Authored By: CHIANG XIN YU
Multimedia University
Abstract
This legal article examines the distinction between criminal conspiracy under Section 120A of Penal Code and abetment under Section 107 of Penal Code in Malaysia. Criminal conspiracy focuses more on the agreement between parties with a common intention to commit a crime whereas abetment involves active participation in the commission of the offence, going beyond mere agreement. Although Malaysia’s legal system provides these doctrines to uphold justice, but the law lacks clear boundaries and detailed explanations between them. This often leads to legal overlap and uncertainty during prosecution, as direct evidence is rarely available, which potentially leading to unfair judgements. This article also recommends legislative reforms and clearer judicial clarification to facilitate prosecution process and more effectively distinguish between the two offences.
Introduction
In Malaysia’s legal system, criminal liability not only extends to individual perpetrator who directly commits an offence. Criminal conspiracy and abetment serve as the foundational doctrines to hold people liable to a crime when there is more than one person collaborating or helping in the commission of crime. These provisions are significant as the possibility of crime will be committed is higher, but proving such offences may be challenging.
Criminal Conspiracy is defined under Section 120A of Penal Code as an agreement between two or more persons when they agree to do or cause to be done an illegal act1. In R v Liyanage & Ors2and Re Hussain Umar3 mentioned criminal conspiracy is considered as an inchoate in a sense that criminal liability can still be imposed even if the substantive offence is not committed. This shows that criminal conspiracy is based on an agreement to commit a crime, once there is proof of intent and planning between the parties, they are liable for criminal conspiracy.
Abetment refers to the involvement of an abettor towards the commission of an offence and can be classified into 3 types in Section 107 of Penal Code4. In Sanju v State of Madhya Pradesh5 , the court defined ‘abet’ as meaning to aid, to assist, counselling or encouraging wrongdoing. The law against abetment is aimed to prevent the commission of the principal offence when there is involvement of abettor in the commission of a crime but is not essential for the abettor to be involved in the commission.
This article will examine the legal distinctions between criminal conspiracy and abetment in Malaysia as well as explores the practical and evidential challenges faced in prosecuting these offences and proposes solutions to strengthen their enforcement within the criminal justice system.
Distinction between Criminal Conspiracy and Abetment
Criminal Conspiracy
Substantive offence of criminal conspiracy is defined in Section 120A of Penal Code (PC)6and the punishment is mentioned in Section 120B of the PC7. The offence of conspiracy is upheld once the formation of the agreement between the parties to commit a crime, no further explicit act is required to be conducted for a person to be charged under criminal conspiracy.
PP v Khoo Ban Hock8 mentioned that Conspiracy is regarded as a continuing offence and continues to be committed as long as the parties continue to agree to carry out the plan until the time when they cease to agree. Therefore, there are 2 elements that should be satisfied to hold a person liable for criminal conspiracy: 1) There should be an agreement between two or more persons. 2) The agreement should be: (a) For doing of an illegal act; or (b) For doing an act that is legal but using illegal means to do it.
Agreement is the essence element of conspiracy. Kannan s/o Kunjiraman & Anor v PP9case mentioned “Agree” is a true intention to make an agreement and have intention to carry out the agreement, which can be shown through the parties’ words and actions. The conspirator is not necessarily to be a party of the wrongful agreement at the start, they can still be liable if they join the agreement with common intention before the crime occurs. R v Chew Chong Jin10 also mentioned, they do not need to know each other or be aware of all the details of the conspiracy.
Mens Rea is needed to hold a person liable for criminal conspiracy. In the case of Yash Pal Mittal v State of Punjab AIR,11 the court held that the conspirators must act with one object to achieve the result they intended. The requirement of mens rea does not mean each conspirator must intend to do those acts, what is necessary is at the time of the agreement each conspirator intend the crime to be committed, and he will fulfil his role in the agreement.
In the case of Ng Song Luak v PP, the accused was guilty under Section 120B of the PC for criminal conspiracy12. He and two other persons planned an armed robbery, which was later carried out by the two perpetrators. This shows a person will be guilty of criminal conspiracy even if the accused did not present during the crime, as long as he was involved in the plan and have shared the common intention to carry out the offence.
Abetment
In accordance with Section 107 of PC, the are 3 types of abetment which is abetment by instigation, abetment by conspiracy and abetment by intentional aid13. Section 107 of PC merely provides the circumstances of how abetment can happen, does not prescribe any specific offence or definition of abetment and the punishment for abetment is stipulated in Section 109 of the PC14.
To hold a person liable for abetment, it is important to distinguish between the abettor, who helps or encourages the commission of the offence, and the main offender, who commits the crime. The essence of abetment is the abettor assist the principal offender towards the commission of principal offence, showing that it focuses on facilitating or inducing the criminal act itself.
