Criminal Law I Notes

Contents
ELEMENTS OF CRIME .................................................................................................... 4

Actus Reus ............................................................................................................................ 4
Involuntary Conduct Caused by Disease of Mind ............................................................ 4
Omission ........................................................................................................................... 5
Failing to Act When it is an Offence .................................................................................. 5
Failing to Act When Prohibited by Law ............................................................................. 5
Failing to Act Which Furnishes Ground for Civil Action .................................................. 6
Duty arising from creation of a dangerous situation ............................................................. 6
Special relationship ............................................................................................................... 6
Duty voluntarily assumed ..................................................................................................... 6
Duty assumed by contract ..................................................................................................... 6
Mens Rea (Mental State) ...................................................................................................... 7
Intention ............................................................................................................................ 7
Knowledge ........................................................................................................................ 8
Reason to believe .............................................................................................................. 8
Rashness / Reckless .......................................................................................................... 9
Negligently........................................................................................................................ 9
Fraudulently .................................................................................................................... 10
Dishonestly ..................................................................................................................... 10
Malice ............................................................................................................................. 11
Causation............................................................................................................................. 11
Causa Causans (Strict Test) .............................................................................................. 12
Sine Qua Non (‘But For’ Test) ......................................................................................... 12
Breaking the Chain of Causation (Novus Actus Interveniens) ......................................... 13
Cause and Effect ................................................................................................................. 13
Medical Treatment .............................................................................................................. 13
Mental / Physical Attributes of Victim ............................................................................... 15
Coincidence of Actus Reus and Mens Rea ......................................................................... 16
Strict Liability ..................................................................................................................... 17
Presumption of Requirement of Mens Rea ..................................................................... 17
Rebutting the Presumption .............................................................................................. 17
Social and Public Welfare ................................................................................................. 17
Effectiveness in Promoting Statutory Objectives ............................................................. 18
Defences .............................................................................................................................. 18
Infancy ............................................................................................................................ 18
Unsoundness of Mind ..................................................................................................... 19
At the Time of Doing the Act ........................................................................................... 20
By Reason of Unsoundness of Mind ................................................................................ 20
Incapable of Knowing Nature of Act ................................................................................ 21
Incapable of Knowing Wrong or Contrary to Law ........................................................... 21
Conjunctive Interpretation (Neither wrong nor contrary to law: None of which) .............. 21
Disjunctive Interpretation (“not wrong” or “not contrary to law”) ..................................... 21
Acquittal .............................................................................................................................. 22
Intoxication ..................................................................................................................... 22
Being in a State of Intoxication ........................................................................................ 23
Malicious or Negligent Act of Another ............................................................................ 23
Intoxication causing insanity ............................................................................................ 23
No Knowledge Act was Wrong or What Accused was Doing ......................................... 24
Disjunctively ....................................................................................................................... 24
Acquittal .............................................................................................................................. 25
Crimes of Specific Intent (s.86(2)) ................................................................................... 25
Non-Application of Section 86(2) .................................................................................... 26
Consent ............................................................................................................................... 26
Consent under Misconception of Fact .............................................................................. 27
Other provisions for Consent ............................................................................................ 27
Duress ............................................................................................................................. 29
Threat of Death ................................................................................................................. 29
Threat is of Instant Death .................................................................................................. 30
Threat is Directed at Person of Accused ........................................................................... 30
Menace of Threat Present at Time of Act ......................................................................... 30
Mistake of Fact ............................................................................................................... 30
Mistake of Fact ................................................................................................................. 31
Good Faith ........................................................................................................................ 32
Not Mistake of Law .......................................................................................................... 32
Private Defence ............................................................................................................... 33
Act of Public Servant under Colour of Office .................................................................. 33
Under Direction of Public Servant .................................................................................... 34
Time to Recourse to Authorities ....................................................................................... 34
No More Harm than Necessary......................................................................................... 34
Private Defence of Person ................................................................................................. 35
Private Defence of Property .............................................................................................. 36
Accident .......................................................................................................................... 36
Accident or Misfortune ..................................................................................................... 36
Lawful Act, Lawful Manner and Lawful Means .............................................................. 37
Proper Care and Caution ................................................................................................... 37
Necessity ......................................................................................................................... 37
Participation ...................................................................................................................... 39
Common Intention .............................................................................................................. 39
Common Intention ............................................................................................................ 40
Participation in the Criminal Act ...................................................................................... 41
Common Object .................................................................................................................. 41
Abetment ............................................................................................................................. 42
Instigation 107(a) .............................................................................................................. 43
Abetment by Conspiracy 107(b) ....................................................................................... 43
Abetment by Aiding 107(c) .............................................................................................. 43
Criminal Conspiracy ....................................................................................................... 44
Attempt ............................................................................................................................. 46
Preparatory Act ............................................................................................................... 46
Actus Reus of Attempt .................................................................................................... 47
Mens Rea of Attempt ...................................................................................................... 48
Impossible Attempts ....................................................................................................... 48
ELEMENTS OF CRIME
 A man’s act could not amount to a crime so as to make him liable to punishment unless
his conduct was accompanied by a prescribed state of mind. (actus non facit reum, nisi
mens sit rea)
Actus Reus
 The accused must have engaged in such voluntary conduct which violates the law and
thereby rendered punishable.
