Common Object and Other Forms of Constructive Liability

Rationale: the danger of numbers and the belief in deterrence Forms of constructive liability for offences perpetrated by others (apart from s. 34):

Prosecution of the common object of an unlawful assembly: s 149 of the Penal Code Gang robbery with murder: s 396 of the Penal Code Use of arm by an accomplice: s 5 of the Arms Offences Act

Requirements: s 141

combination of 5 or more persons; and with the common object to do one of the things listed in s 141(a) to (e)
s 141(c) - to commit any offence

Criminal liability of a member of unlawful assembly

Being a member of an unlawful assembly is itself an offence (ie primary liability): see s 143 A member could also be liable for an offence committed by another member of the unlawful assembly (ie. constructive liability)

S. 149: If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object
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Membership of an unlawful assembly

When is a person a member of the unlawful assembly?

s 142 requirements: Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it Osman bin Ramli v PP: physical presence alone may be sufficient; no need for active participation in the common object Ong Chin Seng v R: A could dissociate from the common object by withdrawing from the scene or through injury

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 common object and common intention 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 .

Comparison between s 149 and s 34

S 149

S 34

5 or more persons

2 or more persons

Object must be one of those in s 141(a) to (e)

Membership of unlawful assembly could comprise physical presence alone

Common intention can be to do any criminal act

Participation is required

Comparison between s 149 and s 34 (continued)

S 149

S 34

MR for the collateral offence is in terms of such as the members knew to be likely to be committed Defense of withdrawal (by leaving the assembly)

MR: the secondary offender to know that the criminal act constituting the collateral offence may likely be committed

Unclear if a defense of withdrawal is available

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 .

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

Comparison between s 396 and s 34

S 396

S 34

5 or more persons Specific to gang robbery with murder No need for knowledge of the murder
Note: See explanation given by Lee Chez Kee

No need for participation or physical presence

2 or more persons Could be any combination of offences Must know that the criminal act constituting collateral offence may likely be committed Need for participation

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Elements of s 5 of the Arms Offences Act

When an arm was used in committing or attempting to commit any offence, or where the offence under s 4A had been committed

very broad interpretation of arm and use under s 4A, the principal offender using the arm need not have any intention to cause physical injury

Reasonably presumed knowledge (ie. objective foreseeability) that the principal offender had possession or 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 the Arms 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 the Arms Offences Act and s 34 of the Penal Code

S5 Specific to use of arms Physical presence but not participation Objective foreseeability

S 34 Of much more general application Physical presence and participation Must know that the criminal act constituting the collateral offence may likely be committed Unclear if a defence of withdrawal is available
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Defence of withdrawal