Not All Criminals Commit the Crime. Some Just Enable It

In most criminal cases, the spotlight naturally falls on the person who directly commits the offence; the one who pulls the trigger, makes the transaction, or issues the threat. However, Malaysian law makes it clear that those who assist, encourage, or facilitate a crime can also be held criminally liable. These individuals are legally recognised as accomplices, and they may face the same punishment as the principal offender.

Cambridge Dictionary defines accomplice as “a person who helps someone else to commit a crime or to do something morally wrong”. To put it into perspective, consider the iconic opening scene from The Dark Knight (2008) where Joker orchestrates a heist where each robber is instructed to kill the other after completing their part, unaware they’re being used. Every robber is acting under a common criminal plan. That particular scene vividly illustrates both the legal and practical perspective of how accomplice liability works, as interpreted by Malaysian courts – a concept we will explore further in this article.

Whether a person is an accomplice?

While there is no specific provision that expressly states in the Penal Code the definition of an accomplice, its evidentiary relevance is recognised under the Evidence Act 1950. Section 133[1] provides:

133. An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

However, this must be read together with Section 114(b)[2] which provides:

114(b). The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.

In R v. Mullins[3], an accomplice is a friend of those who committed the crime with him. Meanwhile the House of Lord in Davies v. Director of Public Prosecutions[4] answers the question on ‘who is an accomplice’ where:

“… that persons who are particeps criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact in felonies or persons committing, procuring, or aiding in the case of misdemeanours are accomplices.”

How to determine whether a person is an accomplice?

In PP v. Mohd Jamil Yahya & Anor[5], as pointed out in 2 Sarkar at p. 1280, the point for determination appears to be:

1. whether the witness entered into the conspiracy with the sole object of detecting and betraying it; or
2. whether he is a person who concurred fully in the criminal design of his co-conspirators for a time and joined in the execution of these till out of fear or for some other reason he withdrew from the conspiracy and gave information to the authorities.

If he extends no aid to the prosecution until after the offence has been committed, he would be an accomplice. Further, if he originally joined the conspiracy with the sole object of taking part in the crime, he cannot change his position to that of an informer by subsequently giving information of the crime.

Witness was an accomplice?

Q: Is there any evidence upon which it can be ruled that the witness was a participant in the offence?

A: A witness cannot prima facie be termed an accomplice without first examining the evidence to find out whether he is in fact an accomplice or not.

To strengthen the point, in Sabarudin bin Non v. Public Prosecutor[6], Gopal Sri Ram JCA (as he then was) referred to Thompson CJ in Chao Chong v. Public Prosecutor[7] where:

“The true question, however, was not the technical one of whether the witness could have been convicted for his participation in the offence if he had been prosecuted. The true question was whether, having regard to his participation in the offence and having regard to all the circumstances of the case, his evidence was to be regarded with suspicion and as possibly so tainted as to invite if not demand corroboration before it was accepted.”

A deeper reflection on the Role of Accomplices

The question of whether a witness is an accomplice is ultimately a factual one that must be determined based on the evidence presented. The core issue as highlighted in Sabarudin and Chao Chong emphasizes that it is not whether the witness could technically be convicted for the offence, but whether in light of their participation and the surrounding circumstances and their evidence should be regarded with caution. If the testimony appears suspicious or possibly tainted, it may warrant corroboration before being accepted by the court. This approach also reinforces the principle that justice must not only be done but be seen to be done with full awareness of the complexities that come with evidence from those complicit in crime.

Accountability Beyond the Obvious

Accomplice liability may not be expressed in the Penal Code, but its legal significance is deeply embedded in Malaysian criminal jurisprudence. Through statutory provisions and case laws, it is clear that the law does not permit those who assist, encourage, aid or facilitate crime to escape accountability. The hands that orchestrate and enable a crime even from the shadows can potentially bear the same criminal responsibility as the ones who execute it.

Recognising the role of accomplices ensures that justice addresses not only the act itself, but also the network of intent and support that makes crime possible. Much like Jesse Pinkman in Breaking Bad (2008), who although not the mastermind, becomes deeply entangled in Walter White’s drug empire and suffers equally severe consequences, which can perfectly illustrate the criminal weight of the accomplice who can be held just as liable as the principal offender.

[1] Evidence Act 1950

[2] Evidence Act 1950

[3] (1848) 3 Cox CC 526

[4] [1954] 1 AII ER 507

[5] [1993] 1 LNS 95

[6] [2005] 1 CLJ 466

[7] [1959] 1 LNS 11