[2010] 4 MLJ A B C D E F G H I Low Kian Boon & Anor v Public Prosecutor (Heliliah FCJ) 473 And at p 70: … under the terms of that section (ie s 34 of the Penal Code) as has already been pointed out, there must exist a common intention to commit the crime actually committed, and it is not sufficient that there should be merely a common intention to ‘behave criminally’. It was clear that the two appellants had set out to commit robbery. Regarding the murder, however, evidence was inconclusive as to who had carried the knife or inflicted the fatal wound. Applying the test enunciated by Huggard CJ, the court held that there must be evidence that there was a common intention between the robbers not merely to commit robbery but also, if necessary, to kill the deceased. Since there was no evidence of any express agreement between the appellants that a knife should be carried or that the victim should be stabbed, the court convicted them only of robbery and acquitted them of murder. The fallacy in this kind of reasoning was demonstrated by Lord Sumner in Barendra Kumar Ghosh v Emperor, the leading Indian authority. The facts were that the appellant, together with a few others, had gone to a Post Office in Bengal to demand money from the sub-postmaster. All of them fired at the sub-postmaster with their pistols. He was hit in two places and died almost instantly. The appellant was arrested after the others fled. The trial judge directed the jury that the appellant might be the man who fired the fatal shot and that if the jury were satisfied that the sub-postmaster had been killed in furtherance of the common intention of all, the appellant was guilty of murder whether he fired the fatal shot or not. The appellant was convicted of murder by the jury. Lord Sumner said at pp 5–6 and 9 of the report: The appellant’s argument is, in brief, that in s 34, ‘a criminal act’, in so far as murder is concerned, means an act which takes life criminally within s 302, because the section concludes by saying ‘is liable for that act in the same manner as if the act were done by himself alone’, and there is no act done by himself alone, which could make a man liable to be punished as a murderer, except an act done by himself and fatal to his victim. Thus the effect is that, where each of several persons does something criminal, all acting in furtherance of a common intention, each is punishable for what he has done as if he had done it by himself. Such a proposition was not worth enacting, for, if a man has done something criminal in itself, he must be punishable for it, and none the less so that others were doing other criminal acts of their own at the same time and in furtherance of an intention common at all. It follows from the appellant’s argument that the section only applies to cases where several persons (acting in furtherance of a common intention) do some fatal act, which one could do by himself. Criminal action, which takes the form of acts by several persons, in their united effect producing one result, must then be caught under some other section and, except in the case of unlawful assembly, is caught under attempts or abetment. By the way of illustration it may be noted that, in effect, this means, that if three assailants simultaneously fire at their victim and lodge three bullets in his brain, all may be murderers, but, if one bullet only grazes his ear, one of them is not