Syariah Penal Code Order, 2013/Part III

Layout 2

PART III
ABETMENT

Abetment of thing.

37. A person abets the doing of a thing who—

(a) instigates any person to do that thing;

(b) engages, with· one or more other person or persons, in any conspiracy for the doing of that thing, if an act or illegal omission take place in pursuance of that conspiracy, and in order to the doing of that thing; or

(c) intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Illustration

A, a public officer, is authorised by a warrant from a Court to apprehend B. C, knowing that fact, and also that D is not B, wilfully represents to A that D is B and thereby intentionally causes A to apprehend D. Here, C abets by instigation the apprehension of D.

Explanation 2—Any person who, either prior to, or at the time of, the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.

Abettor.

38. A person abets an offence who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence, with the same intention or knowledge as that of the abettor.

Explanation 1—The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act.

Explanation 2—To constitute the offence of abetment, it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused.

Illustrations

(a) A instigates B to commit qatl against C. B refuses to do so. A is guilty of abetting B to commit qatl.

(b) D instigates E to commit qatl against F. E in pursuance of the instigation stabs F. F recovers from the wound. D is guilty of instigating E to commit qatl.

Explanation 3—It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.

Illustrations

(a) A, with a guilty intention, abets a person who is not baligh or a person of unsound mind to commit an act which would be an offence if committed by a person capable by law of committing an offence, and having the same intention as A. Here, A, whether the act be committed or not, is guilty of abetting an offence.

(b) B, with the intention to commit qatl against C, instigates D, a person who is not baligh, to do an act which causes C's death. D, in consequence of the abetment, does the act and thereby causes C's death. Here, though D was not capable by law of committing an offence, B, is liable to be punished in the same manner as if D had been capable by law of committing an offence and had committed the offence of qatl, and B is therefore subject to the punishment of abetment of qatl.

(c) E, with the intention to offering an intoxicating drink to F, instigates G, a person who is of unsound mind, to offer an intoxicating drink to F. In consequence of the abetment, G does the act in the absence of E and thereby offers an intoxicating drink to F. Here, though G was not capable by law of committing an offence, E is liable to be punished in the same manner as if G had been capable by law of committing an offence and had committed the offence of offering an intoxicating drink and E is therefore subject to the punishment of offering intoxicating drink.

(d) A, intending to cause sariqah to be committed, instigates B to take property belonging to Z out of Z's possession. A induces B to believe that the property belongs to A. B takes the property out of Z's possession, in good faith, believing it"to be A's property. B, acting under this misconception, does not take dishonestly, and therefore does not commit sariqah. But A is guilty of abetting sariqah, and is liable to punishment of abetting sariqah.

Explanation 4—The abetment of an offence being an offence, the abetment of such an abetment is also an offence.

Illustration

A instigates B to instigate C to commit qatl against D. B accordingly instigates C to commit qatl against D and C commits that offence in consequence of B' s instigation. B is liable to be punished for his offence with the punishment for qatl; and, as A instigate B to commit the offence, A is also liable to the punishment of abetment of qatl.

Explanation 5—It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed.

Illustration

A concerts with B a plan to commit qatl by using poison on Z. It is agreed that A shall administer the poison. B then explains the plan to C, mentioning that a third person is to administer the poison, but without mentioning A's name. C agrees to procure the poison, and procures and delivers it to B for the purpose of its being used in the manner explained. A administers the poison. Z dies in consequence. Here, though A and C have not conspired together, yet C has been engaged in the conspiracy in pursuance of which Z has died. C has therefore committed the offence defined in this section, and is liable to the punishment for abetment of qatl by using poison.

Common intention.

39. 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 it were done by him alone.

Abetment in Brunei Darussalam of offences outside Brunei Darussalam.

40. A person abets an offence within the meaning of this Order if—

(a) he, within Brunei Darussalam, abets the commission of any act outside Brunei Darussalam; or

(b) he, outside Brunei Darussalam, abets the commission of any act within Brunei Darussalam if the act would constitute an offence if committed in Brunei Darussalam.

