H(T+M) = TH + MH = Lowau (.__.

)v

Defences

H(T+M) = TH + MH = Lowau (.__.)v

Infancy
S82:
Nothing is an offence if done by a child under 10 years old. (<10)
No mentality, no mens rea, no criminal responsibility, doli incapax, irrebuttable presumption
[Absolute defence- absolute presumption that a child is incapable of committing a crime]
S83:
Nothing is an offence if done by child above 10 and below 12. (10 to <12), not yet attain sufficient
maturity of understanding to judge the nature and consequence of his conduct
[Qualified defence- e utta le p esu ptio that he does ot k o his a t is se iuosl
o g as opposed
to e el aught ]
Must prove that the child does not have the sufficient maturity to know the nature and consequence
of the conduct. Or else he will be convicted.
(Must prove that he knows that what he does is wrong, not necessary legally wrong, to rebut the
presumption of doli incapax)
S113 Evidence Act:
Boy who is below 13 years old is presumed to be not capable to conduct rape. It is rebuttable by way of
proving his maturity (knowledge on the nature and consequence.)(<13)

Ulla Mahapatra v The King

1. Ulla was getting palm fruit plucked from a tree standing on his land.
2. The deceased picked up a fruit on the ground and Ulla protested and demanded its price.
3. The deceased threw the food and threatened to cut Ulla into pieces if he went to Tope for plucking
palm fruits.
4. Ulla told the deceased that he would cut him instead.
5. Then ulla struck deceased with a kathi on the left side of his chest.
6. The deceased fell down and died on the spot.
Held:
1. The appellant is over 11 and below 12 years of age.
2. The manner in which he answered the questions leaves the impression that the appellant is an
extraordinary precocious (unusually advanced or mature in development, esp mental development)
child.
3. He gives minute details of what he did after he returns from his padar field, prior to the occurrence,
how he bargained for wages, and explained very detail of the evidence against him.
4. The answer he gave disclose an acute and intelligent mind and he can by no means be regarded as
suffering from any immaturity of understanding. (court observes the conduct)
5. The o ds he utte ed: I shall ut ou to its o sho that he realized the nature and
consequences of what he was going to do.
6. S83: Penal Codes contemplates that the child should know the nature and physical consequences of
his conduct.
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H(T+M) = TH + MH = Lowau (.__.)v

7. When the appellant picked up his knife and advanced towards the deceased with a threatening
gesture, saying that he would cut him into pieces, and did actually cut him, his entire action can
only lead to one inference, namely, that he did intended to do and that he knew all the time that a
blow inflicted with a kathi would effectuate his intention.
8. [mh dumb dumb: he knew that it was wrong as he tried to explain every evidence adduced against
him in order to negate the evidence.]
C. (A Minor) v DPP (Director of Public Prosecutor)
1. The defendant was aged 12.
2. He was holding the handlebars of a motorcycle while another by was attempting to force the chain
and padlock which secured it with a crowbar.
3. When the officer approached, the 2 boys ran off, leaving the crowbar in the chain.
4. The defendant was charged with interfering with a motor cycle the intention that an offence of
theft should be committed.
Held:
1.
2.
3.
4.

Defendant knew that he was in serious trouble because he had done something seriously wrong.
His act was of such nature that a boy of that age would have understood it to be unlawful.
The defendant and his accomplice ran away from the police officers leaving the crowbar behind.
This is an dishonesty case, a theft, (cannot be assimilated to a case of mere naughtiness A. v DPP
where a child ran away after throwing stones at a police vehicles)
5. Due to this rank of dishonesty, the facts are allowed to speak for themselves as regards the child
defe da t s state of i d.
6. The child must have known the moral quality of his act though there might be no evidence as to his
actual state of knowledge.

H(T+M) = TH + MH = Lowau (.__.)v

Unsoundness of Mind
S84:
Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of
mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to
law.
Mc Naghte case:
1. Daniel McNaghten was charged with the murder of Edward Drummond, private secretary of the
then PM of England.
2. McNaghten was suffering from delusions of persecution that PM had injured him.
3. He intended to kill the PM but shot and killed Edward instead.
4. He was acquitted on the ground of insanity.
Held:
1. Legal test of insanity:
To establish a defence on the ground pf insanity, it must be clearly proved that, at the time of the
committing of the act, the party accused was laboring under such a defect of reason, from disease
of mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he
did not know he was doing what was wrong.
Ingredient of the defence
Penal Code s84
At the time of doing it
It is irrelevant if he was suffering the alleged
condition before or after the act.
By reason of unsoundness of mind
Include also mental deficiency not resulting
from disease of the mind.
Legal insanity, not medical insanity
Co e the k o i g ess a d og iti e of
the accused who plead for this defence
----Is incapable of knowing
The nature of the act
The nature and the consequence of the act
Or that he is doing what is either wrong or contrary
to law

McNaghten Rules
At the time of the committing of the act

The party accused was laboring under such a

defect of reason

From
Disease of the mind
As not to know
The nature and quality of the act he was doing
Or, if he did know it. That he did not know he was
doing what was wrong

There are 2 main limbs in s84 of Penal Code which the accused is entitled to an acquittal. He can be
acquitted if at the time of doing the act by reason of unsoundness of mind, 1, he did not know the nature
of the act, OR 2, if he knew the nature of the act he did not know that it was wrong or contrary to law.

