Monday, August 13, 2018


Sesambil menunggu penerbangan dan perjalanan sejauh 500km di awal pagi semalam, saya merujuk sedikit kepada jurnal kes melibatkan jenayah yang berkaitan dengan persoalan bicara jenayah yang ditanya pembaca kami. Tentang niat bersama. 

Apa itu common intention atau niat bersama di dalam tindakan jenayah yang membolehkan pelaku dipertuduhkan dan disabitkan dengan kesalahan sama dengan pelaku.

Perkara ini pernah kami tuliskan sebelum ini dan boleh cari di sini atau google melalui blog khusus kami di

Untuk bagi kemudahan, kami terus rujuk apa kepada kes bagi kefahaman mudah sahaja. Ini adalah asas. Bahagian huraian dan isu pertikaian serta isu teknikaliti perundangan tidak perlu kami tampal di sini bagi mengelakkan kekeliruan pembaca.

Kita rujuk kepada kes:
HAKIM : Raus Sharif PCA, Ahmad Maarop, Zainun Ali, A Samah Nordin, Ramly Ali FCJJ

[46] The central issues in this appeal revolve around s 34 of the Penal Code which provides as follows:

“Each of several persons liable for an act done by all, in like manner as if done by him alone. 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.”

[47] It is helpful to analyse s 34 in terms of these elements:
(i) a criminal act;
(ii) participation in doing of the act;
(iii) a common intention between the parties; and
(iv) the act must be done in furtherance of the common intention.

[48] At this juncture, it is convenient first to address the generally accepted principles on the operation of s 34. The position in respect of these elements is fairly uncontroversial, and the relevant principles gleaned from the authorities in Malaysia, Singapore and India can be briefly dealt with.

[49] It is widely acknowledged that s 34 is a rule of evidence which embodies the common sense principle that if two or more persons intentionally do a thing jointly, it is just the same as if each of them had done it individually (Krishna Rao Gurumurthi v. PP & Another Appeal [2009] 1 MLRA 23). Farose Tamure Mohamad Khan
v. PP & Other Appeals [2016] 6 MLRA 

[50] If it is shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of all, liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone (Mahbub Shah v. Emperor [1945] 2 MLJ 144).

[51] The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. (Hari Ram v. State of Uttar Pradesh [2004] 8 SCC 146). In those circumstances, the law makes no distinction between them or between the parts played by them in doing the criminal act (Bashir v. State [1953] AIR All 668).

[52] Presence is not necessary to constitute participation in every case. It is sufficient for the accused to have done an act with some nexus to the offence (Sabarudin Non v. PP & Other Appeals [2004] 2 MLRA 441 and Manikumar Sinnapan & Ors v. PP [2016] 2 MLRA 1).

[53] Common intention, distinguished from the same or similar intention, requires proof that the criminal act was done in pursuance of a pre-arranged plan (Mahbub Shah (supra)). Such pre-planning may develop on the spot or in the course of commission of an offence, the crucial test being the plan must precede the commission of the offence (Namasiyiam Doraisamy v. PP & Other Cases [1987] 1 MLRA 73).

[54] A common intention may be often be difficult to prove by way of direct evidence in practice, but it can be inferred from the circumstances of the case and the conduct of the accused (Dato’ Mokhtar Hashim & Anor v. PP [1983] 1 MLRA 7).

[55] As stated earlier, the above are the generally accepted principles on the operation of s 34. The main issue argued before us in the present appeals relates to the interpretation of the phrase “in furtherance of the common intention of all” where the offence charged is not exactly the same as the offence commonly intended. It was submitted that there was no common intention of all the accused persons to murder the deceased. The common intention was only to inflict injury to the deceased. In this respect, we were invited to adopt the approach taken by the Singapore Court of Appeal (the apex court of Singapore) in Daniel Vijay Katherasan & Ors v. PP [2010] SGCA 33 and Muhammad Kadar & Another v. PP [2011] SGCA 32 with regard to the issue of ommon intention under s 34 of the Penal Code.

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