Seminar 21 Common Object

7/30/2019 Seminar 21 Common Object

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Common Object and Other Forms of

Constructive Liability

Rationale: the danger of numbers and the beliefin deterrence

Forms ofconstructive liability for offencesperpetrated by others (apart from s. 34):

Prosecution of the common object of an unlawfulassembly: s 149 of thePenal Code

Gang robbery with murder: s 396 of thePenal Code Use of arm by an accomplice: s 5 of theArms

Offences Act


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Requirements: s 141

combination of 5 or more persons; and

with the common object to do one of the thingslisted in s 141(a) to (e)

s 141(c) - to commit any offence


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Criminal liability of a member of unlawful

assembly

Being a member of an unlawful assembly is itself anoffence (ie primary liability): see s 143

A member could also be liable for an offencecommitted by another member of the unlawfulassembly (ie. constructive liability)

S. 149: If an offence is committed by any member of an

unlawful assembly in prosecution of the common object ofthat assembly, or such as the members of that assemblyknew to be likely to be committed in prosecution of thatobject


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Membership of an unlawful assembly

When is a person a member of the unlawfulassembly?

s 142 requirements: Whoever, being aware of facts which

render any assembly an unlawful assembly, intentionallyjoins that assembly, or continues in it

Osman bin Ramli v PP: physical presence alone may besufficient; no need for active participation in the commonobject

Ong Chin Seng v R: A could dissociate from the commonobject by withdrawing from the scene or through injury


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Lee Chez Kee

Lee Chez Kee s 149 first limb in prosecution of the common object requires

proof that D knew of the gangs common object

The expressions commonobject and commonintention mean

the same thing.

Cf. Barendra Kumar Ghosh

There is a difference between object and intention; for though their

object is common, the intentions of several members may differ and

indeed may be similar only in respect that they are all unlawful .


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Comparison between s 149 and s 34

S 149

5 or more persons

Object must be one of

those in s 141(a) to (e)

Membership of unlawful

assembly could comprise

physical presence alone

S 34

2 or more persons

Common intention can be

to do any criminal act

Participation is required


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(continued)

S 149

MR for the collateral

offence is in terms of

such as the membersknew to be likely to be

committed

Defense of withdrawal (byleaving the assembly)

S 34

MR: the secondaryoffender to know that the

criminal act constitutingthe collateral offence maylikely be committed

Unclear if a defense ofwithdrawal is available


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S 396: Gang Robbery with Murder

If any one of 5 or more persons who are

conjointly committing gang-robbery, commits

murder in so committing the gang-robbery,

every one of those persons shall be punished

with death or imprisonment for life .


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Elements of s 396

Conjointly committing gang robbery

No need to know that murder was to be

committed

No need for participation in murder

No need for presence at the murder scene


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5 or more persons

Specific to gang robbery

with murder

No need for knowledge ofthe murder

Note: See explanation given by

Lee Chez Kee

No need for participation orphysical presence

2 or more persons

Could be any combination

of offences

Must know that the criminalact constituting collateral

offence may likely be

committed

Need for participation

S 396 S 34


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Elements of s 5 of theArms Offences Act

When an arm was used in committing or attempting tocommit any offence, or where the offence under s 4Ahad been committed

very broad interpretation of arm and use

under s 4A, the principal offender using the arm need not haveany intention to cause physical injury

Reasonably presumed knowledge (ie. objectiveforeseeability) that the principal offender had possessionor control of the arm

Presence at the scene is an express requirement No need for participation in use of the arm or to show

that using the arm was in furtherance of a plan


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The defense of withdrawal under

s 5 of theArms Offences Act

The phraseology of taking reasonable steps to

prevent the use of such arm speaks for itself. You

must do something to prevent the use of such arm;you do not do something to prevent the use of such

arm by just by leaving the scene

FA Chua J in Remli Senallagam v PP(Spore CCA)


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Comparison between s 5 of theArms Offences

Actand s 34 of thePenal Code

S 5

Specific to use of arms

Physical presence but notparticipation

Objective foreseeability

Defence of withdrawal

S 34

Of much more generalapplication

Physical presence and

participation

Must know that the criminalact constituting thecollateral offence may likely

be committed

Unclear if a defence ofwithdrawal is available

Seminar 21 Common Object

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