H(T+M) = TH + MH = Lowau (.__.)v

Jusoh v PP
1. The app ran amok for no apparent reason.
2. He slashed his sister in law and her 1 children to death.
3. He then killed a man who was a complete stranger to him and inflicted severe injuries on 2 young
men who led the villagers to secure him.
4. A edi al offi e ho as ith the appella t hou s afte his a est des i ed hi as i a daze
a d o e hel ed ith oe
Held:
1. The defence case was that there were 4 killings which where was no motive at all, in short, the facts
e e su h that a o di a
a
ight ell e p o pted to sa this is the o k of a ad a .
2. There was an uncontradicted evidence of a medical man with long experience in diseases of the
mind who had had the app under observation for about 3 months was that at the time of the
killings the accused was suffering from mania which could produce him an irresistible impulse to do
what he did and the type of mania which it springs generally produces the consequences that the
sufferer does not know what he is doing is wrong.
3. However, on the basis of no rebutting medical evidence, etc, the court was only told that PP who
ha es studied the appella t fo da s a d thus i ette positio tha a od else i ludi g the
medical man who had had him under observation for 3 months, in judging the mental condition at
the time of the killing.
4. The contention by prosecutor was rejected. Appeal was allowed.
Geron Ali v Emperor
1. Pir is a holy man, his wife is Pirani.
2. They asked appellant to bring a head as sacrifice if he wants to go to heaven.
3. He ut off a a s a dhis daughte s head to Pi .
Held: (disjunctive view if morally wrong, it considered as legally wrong too?)
1. The appellant knew the nature of his act.
2. Evidence showed that he considered that he was doing a meritorious act which qualified him for
heaven.
3. If he knew that what he was doing was wrong then he will not be protected e e if he does t
know that it was contrary to law.
4. If he knew that what he was doing was contrary to law then he will also not be protected even
though he did not know what he was doing was wrong.
5. Any act contrary law if conducted, ignorance of the law will not protect a man from punishment
when it is shown that the man knew that what he was doing is wrong.
Ashiruddin Ahmed v King
1. The appellant was convicted under s302 for the murder of his 5 year old son.
2. He dreamt that he had been directed by someone in paradise to sacrifice his son by killing him.
Held: (conjunctive view?)
1. The nature of act was clearly known to the accused.
2. The accused most probably knew the act was contrary to law.
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H(T+M) = TH + MH = Lowau (.__.)v

3. The 3rd point: whether the accused knew that the act was wrong.
4. The 3rd point is not properly put forward.
5. Hence the court found that the accused committed the act of causing the death of his son by
cutting his throat was by reason of unsoundness of mind.
6. He was incapable of knowing that his act was wrong, he misunderstood the law.
7. The accused was acquitted.
** Dr Siti:
I s , the wro g or co trar to law , the wrong efe s to wrong according to law as well.
Redundant? NO.
Wrong in law: is a wider interpretation.
Contrary to law: know specifically what legal wrong is that.

Geron Ali and Ashiruddin:

Moral and legal wrong conjunctively is not applicable Is Malaysia. It is different with Penal Code.
Perbuatannya salah dari segi/dari sisi undang-undang, x dari segi moral, x seperti kanak kanak.

***John Nyumbei [2007] 2 CLJ 509: no difference between wrong and contrary to law

Hoo Ah Tee v PP
1. The appellant attacked the deceased with a parang.
2. He raised the defence that he was having an attack of hypoglycemia and hence he was not aware of
what he was doing.
Held:
1. If he was losing his conscious at the time of committing the crime, he would not haeve the strength
to slash the deceased as he did and he would not recover that soon as to realize his act and ride the
motorcycle to the police station. (Evidence from expert)
2. S84 has everything to do with legal insanity and not medical insanity. Of the facts show that the
accused knw that he had done something wrong he will not be exempted under this section.
3. Hence in order to claim exemption from criminal liability, the person must incapable of knowing
1. The nature of the physical act
2. The physical act is illegal contrary to law
3. And, the act is wrong one
4. The doctrine of irresistible impulse has not been accepted as a ground of exemption both in
England and in india. However, this can be a ground for mitigation
5. Epileptical insanity may fall under this section if it is established that he was suffering from it at the
time of commission of the crime, similarly somnambulism.

H(T+M) = TH + MH = Lowau (.__.)v

Intoxication (negate MR)

S85(1):
Intoxication can be used as a defence
S86(3):
Intoxication includes a state produced by narcotics (Substances that blunt the senses) or drugs.
[Unsoundness of mind: x need to show the source
Intoxication: source narcotics, drugs chemical reaction internally to the extent of insanity
s85(2)(b)]
S85(2):
Intoxication can be an offence if the accused at the time of the act or omission complained of did not
know that such act or omission was wrong or did not know what he was doing,
If the case:
1. S85(2)(a):
It is an involuntary intoxication by malicious or negligent act of another person.
S86(1):
The defence under subsection 85(2) establish then the case falls under paragraph (a), the accused
person shall be acquitted
2. S85(2)(b):
It is a voluntary intoxication. The person charged was by reason of intoxication insane, at the time
of such act or omission, temporarily or otherwise. (His own act)
S86(1):
Defence under S85(2) establish then the case falls under paragraph(b), s84(unsound mind) shall
apply. He is incapable of knowing the nature of the act (= did not know what he is doing? ) or that
he is doing what is either wrong or contrary to law.
S86(2):
Cou t ust o side i to i atio if the ha ges [ a dato ] e ui es intention as the MR
Eg: s300(a) to (c). s300(d) requires knowledge only.
If the defence of intoxication is successfully raised, it may then negate the intention. There will then be
no case of the offence requiring intention as an element.
Where a specific intent is an essential element in an offence, evidence of a state of drunkenness
rendering the accused incapable of forming such an intent should be taken into consideration, with the
other facts proved, to determine whether he had in fact formed the intent necessary to constitute a
particular crime.

