
Hui v Public Prosecutor [1998] 2 SLR 302, CA (Sing) (in order to establish abetment by conspiracy, the
prosecution must show that there was the existence of a conspiracy to do an illegal act, with the result that
the illegal act which was the object of the conspiracy was actually carried out); Gan Bee Hua v Public
Prosecutor (unreported, 16 April 1998; Magistrate's Appeal No 7 of 1998) , 4 Mallal's Digest (4th Edn, 2005
Reissue) para 2158.
Despite the distinction between criminal conspiracy and abetment by conspiracy, it has been stated that,
unlike the offences of abetment by instigation or intentional aiding, abetment by conspiracy is in substance
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more closely related to the concept of 'criminal conspiracy' than the traditional English notion of 'aiding and
abetting': see Er Joo Nguang v Public Prosecutor [2000] 2 SLR 645.
In Public Prosecutor v Datuk Haji Harun Haji Idris [1977] 1 MLJ 180 at 196 per Abdoolcader J, the court said:
'Abetment by conspiracy consists in the combination and agreement of persons to do some illegal act of to
effect some illegal purpose by illegal means'.
For the offence of abetment by conspiracy under sub-s (b) to be made out, there is no requirement in law
that the alleged conspirators should remain in each other's company throughout or at all. There need not be
communication between each conspirator and every other, provided that there is a design common to each
of them. It is essential that there is knowledge of this common design, though it is not necessary that all the
conspirators should be equally well informed as to the details: see Ang Ser Kuang v Public Prosecutor [1998]
3 SLR 909; Public Prosecutor v Yeo Choon Poh [1994] 2 SLR 867, CCA (Sing); Lee Yuen Hong v Public
Prosecutor [2000] 2 SLR 339 (the essence of conspiracy is agreement). Proof of criminal conspiracy is
generally a matter of inference; an inference of conspiracy would be justified only if it was inexorable and
irresistible, and accounted for all the facts of the case: see Er Joo Nguang v Public Prosecutor [2000] 2 SLR
645.
See further 9(1) Halsbury's Laws of Malaysia CRIMINAL LAW (2012 Reissue) [230.060].
If an act. There is no requirement for the principal offender to carry out the full offence and neither is it
relevant that the principal offender was convicted of a different offence from that which the accused was
charged with abetting. All that is required is that the abettor conspired with the principal offender and that an
act was done in consequence of it: see Chua Kian Kok v Public Prosecutor [1999] 2 SLR 542 (when an
accused is charged for abetting an offence, it is irrelevant that, after he had done the act in consequence of
the abetment, the principal offender the act in consequence of the abetment, the principal offender (ie the
abettee) in actual fact failed to carry out the offence); and see Er Joo Nguang v Public Prosecutor [2000] 2
SLR 645 (as a matter of law, it was not necessary for a principal offender to exist before someone could be
charged sub-s (b) with abetment by conspiracy as long as two accused persons agreed that they wanted to
effect a substantive offence, and as long as one of them committed an act in pursuance of that conspiracy,
there was no reason why they could not both be charged for abetting each other by conspiracy to commit
that substantive offence; also an abettor can be convicted of abetting a substantive offence even though the
substantive offence that he abetted did not take place).
See eg R v Salim bin Ja'amat [1938] 1 MLJ 210, where there was abetment by conspiracy to commit an
illegal act where the accused who was eligible to own a parcel of customary land conspired with a money
lender to buy that land with money provided for and as agent for that money lender. The accused (with aid
and abetment by the money lender) was also held to have supplied false information to the Collector under
the relevant legislation. There was thus an agreement to do an illegal act amounting to criminal conspiracy at
common law as well as abetment by conspiracy under s 107.
In Public Prosecutor v Datuk Tan Cheng Swee & Ors [1979] 1 MLJ 166 at 171, FC per Ajaib Singh J: 'Under
the second class of abetment by conspiracy there must be evidence of some agreement to do some illegal
act or effect a legal transaction by illegal means'.

