INTRODUCTION

COMMON INTENTION

- Section 34 deals with joint liability.

- It is when a criminal act is done by several persons and the court has to determine
the liability of each member for the crime committed by the entire group or by any of
the members thereof.
- In this case, the court usually inferred that a crime committed by a group of
persons is like a crime done by him alone.
- The Penal Code contains few provisions laying down principles of joint and
constructive liabilities. Among the provisions are section 34 to section 38.
- S 34 presents constantly recurring problems in interpretation.
- S 34 operates as a mere statement of explanation to be attached to any section,
which deals with criminal offence.
- It comes under the part entitled “General Explanations” to the penal code.
- S 34 is only a rule of evidence.
- The necessary conditions of joint liability under S 34 are common intention to commit
a criminal act and participated by the accused in doing the act or acts in furtherance
of the common intention.
- If these ingredients are established, all the accused would be liable for the said
offences, be it murder, robbery, grievous hurt etc.

1. CRIMINAL ACT
- For the applicability of S 34, it is essential that the criminal act is done by several
persons. Criminal act includes a series of acts or omissions. Obviously, one act
cannot be done by several persons. If several persons did an act, they must do
several acts even though they maybe of the same nature and effect.
- The term, criminal act within S 34 must be done by several persons. Lord Summer
said;5
“In other words, a criminal act means that unity of criminal behavior which results in
something, for which an individual would be punishable, if it were done by him alone”.

2. COMMON INTENTION
- Another important requirement under S 34 is that all the persons who are thought to
be made liable must have formed common intention.
- No particular kind of common intention is required.
- The common intention maybe to do certain acts regardless of the end and the
means.
- It maybe on the other hand, to achieve certain acts and regardless of the
means or it may be to do acts with certain means regardless of the end.
- Common intention can be understood as community of purpose, or common design
or common intent.
 - In addition it is necessary that the intention of each one of them to be known to the
rest of them and shared by them. Common intention can also be formed in a moment
before doing the criminal act.
- A very important question that arises with respect of common intention is whether
under S 34 it is necessary before affixing liability, to find that the common
intention must be to commit the crime actually committed. There are two views
regarding this matter.

1ST VIEW
Criminal act identical with “crime actually committed”

2nd VIEW
Criminal act distinguished from “crime actually committed”
1st View
- This view postulated that common intention that has to be proven is the common
intention to commit the crime that is actually complained of.
- In other words, for a person to be liable under S 34, it must be proven that he
has the same intention with the accomplice who actually committed the
murder.
- For example, it must be proven that A had the same intention of committing murder
with his accomplice who actually committed the murder.
- If that is proven then A is liable under S 34 for murder.
- If not, he is not liable even though the murder was committed in order to accomplish
some other objective or purpose shared in common.- Two appellants were charged
of committing robbery and murder in the course of robbery. However, it was not
known who carried a knife or who caused the fatal wound. They were convicted on
both charges. The case went to appeal.
- On appeal the appellant argued that the judge failed to inform the jury that they must
be satisfied with the identity of the robbers and to satisfy with the evidence that there
was a common intention to kill.
- If not the jury could not convict either of the appellant of murder.
- The Court of Appeal quashed murder conviction but conviction of robbery stands.
- The issue before the court was whether both the robbers should be convicted of
murder under S 302 read with S 34. The court held that the requirement of S 34 “ is
there must exist a common intention to commit the crime actually committed and that
it is not sufficient that they should merely ‘behave criminally’ since there is no
evidence of any expressed agreement between the robbers that the victim
should be killed. The court could only convict them of robbery. Thus, it is clear that
common intention under S 34 referring to “the crime actually committed” is narrow.
2nd View
- On the other hand view B is not confined to mens rea or guilty mind, for the
constitution of the crime actually committed. It covers the common intention in a
wider sense even in a case where more than one person commits the crime
together but with different intention to commit particular crime.
- The view also postulated that there is nowhere mention in S 34 that all participants
committing the crime are necessarily guilty of the same offence. A common intention
(CI) within the meaning of S 34, must therefore be an intention to do a particular
act or bring about a particular result, not necessarily the act or result that
constitute the crime charged.
- This view widens the scope of common intention by including S 299 and 300.
- This means that even though the participator did not intend the consequences,
he is liable if he knew the likely consequences.
- Common intention is the intention or knowledge and is the ingredient of the offence.
Mimi Wong & Anor v PP
- In this case the first appellant, Mimi Wong and the second appellant, her husband
committed murder of a Japanese woman Mrs. Watanabe by stabbing her on the neck
and abdomen, which resulted in hemorrhage and death.
- In trial court, the first appellant was convicted of murder and sentenced to death
under S 302 read with S 34 of Penal Code.
- On appeal, she argued that the trial judge misdirected the meaning of the third limb
of S 300 and of S 34 of Penal Code because a person cannot be found guilty of
murder by application of the third limb of S 300 unless it is proven that the fatal injury
found to be present was the injury intended to be inflicted, and as the trial judge
merely found by inference that the first appellant inflicted the fatal injury with the
intention of causing bodily hurt.
- She also argued that S 34 of Penal Code could only be applied where the common
intention of the persons accused of an offence was to commit the offence with which
they are charged.
- In this case the appeal was dismissed.
- The court held that although the trial court had misdirected the law for convicting the
first appellant under third limb, however the other proven facts undoubtedly
supported the conviction and under circumstances, the proviso of S 4 of Supreme
Court of Judicature Act would be applied as against the first appellant.

