[2010] 4 MLJ
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Low Kian Boon & Anor v Public Prosecutor
(Heliliah FCJ)
477
One of the arguments advanced on behalf of the second appellant was that s 34
could only be applied if the common intention of the accused was to commit the
offence with which they were charged. In other words, the second appellant could
not be found guilty of an offence under s 302 of the Penal Code unless the
common intention of the appellants was to cause the death of the deceased, or was
such other intention as is mentioned in s 300 of the Code. The court had no
difficulty in rejecting this argument and held that s 34 had been properly applied
vis-à-vis the second appellant. In Neoh Bean Chye, the first appellant knew that the
second appellant had a loaded revolver and that it would be used, if necessary,
during the course of the robbery. He himself had loaded the gun and handed it to
the second appellant who shot the deceased when he offered resistance during the
robbery. The first appellant’s conviction for murder under s 302 read with s 34 of
the Penal Code was upheld by the court.
On this view, all that it is necessary for the prosecution to prove is that there was
in existence a common intention between all the persons involved to commit a
criminal act and that the act which constituted the offence charged (the ‘criminal
act’ referred to in s 34 of the Penal Code) was committed in furtherance of that
criminal act. The rider to this is that the participants must have some knowledge
that an act may be committed which is consistent with or would be in furtherance
of, the common intention. Support for this approach may be found in the words
of Desai J in Bashir v State of Allahabad AIR 1953 All 668 at p 672:
These words (‘in furtherance of the common intention’) were added by the
Legislature in 1870 and must have been added for a purpose. That purpose
could be none other than to make persons, acting in concert, liable for an act,
which is not exactly the act intended by them, but has been done in furtherance
of their common intention. The words would not have been required at all if the
common intention implied an intention to do the very criminal act done.
It will be recalled that Lord Sumner had made the same point in Barendra Kumar
Ghosh. Applying this test to Neoh Bean Chye, the offence for which the appellants
were ultimately charged murder was done in furtherance of their common
intention to commit a criminal act (robbery); they also knew that the victim might
be shot if he offered any resistance. They were clearly guilty of an offence under s
302 read with s 34 of the Penal Code.
A note of caution must be sounded before we move on the second element of s 34.
Common intention means a prior meeting of the minds and must be distinguished
from same or similar intention. In Mahbub Shah, the appellant and one Wali Shah
were out shooting game when they heard shouts for help from one Ghulam
Quasim Shah who was being attacked by the deceased, Alla Dad. (Ghulam had
tried to get back from Alla Dad the reeds which the latter had unlawfully taken
from the lands of Ghulam’s uncle). Wali Shah in trying to rescue Ghulam shot and
killed Alla Dad while the appellant injured one Hamidullah Khan. Both the
appellant and Wali Shah were convicted under s 302 read with s 34. The Privy
Council in allowing the appeal, said that while the appellant and Wali Shah had
the same or similar intention to rescue Ghulam by using their guns if necessary,
there was no evidence that the killing of Alla Dad was in furtherance of a common
intention. Sir Madhavan Nair said at p 121 of the report:
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