R v White [1910] 2 KB 124
Facts: The accused put potassium of cyanide in his mother’s drink, intending to kill her.
The mother died from a heart attack and not poisoning, as the amount of potassium
cyanide administered was insufficient to cause her death.
Held: The accused was only convicted of attempted murder, because although death
occurred it was not caused by his conduct and thus an element of the actus reus of
murder was missing.
Involuntary Conduct Caused by Disease of Mind

Sinnasamy v PP (1956) 22 MLJ 36 (CA, Malaya)
Facts: There is no discoverable motive for the killing of the 21 months child. The appellant,
though he remembered in considerable detail the events and circumstances
immediately preceding and immediately following the act, maintained that he had no
recollection of the act itself or why he did it. The defence was that the appellant did the
act when in a state of automatism, which is a temporary loss of consciousness
associated with some types of epilepsy.
Held: Irresistible impulse per se is no defence, and can only be a defence when it is proved
to have been the result of insanity in law.
Sullivan (1983)
Facts: The accused was suffering from an epileptic fit when he attached a friend.
Held: An acquittal on grounds of automatism should be reserved for those cases where the
involuntary conduct was caused by “some external factor such as a blow on the head
causing concussion or the administration of an anaesthetic for therapeutic purpose”.
Re Pappathi Ammal (1959) Cri LJ 724 (Madras HC, India)
Facts: The accused, who had recently given birth to a child, jumped into a well with the
child at night. An alarm was raised and the accused rescued, but the child drowned.
The accused was charged with murder and attempted suicide. In her defence she
pleaded that she was sleepwalking and that during such sleepwalking she must have
walked into the well with her child.
Held: The defence of automatism does not exist under the Penal Code, the insanity
provision of s84 being the only relevant one and applying to all cases of involuntary
conduct.
Omission
Section 32 of Penal Code
Words which refer to acts done extend also to illegal omissions.
The word ‘act’ denotes as well a series of acts as a single acts; the word ‘omission’
denotes as well a series of omissions as a single omission.
The word “illegal” or “unlawful” is applicable to everything which is an offence, or
which is prohibited by law, or which furnishes ground for a civil action.
And in respect of the word “illegal”, a person is said to be “legally bound to do”
whatever is illegal in him to omit.
Failing to Act When it is an Offence

Lee Sai Yan v Public Prosecutor (Unreported. Magistrate’s Appeal No 90 of 1980
Subordinate Court, Singapore.)
Facts: The accused, a site engineer on a building worksite, did nothing to prevent the
deceased from entering a bored hole which needed cleaning. The deceased, wearing no
breathing apparatus, was lowered into the deep hole in a bucket where he died from
asphyxia due to insufficient oxygen. The accused was charged with facilitating a crime
under section 34(9) of the Factories Act 1973.
Held: The law imposes an absolute obligation…. Any person who contravenes this
obligation is said to have breached the Act.