For example, A and B share a common intention to injure C with a knife. A holds C while B
stab C in the heart. The stab wound in the heart is sufficient to cause death and therefore B
is guilty of murder. Applying S 34, B’s act of stabbing C is in furtherance of common
intention. As B’s act is carrying out their common intention and as their “criminal act” is
punishable under S 302, A is also liable of murder.
FURTHERANCE OF COMMON INTENTION
- According to the Privy Council, the furtherance of common intention means, there
must be a pre-arranged plan (something already planned to do) i.e. intention to do a
particular act which is common to all.
- Thus, when Ghulam Shah shouted and Mahboob Shah and Wali Shah came to
rescue him, there was no proof of a pre-arranged plan to kill the deceased.
- They may have similar intentions but they had no common intention.

COMMON INTENTION AND PRE-ARRANGED PLAN

PARTICIPATION AND MERE PRESENCE

- Lord Summer in Barendar Kumar Ghosh said regarding passive participation that
“crime serves also to whom only stand and wait”
- However, the question is in what circumstances a person would be liable under S 34
by only mere presence. Whitteon J in Chew Cheng Lye (1956) stated that if there is
a common intention to kill, mere presence would constitute participation. According to
learned judge mere presence is where one does not assist in anyway such as
keeping watch.

“COMMON INTENTION” AND CRIMES IMPUTING LAW

- If common intention is different from mens rea of the actual doer of the offence, then
S 34 could be read with offences of various types of mens rea.
Desai J said:
“ If the nature of offence depends on a particular intention or knowledge, the intention
or knowledge of the actual doer is to be taken into account. It will decide the nature of
the offence committed by him and others will be convicted of the same offence as they
cannot be convicted of the different offence.”
- “The intention of the actual doer must be distinguished from the common intention. If
the intention of the actual doer is not consistent with carrying out the common
intention, then the criminal act will not be in furtherance of the common intention.”—
PP v Nanda Kumar Govindasamy
- In this case, the first accused, Nanda Kumar (‘ the accused’) together with three
others were jointly charged for the murder of Sinniah Perianam (‘the deceased’);
punishable under S 302 of the Penal Code (‘the Code,).
- The charged was subsequently amended by the prosecution to culpable homicide
not amounting to murder in furtherance of the common intention of all and punishable
under S 304 of the Code.
- The three other accused pleaded guilty on the amended charge whereas the
accused claimed trial.
- At the trial, the case for the prosecution was that the accused with three other
accused and a person named Siva (still at large) had planned the robbery and the
killing of the deceased, the accused being the mastermind.
- The plan, as executed by all five, was for the accused to go to the front gate of the
deceased’s house and to lure the deceased out of his house and thereafter the other
four would do the actual robbing and killing.
- After the robbing and killing, the four would return to the accused’s house with the
loot to be divided among them.
- The important witnesses called by the prosecution were the son of the deceased, the
pathologist who performed the post-mortem, two of the accused, the investigating
officer, and the sister of the accused.
- The son of the deceased testified that he was on a holiday and that the deceased
was alone in the house at that time. He rushed home on being informed that his
father was murdered and found his house ransacked and some of his belonging
including his black briefcase (P8), a bank document bearing his credit card pin
number (P10) missing. The investigating officer gave evidence that he discovered P8
from the accused’s house and found P10 in a heap of rubbish in the compound of the
accused’s house. The sister of the accused testified that she found P8 in the
accused’s room and handed over the briefcase to the investigating officer.

Counci:
- for the accused submitted that the two accused were accomplice and that their
evidence required corroboration.
- On the requirement of S 34 of the Code, he argued that participation and presence
were the necessary ingredients, that there must be evidence that the accused was
present at the scene of the crime and participated in its commission.
- He further submitted that s 114(g) of the Evidence Act 1950 (‘the EA’) should be
invoked by the court as the prosecution had failed to call Siva as a witness.
- At the close of the case of the prosecution, after a maximum evaluation of the
prosecution’s evidence, the court was satisfied beyond reasonable doubt that the
prosecution had made a case against the accused.
- No doubt that the two were accomplices and their evidence requires corroboration,
there was sufficient corroborative evidence namely the evidence regarding the
discovery of P8 in the accused house and the discovery of P10 in the compound of
the accused’s house.
- The evidence of the two accused were accepted as between themselves they were
largely consistent in their testimony.
 - Moreover, they could recall the details regarding the instructions given by the
accused on the night in question; it was therefore extremely unlikely that all this were
mere fabrication.