Illegal omission. For Omission, see note to s 32 ante. Where abetment is by omission, the omission must
be illegal: see Chuan Keat Chan Ltd v Public Prosecutor [1972] 2 MLJ 57. In a case of abetment by illegal
omission, the accused must intentionally aid the commission of an act by not doing it. An illegal omission can
involve a breach of a legal obligation: see Latifkhan AIR (1895) 20 Bom 394, HC (Bom), where it was held
that a police officer is legally bound to inter alia to arrest persons committing assaults which are likely to
cause grievous bodily hurt, an omission to perform this obligation (duty) would result in an abetment by
omission.
Para (c). See Datuk Tan Cheng Swee v Public Prosecutor [1979] 1 MLJ 166 at 171, FC, where the court
said: 'under the third class of abetment by intentional aid there must be evidence to show that by some act
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done by the abettor he had intended to aid or facilitate the commission of the principal offence'. See also
Ratanlal and Dhirajlal's Law of Crimes Vol 1 (24th Edn, 1997) pp 404-406.
Intentionally. See note Intention to s 24 ante.
The mens rea for an abettor charged with abetment by intentional aid involves the abettor assisting either by
an act or omission or facilitating the doing of a thing towards the commission of an offence or the offence
itself: see Datuk Tan Cheng Swee v Public Prosecutor [1979] 1 MLJ 166 at 171, FC per Ajaib J (under the
third class of abetment by intentional aid there must be evidence to show that by some act done by the
abettor he had intended to aid or facilitate the commission of the principal offence). See also Nomura Taiji v
Public Prosecutor[1998] 2 SLR 173; Chiaw Wai Onn v Public Prosecutor [1997] 3 SLR 445 (appellant's
explanation for presence at every stage of the criminal enterprise incredulous; his presence at all relevant
stages of the theft indicated participation; it could be inferred that he had guilty knowledge and was simply
being wilfully blind by shutting his eyes to the obvious); and see eg Jimina Jacee d/o C D Athananasius v
Public Prosecutor [2000] 1 SLR 205. As to a case where it was necessary to determine the dominant
intention of whom the abettor intended to aid see Daw Aye Aye Mu v Public Prosecutor [1998] 2 SLR 64.
Aids. Under sub-s (c), the act of aiding need not be confined only to an act carried out or executed at the
time of the commission of the principal act (ie the offence which is abetted). The act of aiding may take place
before the principal act so long as it was carried out or executed in order to facilitate the commission of the
principal act and thereby facilitate the commission of that principal act (offence): see Tan Siew Chay v Public
Prosecutor [1993] 2 SLR 14, CCA (Sing); Nomura Taiji v Public Prosecutor [1998] 2 SLR 173. Thus, the
actus reus of intentional aid consists of either doing an act or illegally omitting to do it to assist the
commission of the offence and includes the facilitating the commission of an act either before or at the time
of commission. It is not necessary that the act abetted should be committed, or that the effect requisite to
constitute the offence should be caused: see s 107 Explanation 2; and see Kong See Chew v Public
Prosecutor [2001] 3 SLR 94.
Wilful/wilfully. For a detailed discussion of this term see further 9(1) Halsbury's Laws of Malaysia CRIMINAL
LAW (2007 Reissue) (Revised Title Scheme) [230.019]. Generally, 'wilfully' usually means, deliberately and
intentionally and not accidentally: R v Senior [1899] 1 QB 283 at 290, CCR; R v Ryan (1914) 10 Cr App Rep
4, CCA (Eng); and see Ng Chwee Poh v Public Prosecutor [1977] 2 MLJ 230 at 237, [1975-1977] SLR 603 at
616 per FA Chua J. See also Pendakwa Raya v Tan Sri Muhammad bin Muhammad Taib [1999] 2 MLJ 305;
Manager, Fook Heng Rubber Works v Public Prosecutor [1955] 1 MLJ 181. In some statutes the use of
'wilfully' may not always imply knowledge as to all the elements of the offence: see eg Cotteril v Penn [1936]
1 KB 53, DC; R v Sheppard [1981] AC 394, [1980] 3 All ER 899, HL.
Causes. See note Causes to s 24 ante.
Explanation 3. This explanation is added to provide a new explanation and illustration relating to a person
who masterminds an offence.

108 Abettor
A person abets an offence who abets either the commission of an offence, or the commission of an act which
would be an offence, if committed by a person capable by law of committing an offence with the same
intention or knowledge as that of the abettor.

Explanation 1 The abetment of the illegal omission of an act may amount to an offence, although the abettor may not
himself be bound to do that act.

Explanation 2 To constitute the offence of abetment, it is not necessary that the act abetted should be committed, or
that the effect requisite to constitute the offence should be caused.

ILLUSTRATIONS
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1a) A instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit

murder.

1b) A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers from

the wound. A is guilty of instigating B to commit murder.

Explanation 3 It is not necessary that the person abetted should be capable by law of committing an offence, or that he
should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.

