Conspiracies

Ocean's 11 (1960 film)
Ocean’s 11 (1960 film) (Photo credit: Wikipedia)

Today, we covered a number of similar topics in Criminal Law – the ways in which a crime can be extended to other people, kinda like Ocean’s 11.

Criminal Conspiracy
Criminal conspiracy is covered under S.120A of our PC. The essential elements here are that there must be more than one person involved – it’s not quite possible to have a conspiracy with only one person; and there has to be an act or first step taken in the conspiracy.

Therefore, conspiracy is not a result crime but a conduct crime. Nothing bad actually needs to happen but all that is required is that there are several people plotting together and that any one of them takes a first step towards advancing the plot.

The whole idea of this provision is to prevent the commission of a crime committed by a number of people.

Abetment
Abetment is covered under S.107 of our PC. Unlike conspiracy, abetment is used on an individual that is linked to the crime. However, there are only four forms of abetment as specified under the section: one can instigate, command, engage or aid in the commission of the crime.

What is dangerous about this section is that the crime itself does not need to have been carried out. The abetment of another abetment is also a crime, which can invariable pull in anyone higher up along the chain. This section can be read quite widely as the cases show.

This section, can be confused with conspiracy particularly S.107(b) that makes one guilty of abetment in a conspiracy. The key point here is to remember that the abettor does not himself need to be part of the conspiracy e.g. the mastermind.

The whole idea of this provision is to capture anyone else who might have played a role, possibly indirectly unlike in a conspiracy where it’s only the members of the conspiracy who are caught.

Common Intention
Common intention is covered under S.34 of our PC. Unlike the previous two, this section is not a substantive section and can only be used alongside any other substantive section. The elements are that the criminal act is done by several persons to further a common intention.

The key here is that each person must have contributed to the criminal act, with a common intention. Again, the cases show a wide interpretation of this section. The persons involved do not even need to be physically present. Anyone who contributed to the crime is considered to have committed the said crime.

This can often be confused with S.107(c) of abetment – aid – as each person involved must have contributed to the crime. The key difference between the two is the common intention. Any person who aided a crime may have done so unwittingly or unknowingly, and will not be caught by this section.

The whole idea of this provision is to capture everyone involved in a group crime, e.g. gang crime, particularly when it may be difficult to determine whom actually pulled the trigger, whom was the lookout, whom was the getaway driver, etc.

Unlawful Assembly
Unlawful assembly is under S.149 of our PC. This provision is the widest ranging one of them all. While it is necessary to show that every member of the gang contributed in some way under S.34, it is totally unnecessary to do so under S.149.

All that is required is that there must be an unlawful assembly as defined under S.141 of our PC and those present have assembled for a common object (not intention). Then, someone in the group committed a crime then all those present are deemed to be guilty of the same offence.

This is often confused with S.34 but one is of a common intent while the other is a common object. The S.149 common object element is much wider as everyone may have different intentions while having the same object. However, another catch is that there must be at least five people physically present first.

While this provision seems terribly wide and dangerous, the whole idea is to rope everyone present at the scene into the crime. It does not mean that everyone is guilty of the crime though, unlike S.34.

Why I Study Law

I had this short conversation with a classmate of mine, in class, today.

Q: You have a PhD?
A: Yes.
Q: Then, why you study Law?
A: for Fun!
(shocked look)

I do realise that a lot of the people in my class are doing this external Law degree for the sake of their careers. Half my classmates are either police officers, court officers, or clerks working in Law firms. So, this group or people are definitely doing the Law degree for their career progression.

Another fairly large group are people who are doing their first degree. These are largely people who have an STPM or equivalent but never got themselves a degree, due to various circumstances. So, these people are also doing it as a way to get a basic degree for increased job prospects.

There’s a also a substantive group of people who already have degrees. I’m not sure if there are others with doctorates in the class, but I know of many who have got basic degrees in various fields, and also several with masters degrees. However, many in this group are also doing it to boost their careers.

But not everyone does it for career reasons.

There’s one group of people – retirees or those very close to retirement. There are plenty of aunties/uncles in class and even some former Senator. These people are obviously not doing it for career purposes but are possibly doing it as an aspiration maybe, or to pass time. I don’t know for sure as I’ve never actually asked them about it.

Finally, there’s me – doing it purely out of interest. I have always had an interest in the Law. My mum always thought that I had a gift for it. True, a law degree will not help me progress, one bit, in my career. However, knowing the Law is always helpful as all human activity is regulated by it.

I just hope that others can just accept that.

Memorandum and Articles

The key topics that we covered today were the Memorandum and Articles of Incorporation. The point of learning these things is to recognise the source of Law in a company. Of course, the main rules that govern a company are the various Statutes, chief of which is the Companies Act, and Common Law.

Aside from these two sources, the Memorandum and Articles of a company are two other sources of internal Law for each company. The Memorandum is essentially the charter of the company while the Articles are the actual rules that regulate the operation of a company.

The Company Act is of course, king of Laws. In general, the Act itself regulates all companies notwithstanding anything that is written in the M&A documents. However, many parts of the Act provide that unless the M&A say otherwise, the Act is king and this allows the M&A to override things. Also, there are some parts of the Act that allow the M&A to override the Act only if they provide increased protection than that provided under the Act.

Therefore, the M&A is very important.

That said, both these documents are changeable with special regulations. Alteration of the Memorandum is chiefly governed by the rules under S.21(1), (1A), and (1B) of the CA. Prior to 1996, it was difficult to change things in the Memorandum but now, it’s easier, although subject to a number of rules.

Same for the Articles, which can also be altered following the rules under S.31(1) of the CA. In general, it is easier to alter the Articles than the Memorandum, as it should be. However, there are also a lot of Common Law rules that prevent members from arbitrarily altering the rules, mainly protecting the minority party.

That’s essentially the key to M&A.

The next issue would be what if the company acts outside of it’s rules – particularly the doctrine of Ultra Vires, when a company acts outside its objects specified in the Memorandum. The Malaysian position with regards to this doctrine is unique, which allows a cow rearing company to engage in real-estate investments instead. The main section that governs this doctrine is the entirety of S.20 of the CA.

We also covered the issue of pre-incorporation contracts and provisional contracts. Pre-inc contracts are contracts entered into by the promoter of a yet-to-be formed Company, on behalf of and in the interest of the company. Provisional contracts are entered into post-incorporation but before a company is allowed to commence business, and so only applies to public companies.

The general rule with pre-inc contracts is governed by S.35(1) and (2) of the CA. In general, a company has the option to ratify any pre-inc contracts which then bind the company retrospectively. Otherwise, the promoter is personally bound instead, unless there is an exemption clause that escapes him.

The general rule with provisional contracts is that the contracts automatically come into effect and are binding on the company the moment the company receives the certification of business commencement. There is already a legal entity in place, unlike for pre-inc contracts.

An interesting question raised in class was what happens if a pre-inc contract is ratified by a public company but the company winds-up before commencing business. In such a situation, which party is bound by the contract is not very clear. However, I feel that in the interest of justice, the contract must be bound to the company regardless of whether it has commenced business or not.

Anyway, that’s the summary of today’s class.

Of course, a lot of detail has been discussed in class, particularly Common Law cases.