This document provides an overview of the law of conspiracy in Malaysia. It discusses key elements of the offense of conspiracy including: (1) an agreement between two or more parties is required; (2) the agreement must be to commit an illegal act, whether that is to commit a crime or commit a legal act through illegal means; (3) one party must take an overt act in furtherance of the agreement if the object is non-criminal. It also examines requirements for the actus reus and mens rea of conspiracy and discusses defenses like voluntary withdrawal. The document uses case examples to illustrate concepts like inferring agreement from actions and assessing what knowledge parties need have of the conspiracy.

1. LLB 104
CRIMINAL
LAW
Conspiracy

2. INTRODUCTION
• Conspiracy is covered under s
120A and 120B of the Penal
Code.
• It is often thought that a
combination of persons is
more dangerous than a single
actor.
• It is because combination is
capable of doing more harm
than the single actor.
2

3. 3
In the PC, there are few
provisions striking at such criminal
combinations.
E.g.: s 400 makes it a criminal
simply to belong to gang of
associated for the purpose of
habitually committing gang-
No actual robbery need take place.
The essence of the criminal liability
simply being a member of such

4. • Under s 120A it is not necessary to establish that any act was done
pursuant to the agreement.
• There can now be a criminal conspiracy even where the object of the
agreement is not the commission of the crime, but simply the doing
of something ‘illegal’ or even something ‘legal’, by illegal means.
Kamara
• An agreement to commit the tort of trespass to the land, if
accompanied by an intention to commit more than nominal damage,
was once held to be a criminal conspiracy.
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5. ESSENCE OF THE OFFENCE
1. There must be a real agreement. This means that there must
have been a meeting of minds. The parties must be beyond
the stage of negotiation.
2. An agreement necessarily involves at least 2 parties.
3. Malaysia court would have jurisdiction in respect of
conspiracies entered into in foreign countries provided the
object of the conspiracy was to commit an offence in Malaysia
and provided some overt act in pursuance of the conspiracy
was committed within the jurisdiction.
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6. Khoo Ban Hock
An agreement was entered into in Singapore to defraud the National Bank of
Brunei. Various acts pursuant to this agreement were committed in Brunei. The
Brunei court held that it had the jurisdiction to hear the case.
4. In most cases agreements take place behind closed door and in the
absence of confession, have to be inferred from the subsequent actions of
the accused. This means that while in theory all that is needed for the
actus reus of conspiracy is an agreement, in practice there will almost
always be subsequent conduct towards the commission of the crime.
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7. ACTUS REUS
• The ingredient of the actus reus of conspiracy depend on
whether there is an agreement to commit an offence or not;
• With conspiracies to commit crimes, the actus reus of the
offence is the agreement to commit the offence.
• With conspiracies to commit non-criminal illegal acts or legal
acts by illegal means, the actus reus of the offence is the
agreement to commit such prohibited act and one of the parties
to the agreement must have committed some act in pursuance of
the agreement.
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8. EG Barsay v State Of Bombay
The gist of the offence is an agreement to break the law. The
parties to such agreement will be guilty of conspiracy though the
illegal act agreed to be done has not been done. It is not an
ingredient of the offence that all parties should agree to do a single
act. It may comprise the commission of a number of acts.
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9. Lennart Schussler
• There must be a meeting of minds in the doing of the illegal act
or the doing of a legal act by illegal means. The offence of
conspiracy is complete when 2 or more conspirators have
agreed to do or cause to be done an act which is itself an offence.
An agreement to do an illegal act which amounts to a conspiracy
will continue as long as the members remain in agreement and
as long as they acting in accord of the object for which they
entered into the agreement.
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10. R v Chew Chong Jin
• The accused was charged with abetting in conspiracy in the
illegal importation of gold.
• He was wearing a special white waistcoat with a number of
pockets entered a plane shortly after it landed in Singapore and
made several trips to a hanger where he hid parcels containing
gold.
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11. • At his trial, he was acquitted on the ground, inter alia, that the
prosecution had failed to establish prima facie case that the accused
was engage in a conspiracy for importation of gold. The prosecution
appeal.
• The court set aside the acquittal and direct the accused person to
enter defence.
• The court held that there was no direct evidence that the Resp had
engaged with any other person in any conspiracy for the importing
of gold. But as in the case of “Kenny (1936)”, “it rarely happens that
the actual facts of conspiracy can be proved by direct evidence; since
such agreement usually entered into both swiftly and secretly”.
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12. • To constitute a conspiracy, it is not essential that a person must
have been a party to the wrongful agreement from the start,
provided that at some stage before the unlawful act is carried
out and he joins in an agreement to carried it out.
• Having regard to all circumstances, there was evidence that