Failing to Act When Prohibited by Law

D’Souza v Pashupati Nath Sarkar (1968) Cri LJ 405
Facts: The defendant was captain of a ship waiting for pilotage while a junior engineer on
the ship fell sick. Several requests had been made to the defendant to transfer the sick
man to Calcutta, despite 5 ships passed by, the defendant made no attempt to transfer
him to the hospital. Later, the crewman died, and the defendant was charged for an
offence under section 304A of the Indian Penal Code and section 190(b) of the
Merchant Shipping Act.
Held: Section 190(b) embodied a statutory obligation on the master of a vessel to take all
reasonable steps when a person on board the ship became sick, to arrange for the best
available treatment for the purpose of preserving his life.
Failing to Act Which Furnishes Ground for Civil Action
Duty arising from creation of a dangerous situation

R v Miller [1983] 1 All ER 978
Facts: One night while squatting in someone’s house the accused lit a cigarette, fell asleep
and the cigarette dropped onto the mattress. He woke up later and saw that the mattress
was smouldering. He did nothing about it but merely moved to another room and
continue sleeping. The house caught fire. The accused was subsequently charged for
arson.
Held: A person would commit the actus reus of the offence in question if, having
accidentally stated a fire which created a risk of damage to property, he became aware
of what he had done before the resultant damage was complete, but failed to take steps
within his power to prevent or reduce it.
Special relationship
Om Prakesh v State of Punjab AIR (1961) SC 1782
Facts: The accused starved his wife by omitting to feed her and denied her permission to
leave the house.
Held: The wife was being confined and being deprived of regular food in pursuance of a
scheme of regularly starving her in order to accelerate her end; the responsibility of the
appellant for the condition to which the wife was brought, was clear.
Duty voluntarily assumed
R v Instan [1893] 1 QB 450
Facts: The accused lived with a 73-year old aunt. The aunt was healthy until before her
death, she developed gangrene in her leg. During the last 12 days of her life, she could
not fend for herself, move about or summon help. Only the accused knew of her state
but gave her no food nor did she seek medical assistance. The accused was charged and
convicted of manslaughter.
Held: It was clear duty of the accused to impart to the deceased so much as was necessary
to sustain life, of the food which she from time to time took in, and which was paid by
the deceased’s own money for the purpose of maintenance of herself and the accused;
it was only through the instrumentality of the accused that the deceased could get the
food. There was, therefore, a common law duty upon the accused which she did not
discharge.
Duty assumed by contract
R v Pittwood (1902) 19 TLR 37
Facts: The accused was a railway gatekeeper employed to keep the gate shut whenever a
train passed. One day, when he left the gate open, a train hit a car crossing the line,
killing one man and injuring another seriously.
Held: There was gross negligence, as he was paid to keep the gate shut and protect the
public and that a man might incur criminal liability from a duty arising out of a contract.
Mens Rea (Mental State)

 It is a guilty mind and can only be inferred from the facts of the case. 1 The actus
reus and mens rea must coincide resulting in the harm. Mens rea means state of
mind as to the consequences of the act. It is a blameworthy mental process of
choosing to break the law and commit the crime.
PP v Ayavoo (1966) 1 MLJ 242
Facts: The accused that was subject to an order under the Prevention of Crime Ordinance
to remain in door after dusk was cycling home after dinner so that he would get back
before the hour specified in the order. He fell over a bridge and lost consciousness,
recovering after he was taken to the hospital. He was charged with breaching the
prohibition order.
Held: The statute did not create strict liability and since mens rea was relevant, it was
further held that the accused could not have entertained the relevant mens rea as he was
unconscious.
PP v Norazam bin Ibrahim [2006] 3 AMR 524
Facts: The deceased had allegedly uttered words with derogatory sexual connotation which
he imputed to the accused’s mother. The accused then killed the deceased.
Held: Mens rea, being a mental element, has to be gathered from indirect evidence by
reference to all the facts and circumstances in each particular case.
Intention
 It is the purpose or design with which the act is done, the defendant meant to cause
the result. He knew the consequences and wanted that consequences or result to
happen.
 For example, the accused fired a shot at the victim’s forehead, the accused wanted
the victim to die.