H(T+M) = TH + MH = Lowau (.__.)v

** There may be similarity in unsoundness of mind and intoxication. However, under s84, if a person is
acquitted, he may be ordered to be confined in a mental hospital.
**If a person is acquitted due under intoxication referring to s84, then there is unsoundness of mind
temporarily at the moment of commission of the offence but no mental illness.

Ismail bin Abdul Rahman v PP

1. App was convicted for the murder of a male Indian
2. He appealed and alleged that the trial judge had failed to give adequate consideration to the fact
that the appellant was drunk at the time of the attack and accordingly was incapable of forming the
intention to kill.
Held:
1. The only evidence adduced that the accused consumed liquor came from the accused himself.
2. He did not disclosed what he drank, the quantity he drank or the state of his intoxication.
3. It was insufficient to support the defence of intoxication laid down in section 85 (intoxication
insane)
4. The bare statement of the appellant that he was drunk was inadequate to negative the intention to
kill and this ground of appeal failed.
PP v Tan Ho Teck
1. The accused was charged with causing the death of his brother by stabbing him.
2. A had become upset because of his inability to pay a debt owed to his uncle and because of an
argument with his brother.
3. The accused had consumed a whole bottle of brandy and while intoxicated, he fatally stabbed his
brother and injured his sister.
4. The a used s defe e as that he as so hea il i to i ated that he did ot k o what he was
doing.
5. At the close of the case for the prosecution, it was submitted that there was no case to answer,
relying on the fact that the accused was heavily intoxicated ad that the accused by reason thereof
did not have the intention of committing the offence for which he was charged. The court
disagreed and held that the prosecution had made out a case which, if unrebutted, would warrant a
conviction for the offence.
Important facts:
1. The relationship between the accused, his brother and sis was good.
2. Medical evidence adduced by an expert stating the accused at the time of stabbing his brother and
sister, was suffering from delirium due to acute alcoholic intoxication.
3. Delirium is a psychiatric syndrome characterized by a transient disorganization of a wide range of
cognitive functions. (affect the cognitive function)
4. The accused consumed a large quantity of brandy in undiluted form by the accused before the
stabbing.
5. Police officers found the accused unable to take or walk steadily and smelled of alcohol.
6. When he was brought to the hospital, he was heavily intoxicated which he was found to be n coma
III on examination.
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H(T+M) = TH + MH = Lowau (.__.)v

7. There are predisposing factors additional to the acute alcoholic intoxication which produced
delirium in the accused.
8. There was no heated exchange or words preceded the stabbing of his sister and brother despite the
fact that he had an argument 2 or 3 hours before and before he consumed the whole bottle of
undiluted brandy.
9. He did not run away.
10. He did not hide the knife or wipe all the blood on him
11. He even asked his sister where his brother was.
[It may be used to show that he does not know what he was doing. He was confused. He was
unsound. All seem irrational]
Held:
1. The court is satisfied that the accused at the material time was suffering from delirium due to acute
alcoholic intoxication. (sufficient support)
2. By reason of intoxication, he was insane at the time of stabbing.
3. As a result he was incapable of knowing the nature of his act or what he did was wrong. He did not
know what he was doing. The expert explained that the delirium is a mental illness.
4. There was no apparent motive or reason for stabbing (motive is not applicable in malaysia)
5. Hence it is unnecessary for the court to consider the other defences, eg: the accused by reason of
his intoxication did not form the specific intention of committing the offence in which he was
charged.
Kenneth Fook Mun Lee v PP
Held:
1. In an appropriate case, a finding on intoxication may be made at the close of the case for
prosecution, especially where s86(2) is relevant.
2. This was not such a case.
3. The ou t elied o s
d of the ode the k o ledge li
fo the M of u de .
4. S86(2) only affects offences which require intention. It excludes other types of Mens Rea.
5. Since 300(d) involves merely knowledge and not intention, it is not within the ambit of s86(2).
6. Intoxication is thus irrelevant in securing a conviction for murder if knowledge as per 300(d) is
proved beyond reasonable doubt by prosecution.
[MH dumb dumb: Hence even though there is defence of intoxication raised (was rebutted
anyway), they can choose not to consider it in deciding the case.]