ILLUSTRATIONS

2a) A, with a guilty intention, abets a child or a lunatic to commit an act which would be an
offence if committed by a person capable by law of committing an offence, and having the same
intention as A. Here A, whether the act is committed or not, is guilty of abetting an offence.

2b) A, with the intention of murdering Z, instigates B, a child under seven years of age, to
do an act which causes Z's death. B, in consequence of the abetment, does the act, and thereby
causes Z's death. Here, though B was not capable by law of committing an offence, A is liable to be
punished in the same manner as if B had been capable by law of committing an offence and had
committed murder, and he is therefore subject to the punishment of death.

1c) A instigates B to set fire to a dwelling-house. B, in consequence of the unsoundness of

his mind, being incapable of knowing the nature of the act, or that he is doing what is wrong or
contrary to law, sets fire to the house in consequence of A's instigation. B has committed no offence,
but A is guilty of abetting the offence of setting fire to a dwelling-house, and is liable to the punishment
provided for that offence.

1d) A, intending to cause a theft to be committed, instigates B to take property belonging

to Z out of Z's possession. A induces B to believe that the property belongs to A. B takes the property
out of Z's possession, in good faith believing it to be A's property. B, acting under this misconception,
does not take dishonestly, and therefore does not commit theft. But A is guilty of abetting theft, and is
liable to the same punishment as if B had committed theft.

Explanation 4 The abetment of an offence being an offence, the abetment of such an abetment is also an offence.

ILLUSTRATION

A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z, and C commits that offence in
consequence of B's instigation. B is liable to be punished for his offence with the punishment for murder; and as A
instigated B to commit the offence A is also liable to the same punishment.

Explanation 5 It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should
concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which
the offence is committed.

ILLUSTRATION
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A concerts with B a plan for poisoning Z. It is agreed that A shall administer the poison. B then explains the plan to C,
mentioning that a third person is to administer the poison, but without mentioning A's name. C agrees to procure the
poison, and procures and delivers it to B for the purpose of its being used in the manner explained. A administers the
poison; Z dies in consequence. Here, though A and C have not conspired together, yet C has been engaged in the
conspiracy in pursuance of which Z has been murdered. C has therefore committed the offence defined in this section,
and is liable to the punishment for murder.

General note. See further 9(1) Halsbury's Laws of Malaysia CRIMINAL LAW (2012 Reissue) [230.062]. See
also Public Prosecutor v Mirza Khan [1947] 1 MLJ 49 as to the scope of this section and s 109 post.
Abets. As to the offence of abetment, see s 107 ante and note thereto.

Person. As to the meaning, see s 11 ante and note thereto.

Offence. For definition, see s 40 ante and note thereto.

Commission. See note to s 38 ante.

Intending. See note Intention to s 24 ante.
Causes. See note Causes to s 24 ante.
Explanation 5. See Ang Ser Kuang v Public Prosecutor [1998] 3 SLR 909.

108A Abetment in Malaysia of offences outside Malaysia

A person abets an offence within the meaning of this Code who, in Malaysia, abets the commission of any
act without and beyond Malaysia which would constitute an offence if committed in Malaysia.

ILLUSTRATION

A, in Malaysia, instigates B, a foreigner in Java, to commit murder in Java. A is guilty of abetting murder.

General note. This section provides that a person could be held guilty for abetting any offence by abetting
anyone outside the jurisdiction of Malaysia, which would constitute an offence as if it were committed in
Malaysia. See further 9(1) Halsbury's Laws of Malaysia CRIMINAL LAW (2012 Reissue) [230.063]. See also
Isaac Paul Ratnam v Law Society of Singapore [1976] 1 MLJ 195, [1975-1977] SLR 39, PC (Sing). Further
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see Public Prosecutor v Abdul Rashid bin Mohd [1993] 3 SLR 794 where the conspiracy was formed in
Malaysia but triable in Singapore and the court held that an act of abetment can be a continuing one and the
place where such act or actual offence takes place (in that instance in Singapore), is relevant to jurisdiction.

Abets. As to the offence of abetment, see s 107 ante and note thereto.

Person. As to the meaning, see s 11 ante and note thereto.

Offence. For definition, see s 40 ante and note thereto.

Commission. See note to s 38 ante.

109 Punishment of abetment if the act abetted is committed in consequence, and where no express
provision is made for its punishment
Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no
express provision is made by this Code for the punishment of such abetment, be punished with the
punishment provided for the offence.

Explanation An act or offence is said to be committed in consequence of abetment, when it is committed in

consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.