Hyam v Director of Public Prosecutor [1975] AC 55
A person is said to have intended a consequence if he knew that the consequence has high
possibility to happen as a result of his act, even though he did not intend the result
initially.
1
Tan Chin Meng v Public Prosecutor [2011] 5 CLJ 524.
R v Moloney [1985] 1 All ER 1025
The probability of the consequence taken to have been foreseen must be little short of
overwhelming before it will suffice to establish necessary intent.
PP v Tan Buck Tee [1961] MLJ 176
“With five appalling wounds penetrating to the heart and liver, which must have been
caused by violent blows with a heavy sharp instrument like an axe, then it must have
intended to kill the person”.
Knowledge
 Knowledge refers to the actual knowledge as to the fact. The accused is aware that
his conduct will cause the result.
 For example, the accused fired a gun in B’s direction, the accused was aware that
B was in that area, if B was shot, the accused was aware that it can happened.
Public Prosecutor v Reza Mohd Shah bin Ahmad Shah [2002] 4 MLJ 13
In drawing inferences from proved facts, the court is entitled to infer knowledge on the
assumption that a person has the ordinary knowledge expected of him. The court is not
concerned with the knowledge of a reasonable man but with reasonable inferences to
be drawn from a situation.
Roper v Taylor’s Central Garages (Exeter) Ltd [1951] 2 TLR 284
Devlin J: There are 3 degrees of knowledge:
i. There is actual knowledge.
ii. There is knowledge of the ‘second degree’, that is, shutting one’ eyes to an obvious
means of knowledge which amounts to deliberately refraining from making
inquiries the result of which one might not care to have.
iii. Constructive knowledge, encompassed by the words ‘ought to have known’ in the
phrase, ‘knew or ought to have known’. This does not mean actual knowledge at
all; it means that the accused had in effect the means of knowledge.
Reason to believe
The yardstick used will be whether based on the facts of the case, would any reasonable
man have reason to believe such fact.
Section 26 of Penal Code:
A person is said to have “reason to believe” a thing, if he has sufficient cause to believe
that thing, but not otherwise.
Ahmad bin Ishak v PP [1974] 2 MLJ 21
Kuantan High Court:
Now, ‘reason to believe’, knowledge, intention, are things in a man’s mind and you
cannot see it, you cannot hear it. Nobody who receives stolen goods carries a big banner
saying that these are stolen goods. Nor does he shout it from the roof tops. You must
look into the circumstances and consider if the circumstances are such that any
reasonable man could see sufficient cause to believe that it was stolen.
Held: All that the court had to be satisfied of at that stage was that there was some evidence,
not inherently incredible, to the effect that the accused persons had had reason to
believe the gold ornaments were stolen. There was ample evidence to this effect:
i. The price of the gold was well below the market rate,
ii. The fact that such a large quantity of gold was being sold in those circumstances,
iii. The payment of over $200,000 in cash,
iv. The fact that no certificates or receipts were issued, and
v. The fact that no one was introduced by name when the transaction took place in the
hotel room and none of their particulars was given.
Rashness / Reckless
 The accused appreciates the risk created by his conduct, but he persists in his
behavior. He consciously disregards the risk.
 For example, the accused bombs a car to kill B, the car was parked at the side of
the road. He could see people walking along the road. When the bomb exploded,
he may be liable of causing death by doing rash act. (s304A)
Re Nidamarti Nagabhushanam (1872) 3 Mad HCR 119
Culpable rashness is acting with the consciousness that mischievous and illegal
consequences may follow but with the hope and often with the belief that the actor has
taken sufficient precautions to prevent their happening.
R v Caldwell [1982] AC 341
HoL: In recklessness, not only deciding to ignore a risk of harmful consequences resulting
from an act which one has recognized as existing, but also failing to give any thought
to whether or not there is any such risk in circumstances, where, if any thought were
given to the matter, it would be obvious that there was.
Negligently
 Failure to exercise the proper care which a reasonable man in the circumstances
would have exercised so as not to harm others.
Adnan bin Khamis v PP [1972] 1 MLJ 274
The test is partly objective and partly subjective – objective in the sense that the situation
is fraught with potential risk of injury to others or whatever consequences contemplated
in any particular section of the Penal Code. It is also subjective in that such a situation
should have arisen by reason of some fault on the part of the accused.