H(T+M) = TH + MH = Lowau (.__.)v

Consent
S90:
Provides what is not a consent:
1. Consent given by a person under fear/injury/misconception
2. Consent given by a person who from unsoundness of mind or intoxication
3. Consent given by person who is under 12 years old (<12, 0-11+ ) (cannot give consent)
Limit of consent:
S87:
1. If it is not intended to cause death or grievous hurt, or not known by the doer to be likely to cause
death or grievous hurt
2. It is not an offence even if the act causes ANY harm(accidentally), or the doer intended to cause the
harm (not death/grievous hurt), or the doer know it would be likely to cause that harm to the
person who has consented to take the risk of that harm.
3. The person who can give consent is any person above 18 years old. (>18)
4. Express or implied.

If the doer intends/knows the act from its nature will cause harm less than grievous hurt,
Consent = defence
If grievous harm is not intended/ known, the fact that such harm resulted is immaterial, as long as
there is consent.
There is a presumption of consent.
Eg: valid/lawful/legal sports

**12 and above can give consent but not under s87.
S88:
1. If it is not intended to cause death
2. It is not an offence even if the act may cause ANY harm, or the doer intended to cause the harm
(excluding death), the doer knows the harm is likely to be caused, to any person.
3. The act must be done fo the pe so s e efit, and in good faith
4. The person must give consent to suffer or take the risk of the harm.
5. Express or implied.

If know it is likely to cause death/grievous hurt, but there is consent, with good faith, with benefit for
the person, but WITHOUT intention, consent = defence.
Eg: surgery
Exception for WITHOUT CONSENT: s92

S92:
1. If the act done may cause harm to a person
2. For the benefit of that person in good faith
3. Although without consent, it is not an offence
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H(T+M) = TH + MH = Lowau (.__.)v

4. Circumstances:
a. Impossible for the person to give consent/
b. the person incapable to give consent/
c. has no guardian or other person in lawful charge of him from whom it is possible to obtain
consent in time
5. As long as there is no (limit of exception, this exception shall not extend to..):
a. Intention to cause death or attempt to cause death/
b. Doing of anything (which the doer knows it is likely to cause death), for any purpose other than
the preventing of death or grievous hurt, or curing any grievous disease or infirmity.
c. voluntarily causing hurt or attempt to cause hurt, for any purpose other than preventing death
or hurt
d. The abetment of any offence to the committing of which offence it would not extend
1. Illustration
b) Know likely cause death, no consent, cant give consent, cant get consent in time, for the benefit of
the person, in good faith, No offence.
S89:
1. Act done for person
a. under 12 years old (<12),
b. of unsound mind
2. By the guardian or by the consent of the guardian or by other person having lawful charge over the
person
3. In good faith, for the benefit of that person
4. Is not and offence although the act causes any harm (including death) which it may, or intended by
the doer to cause that harm, or known by the person to be likely to cause harm to that person
5. Shall not extend to :
a. Intentionally cause death/ attempt to cause death
b. Doing of anything (which the person knows to be likely to cause death), for any purpose other
than the preventing of death or grievous hurt, or curing grievous disease or infirmity.
c. voluntarily causing hurt or attempt to cause hurt, for any purpose other than preventing death
or hurt, or curing grievous disease or infirmity
d. The abetment of any offence to the committing of which offence it would not extend

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H(T+M) = TH + MH = Lowau (.__.)v

Qualification

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H(T+M) = TH + MH = Lowau (.__.)v

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H(T+M) = TH + MH = Lowau (.__.)v

R v Clarence
1. The accused man had sexual intercourse with his wife
2. He has the knowledge he was suffering from gonorrhea
3. His wife was ignorant of that fact. If she had known, she would not have consented to the
intercourse.
4. The result of which was she contracted the disease.
Held:
1. S20 of the Offences Against the Person Act:
It must be proved that the infliction of a wound or grievous bodily harm by some direct personal
violence, with or without weapon, unlawful/maliciously
2. There is an implicit consent by the wife to intercourse in her entering into the marriage with the
accused.
3. The act is immoral but not to the extent of unlawful
Ngwa Shwe Kin v Emperor
1. The deceased, Pan Zan, a middle aged man was a believer in charm
2. He rendered himself as da-proof
3. In an ordinary conversation, he told Shwe Kin to test his da-proof
4. He put out his arm and shwe kin cut the arm with his da
5. Pan Zan bled to death.
Held:
1. Deceased gave his consent under misconception of fact, erroneously believe that he is da-proof
2. But it cannot be said that appellant knew of this misconception or had reason to believe the
deceased was mistaken in thinking himself so not vulnerable
3. He is only 19 years old and would believe in a much elderly man.
4. So it cannot be said that his act was likely to cause such result.
a. He did not use great force
b. He had Pa )a s assu a e that he as i ul e a le
c. He inflicted cut on the art of the body specially presented for the purpose by the deceased.
5. Conviction set aside.
** It is not intended to cause death. Even if there is misconception on part of the decease, the appellant
does not know his misconception.
R v Flattery
1. A
ea s old gi l e t to see a p iso e
ith he othe fo edi al ad i e to u e he fits ? .
2. The p iso e told he othe that it as the atu e s st i g a ted eaki g , a d asked if he
might break it.
3. Her mother did not know what he meant but was not mind if it would make her daughter any good.
4. The girl had a fit and fainted.
5. When she recovered, she went with the prisoner to an adjoining room.
6. He had sexual connection with her. She made feeble resistance, believing that he was treating her
medically and performing a surgical operation.