ILLUSTRATIONS

3a) A offers a bribe to B, a public servant, as a reward for showing A some favour in the
exercise of B's official functions. B accepts the bribe. A has abetted the offence defined in section 161.

3b) A instigates B to give false evidence. B, in consequence of the instigation, commits

that offence. A is guilty of abetting that offence, and is liable to the same punishment as B.

2c) A and B conspire to poison Z. A, in pursuance of the conspiracy, procures the poison
and delivers it to B, in order that he may administer it to Z. B, in pursuance of the conspiracy
administers the poison to Z in A's absence and thereby causes Z's death. Here B is guilty of murder. A
is guilty of abetting that offence by conspiracy, and is liable to the punishment for murder.

General note. This section provides for the same punishment for the abettor which may be inflicted upon the
principal offender provided, (1) if the act of the principal offender is committed in consequence of such
abetment; and (2) no express provision is made in the Code for the punishment of such an abetment. This
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simply means that if the Penal Code does not separately provide for the punishment of an abetment as such
then it is punishable provided for under the original offence.
See also Public Prosecutor v Mirza Khan [1947] 1 MLJ 49 as to the scope of this section and s 108 ante.
Section 109 and its explanation must be read as a whole in conjunction rather than in isolation: Loh Liang
Gun v Public Prosecutor [2007] 5 MLJ 159. Further see Chua Kian Kok v Public Prosecutor [1999] 2 SLR
542. See further 9(1) Halsbury's Laws of Malaysia CRIMINAL LAW (2012 Reissue) [230.064].

No express provision. This means that this section only applies to those cases of abetment which have no
express provision ready under the Code. Therefore it does not apply to offences of abetting the waging of
war against the state (ss 121, 121A, 121B, 121C, 121D, 122 and 123 post); abetting the escape of State
prisoners (s 130 ante); abetting mutiny (s 132 post); abetting an assault by a soldier, sailor or airman on his
superior (s 134 post); abetting insubordination by the same (s 138 post); and the abetment of public servants
under offences defined in ss 161 to 163 (s 164 post). See also illustrations to this section.

Abets. As to the offence of abetment, see s 107 ante and note thereto.

Person. As to the meaning, see s 11 ante and note thereto.

Offence. For definition, see s 40 ante and note thereto.

Punishment. As to the meaning, see note to s 57 ante.

Commission. See note to s 38 ante.

Causes. See note Causes to s 24 ante.

110 Punishment for abetment if the person abetted does not act with a different intention from that
of the abettor
Whoever abets the commission of an offence shall, if the person abetted does the act with a different
intention or knowledge from that of the abettor, be punished with the punishment provided for the offence
which would have been committed if the act had been done with the intention or knowledge of the abettor
and with no other.
 11

General note. This section provides that regardless of the fact that the person abetted commits an offence
with a different intention or knowledge from the abettor, the abettor will still be punished with the punishment
provided for the offence abetted. See further 9(1) Halsbury's Laws of Malaysia CRIMINAL LAW (2012 Reissue)
[230.064]
See s 108 Explanation 3 ante, which bears relation to this section. See also s 108 illustration (d) ante.
Under s 108 ante and this section it would appear that a person may be guilty of abetment although the
person abetted may not be capable by law of committing the offence or he does not have the same guilty
intention or knowledge as that of the abettor.

Abets. As to the offence of abetment, see s 107 ante and note thereto.

Person. As to the meaning, see s 11 ante and note thereto.

Offence. For definition, see s 40 ante and note thereto.

Punishment. As to the meaning, see note to s 57 ante.

Commission. See note to s 38 ante.

111 Liability of abettor when one act is abetted and a different act is done.
When an act is abetted and a different act is done, the abettor is liable for the act done, in the same manner,
and to the same extent, as if he had directly abetted it:
Provided the act done was a probable consequence of the abetment, and was committed under the influence
of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment.

ILLUSTRATIONS

4a) A instigates a child to put poison into the food of Z, and gives him poison for that
purpose. The child, in consequence of the instigation, by mistake puts the poison into the food of Y,
which is by the side of that of Z. Here, if the child was acting under the influence of A's instigation, and
the act done was under the circumstances a probable consequence of the abetment, A is liable in the
same manner, and to the same extent, as if he had instigated the child to put the poison into the food
of Y.

4b) A instigates B to burn Z's house. B sets fire to the house, and at the same time
commits theft of property there. A, though guilty of abetting the burning of the house, is not guilty of
abetting the theft for the theft was a distinct act, and not a probable consequence of the burning.