In PP v Datuk Haji Harun Haji Idris & Ors15, Sections 109 and 406 of PC were applied to charge the first and third accused for aiding and abetting a criminal breach of trust committed by the second accused. The first and second appellants planned the crime together to forge the bank’s Investment Committee minutes to obtain letters of credit worth about M$6.5 million for a company. The second appellant, who was entrusted with the bank’s shares and debenture stock, committed the breach of trust. The third accused had deliberately assisted and conspired in the offence.
Instead of convicting them under Section 120B (criminal conspiracy) which only requires an agreement between the parties, the court ruled that the first and third accused had conspired to abet the breach of trust under Section 107 of PC. They actively helped in the forgery through their agreement and actions, not just mere agreement with common intention to commit the crime, their actions went beyond mere agreement. This clearly distinguishes the offences of conspiracy and abetment, as well as the punishment given for each.
Challenges
Proving criminal conspiracy and abetment presents significant challenges, especially in terms of evidence and legal overlap.
Evidentiary Difficulties
Evidentiary difficulties often arises because conspiracies and act of abetment often conducted secretly and there is rarely direct evidence such as written agreements or confession. Leading courts must often rely on circumstantial evidence and draw inferences which can be ambiguous.
In Neo Alchemy Build India LLP v Kah Glove Sdn Bhd & Ors,16 the court also highlighted that conspiracies are rarely exposed through direct evidence and should inferred from surrounding circumstances. This is supported by Pendakwa Raya lwn Muhammad
Akmal Zuhairi bin Akmal dan lain-lain,17 mentioned that circumstantial evidence is significant as merely proving common intention between the parties is insufficient.
A high-profile example is Ahmad Zahid Hamidi’s case,18 where he was granted a discharge not amounting to acquittal (DNAA) although a prima facie case was established, raising public concern over prosecutorial independence and the difficulties in proving complex conspiracies.
Legal Overlap
Criminal conspiracy under section 120A of PC and abetment by conspiracy under section 107(b) of PC19 can overlap in a real-life situation and cause doubt. Both involve group planning for unlawful act and sounds similar but differ in requirements. Under section 120A of PC, the agreement alone is enough if there is common intention to commit a crime, while under Section 107(b), there must be an act or omission done accordance with the plan.
In PP v Dato’ Seri Anwar Ibrahim & Sukma Darmawan20, Sukma was not the main offender, but his action in facilitating the offence were seen as abetment by conspiracy, which could also fall under criminal conspiracy. This shows how difficult it is to distinguish between the two in practice, which will cause inconsistent application and a risk of double jeopardy.
Prof. K.D. Gaur, in Textbook on Indian Penal Code21, also emphasized that the line between abetment by conspiracy and criminal conspiracy has been blurred in judicial practice, raising concerns of double prosecution. This concern was further reinforced in PP v Lee Tin Bau22, where the Federal Court held that no one shall be face double punishment for the same act, demonstrating the importance of adhering to Article 7(2) of Federal Constitution23.
Solutions
Legislative Reforms
Legislative reforms are essential to distinctly distinguish the offences of abetment and criminal conspiracy, preventing overlapping charges and ensuring judicial clarity.
Section 107 PC which about abetment and section 120A PC share similar elements, causing confusion and ambiguity due to the lack of clear boundaries and elements required. Therefore, the Penal Code should be amended to provide a clearer definition and specify the elements need to prove each offence.
Abetment should be redefined as any act incites or assists in committing a crime, which emphasises on the need for an over act or direct assistance. Criminal conspiracy should be redefined strictly as an agreement between the parties with intent to commit a crime, where agreement alone amounts to an offence, even if no further act is done which is supported by State of Tamil Nadu v Nalini case24.
Moreover, the elements for each offence should be clearly defined. Malaysia could draw guidance from UK’s Accessory to Crime Doctrine, where accessories are classified by timing of their involvement either before or after the crime. Besides, Penal Code should also provide clear elements for offence of abetment such as actus reus and mens rea, as well as the knowledge and intent of the accessory who assists the principal.
Judicial Clarification
The concept of conspiracy and abetment are distinct yet often confused, judicial clarification is crucial in distinguishing between these concepts and ensuring fair legal decisions. High courts in Malaysia need to draw a clear line between both concepts by giving more clear judgement to act as a good precedent.
As reference to India case Suresh Chandra Bahri v State of Bihar,25 the court provides a clear judicial clarification between abetment and conspiracy. The court emphasized the core element of criminal conspiracy is an agreement between two or more people to commit an illegal act and proving the existence of that agreement alone is sufficient for conviction. However, abetment involves active participation in the commission of the crime. Malaysia can refer to this precedent to interpret the law more precisely, ensuring individuals can be held accountable based on their level of involvement without any doubt.
