[2010] 4 MLJ A B C Low Kian Boon & Anor v Public Prosecutor (Heliliah FCJ) 471 whether the HC judge could draw inferences from matters which, materially, are his very own conjectures. Our responses to both questions are in the negative. [65] The COA has expressed views on the application of s 34 of the Penal Code. In addition to the decision in Tan Hung Thiam & Anor v Public Prosecutor [1991] 2 MLJ 137, it is beneficial for the purposes of this appeal to mention Shaiful Edham bin Adam & Anor v Public Prosecutor [1999] 2 SLR 57. The analysis undertaken of the various words namely, ‘act’, ‘in furtherance of the common intention of all’, ‘done by several persons’ demonstrate the relevance of detailing the judgment with greater particularisation. The following passages are worthy of mention (per Yong Pung How CJ): The common intention point — the law D E F G H I Section 34 of the Penal Code (Cap 224) (‘the Penal Code’) which embodies the principle of joint liability in the doing of a criminal act, the essence of that liability being the existence of a common intention, reads as follows: When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone. It is not without significance that the original draft of the Indian Penal Code did not contain the phrase ‘in furtherance of the common intention of all’. The words were inserted by s 1 of Act xxvii of 1870 (India). When the Indian Penal Code was introduced into the Straits Settlements in 1872 and the Federated and Unfederated Malay States, the section as amended was also received. Section 33 states that the word ‘act’ denotes a series of acts as well as a single act; and the word ‘omission’ denotes a series of omissions as well as a single omission. It follows that the words in s 34 ‘when a criminal act is done by several persons’ may be construed to mean ‘when criminal acts are done by several persons’. Thus, where different acts in a criminal enterprise are committed by different participants, such participants may still be regarded as having done ‘a criminal act’ for the purposes of liability under s 34. The raison d’etre, as it were, of s 34 was to meet the situation where it may be difficult, if not impossible, to distinguish between the acts of each individual member of a party or to prove precisely what part was played by each of them. Section 34 operates to impute liability to a participant whose participation contributed to the result, though he cannot be proved to have committed the actus reus himself. This was recognised by Lord Sumner in the Privy Council decision in Barendra Kumar Ghosh v Emperor AIR 1925 PC 1 at p 5: The doing to death of one person at the hands of several by blows or stabs, under circumstances in which it can never be known which blow or blade actually extinguished life, if indeed one only produced that result is common in criminal experience and the impossibility of doing justice, if the crime in such cases is the crime of attempted murder only, has been generally felt. It is not often that a case

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