3c) A, instigates B and C to break into an inhabited house at midnight for the purpose of
robbery, and provides them with arms for that purpose. B and C break into the house, and being
 12

resisted by Z, one of the inmates, murder Z. Here, if that murder was the probable consequence of the
abetment, A is liable to the punishment provided for murder.

General note. The aim of this section is to make the person who initiates an unlawful act by abetting another
person liable for the consequences of his conduct although it turns out to be different from what he has
designed or desired. This is based on the maxim that 'every man is presumed to intend the natural;
consequences of his act.' The main condition is that the act is abetted and it was a probable consequence of
the abetment.
Straight J in Mathura Das [1884] 6 Allahabad 491 at 494 observed that: 'If one man instigates another to
perpetrate a particular crime, and that other, in pursuance of such instigation, not only perpetrates that crime,
but, in the course of doing so, commits another crime in furtherance of it, the former is criminally responsible
as an abettor in respect of such last-mentioned crime, if it be one which, as a reasonable man, he must, at
the time of the instigation, have known would, in the ordinary course of things, probably have to be
committed in order to carry out the original crime. For example, if A says to B You waylay C on such and such
a road and rob him, and, if he resists, use this sword, but no more than is absolutely necessary: and B kills
C, A is responsible as an abettor of the killing, for it was a probable consequence of the instigation. To put is
in plain terms, the law virtually says to a man If you choose to run the risk of putting another motion to do an
unlawful act, he, for the time being, represents you as much as he does himself; and if, in order to effect the
accomplishment of that act, he does another which you may fairly from the circumstances be presumed to
have foreseen would be a probable consequence of your instigation, you are as much responsible for
abetting the latter act as the former. '
See further 9(1) Halsbury's Laws of Malaysia CRIMINAL LAW (2012 Reissue) [230.066]

Probable Consequence. This word is not defined in the Code. In Girja Prasad [1934] 57 Allahabad 717, it
states that a probable consequence of an act is one which is likely or which can reasonably be expected to
follow from such an act; an unexpected or unusual consequence cannot be described as a probable one.

As if he had directly abetted it. As to the offence of abetment, see s 107 ante and note thereto.

Instigation. See note to s 107 ante.

Conspiracy. See notes to ss 107 ante and 120A post.

Person. As to the meaning, see s 11 ante and note thereto.

 13

Offence. For definition, see s 40 ante and note thereto.

Commission. See note to s 38 ante.

112 Abettor, when liable to cumulative punishment for act abetted and for act done
If the act for which the abettor is liable under section 111 is committed in addition to the act abetted, and
constitutes a distinct offence, the abettor is liable to punishment for each of the offences.

ILLUSTRATION

A instigates B to resist by force a distress made by a public servant. B, in consequence, resists that distress. In offering
the resistance, B voluntarily causes grievous hurt to the officer executing the distress. As B has committed both the
offence of resisting the distress, and the offence of voluntarily causing grievous hurt, B is liable to punishment for both
these offences; and if A knew that B was likely voluntarily to cause grievous hurt in resisting the distress, A will also be
liable to punishment for each of the offences.

General note. This section provides that the abettor is punishable for the offences abetted as well as the
offence committed. See an illustration above. See further 9(1) Halsbury's Laws of Malaysia CRIMINAL LAW
(2012 Reissue) [230.066], [230.067]

Abets. As to the offence of abetment, see s 107 ante and note thereto.

Punishment. As to the meaning, see note to s 57 ante.

Offence. For definition, see s 40 ante and note thereto.

Causes. See note Causes to s 24 ante.

113 Liability of abettor for an offence caused by the act abetted different from that intended by the
abettor
When an act is abetted with the intention on the part of the abettor of causing a particular effect, and an act
for which the abettor is liable in consequence of the abetment causes a different effect from that intended by
the abettor, the abettor is liable for the effect caused, in the same manner, and to the same extent, as if he
 14

had abetted the act with the intention of causing that effect, provided he knew that the act abetted was likely
to cause that effect.

ILLUSTRATION

A instigates B to cause grievous hurt to Z, B, in consequence of the instigation, causes grievous hurt to Z. Z dies in
consequence. Here, if A knew that the grievous hurt abetted was likely to cause death, A is liable to be punished with
the punishment provided for murder.