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H(T+M) = TH + MH = Lowau (.__.)v

Held:
1. By fraud and false representation, the girl was induced and persuaded to allow him to touch and
approach her person.
2. Even though a 19 years old girl should know that it was a sexual intercourse, she was under the
impression that the prisoner was performing the operation by some instrument or with his fingers.
3. There was no evidence showing that the girl knew the prisoner was about to violate her.
4. She submitted to what was done under the belief that the prisoner was performing a surgical
operation to cure her from her illness. (misconception)
5. Prisoner was guilty.

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H(T+M) = TH + MH = Lowau (.__.)v

Was compelled by threats/ duress

S94:
1.
2.
3.
4.
5.
6.

A person commit a crime because he is compelled to do it by threats

At the time of doing it
Reasonably
Cause apprehension that instant death will result
Directed to himself if he does t o pel ith it.
As long as the doer did not of his own accord, or short of reasonable apprehension of instant death
(though reasonable apprehension of harm still exists), place himself in the situation by which he
became the subject to such constraint.
2. A person of his own accord and by reason of threat of being beaten joined gang robbery, x
entitled to the benefit of this exception.
7. Except
a. murder
b. offences included in Chapter VI punishable with death
c. Offences in chapter VI A.

Mohd Yusof bin Hj Ahmad v PP

1. App is guilty of trafficking 2700grammes of cannabis
2. He was deemed to be in possession and knowledge of the said drugs (carry it in his right hand,
walking)
3. He admitted that he carried 2 bags containing cannabis to Padang Besar.
4. He did co under the threat from a male Thai in a hotel in Sadau
5. The man threatened him with a pistol, ordered him to carry the 2 bags across the border to railway
station.
Held:
1. S94: there must be reasonable fear, at the very time, of instant death.
2. Person who do criminal act from fear of anything but instant death, do them at their peril, not
protected by s94.
3. If an offence is completed when all danger of instant death has been removed, the person
committing the offence is not protected under s94.
4. If the accused on his own accord places himself in a situation by which he becomes a subject to the
threats, even if it is a death threat, s94 does not apply.
5. Explanation 2 s94: need to be reasonable to apprehend that he will be killed instantly if he does not
carry out the threat.
6. App had complied with the request to carry the 2 bags to the railway and reached the station,
placed the bags on the platform and gone to purchase ticket to leave Padang Besar. He had been
carrying the drug for 1 and half hour without making any attempt to seek for help.
7. Although the Thai was 20 feet away on the platform when he last saw him, there are people at the
public place, and there are officers from whom he can seek for help. (there is no reasonable
apprehension of death)
8. The duress was no longer instant, imminent, extreme and persistent.
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H(T+M) = TH + MH = Lowau (.__.)v

9. The moment he placed the bag and purchase ticket, mission completed under no such duress
present or continue.
10. Conviction confirmed.
Tan Seng Ann v PP (can be ignore, the principle is the same)
1. App and 4 other Chinese were stopped while travelling in a motorcar and detained.
2. App led the police to his house and pointed the inspector a revolver (firearm) lying concealed in a
cupboard.
3. App stated that 2men brought a small parcel requesting him to keep in the house for the night.
4. He objected but the 2 men still left the parcel in his house and took him in the car to Selayang
where they were arrested, as he was not cooperating.
5. He was afraid upon the arrest but he decided to disclose it 2 days later.
Held:
1. There was nothing on the record in the case to suggest that duress was present or continued when
the appellant went out in the car with the other Chinese. (no express defence of duress has been
submitted)
2. In order to plead for the defence of duress to be upheld, the duress must be imminent, extreme
and persistent
Subramaniam v PP (specific for the facts of the case ie during the communist era)
1. App was found guilty for being in possession of 20 rounds of ammunition contrary to Emergency
Regulations
2. He raised the defence that
a. he had been captured by terrorists, trained and given ammunition
b. at the material times he was acting under duress
c. at the time of his capture he intended to surrender
d. with such intention he came to the place where he was found
Held:
1. It was submitted that as there was no communist around, there was no duress.
2. S94: instant, imminent death, and it must be reasonable and must be supported with evidence.
Very subjective,
3. However, Privy Council held that since, he was found in jungle, he is no way near to the any village
or place with public, the threat is still imminent to him. The terrorists may return anytime.
4. The court has e te ded the ea i g of i
i e t
** imminent = near, at hand

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H(T+M) = TH + MH = Lowau (.__.)v