In Ling Hang Tsyr v Public Prosecutor,26 the appellant’s conviction for abetting her husband’s murder through conspiracy with Andrew was overturned due to lack of evidence. The court clarified that abetment and criminal conspiracy are separate offences with distinct elements under the Penal Code. Since conspiracies are often secret, circumstantial evidence is the key to prove a shared intent.
This case highlights the need for Malaysia to establish a clear causal link between the abettor’s actions and the principal offence, even when the abettor’s conduct is not identical to the main crime, as reaffirmed in Faizoull bin Ahmad v Public Prosecutor and other appeals27. Therefore, judicial clarification is crucial in clarifying the elements of abetment and criminal conspiracy, serving as a precedent to uphold legal justice and prevent confusion.
Conclusion
In Malaysia’s criminal justice system, criminal conspiracy and abetment serve as critical tools to hold individuals liable for their indirect or preparatory roles in crimes. However, their overlapping definitions and real-world applications would create significant confusion, risking double jeopardy and lead to inconsistent judicial outcomes. Prosecuting these offences is also more complicated as they are inherently secretive and the court could only rely on circumstantial evidence.
Therefore, legislative reforms and clear judicial interpretation are needed to restore the public’s trust towards Malaysia’s legal system by ensuring accountability over power and influence. Malaysia can more effectively address abetment and conspiracy crimes and safeguard all human rights.
References
Primary Sources
Statutes
Penal Code
Federal Constitution
Cases
Faizoull bin Ahmad v Public Prosecutor and other appeals [2025] MLJU 739 Kannan s/o Kunjiraman & Anor v PP [1995] SGHC 222
Ling Hang Tsyr v Public Prosecutor [2019] 1 LNS 1573
Neo Alchemy Build India LLP v Kah Glove Sdn Bhd & Ors [2025] MLJU 734 Ng Song Luak v. Public Prosecutor [1985] CLJ Rep 600
Pendakwa Raya lwn Muhammad Akmal Zuhairi bin Akmal dan lain-lain [2024] 8 MLJ 159 PP v Dato’ Seri Anwar Ibrahim & Sukma Darmawan [2001] 3 MLJ 193 PP v Datuk Haji Harun bin Haji Idris [1977] 1 MLJ 180
PP v Khoo Ban Hock [1987] 1 LN S1 58, [1988] 2 MLJ 217
PP v Lee Tin Bau [1975] 1 MLJ 116
R v Chew Chong Jin [1956] MLJ 185
R v Liyanage & Ors [1962] 64 NLR 313
Re Hussain Umar [1969] 3 S.C.R 130; [1970] AIR (SC) 45
Sanju v State of Madhya Pradesh [2002] 5 SSC 371
State of Tamil Nadu v Nalini [1999] SC 2640
Suresh Chandra Bahri v State Of Bihar Air 1995 SC 2420
Yash Pal Mittal v State of Punjab AIR [1978] SCR 781
Secondary Sources
Book
K D Gaur, ‘Textbook on the Indian Penal Code’ （8th edition)
Newspaper Article
‘Ahmad Zahid granted discharge not amounting to acquittal of all 47 charges’ Awani International, (Kuala Lumpur, 4 November 2023) <https://international.astroawani.com/malaysia-news/ahmad-zahid-granted-discharge-not amounting-acquittal-all-47-charges-435768> accessed 20 October 2025
1 Penal Code, s120A
2[1962] 64 NLR 313
3[1969] 3 S.C.R 130; [1970] AIR (SC) 45
4 Penal Code, s107
5[2002] 5 SSC 371
6 Penal Code, s120A
7 Penal Code, s120B
8[1987] 1 LN S1 58, [1988] 2 MLJ 217
9[1995] SGHC 222
10 [1956] MLJ 185
11 [1978] SCR 781
12 [1985] CLJ Rep 600
13 Penal Code, s107
14 Penal Code, s109
15 [1977] 1 MLJ 180
16 [2025] MLJU 734
17 [2024] 8 MLJ 159
18 ‘Ahmad Zahid granted discharge not amounting to acquittal of all 47 charges’ Awani International, (Kuala Lumpur, 4 November 2023) <https://international.astroawani.com/malaysia-news/ahmad-zahid-granted discharge-not-amounting-acquittal-all-47-charges-435768> accessed 20 October 2025
19 Penal Code, S.107(b)
20 [2001] 3 MLJ 193
21 K D Gaur, ‘Textbook on the Indian Penal Code’ （8th edition)
22 [1975] 1 MLJ 116
23 Federal Constitution, Article 7(2)
24 [1999] SC 2640
25 [1995] SC 2420
26 [2019] 1 LNS 1573
27 [2025] MLJU 739
