Criminal Conspiracy and Abetment by Conspiracy in Malaysia: KeyDistinctions in Law and Practice

INTRODUCTION 

According to the Oxford English Dictionary, the word “conspiracy” refers to a mutual understanding to carry out an act that violates the law or morality.This definitionis reflected in According to Section 120A of the Penal Code, if two or more peopleagree either to do something illegal, or to do something legal in an illegal way, that agreement itself is treated as criminal conspiracy. However, In simple terms, just agreeing on something does not amount to conspiracy, unless it is an agreement tocommit a crime. For other agreements, at least one action must be done to put the planinto effect.The courts have affirmed the independent nature of this offence. For 1, it was held that conspiracy example, in R v Liyanage & Ors and Re Hussain Umar 

is a continuing and standalone offence regardless of the success of the plot, liabilityarises where the parties are united by a shared intention to carry out the unlawful act. 

By contrast, abetment refers to helping, encouraging, or assisting another personincommitting an unlawful act. The Cambridge Dictionary defines abetment as “the act of helping or encouraging someone to do something wrong or illegal.” Under Section107 of the Penal Code 2, abetment is classified into three categories: abetment by instigation, abetment by conspiracy, and abetment by intentional aiding. This broadscope of abetment was illustrated in Sanju v State of Madhya Pradesh 3, The judiciary has construed the term ‘abet’ as encompassing acts of aiding, assisting, counselling, or encouraging another in the commission of wrongdoing. Specifically, Section107(b) 4 provides that A person abets something if he joins a conspiracy withPenal Code others to make it happen, as long as some act or illegal failure to act is carried out tomove the plan forward.Thus, unlike criminal conspiracy under Section 120A, whichmay be complete upon the mere agreement to commit an offence, abetment byconspiracy requires an overt step taken in furtherance of the agreement before liabilitycan arise. 

The overlap between abetment by conspiracy under Section 107(b) and criminal conspiracy under Section 120A arises because both offences centre on an agreement between parties to commit an unlawful act. This similarity often blurs the linebetween the two, leading to uncertainty in determining liability. It is thereforeessential to differentiate them. Both conspiracy and abetment by conspiracy involveagreements, but their legal consequences differ. Clear distinction is necessarytoprevent confusion between punishing a mere agreement and punishing actual facilitation of the crime. 

DISTINCTION 

1. Element 

Criminal conspiracy 

S120A of the Penal Code provides that criminal conspiracy is when two or morepersons agree to do: (a) an illegal act, or (b) a legal act by illegal means. 

Conspiracy consists of two elements. 

1. The existence of an agreement between two or more persons. 
2. The agreement relates either to the commission of an unlawful act or totheperformance of a lawful act by unlawful means. 

Abetment by conspiracy 

S107 (b) of the Penal Code provides that abetment by conspiracy occurs whenaperson engages with one or more others in a conspiracy to do something and an act or illegal omission takes place in pursuance of that conspiracy. It is to be noted that theact or omission is done to achieve the intended offence. 

Elements: 

1. The accused joined a conspiracy with others. 
2. The conspiracy was meant to achieve the unlawful act. 
3. Some act or unlawful omission happened to carry out the plan.
4. Nature of the offence 

Criminal conspiracy 

Conspiracy is recognised as an independent and substantive offence. It is not merelyaccessory in nature, but a crime on its own, existing separately fromthe substantiveoffence which the conspirators plan to commit. The heart of criminal conspiracyis simply the consensus or understanding to undertake the act, as the lawtreats suchanagreement as inherently dangerous because it reflects a union of minds towards anunlawful purpose. Liability therefore arises the moment Just agreeing to commit acrime is enough, it doesn’t matter if the crime never happens. 

Abetment by conspiracy 

Abetment by conspiracy, on the other hand, is not an independent offence but a mode of abetment under Section 107(b) of the Penal Code. It does not standas aseparate substantive crime; instead, liability only arises when the abettor’s role intheconspiracy facilitates, encourages, or supports the perpetration of the offence. For abetment by conspiracy, a bare agreement does not suffice. To be guilty, someonemust actually do something or illegally fail to do something to move the conspiracyforward. Thus, the nature of abetment by conspiracy is derivative, as it depends ontheexistence of the principal offence being planned or committed. 