Mistake of Facts
S76 and s79 deal with mistake of fact and not mistake of law.
There will be no defence for mistake of law (?)
S76 concerns a situation where a person under a mistake of fact, thinks that he is bound by law to do an
act. [S76 illustration (b) ]
S79 concerns a situation where a person under a mistake of fact, thinks that he is justified by law to do an
act.
3. Of Good faith s52 :
1. Due care
2. Attention
4. Reasonable, with no intention to kill
Chirangi v State of Nagpur
1. Chirangi killed his son by mistake thinking he was a tiger.
2. He was suffering from bilateral cataract.
3. There was evidence that he had abscess in his leg which would have produced a temperature which
might have caused a temporary delirium.
4. This might cause a secondary delusion affecting his vision
Held:
1. Chi a gi s fall o i ed ith his e isti g ph si al ail e ts ould ha e p odu ed a state of i d
which he in good faith thought that object he attacked was a tiger, not his son.
2. It was manifest that he had had no intention of doing wrong or committing any offence.
3. There was no reason why he should have attacked him and as shown, they were mutually devoted.
If Chirangi had for a single moment thought that the object of his attack was his son, he would have
stopped and desisted.
4. He considered his target was a tiger (in good faith)
5. He thought that by reason of mistake of fact he was justified in destroying the deceased whom he
did not regard to be a human being but who as he thought was a dangerous animal.
6. He was in circumstances protected by provision s79.
Bonda Kui v King Emperor (Chirangi referred to this case but chirangi has more convincing facts)
1. A woman, in the middle of the night, saw a form, apparently human, dancing in a state of complete
nudity, with a broomstick tied on one side and a torn mat around the waist.
2. The woman taking the form to be an evil spirit or a thing which consumes human beings, removed
her own clothes and with repeated blows by a hatchet felled the thing to the ground.
3. Examination showed that she had killed the ife of he hus a d s othe .
Held:
1. Conviction and sentence of the woman under s304 was held aside, on the ground that she was
protected by the provision of s79.

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H(T+M) = TH + MH = Lowau (.__.)v

2. The evidence made by her which constituted the only evidence in the case, demonstrated
conclusively that she thought the she was by mistake of fact, justified in killing the deceased who
she did not consider to be a human being, but a thing which devoured human beings.
R v ALB Swaine (1935) **macam not important
1. Ng Hock Su was a squatter. He occupied a piece of land at a rental of 1 $ a month.
2. The rent was increased.
3. This led to an affray and Ng Hock Su hurt the Mandor who attempted to collect the rent.
4. When Ng was in custody, Manager demolished his house.
Held:
1. The appellant cannot plead that he did this bona fide because he has made a mistake not of fact
but of what his legal power are to enforce the contract and is not within the protection of s79.
Sulong bin naim v PP (firearms)
1. The appellant was found carrying a bag which contained 2 hand grenades.
2. He stated that he was arrested when he was carrying the grenades with the intention of handing
over to the police.
3. He said that there was a circular to the effect that of any person delivered arms to the police he
would be rewarded. (no evidence was adduced pertaining this)
Held:
1. S76 and s79 are only applicable when there is a mistake of fact.
2. A mistake of law does not excuse.
3. Mistake as understood in jurisprudence, is used in the sense of misconception or error of
judgement.
4. He knows that he is carrying and he is intentionally carrying those arms. [Misconception as
contained in jurisprudence = does not know he is carrying arms? ]
5. A person carrying arms even though with a view to handing them to the police is guilty of an
offence.

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H(T+M) = TH + MH = Lowau (.__.)v

Accident (no tutorial question >.< not sure whether we cover it or not)
S80:
1. Accident/ misfortune
2. No criminal intention or knowledge
3. Do lawful act in lawful manner by lawful means
4. With proper care and caution
Jageshar v Emperor
1. The a used as eati g a pe so ith his fists he the latte s ife, ith a a
interfered.
2. The a used hit the o a ut the lo a ide tall st uck the baby.
3. It died two days later due to the effect of the blow.

o he shoulde

Held:
1. S80 of indian penal code did not apply as he was doing an unlawful act.

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Necessity
S81:
1. Act done without criminal intention to cause harm
2. In good faith
3. To prevent other harm to person or property
4. Not an offence merely due to it is done with the knowledge that it is likely to cause harm.
PP v Ali b Umar
1. The respondent had been charged under Customs Act for carrying tin-ore in a local craft without
the permission of the Director-General of Customs.
2. They claimed that their boat which was destined elsewhere, had broken rudder forcing them in
distress to enter Malaysian waters
Held:
1. Necessity justified the respondents to enter the Malaysian water on specific reason that the boat in
which they were travelling was in distress due to the fact that the rudder of the boat was broken in
International water.
2. It would be necessary for the respondent to seek shelter for the safety of the boat and to preserve
the lives of the crew during such distress.
R v Dudley and Stephens
1. The 2 accused and a 3rd man and 17 years old boy were cast away on the high seas in an open boat.
2. They drifted in the boat for 20 days
3. When they had been eight days without food and 6 days without water, the fearing they would all
soon doe, the defendants killed the boy who was likely to die first.
4. The men ate his flesh and drank his blood for 4 days.
5. They were then charged with murder.
Held:
1. There was no common law authority to support the proposition that necessity was a defence to
murder.
2. The saint Christopher case was rejected as a precedent because it had not been formally recoded in
the law reports.
3. No one is qualified to make the decision of who should live and who should die.
4. This p i iple a e the legal loak o eal e t fo u idled free from restraint) passion and
atrocious(dreadful) i e
5. A man has no right to declare temptation to be an excuse, though he might himself have yielded to
it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of
the crime.
6. Saint Christopher case
In the early 17th century, seven Englishmen in the Caribbean embarked on an overnight voyage
from Saint Christopher, but were blown out to sea and lost for 17 days. During this time, starving,
they cast lots to see who would sacrifice their own life for the others. The lot fell to the man who
had suggested the scheme and he consented to his subsequent killing. His body sustained the rest
until they made their way to Saint Martin. They were returned to Saint Christopher where they
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were put on trial for homicide. The judge pardoned them, their crime being "washed away" by
"inevitable necessity". Though this case was cited in defence of Dudley and Stephens, it was
reported only anecdotally some years later in a medical work and not in the law reports.[18]
7. They were sentenced to the statutory death penalty.
**Dr Siti: it has to be a very strong justification if it involves human cannibalism as a private defence.