General note. This section must be read together with s 111 ante as it provides for doing an act different
from the one abetted while this section deals with the case where the act done is the same as the act abetted
but the result or effect is different. Hence, to make the abettor liable, it must be shown that he knew that the
act abetted was likely to cause that effect. It can be done by showing that a reasonable man would infer that
the particular effect was likely to ensue from a particular act.
See further 9(1) Halsbury's Laws of Malaysia CRIMINAL LAW (2012 Reissue) [230.068]

In consequence of the abetment. As to the offence of abetment, see s 107 ante and note thereto.

Offence. For definition, see s 40 ante and note thereto.

Intended. See note Intention to s 24 ante.

114 Abettor present when offence committed

Whenever any person who, if absent, would be liable to be punished as an abettor, is present when the act
or offence for which he would be punishable in consequence of the abetment is committed, he shall be
deemed to have committed such act or offence.

General note. This section must be read together with the s 34 ante on 'Common Intention', that is
participation in crimes. Although Chapter V ante speaks about abetment of crime, this section makes it clear
that when the abettor is present during the commission of the crime abetted, the case shall fall within
category s 34 ante, one of common intention and participation. This means, when the abettor is present at
the commission of the crime he abetted, he is deemed to have actually committed the crime although he did
nothing active towards the actual execution of the crime except that he instigated or aided or conspired with
the principal perpetrator of the crime.
Hence, the abettor is punishable as a principal offender in that he will be charged not with abetment of the
offence but actual commission of the complete crime as the principal offender.
The main objective of this section is to provide in cases where the precise share of the individual criminals
involved in a group commission of a crime is uncertain or impossible to be ascertained.
 15

It should be noted that in s 34 ante, there can be situations where a criminal act is done by several persons
and each is liable as if it were done by himself alone. This is so where if two or more persons are present
aiding and abetting in the commission of a murder, each will be tried and convicted as a principal offender
although it might not be proved which of them actually committed the act.
However, the difference in this section is that it refers to cases where a person involved in the planning stage
of the abetment, renders him liable as an abettor even if he does not take active participation in the act, so
long as he is physically present when the act is committed. Hence, this section makes the mastermind of the
crime who only abetted the principal into doing the actual active crime liable as a principal offender if he is
present at the commission of the crime. He is deemed to have committed the crime by virtue of this section
and as a participant under s 34 ante and he could be punished for the complete crime and not merely
abetment of the crime.
In Barendra Kumar Ghosh v State [1924] 52 IA 40, where it involved the commission of a crime by several
criminals and resulted in the killing of a victim, the court referred to the Indian Penal Code ss 34 and 114 and
said: ' [s 114] is only brought into operation when circumstances amounting to the abetment of a particular
crime have first been proved, and then the presence of the accused at the commission of the crime is proved
in addition. Section 114 deals with the case, where there has been the crime of abetment, but where also
there has been actual commission of the crime abetted and the abettor has been present thereat, and the
way in which it deals with such a case is this. Instead of the crime being still abetment with the circumstances
of aggravation, the crime becomes the very crime abetted. The section is evidentiary and not punitory.
Because participation de facto (as this case shows) may be sometimes obscure in detail, it is established by
the presumption juris et de jure that actual presence plus prior abetment can mean nothing else but
participation. The presumption raised by s 114 brings the case within the ambit of s 34'.
In order to fall within this section, not only must the abettor be present during the commission of the crime
abetted but the abetment must have been completed prior to and independently of his presence. Hence, it is
not one which the abetment is done immediately before or at the time of the commission of the offence. See
Sital v Emperor [1935] 11 Luck 384; and State v Aiyappan Kuttan [1955] Cr LJ 1535.
Therefore, it is necessary first to make out the circumstances which constitute the abetment existed, so that if
absent, he would be liable to be punished as an abettor, and then to show that he was also present when the
offence was committed. Cases where the abettor takes active part during the commission of the actual crime
abetted, will fall under s 109 ante and not this section.
See further 9(1) Halsbury's Laws of Malaysia CRIMINAL LAW (2012 Reissue) [230.069]

Person. As to the meaning, see s 11 ante and note thereto.

Commission. See note to s 38 ante.

In consequence of the abetment. As to the offence of abetment, see s 107 ante and note thereto.

Offence. For definition, see s 40 ante and note thereto.

115 Abetment of an offence punishable with death or imprisonment for life

 16

Whoever abets the commission of an offence punishable with death or imprisonment for life or imprisonment
for a term which may extend to twenty years, shall, if that offence is not committed in consequence of the
abetment, and no express provision is made by this Code for the punishment of such abetment, be punished
with imprisonment for a term which may extend to seven years, and shall also be liable to fine; and if any act
for which the abettor is liable in consequence of the abetment and which causes hurt to any person, is done,
the abettor shall be liable to imprisonment for a term which may extend to fourteen years, and shall also be
liable to fine.