Illustration

A, in Brunei Darussalam, instigates B, a foreigner in Singapore, to commit qatl in Singapore. A is guilty of abetting qatl.

Punishment of abetment if act abetted is committed in consequence and where no express provision is made for its punishment.

41. Save as otherwise expressly provided, any person who abets an offence, if the act abetted is committed in consequence of the abetment, is guilty of an offence and shall be liable on conviction to the punishment provided for the offence.

Explanation—An act or offence is said to be committed in consequence of abetment when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.

Illustrations

(a) A instigates B to give false evidence. B, in consequence of the instigation commits that offence. A is guilty of abetting that offence, and is liable to the same punishment as B.

(b) C and D conspire to commit qatl by using poison on E. C, in pursuance of the conspiracy procures the poison and delivers it to D in order that he may administer it to E. D, in pursuance of the conspiracy administers the poison to E in C's absence, and thereby causes E's death. Here D is guilty of the offence of qatl by using poison. C is guilty of abetting that offence by conspiracy and is liable to the punishment for the offence of abetting to commit qatl by using poison.

Punishment of abetment if person abetted does act with different intention from that of abettor.

42. Any person who abets the commission of an offence, if the person abetted does the act with a different intention or knowledge from that of the abettor, is guilty of an offence and shall be liable on conviction to the punishment provided for the offence which would have been committed if the act had been done with the intention or knowledge of the abettor and with no other.

Liability of abettor when one act abetted and different act done.

43. When an act is abetted and a different act is done, the abettor is liable for the act done in the same manner and to the same extent as if he had directly abetted it:

Provided that, the act done shall be a probable consequence of the abetment, and shall be committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment.

Illustration

A instigates a child who is not baligh to put poison into the food of B and gives him poison for that purpose. The child, in consequence of the instigation, by mistake puts the poison into the food of C, which is by the side of that of B. Here, if the child was acting under the influence of A's instigation, and the act done was under the circumstances a probable consequence of the abetment, A is liable in the same manner and to the same extent as if he had instigated the child to put the poison into the food of C.

Abettor when liable to cumulative punishment for act abetted and for act done.

44. If the act for which the abettor is liable under section 43 is committed in addition to the act abetted, and continues a distinct offence, the abettor is liable to punishment for each of the offences if the abettor knows the cumulative act is likely to be committed.

Illustration

A instigates B to entice an unmarried female to leave the custody of her parents or guardian. B entices the unmarried female to leave the custody of her parents or guardian and during such enticing serves her intoxicating drink. B is guilty of two offences and is liable on conviction to the punishments of both offences; and if A knew that B will likely serve that woman intoxicating drink, he is also liable for the punishment of each of the offences.

Liability of abettor for effect caused by act abetted different from that intended by abettor.

45. When an act is abetted with the intention on the part of the abettor of causing a particular effect, and an act for which the abettor is liable in consequence of the abetment causes a different effect from that intended by the abettor, the abettor is liable for the effect caused in the same manner and to the same extent as if he had abetted the act with the intention of causing that effect, provided he knew that the act abetted was likely to cause that effect.

Illustration

A instigates B to teach any matter relating to the religion of Islam without written approval from the Majlis. B, in consequence of the instigation takes the opportunity to bring into contempt the religion of Islam. Here, if A knows that teaching any matter relating to the religion of Islam without written approval from the Majlis which he abets will amount to bringing into contempt the teaching of the religion of Islam, A shall be liable for punishment of bringing into contempt the teaching of the religion of Islam.

Abettor present when offence is committed.

46. Whenever any person, who if absent, would be liable to be punished as an abettor, is present when· the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.

Abetment of offence punishable with death or life imprisonment.

47. Any person who abets the commission of an offence punishable with death or life-imprisonment, if that offence is not committed in consequence of the abetment, and no express provision is made by this Order for the punishment of such abetment, is guilty of an offence and shall be liable on conviction to a fine not exceeding $28,000 and imprisonment for a term not exceeding 7 years.