*The correct approach is to consider whether a reasonable man in the same circumstances
would have been aware of the likelihood of damage or injury to others resulting from
such conduct.
Fraudulently
 The offences which require a fraudulent element cannot be committed negligently.
It must be done with the intention to fraud.
 For example, falsifying the content of a document with the intention to defraud the
recipient, it was done fraudulently.
A person is said to do a thing fraudulently if he does that thing with intent to defraud, but
not otherwise.
Seet Soon Guan v PP [1955] MLJ 223
Facts: The accused had used a forged police diary to try to bolster his defence against
official disciplinary charges.
Held: Dishonesty tends to focus on transactions in which deprivation of property forms a
part, and held that fraudulently should not be so restricted. Considering the meaning of
fraudulently in the context of forgery, for which it is also the fault element.
Sivananda Mudali v Emperor AIR (1926) Mad 1072
In order to do a thing dishonestly there must be the intention to cause wrongful loss of
wrongful gain of property, but in order to do a thing fraudulently it is not necessary that
there should be the intention to cause wrongful loss or wrongful gain of property….
The intention to defraud need not necessarily be to obtain something to which a person is
not legally or equitably entitled. It is sufficient is by means of the perpetration of the
fraud somebody is defrauded….
Dishonestly
 The act must be done intentionally; it must result in wrongful loss and wrongful
gain to the parties involved.
 For example, A took B’s watch without B’s consent. A had gained wrongfully and
caused B to suffer wrongful loss.
Whoever does anything with the intention of causing wrongful gain to one person, or
wrongful loss to another person, irrespective of whether the act causes actual wrongful
loss or gain, is said to do that thing “dishonestly”.
“Wrongful gain” is gain by unlawful means of property to which the person gaining is not
legally entitled.
“Wrongful loss” is the loss by unlawful means of property to which the person losing it is
legally entitled.
A person is said to gain wrongfully when such person retains wrongfully, as well as when
such person acquires wrongfully. A person is said to lose wrongfully when such person
is wrongfully kept out of any property, as well as when such person is wrongfully
deprived of property.
Yap Sing Hock v PP [1991] 2 MLJ 334
While both ‘intention’ and ‘recklessness’ require the accused to have ‘foresight (knows in
advance) that his conduct will lead to the commission of the offence’, only intention
requires further that he or she must have desired the commission of such an offence.
Malice
 A man acts maliciously when he willfully and without lawful cause does that which
he knows will injure another person or property.
R v Cunningham [1957] 2 All ER 412
Malice mean either of the following:
i. An actual intention to do the particular kind of harm that in fact was done; or
ii. Recklessness as to whether such harm should have occurred or not, ie the accused
had foreseen that the particular kind of harm might be done, and yet had gone on to
take the risk of it.
R v Latimer [1886] 17 QBD 359
“… a man who has an unlawful and malicious intent against another, and, in attempting to
carry it out, injures a third person, is guilty of what the law deems malice against the
person injured, because the offender is doing an unlawful act, and has that which the
judges call general malice…”
R v Mitchell [1983] 2 All ER 427
“We see no reason of policy for holding that an act calculated to harm A cannot be
manslaughter if it in fact kills B. The criminality of the doer of the act is precisely the
same whether it is A or B who dies. A person who throws a stone at A is just as guilty,
if instead of hitting and killing A, it hits and kills B.”
Causation
 The principle of causation is used to determine whether the accused was liable for
the harm suffered by the victim through his actus reus.
 This principle is important in a result crime. The result must be the basis of the
crime.
 For example, A shot B with a gun in the head, B died. In order to be liable, A must
be shown to have caused B’s death by shooting him in the head. A’s actus reus was
the actual cause of B’s death.
 An accused will still be liable if:
i. Actual / direct cause
ii. Multiple actual causes
a. By his conduct he accelerated the harm
b. Harm might have been prevented if the victim
resorted to proper remedies and skill treatment.
 The accused will not be liable if there was an intervening act which was
independent from his act, which produces a new harm, after the accused’s act.