ILLUSTRATION

A instigates B to murder Z. The offence is not committed. If B had murdered Z, he would have been subject to the
punishment of death. Therefore, A is liable to imprisonment for a term which may extend to seven years, and also to a
fine; and if any hurt be done to Z in consequence of the abetment, he will be liable to imprisonment for a term which
may extend to fourteen years, and to fine.

General note. This section provides for the punishment of the mere act of abetting certain offences which is
punishable with death or imprisonment for life and where the acts are either not committed at all or not
committed in consequence of abetment or is only in part committed. See further 9(1) Halsbury's Laws of
Malaysia CRIMINAL LAW (2012 Reissue) [230.070]

Person. As to the meaning, see s 11 ante and note thereto.

Commission. See note to s 38 ante.

In consequence of the abetment. As to the offence of abetment, see s 107 ante and note thereto.

Imprisonment for life. For definition, see s 130A (b) post. As to the meaning of 'imprisonment', see note to s
57 ante.

Offence. For definition, see s 40 ante and note thereto.

Causes. See note Causes to s 24 ante.

116 Abetment of an offence punishable with imprisonment

 17

Whoever abets an offence punishable with imprisonment shall, if that offence is not committed in
consequence of the abetment, and no express provision is made by this Code for the punishment of such
abetment, be punished with imprisonment for a term which may extend to one-fourth part of the longest term
provided for that offence, or with such fine as is provided for that offence, or with both; and if the abettor or
the person abetted is a public servant, whose duty it is to prevent the commission of such offence, the
abettor shall be punished with imprisonment for a term which may extend to one-half of the longest term
provided for that offence, or with such fine as is provided for the offence, or with both.

ILLUSTRATIONS

5a) A offers a bribe to B, a public servant, as a reward for showing A some favour in the
exercise of B's official functions. B refuses to accept the bribe. A is punishable under this section.

5b) A instigates B to give false evidence. Here, if B does not give false evidence, A has
nevertheless committed the offence defined in this section, and is punishable accordingly.

4c) A, a police officer, whose duty it is to prevent robbery, abets the commission of
robbery. Here, though the robbery is not committed, A is liable to one-half of the longest term of
imprisonment provided for that offence, and also to fine.

2d) B abets the commission of a robbery by A, a police officer, whose duty it is to prevent
that offence. Here, though the robbery is not committed, B is liable to one-half of the longest term of
imprisonment provided for the offence of robbery, and also to fine.

General note. This section deals with the offence of abetment of an offence which is punishable with
imprisonment per se. Again, like s 115 ante, the act may not have been committed at all or not committed in
consequence of the abetment. The term of the prison sentence will be aggravated if the abetted person is a
public servant whose duty is to prevent the commission of such offence.
See illustrations (a), (b), (c) and (d) above.
See further 9(1) Halsbury's Laws of Malaysia CRIMINAL LAW (2012 Reissue) [230.071].

Person. As to the meaning, see s 11 ante and note thereto.

Commission. See note to s 38 ante.

Abets. As to the offence of abetment, see s 107 ante and note thereto.

Offence. For definition, see s 40 ante and note thereto.

 18

Public servant. As to the meaning, see s 21 ante and note thereto.

117 Abetting the commission of an offence by the public, or by more than ten persons
Whoever abets the commission of an offence by the public generally, or by any number or class of persons
exceeding ten, shall be punished with imprisonment for a term which may extend to three years, or with fine,
or with both.

ILLUSTRATION

A affixes in a public place a placard, instigation a sect consisting of more than ten members, to meet at a certain time
and place for the purpose of attacking the members of an adverse sect while engaged in a procession. A has
committed the offence defined in this section.

General note. This section simply provides for all offences and is a general provision in nature designed for
offences of abetment of more than ten people. The striking difference in this section is the number of persons
involved in the abetment. The abetted persons should be more than ten to fall under this section. However, if
more than ten people abetted are instigated to commit an offence which is punishable with death or life
imprisonment then it will fall under s 115 ante.
See further 9(1) Halsbury's Laws of Malaysia CRIMINAL LAW (2012 Reissue) [230.071].

Person. As to the meaning, see s 11 ante and note thereto.

Commission. See note to s 38 ante.

Abets. As to the offence of abetment, see s 107 ante and note thereto.

Offence. For definition, see s 40 ante and note thereto.

