476
Malayan Law Journal
[2010] 4 MLJ
intention. In Wong Mimi’s case, Wee Chong Jin CJ who delivered the judgment of
the court explained the effect of s 34 of the Penal Code in the following terms at
pp 78–79:
There is no doubt that for this section 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. …
It is clear from the Privy Council’s (in Barendra Kumar Ghosh) interpretation of
the words ‘criminal act’ that it is the result of a criminal act which is a criminal
offence. It then remains, in any particular case, to find out the actual offence
constituted by the ‘criminal act’. If the nature of the offence depends on a
particular intention, the intention of the actual doer of the criminal act has to
be considered. What this intention is will decide the offence committed by him
and then s 34 applies to make the others vicariously or collectively liable for the
same offence. The intention that is an ingredient of the offence constituted by
the criminal act is the intention of the actual doer and must be distinguished
from the common intention of the doer and his confederates. It may be identical
with the common intention or it may not. Where it is not identical with the
common intention, it must nevertheless be consistent with the carrying out of
the common intention, otherwise the criminal act done by the actual doer would
not be in furtherance of the common intention. Thus if A and B form a
common intention to cause injury to C with a knife and A holds C while B stabs
C deliberately in the region of the heart and the stab wound is sufficient in the
ordinary course of nature to cause death, B is clearly guilty of murder. Applying
to s 34 it is also clear that B’s act in stabbing C is in furtherance of the common
intention to cause injury to C with a knife because B’s act is clearly consistent
with the carrying out of that common intention and as their ‘criminal act’, ie
that unity of criminal behaviour, resulted in the criminal offence of murder
punishable under s 302, A is also guilty of murder.
In Wong Mimi, the first appellant was convicted of the murder of one Mrs
Watanabe (whose husband she was having an affair with). The second appellant,
the first appellant’s husband, was also convicted of murder under s 302 read with
s 34 of the Penal Code. The facts were that when the first appellant went to the
deceased’s house, she brought with her a knife which she subsequently used to
inflict the fatal injury. So far as the part played by the second appellant was
concerned, the court accepted the findings of the trial judges (at p 77 of the
report):
… that the idea of throwing the detergent came from him; that he brought the
Glucolin tin containing the detergent; that he requested the first appellant to
lure the deceased to the bathroom on the pretext of inspecting the broken wash
basin; that he mixed water with the detergent; that he wrapped a towel round
the Glucolin tin to prevent leaving finger prints on it; that he threw the
detergent into the eyes of the deceased after he saw the first appellant had taken
a knife and was ready to stab the deceased and that he was clearly a party to the
stabbing of the deceased.
A
B
C
D
E
F
G
H
I
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