480 Malayan Law Journal [2010] 4 MLJ common intention should be inferred from the whole conduct of all the persons concerned and not only from an individual act actually done. As the criminal act done is not to be assumed to be in furtherance of the common intention it follows that the common intention is not to be inferred exclusively from the criminal act done. The criminal act done will certainly be one of the factors to be taken into consideration but should not be taken to be the sole factor. Besides proving that a certain criminal act was done, the prosecution has to prove the existence of common intention and that the criminal act was done in furtherance of it, these two are independent facts and one is not to be assumed or inferred exclusively from the other. … A B C Therefore all the facts and surrounding circumstances must be taken into consideration. (3) Participation in the criminal act Section 34 requires the criminal act to be ‘done by several persons’. There must be physical presence at the site of the actual commission of the offence in question coupled with actual participation, whether active or passive: Public Prosecutor v Gerardine Andrew [1998] 3 SLR 736 and Too Yin Sheong v Public Prosecutor [1999] 1 SLR 682. Regarding passive participation, the comment of Lord Sumner in Barendra Kumar Ghosh at p 6 of the report that ‘in crimes as in other things they also serve who only stand and wait’, albeit merely obiter, is noteworthy. In Om Prakash v State AIR 1956 All 241, it was held that presence on the spot for the purpose of facilitating or promoting the offence is itself tantamount to actual participation in the criminal act. The court cited as an example a person who is present at the spot as an eye-witness to the offence, this was to be contrasted with a person who is present as a confederate of the assailant. The former is not guilty because he is present merely to see the commission of the crime, whereas the latter is guilty because he is present for the purpose of seeing that the crime is committed. The following observations of Mookerjee J in Barendra Kumar Ghosh AIR 1924 Cal 257 were held relevant: It is the expectation of aid, in case it is necessary to the completion of the crime and the belief that his associate is near and ready to render it, which encourage and embolden the chief perpetrator, and incite him to accomplish the act. By the countenance and assistance which the accomplice thus renders, he participates in the commission of the offence. It is therefore sufficient to hold a party as principal, if it is made to appear that he acted with another in pursuance of a common design; that he operated at one and the same time for fulfilment of the same pre-concerted end, and was so situated as to be able to furnish aid to his associates with a view to insure success in the accomplishment of the common enterprise. D E F G H I

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