3. Agreement vs Action 

Criminal conspiracy 

Conspiracy is all about the agreement. Once persons form a consensus to perpetratean unlawful act, the law treats the conspiracy as complete. If a mutual understandingis reached between individuals to engage in criminal conduct, the agreement itself is already conspiracy. Nothing else has to be done. For instance, if A and Bagree toroba bank, they are already guilty of conspiracy even if they do not take any steps toexecute the plan. The focus is on the agreement to commit the unlawful act, not onwhether the act is actually carried out. The offence is complete once the agreement is formed, regardless of whether the plan is ever acted upon. 

Abetment by conspiracy

For abetment by conspiracy, just agreeing is not enough. There must also be some act or unlawful failure to act to prove liability. This overt step shows the abettor’s activerole in facilitating the execution of the offence. Without such action, abetment byconspiracy is incomplete. If C and D agree to kidnap someone, and Drents a vehiclefor the purpose, then C abets by conspiracy. What matters is the action (or illegal failure to act) taken to push the plan forward, not just the agreement. The offence is not complete at the stage of agreement alone, it only arises when at least oneconspirator takes a step in furtherance of the agreed offence. 

4. Punishment of the offence 

Criminal conspiracy 

5 provides that where the conspiracy is to commit an

S120B(1) of the Penal Code 

offence punishable with death, or imprisonment of two years or more, and whereno express punishment is provided in the Code, the conspirator shall be punishedinthe same manner as if he had abetted the offence. 

6 provides that for conspiracies not covered under 

S120B(2) of the Penal Code 

subsection (1), the punishment is lighter: imprisonment up to six months, or fine, or both. 

Abetment by conspiracy 

Where the act abetted is actually committed, and there is no specific provision inthePenal Code for the punishment of such abetment, Section 109 of the Penal Code7 provides that the abettor shall be punished in the same manner as if he had committedthe offence himself. This illustrates the dependent liability or derivative nature of abetment, as the abettor’s punishment is contingent upon the commission of the act bythe principal offender. If the principal offence is not carried out, the abettor cannot bepunished under Section 109, though he may still be liable under other provisions relating to abetment, such as attempt or incomplete abetment. 

CONCLUSION 

In the Malaysian legal framework, it is crucial to distinguish between criminal conspiracy under Section 120A and abetment by conspiracy under Section 107(b) of the Penal Code, as both offences often overlap in practice. Criminal conspiracyis treated as an independent and substantive offence, complete once people decidetogether to do something illegal, reflecting the law’s concern with the danger posedby a union of criminal intent. Abetment by conspiracy, however, is derivative innature, to be guilty, there must be some step taken either an action or an illegal failureto act and to move the plan forward, thereby linking it directly to the commissionof the principal offence. The punishment provisions under Sections 120B and 109PChighlight this difference, with conspiracy being punishable in its own right, whileabetment by conspiracy depends on the act of abetment leading to the commissionof the offence. Recognising this distinction is particularly important in Malaysia, wherecourts have repeatedly emphasised the need for clarity to avoid conflating liabilityfor a mere agreement with liability for active participation in facilitating crime, therebyensuring consistent and fair application of the Penal Code. 

REFERENCES 

CASE LAWS 

R v Liyanage & Ors and Re Hussain Umar [1969] 3 S.C.R 130; [1970] AIR(SC) 45Sanju v State of Madhya Pradesh [2002] 5 SSC 371 

STATUTES AND STATUTORY INSTRUMENTS Penal Code Act 574, s 107 

Penal Code Act 574, s 107 (b) 

Penal Code Act 574, s 109 

Penal Code Act 574, s 120B (1) 

Penal Code Act 574, s 120B (2)

1 [1969] 3 S.C.R 130; [1970] AIR (SC) 45 

2 Penal Code, s107 

3 [2002] 5 SSC 371 

4 Penal Code, s107 (b)

5 Penal Code, s120B (1) 

6 Penal Code, s120B (2) 

7 Penal Code, s109