A CASENOTE ON YENNA ONG AH YEO v PUBLIC PROSECUTOR

• Date: 01 December 1994
• Published date: 01 December 1994
• Author: GLADYS LEE
• Citation: (1994) 6 SAcLJ 218

Criminal Revision No 10 of 1992

Magistrate’s Appeal No 162/92/01

In the Matter of DAC No 5812 of 1992

Brief Facts

Yenna Ong pleaded guilty to a charge of abetment, and was convicted on 22 May 1992. She was subsequently sentenced to 6 months’ imprisonment. She later took out a petition for criminal revision and sought to set aside the conviction on the basis that her plea of guilt ought not have been accepted by the District Court.

She relied on two main grounds. Firstly, that the principal for whom she was alleged to have abetted, had claimed trial to the charge against him. At the time of the plea, the principal had not been found guilty. Secondly, that the statement of facts tendered did not support the charge.

This paper will only discuss the first ground as it is of great interest and importance, and it involves a point of law which had never been judicially considered in Singapore.

Abetment under s.107 of the Penal Code, Cap 244

Before I highlight the arguments canvassed before the court, it is necessary to set out s.107 of the Penal Code. S.107 reads:

“A person abets the doing of a thing who -

1. (a) instigates any person to do that thing;

2. (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 takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

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

Abetment can thus be classified into three types:

1. [1] Abetment by instigation;

2. [2] Abetment by conspiracy; and

3. [3] Abetment by aiding.

In this case, the charge against the Petitioner is one of abetment by intentional aid. She was said to have aided the principal in the latter’s commission of breach of trust as an agent.

Counsel’s Submission

Counsel’s main submission was that where a principal accused has not been found guilty of an offence, no person may be convicted of intentionally aiding such an offence.

The decision and reasoning of the Court

The Court began by examining the provisions of the Penal Code, and came to the conclusion that explanation 2 and illustration (a) of section 108 are highly relevant in this case. It noted that the express words were

“sufficient to show that, for an abettor to be convicted, the principal accused need not always be proved to have committed the offence…”.

Explanation 2 of s.108 reads:

“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.”

As for illustration (a), it reads:

“A instigates B to murder C, B refuses to do so. A is guilty of abetting B to commit murder.”

Nevertheless, after examining the authorities submitted by Counsel, the Court agreed that the word “aid” did imply that the act aided was committed. It also agreed that the prosecution had to prove the commission of the act which the abettor was alleged to have aided. To this extent, the Court in Yenna Ong agreed with the stand taken by the Indian authorities.

The Court however, departed from the Indian cases and decided that the fact that the act intentionally aided must have been committed did not mean that the principal should of necessity have been convicted prior to the alleged abettor in order for the latter to be found liable for abetment.

The Court arrived at that conclusion after taking into account several factors.

Firstly, it was of the opinion that the sequence in which both the abettor and principal were tried was frequently a matter of chance. Sometimes it might not be possible to try the principal accused at all, for example, where the principal died before the trial or where he could not be found.

Secondly, the Court felt that the conviction of an abettor turned on the evidence against him, which might be different from that against the principal. (This line of reasoning was earlier adopted in the case of R v Maruti Dada1)

Moreover, the Court was greatly persuaded by a passage from the case of R v Humphreys & Turner2. The court in R v Humphreys had stated that:

“It may seem anomalous … that even if a principal offender is acquitted, a conviction of aiding and abetting him may still be valid, but the logic of the situation is wrapped up in the rules of evidence…”.

The Court concluded that the prosecution must prove the commission of the act which the abettor was alleged to have abetted. It went on to say that the court which tried the abettor must direct its mind towards making a finding as to whether the offence which the abettor is alleged to have aided was in fact committed.

Having said that, the Court admitted that there might be a danger of inconsistent verdicts. For example, the Court which tried the principal might acquit him whereas the abettor might have been convicted earlier. This might possibly imply incompatible findings by two courts as to the principal’s liability. However, the Court stated that this potential discrepancy did not mean that this procedure was logically flawed. The Court was clearly persuaded by the passage in Humphreys set out above. Further...