Illustration

A instigates B to commit qatl against C. The offence is not committed. If B had committed qatl against C, A would have been subject to the punishment of abetment of qatl. Therefore A is guilty of an offence and liable on conviction to a fine not exceeding $28,000 and imprisonment for a term not exceeding 7 years.

Abetment Of offence punishable with imprisonment if offence is not committed. If abettor or person abetted is public servant whose duty is to prevent offence.

48. (1) Any person who abets an offence punishable with imprisonment, if that offence is not committed in consequence of the abetment and no express provision is made by this Order for the punishment of such abetment, is guilty of an offence and shall be liable on conviction to such fine as is provided for that offence, imprisonment for a term not exceeding to one-fourth of the longest term provided for that offence or both.

(2) If the abettor or the person abetted under subsection (1) is a public servant, whose duty it is to prevent the commission of such offence, the abettor is guilty of an offence and shall be liable on conviction to such fine .as is provided for that offence, imprisonment for a term not exceeding to one-half of the longest term provided for that offence or both.

Illustrations

(a) A instigates B to give false evidence. Here, if B does not give false evidence, A has nevertheless committed the offence defined in this section, and is punishable accordingly.

(b) C, a public servant, whose duty is to prevent the sale of intoxicating liquor, abets the commission of the sale of intoxicating liquor. Here, though the sale is not committed, C is guilty of an offence and shall be liable on conviction to a fine as is provided for that offence, imprisonment for a term not exceeding one-half of the longest term of imprisonment provided for that offence or both.

(c) D abets the commission of sale of intoxicating liquor by E, a public servant, whose duty it is to prevent that offence. Here, though the sale is not committed, D is guilty of an offence and shall be liable on conviction to a fine as is provided for that offence, imprisonment for a term not exceeding one-half of the longest term of imprisonment provided for that offence or both.

Abetting commission of offence by public, or by more than ten persons.

49. Any person who abets the commission of any offence against Chapter IV (General Offences) of Part IV by the public generally, or by any number or group of persons exceeding ten, is guilty of an offence and shall be liable on conviction to a fine not exceeding $12,000, imprisonment for a term not exceeding 3 years or both.

Illustration

A instigates a group of five persons to give false information on any matter in any judicial proceeding. A has committed the offence defined in this section.

Public servant concealing design to commit offence which it is his duty to prevent.

50. Any person who, being a public servant, intending to facilitate, or knowing it to be likely that he will thereby facilitate, the commission of an offence against Chapter IV (General Offences) of Part IV which it is his duty as such public servant to prevent, voluntarily conceals, by any act or illegal omission, the existence of a design to commit that offence, or who makes any representation which he knows to be false respecting such design—

(a) if that offence is committed, is guilty of an offence and shall be liable on conviction to such fine as is provided for that offence, imprisonment for a term not exceeding one-half of the longest term or both; or

(b) if that offence is not committed, is guilty of an offence and shall be liable on conviction to such fine as is provided for that offence, imprisonment for a term not exceeding one-fourth of the longest term provided for that offence or both.

Illustration

A, a public servant being legally bound to give information of all designs to commit the sale of intoxicating liquor which may come to his knowledge, and knowing that B designs to sell intoxicating liquor, omits to give such information, with intent to facilitate the commission of that offence. Here, A, by an illegal omission concealed the existence of B's design, and shall be liable to punishment according to the provisions of this section.

Concealing design to commit offence punishable with imprisonment.

51. Any person who, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with imprisonment, voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence or who makes any representation which he knows to be false respecting such design—

(a) if that offence is committed, is guilty of an offence and shall be liable on conviction to such fine as is provided for the offence, imprisonment for a term not exceeding one-fourth of the longest term provided for that offence or both; or

(b) if that offence is not committed, is guilty of an offence and shall be liable on conviction to such fine as is provided for that offence, imprisonment for a term not exceeding one-eighth of the longest term of such imprisonment or both.