Public servant. As to the meaning, see s 21 ante and note thereto.

 19

118 Concealing a design to commit an offence punishable with death or imprisonment for life
Whoever, intending to facilitate, or knowing it to be likely that he will thereby facilitate, the commission of an
offence punishable with death or imprisonment for life or imprisonment for a term which may extend to twenty
years, voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence,
or makes any representation which he knows to be false respecting such design, shall, if that offence is
committed, be punished with imprisonment for a term which may extend to seven years, or if the offence is
not committed, with imprisonment for a term which may extend to three years, and, in either case, shall also
be liable to fine.

ILLUSTRATION

A, knowing that a gang-robbery is about to be committed at B, falsely informs the police that a gang-robbery is about to
be committed at C, a place in an opposite direction, and thereby misleads the police with intent to facilitate the
commission of the offence. The gang-robbery is committed at B in pursuance of the design. A is punishable under this
section.

General note. This section together with ss 119 and 120 ante contemplate concealment of a design by
persons other than an accused to commit an offence charged. Hence, the word 'whoever' here refers to
anyone having such knowledge over a certain design and was prepared to conceal it so as to facilitate or
knowing that by such concealment will likely to facilitate the commission of an offence punishable with death
or life imprisonment. The concealment to be criminal must be intentional or at least within their knowledge
that it will facilitate the commission of such offence. See illustration above.
See further 9(1) Halsbury's Laws of Malaysia CRIMINAL LAW (2012 Reissue) [230.073].

Person. As to the meaning, see s 11 ante and note thereto.

Commission. See note to s 38 ante.

Imprisonment for life. For definition, see s 130A (b) post. As to the meaning of 'imprisonment', see note to s
57 ante.

Offence. For definition, see s 40 ante and note thereto.

Intending. See note Intention to s 24 ante.

119 A public servant concealing a design to commit an offence which it is his duty to prevent
 20

Whoever, being a public servant, intending to facilitate, or knowing it to be likely that he will thereby facilitate,
the commission of an offence, the commission of which it is his duty as such public servant to prevent,
voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence, or
makes any representation which he knows to be false respecting such design, shall, if the offence is
committed, be punished with imprisonment for a term which may extend to one-half of the longest term
provided for the offence, or with such fine as is provided for the offence, or with both; or if the offence is
punishable with death or imprisonment for life or imprisonment for a term which may extend to twenty years,
with imprisonment for a term which may extend to ten years; or, if the offence is not committed, shall be
punished with imprisonment for a term which may extend to one-fourth part of the longest term provided for
the offence, or with such fine as is provided for the offence, or with both.

ILLUSTRATION

A, an officer of police, being legally bound to give information of all designs to commit robbery, which may come to his
knowledge, and knowing that B designs to commit robbery, omits to give such information, with intent to facilitate the
commission of that offence. Here A has by an illegal omission concealed the existence of B's design, and is liable to
punishment according to this section.

General note. This section is an extension of s 118 ante in that this section is reserved for public servants
who will face a severe penalty. Therefore, every omission on the part of a public servant to inform a design to
commit an offence which is his duty to prevent will be punishable under this section. See further 9(1)
Halsbury's Laws of Malaysia CRIMINAL LAW (2012 Reissue) [230.074].

Person. As to the meaning, see s 11 ante and note thereto.

Commission. See note to s 38 ante.

Offence. For definition, see s 40 ante and note thereto.

Public servant. As to the meaning, see s 21 ante and note thereto.

Intending. See note Intention to s 24 ante.

120 Concealing a design to commit an offence punishable with imprisonment

Whoever, intending to facilitate, or knowing it to be likely that he will thereby facilitate, the commission of an
offence punishable with imprisonment, voluntarily conceals, by any act or illegal omission, the existence of a
design to commit such offence, or makes any representation which he knows to be false respecting such
design, shall, if the offence is committed, be punished with imprisonment for a term which may extend to
 21

one-fourth, and if the offence is not committed, to one-eighth of the longest term provided for the offence, or
with such fine as is provided for the offence, or with both.

General note. While s 118 ante deals with offences punishable with death and life imprisonment, this section
deals with offences punishable with imprisonment only. See further 9(1) Halsbury's Laws of Malaysia
CRIMINAL LAW (2012 Reissue) [230.075].

Person. As to the meaning, see s 11 ante and note thereto.

Commission. See note to s 38 ante.

Offence. For definition, see s 40 ante and note thereto.

Intending. See note Intention to s 24 ante.