Ismail v Public Prosecutor [1963] MLJ 208
Facts: The appellant had gone up to the complainant and asked her whether her neighbor
was in. On his approach to about three feet, the complainant retreated. The appellant
became pale and the complainant interpreted this facial expression as an intention to
‘disturb’ her. She went underneath the house. The appellant then asked if she was single
or married. When told that she was married, he pulled out $5 and said ‘even if you are
married, take this money’. The complainant walked off.
Held: There was no evidence whatsoever adduced to suggest that appellant intended to use
force on the complainant and a prohibited conduct or result was the consequence of an
act or illegal omission, thus, no offence is then established.
Causa Causans (Strict Test)

Lee Kim Leng v R [1964] MLJ 285
Facts: The deceased was knocked down and killed as she crossed the road at a pedestrian
crossing. The appellant’s car had collided with a stationary taxi which had stopped
without any signal. The taxi had consequently lurched towards her.
Held: Referring to the Indian case of Omkar Ram Pratab, to incur criminal liability under
section 304A, it was necessary, death should have been the direct result of a rash and
negligent act by the accused and that the act must have been the proximate and efficient
cause without the act intervention of another’s negligence. It must have been the causa
causans (legal cause).
Lee Lai Siew v Public Prosecutor [1978] 1 MLJ 259
Facts: A passenger ship sank, allegedly carrying in excess of the authorized number of 80
passengers and 4 crews. The appellant, the master of the ship, was charged under
section 304A as well as further charges against under the Merchant Shipping Ordinance
1960.
Held: It was wrong to attribute the loss of lives to the appellant’s negligence of overloading
the ship. There can be no doubt that those who drowned met their death through
drowning caused by waves, the wind and swell at the rough patch referred to by witness.
There was also evidence that the waves resulted in creating confusion and panic seized
the passengers on board the ship. Overloading if there can be, can only be a very remote
fact in causing the tragedy.
Sine Qua Non (‘But For’ Test)

Yohannan v State of Kerala AIR 1958 Ker 207
Facts: The accused’s wife left him to live with her parents. He went to their house one night
and stabbed her. He had the intention to kill her, which was inferred from the nature of
the injuries and the circumstances of the offence. The injury was a stab wound in the
spine from which she suffered paralysis of the lower body. She died several months
later.
Held: Even though there was a comparatively long interval of seven months between the
injury and the death, there was no indication of any unexpected intervention and was
satisfied death was legally attributed to the injury.
Breaking the Chain of Causation (Novus Actus Interveniens)

Cause and Effect
R v Smith [1959] 2 QB 35
Facts: The deceased received bayonet wounds during a fight with soldiers. One pierced his
lung and caused haemorrhage. A friend carried him to the medical station but tripped
and dropped him twice. On arrival, he was given a transfusion of saline and when his
breathing became impaired, oxygen and artificial respiration.
Held: Even though the treatment he was given was thoroughly bad and might well have
affected his chances of recovery; that no doubt that he was dropped and having artificial
respiration applied would halt or at any rate, impede the chance of healing; that there
was evidence if he had received immediate and different treatment he might not have
died, it could not accept the defence contentions that something happened which
impeded the chances of the deceased recovering and that death did not result from the
wound.
To break the chain of causation, there must be something unreasonable, extraneous or
extrinsic.
Medical Treatment
R v Malcherek; R v Steel [1981] 2 All ER 422
Facts: The accused, who caused the original injury resulting in the deceased being placed
on life support machines, was held liable for the latter’s death.
Held: If at the time of death the original wound was still an operating cause and a
substantial cause, then the death can properly be said to be the result of the wound,
albeit some other cause of death may be operating.
In the ordinary case, if the treatment is given bona fide by competent and careful
medical practitioners, then evidence will not be admissible in the same way by other
medical practitioners.
Explanation 2 to Section 299 of Penal Code:
Where death is caused by bodily injury, the person who causes such bodily injury shall be
deemed to have caused the death, although by resorting to proper remedies and
skillful treatment the death might have been prevented.
Yohannan v State of Kerala AIR 1958 Ker 207
Facts: The accused’s wife left him to live with her parents. He went to their house one night
and stabbed her. He had the intention to kill her, which was inferred from the nature of
the injuries and the circumstances of the offence. The injury was a stab wound in the
spine from which she suffered paralysis of the lower body. She died several months
later.