conspiracy exist taking into consideration of the Resp nature of
employment at the airport, the value of the gold and the
preparedness of the Resp for receiving the slabs of gold as
evidenced by the special waistcoat he was wearing under his
singlet and his conduct before he was apprehended.
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13. OVERT ACT
• Where the agreement is to commit an act which is not an offence
it is necessary to establish that ‘some act’ was committed by one
or more parties to the agreement in pursuance thereof.
• There must be an apparent and obvious act done. But it would
be restricted to agreements to commit lawful acts adopting
means which in themselves would give rise to civil liability
(tortious liability).
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14. MENS REA
• The parties must have intended that their agreement be carried
out.
Churchill v Walton
“there must be an intention to be a party to an agreement to do an
unlawful act…”
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15. Yash Pal Mital
The court held that:
“the conspirators must act with one object to achieve the real end
of which every collaborator must be aware and in which one of
them must be interested. There must be unity of object or
purpose…”
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16. R V Anderson
• There was no need for an intention to carry out the agreed
course of conduct provided that the accused intended to play
some part in the agreed course of conduct.
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17. R v Yip Chiu-cheng
• Held that the mens rea of conspiracy only requires each alleged
conspirator to intend the offence to be carried out, but the law in
England is by no means settled.
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18. • Although it is not necessary for each party to the agreement to
know all the details of the conspiracy, a question arises as to
how much must a person know before he can be held liable for
criminal conspiracy.
• Mere knowledge that something illegal is to be committed is not
enough, the co-conspirator need not know all the details of the
proposed offence, such as the time and place of its commission.
• It is sufficient if the co-conspirator knows either the type of
offence that is intended or that one of the number of offence is
planned which includes the offence eventually committed.
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19. R v Bainbridge
• D purchased some oxygen cutting equipment for P who later
used this equipment to break into a bank. D claimed that he
suspected that P wanted the tool for something illegal, but that
he did not know that he intended to break into a bank.
• The COA held that D must have shown to know the type of crime
that was going to be committed (that is, breaking into a bank)
but he need not know which bank, on what date or what time.
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20. VOLUNTARY WITHDRAWAL BY
THE CONSPIRATOR
• There are conflicting views as to whether person who
countermand their conspiracy could be relieved of their criminal
liability.
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21. R v Amrita Govind
• If the conspirator, before the accomplishment of his criminal
purpose, abandons his project and withdraws from the further
prosecution thereof, and the person abetted proceed with the
design on his own accord, the abettor cannot be held liable.
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22. Queen v Budhan
• A person, who after consenting to be a party which committed
theft, resiled from the agreement but was present at the theft,
was held liable for abetment.
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23. • Allowing the accused to negate his or her liability in this way can
be easily abused. Any person involved in a crime can simply wait
till the last minute to withdraw from the commission.
• However, a person who abandons his criminal purpose and gives
reasonable assistance to the authorities to prevent the crime is
arguably no longer dangerous.
• Recognizing voluntary withdrawal also serve to encourage an
abettor to desist and to prevent the crime from being
committed.
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24. CONSPIRACY TO COMMIT THE
IMPOSSIBLE
• A question arise whether a person is liable for conspiracy if the
substantive offence is impossible to achieve?
• E.g.: is a person who instigates another to perform illegal
abortion liable if the woman turn out to be not pregnant?
• Under EL, there is no liability but under ML an accused charged
with an agreement to commit an offence would be liable even if
the result is impossible to achieve.
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25. DPP v Nock
• The accused agreed to extract cocaine from a powder in their
possession which they believed to be a mixture of cocaine and
lignocaine.
• In fact, the powder was lignocaine hydrochloride which contained
no cocaine. It was thus impossible to extract cocaine from the
powder.
• They were nevertheless, convicted of the offence of conspiracy to
produce a controlled drug. The court said it would be otherwise if
the agreement was in general terms to produce cocaine if and when
they could find a suitable raw material. In such a case, the accused
would have agreed to commit an offence and they would be guilty of
criminal conspiracy to produce cocaine.
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26. Emperor v Hiremath
• The accused had agreed with each other to kill Munckandappa
by using a method of witchcraft.
• The court held that the agreement between the accused was to
cause the death of the victim, with the means to be tried first
being a form of witchcraft.
• It was, therefore, not merely an agreement to perform acts of
witchcraft only but to commit the offence of murder.
• They were found guilty as charged.
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