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H(T+M) = TH + MH = Lowau (.__.)v

Private Defence
S96-106

Terhadap Harta:

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H(T+M) = TH + MH = Lowau (.__.)v

S96
Private defence can be raised and vitiate the offence.
Private Defence of Person
1. S97(a)
Every person has the right of private defence of the o
od , othe s od agai st a
affecting human body (it must be an offence under penal code)

offence

2. s102:
Right of private defence of the body commences as soon as there is:
Reasonable apprehension of danger to the body arises, *though the offence may not have
been committed. (danger must be imminent, presence, real)
It continues as long as such apprehension of danger to the body continues*** (till aid arrives or
help received) (once no more apprehension of such, the right discontinued )
3. S99(3):
No right of private defence if there is time to recourse to the protection of the public authorities.
(because private defence is a defensive act)
(If no time, no protection, no way to flee, then only private defence is justified)
4. S99(4):
Private defence cannot extend more harm than it is necessary to inflict for the purpose of private
defence.
5. S100:
The right can only extend to causing death when the offence occasions the exercise is:
a. An assault reasonably cause the apprehension that death will otherwise be the consequence
b. Apprehension of grievous hurt
c. As assault with intention of committing rape
d. Intention to gratify unnatural lust
e. To kidnap or abduct
f. Intention of wrongfully confining a person
6. If there is no reasonable chance to escape then on private defence is allowed.
7. S101:
The right of private defence does extend, under restriction of s99, to the voluntary causing to the
assailant of any other harm other than death.
8. S106:
If the person facing assault reasonably apprehend death, and he could not exercise his right of private
defence without harming an innocent person, his right of private defence extends to the running of
that risk.
**S97 subject to restriction in s99.
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S96
Private defence can be raised and vitiate the offence.
Private Defence of Property
1. S97(b)
Every person has the right to defend the property of himself or of others, against offences which are :
a. theft
b. robbery
c. mischief s425
d. criminal trespass
e. or an attempt to commit all of the above
2. s105:
1) The right of private defence of property commences when a reasonable apprehension of danger to
the property commences.
2) Right of defence against theft continues until offender retreats with the property.
3) Right of defence against robbery (there is confrontation) continues as long as the offender causes
or attempts to cause death/hurt/restraint, or as long as the fear of instant death/hurt/personal
restraint continues
3. S99(3):
No right of private defence if there is time to recourse to the protection of the public authorities.
(because private defence is a defensive act)
4. Berterusan sehingga mendapat bantuan/ s105(2)/ s105(3)
5. S99(4):
Private defence cannot extend more harm than it is necessary to inflict for the purpose of private
defence.
6. S103:
Right of private defence to property can extend to voluntarily cause death if the offence committed or
attempted to commit if of the following:
a. Robbery
b. House breaking by night
c. Mischief by fire committed on any building etc as human dwelling/place for custody of property
d. Theft, mischief or house trespass which reasonably cause apprehension that death or grievous hurt
will be the consequence.
7. If the offence committed or attempted to be committed is theft, mischief or criminal trespass not as
enumerated under s103, right of private deffence does not extend to the voluntary causing of death
but, extend to voluntary causing the wrong doer of harm other than death, subject to restriction under
s99.
**S97 subject to restriction in s99.
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Private defence of body

PP v Dato Balwant Singh** (:D the best for private defence so far)
Held: (All principles are derived from different cases. EACH of them!!)
1. The provisions (s96, 97, 99,100 and 102) must be read together.
2. The right of private defence commences as soon as there is a reasonable apprehension of danger to
the body of a person and this right continues for as long as such apprehension of danger to his body
or life exists.
3. It must however be noted that the right has a limitation. If a person has time to have recourse to
seek the protection of a public authority or inflicts more harm than is necessary for the purpose of
defending his life and limb then such a right will no longer be available.
4. Any retaliation in the exercise of private defence should not exceed what is reasonably necessary to
a e t the assaila t s atta k. Thus a a used pe so should ot e allo ed to put his supe io it to
such use so as to beat up the assailant.
5. He needs not wait till he is actually attacked or inflicted with injury in order to react. He is not
obliged to run away. The law does not require a citizen to behave like a coward. (=D) If he is unable
to escape, he may turn around and attack.
6. The law does not require the person should have exercised a calm and cool judgement and that he
should have weigh his acts in golden scales. (hahahaha)
7. The person does not have to be inflicted with serious injury before the exercise of the right of
private defence can begin.
8. He can make sure his defence is effective. Thus a person having reasonable grounds to believe the
existence of imminent danger can use a gun in self defence.
9. If there is an apprehension of further violence the right of defence comes in.
10. It is not only the injuries already inflicted but also the injuries the attacker might inflict if the
defender does not exercise his right of self-defence that must be taken into consideration. A person
is not obliged to wait until the attack upon him is repeated.
11. Even if the aggressor is disarmed but there is a possibility of him wrestling the weapon from the
defender the latter has a right to use violence. The fact that the aggressor was unarmed while the
accused was armed with a revolver cannot affect the right of private defence.
12. The deceased was armed with a stick and the accused with a gun. However the stick was not an
ordinary stick. It was a thick branch and more than 4 feet in length. It is big enough to cause a
pe so s skull o o es to a k if hit ith it. It as su itted du i g the oss e a i atio that it
could cause grievous hurt and possible death if hit on the head.
13. There is a reasonable apprehension of death or grievous harm although there is no serious injuries
inflicted before the right begins, it is an injury that might be inflicted. No obligation on the accused
to run away, he may attack and a gun may be used in private defence.
14. As long as the accused has proved on a balance or probabilities that he acted in the exercise of the
right of private defence.
Musa bin Yusof v PP
1. The appellant had been convicted of culpable homicide not amounting to murder
2. He was first attacked by the deceased with a piece of iron
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H(T+M) = TH + MH = Lowau (.__.)v