Held: Even though there was a comparatively long interval of seven months between the
injury and the death, there was no indication of any unexpected intervention and was
satisfied death was legally attributed to the injury.
Nga Ba Min v Emperor AIR 1935 Ran 418
Facts: The deceased was struck on the head and arm by robbers. She was admitted to
hospital approximately 36 hours later. Under normal circumstances, she would have
completely recovered from the effects of those injuries within about a fortnight. Her
wounds were dressed. She remained in the hospital for two days and was then
discharged on her own request. She was, however, warned to attend daily as an out-
patient to have the injuries dressed. She returned to her village and did not go back to
the hospital. Owing to unskilled treatment which she received in her village, the two
wounds became septic. The sepsis penetrated through her skull to the brain with death
resulting from the abscess forming on her brain because of the injuries becoming septic.
Held: The appellant cannot be held responsible for causing her death. Her death was due
to her own ignorance and the unskillful treatment which she received in her village,
and the injuries on her head were only the remote cause of death. In order that a person
should be convicted of culpable homicide, it is indispensable that the cause of death
should be connected with the act of violence or other primary cause, not merely by a
chain of cause and effect, but by such direct influence and is calculated to produce the
effect without the intervention of any considerable change of circumstances.
R v Jordon (1956) 40 Cr App 152
Facts: The accused was stabbed during a fight. The appellant was charged of murder
because new evidence became available on the cause of death. Medical witnesses stated
that the administration of an antibiotic was proper. However, even though the victim
proved to be allergic to the antibiotic, the same treatment continued. This was said to
be palpably wrong. Another wrong step was the intravenous introduction of wholly
abnormal quantities of liquid which clogged the lungs, leading to pulmonary oedema
and broncho-pneumonia, from which the victim died.
Held: It is sufficient to point out here that this was not normal treatment. Not only one
feature but two separate and independent features of treatment were in the opinion of
the doctor, palpably wrong and these produced symptoms – which were the direct and
immediate cause of death, namely the pneumonia resulting from the condition of
oedema which was found.
Mental / Physical Attributes of Victim
R v Halliday (1889) 61 LT 701
Facts: The appellant, whilst drunk, threatened his wife. She attempted to escape through a
window and broke her leg in the fall.
Held: If a man creates in another man’s mind an immediate sense of danger which causes
that person to try to escape, and in so doing he injures himself, the person who creates
such a state of mind is responsible for the injuries which result.
Explanation 1 to Section 299 of Penal Code:
A person who causes bodily injury to another who is labouring under a disorder, disease,
or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to
have caused his death. (Eggshell Skull Rule: you take the victim as you find him)
Bharat Singh v Emperor (1933) 34 Cr LJ 99
Facts: The deceased died several days after being attacked. The post mortem report
disclosed that the cause of death was asphyxia and heart failure brought on by the
injuries. The evidence disclosed that he was suffering from an enlarged heart, which
increased the probability of heart failure even if it was from minor injuries. The
appellant appealed against his conviction for culpable homicide not amounting to
murder.
Held: There is absolutely no evidence and there is no reason to suppose that the accused
had any knowledge that (the deceased) was suffering from a badly enlarged heart. We
have no evidence either about (the deceased) having been physically infirm. The mere
fact that he was an old man of sixty would not justify the inference that the offence was
one of culpable homicide not amounting to murder.
R v Blaue (1975) 61 Cr App R 271
Facts: The victim, a Jehovah witness, refused a blood transfusion which might have saved
her life. The defendant, in the course of a violent assault, had injured the victim’s
fingers. A surgeon had advised amputation because of danger to life from
complications that had developed. The advice was rejected and the victim died a
fortnight later of lockjaw. The real question, in the end, was whether the refusal of
blood transfusion had broken the chain of causation and the wound inflicted by the
accused was the cause of death.
Held: It has long been the policy of the law that those who use violence on other people
must take their victims as they find them. It does not lie in the mouth of the assailant to
say that his victim’s religious beliefs which inhibited her from accepting certain types
of treatment were unreasonable. The question is what caused her death. The answer is
the stab wound. The fact that the victim refused to stop this end coming about did not
break the causal connection between the act and death.