To establish the common intention in S 34 of the Code,

1. presence at the scene of the crime is not necessary in every case.
- Common intention within the meaning of the section implies prearranged plan
and to convict an accused of an offence applying this section, it should be
proved that the criminal act was done pursuant to the prearranged plan.
- In the present, there was sufficient evidence that there was a pre-arranged
plan involving the accused.
- The court was satisfied that the injuries on the deceased including the stab
wounds were jointly inflicted by one of the accused and Siva and that the
injuries were inflicted with the intention of causing death consistent with the
prearranged plan.

Even assuming that the presence of the accused at the scene of the crime was necessary,
on the evidence the court was satisfied that the accused was present at the scene of the
crime and he even participated in the commission of the offence. The accused, as part of the
plan, did go to the gate of the deceased house to lure the deceased with the sole purpose of
facilitating the other four who were supposed to kill and rob the deceased, which they did.
Therefore the accused, Nanda Kumar was found guilty.

RELATIONSHIP BETWEEN S 34, S 35 AND S 38

COMMON OBJECT

Section 149 of the Penal Code states that:

“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.”

The common object under S 149 is controlled by S 141 of the Penal Code:
- When a crime is committed by the concerted action of a number of persons the
question may arise as to whether they should be liable under S 34 read with a
substantive offence or whether S 149 should apply. The line between S 34 and S 149
could be a thin one.

Distinction between S 149 & S 34

- S 149 : This section creates a specific offence and deals with the punishment of that
offence alone. (Barendra Kumar Ghosh, 1925; Francis, 1960.)
- S 34 : The section does not create an offence – the section comes under Chapter II,
General Explanation” of the Code. It has to be read with a specific offence.
- S 149: There must be a “common object” among the accused persons: “…though
their object is common to the intentions of several members, it may differ and indeed
may be similar only in respect that they are all unlawful”, (Barendra Kumar Ghosh,
1925.)
- S 34: “Common intention”; the leading feature is the element of participation in a
criminal act. (Barendra Kumar Ghosh, 1925)
1. S. 149: This section postulates an assembly of five or more persons having a
common object, via one of those named in S 141.
2. S 34: There must be at least two persons but need not be five.
3. S.149: Common objects need not necessarily be a criminal act (S 141 (d)).
4. S 34: Common intention must be to do a criminal act.
5. S 149: Liability of every member of an unlawful assembly is not limited to acts done
in prosecution of the common object of the assembly known to be likely to be
committed in prosecution of the common object (S 149).
6. S 34: Liability depends on participation in furtherance of a common intention.

Overlapping of S 34 & S 149

Despite the distinction noted above there is an overlap between the 2 sections. In Barendra
Kumar Ghosh (1925); the Privy Council observed that both sections deal with combinations
of persons, who become punishable as shares in an offence. Indeed, courts have
substituted S 34 and s 149.
FRANCIS v PP
- 9 persons; 4 appellants together with 5 others, assembled together with the common
object of causing hurt to one Kuda Baksh, his wife and the deceased.
- In carrying out their common object another person was killed by one or more
persons of the group of 9.
- The 9 were charged under S 149 and S 304 of the Penal Code.
- At the close of the case for the prosecution the trial judge was of the opinion that
there was no evidence against three of the accused and they were accordingly found
not guilty. Of the remaining 6, the jury found the 4 appellants “guilty of unlawful
assembly and manslaughter ”; another of the accused “not guilty of murder or
manslaughter but guilty of unlawful assembly” and the remainder not guilty of any
offence.
- The question before the court of Criminal Appeal was that since 4 persons could not
constitute an “unlawful assembly” under S 141(which requires at least 5 persons)
could they be guilty of “manslaughter” in pursuance of their common object; or could
S 34 be applied?

Thomson CJ held that;

- the term common intention used in S 34, may sometimes overlap with common
object used in S 149, and quoted Indian authorities to show that S 34 can be
substituted in proper case for s 149.
- Eventhough the number of convicted persons is less than 5, the court can still convict
under S 149 if the convicted persons together with unidentified persons make up the
number of 5 or more and therefore appeal is dismissed.
- The connection between S 34 and S149 was again in issue in the famous case of
Tan Kheng Ann v. PP. This case concerns the attack on Pulau Senang, the hitherto
model penal island of Singapore, by criminal detainees there. The appellants and 63
others were charged with being members of an unlawful assembly under s149 and
also for the murder of a number of persons and the destruction of property in the
island.
- The overlap between S 34 and S 149 was considered
- In that case, it was argued on appeal that section 34 and not section 149 should
have been used against the accused person.
- Thompson LP referred to the case of Francis and Ors, and repeated the observation
that common intention in section 34 and `common object’ in section 149 may overlap.
He stated:
“Here it was a case for the prosecution that the common object of the alleged unlawful
assembly and the common intention of its members were the same, that is to say, to kill
and to destroy, and in the circumstances it was open to the prosecution to proceed,
either by virtue of section 34 or by virtue of section 149. The consideration that in the
event they proceeded under the latter section cannot in itself be to have prejudiced the
accused in any way to vitiate the convictions.”
● So far no case has yet arisen in Singapore or West Malaysia as to whether section
149 can be substituted where an accused has been charged and convicted under a
substantive section read with section 34.