3. And that by the time he struck the fatal blow the same piece of iron has passed from the
de eased s possessio i to his own possession.
4. Issue was whether after disarming the deceased of the piece of iron, the appellant was justified in
going further than it is necessary to defend himself.
Held:
1. The law in this country gives greater latitude to a person who is attacked than does the law in
England.
2. In England, if self defence is to be successful, the attacked must attempt to disengage himself from
the attack, and his killing the assailant is only excuseable if there was no other way of saving his life.
3. The question in such cases is not whether there was an actual continuing danger but whether there
was a reasonable apprehension of such danger.
4. If such a condition exists, the person attacked is not obliged to retreat, but may pursue his
adversary till he finds himself out of danger.
5. And if in a conflict between them, he happens to kill, such killing is justifiable.
6. Referring to the case of Alingan Kunhinayan v The Emperor:
a. The learned session court judge was suggesting that the first accused could have escaped
further injury by resorting to less violence or running away.
b. The court of appeal commented that this will place a great restriction on the right or private
defence of the body than the law requires.
c. A man who is assaulted is not bound to modulate his defence step by step, according to the
attack, before there is a reason to believe the attack is over.
d. The all important facts in connection with the question whether the 1st accused exceeded the
rights of private defence of his body when he gave the stab with his knife which proved fatal to
the deceased, are that the deceased was the first to use the knife and had inflicted a wound on
the 1st accused which might well have proved fatal.
7. The one blow which the appellant gave to the deceased with the trident was for the purpose of
preventing a renewed attack upon him, he was entitled to acquittal.
PP v Yeo Kim Bok
1. The accused in this case was charged for having committed culpable homicide not amounting to
murder by causing the death of one Lee Peak.
2. The deceased demanded repayment of a loan in aggressive way and pick up a knife when the
accused was going out of the shop calmly.
3. The deceased rushed towards the accused who had no way to escape.
4. Desperately, the accused picked up a wooden ladle and hit the knife. The knife fell on the ground.
5. Both the accused and deceased started to grapple with each other and fell down rolling,
endeavouring to pick up the knife.
6. Then an object looked like a knife was seen in the hand of the deceased.
7. The accused remained pinned under the deceased most of the time.
8. The defence of private defence was raised.

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Held:
1. There was a reasonable apprehension of danger to the life of the accused when the deceased
rushed at him with the knife in his hand and at threat stage he had the right of private defence
which extended even to the killing of the deceased.
2. There was a reasonable possibility that if the deceased had himself managed to get hold the knife,
he would have struck some blows with the knife on the accused.
3. The accused in such a circumstance was bound to be in his mind a reasonable apprehension of
death or grievous hurt being caused to him by the deceased unless he got out of the reach of the
deceased. The deceased might wrest the knife from his hand and use it against him.
4. The reasonable apprehension of death at the hands of the deceased could not thus be said to have
left the mind of the accused.
Khairul Anuar bin Zakaria v PP**
1. The appellant was found with his hands covered in blood, holding a machete.
2. He surrendered himself.
3. The appellant stated that the two others and the decease were smoking drugs brought by the
deceased.
4. The appella t fea ed the de eased s state e t that he as i ul e a le, st u k a fa a d a ase i
the head of the deceased and hit both hands of the deceased with hammer.
5. He then slashed the deceased with machete, not to hurt him but to defend himself and his family,
a d he ut the de eased s od , fea i g the de eased ill o e a k ali e.
Held:
1. The appellant showed that he knew the deceased had died when he was hit with the table fan,
vase and hammer.
2. The appella t s a t of ontinuously attacking the deceased and slashing the deceased for a few
times with the machete was unreasonable since at the material time, the threat from the deceased
on the appellant had stopped.
3. The stab on the heart and lungs had caused the deceased instant death.
4. The appellant therefore aware of his act of slashing the deceased with the machete clearly showed
that it was done with the intention to cause the death of the deceased.
PP v Ngoi Ming Sean (The principle is repeating)
1. The accused was a police detective
2. There was a quarrel between the accused and the deceased and in the struggle for the revolver the
a used aused the de eased s death.
Held:
1. The accused was placed in a situation of such great peril that he had no time to think or do anything
else but to fire the shot from his revolver.
2. The act was done in the exercise of the right of private defence and was not in excess of that right.
GFL Ewin v PP
The assessors were not directed to consider whether or not the appellant was exercising the right of
private defence. The conviction was set aside.
28