R v Pagett (1983) 76 Cr App R 279
Facts: The police were attempting to arrest the appellant for certain serious offences. He
fired at the police, using a girl as a shield to protect himself against police bullets. The
girl died in the cross-fire. The appellant was convicted of manslaughter but appealed
mainly on causation grounds.
Held: The appellant was responsible for the girl’s death on the ground inter alia that a
reasonable act performed by the police for the purpose of self-preservation could not
be viewed as breaking the causal connection between the appellant’s conduct and the
girl’s death if such a reasonable act was in response to the appellant’s own act.
Coincidence of Actus Reus and Mens Rea

Thabo Meli v R (1954) 1 All ER 373
Facts: The appellants, in accordance with a prearranged plan, took the victim to a hut where
they gave him beer. When he was partially intoxicated, they struck him over the head.
Believing him to be dead, they rolled his body down a cliff to make his death look like
an accident. He died of exposure when lying unconscious at the foot of the hill.
Held: There is no doubt that the accused set out to do all the acts in order to achieve their
plan; and it is too refined a ground of judgment to sat that, because they were under
misapprehension at the stage and thought that their guilty purpose had been achieved,
before, in fact, it was achieved, therefore they are to escape penalties of the law…
The conviction was upheld as the act of beating him and throwing him off the cliff was one
continuous act.
Kaliappa Goundan AIR (1933) Mad 798
Facts: The appellants decoyed the victim on the pretext of taking her to visit a sick relative.
They strangled her and placed her body on the railway track. She was decapitated by a
passing train and caused her death, not the strangulation.
Held: Their convictions for murder were upheld and the court stressed that the victim was
killed in pursuance of a deliberate plan. (Continuous / series of Act)
R v Le Brun [1991] 4 All ER 673
Facts: The defendant had punched the victim, his wife, on the chin when she refused to
enter their home with him. Thereafter, he attempted to drag her unconscious body into
the house in order to move her home against her wishes or otherwise cover up the
previous assault. While dragging her, he dropped her accidentally with the result that
she died from a fractured skull. The defendant was convicted of manslaughter and
appealed against his conviction on the ground that his intention to injure his wife should
be separated from the act which in fact caused her death.
Held: The original unlawful act with its accompanying mens rea was not the direct cause
of death, but the unlawful act and the act causing death were part of "the same sequence
of events", and that was sufficient.
R v Church [1966] 1 QB 59
Facts: The defendant took the victim (a married woman) to a van for sexual purposes. The
victim mocked the defendant and slapped him. The defendant knocked the victim until
she was unconscious. Unable to revive her, he panicked and threw her into a river. The
victim drowned.
Held: The defendant's conduct amounted to a series of acts, which culminated in her death
and thus constituted manslaughter.
Strict Liability
 Even though for a person to be liable, the actus reus and mens rea must be proven,
there is an exception to this for cases which fall within the meaning of strict liability
crimes.
 The prosecution need not prove mens rea for the purpose of conviction. It requires
only actus reus.
Melan bin Abdullah v PP [1971] 2 MLJ 280
An offence of strict or absolute liability is one where proof of the actus reus alone suffice
for a conviction, however morally free from blame the defendant may be.
Alphacell Ltd v Woodward [1972] AC 824
The mental element of mens rea had no relevance or consequence in strict liability offences
where the legislature expressly provided that the offence was committed by the
commission of the physical act.
Presumption of Requirement of Mens Rea

 In case of any doubt in a statute, it should be interpreted so as to require mens rea.
Sweet v Parsley [1970] AC 132
Whenever a section is silent as to mens rea, there is a presumption that in order to give
effect to the will of Parliament, we must read in words appropriate to require mens rea.
Rebutting the Presumption
Social and Public Welfare

Mohamed Ibrahim v PP (1963) 29 MLJ 289
Facts: The appellant was convicted of an offence under Penal Code for having in his
possession for purpose of sale, 65 copies of English obscene books. The appellant
appealed against his conviction on the ground that he could not read nor write English
and that he did not know that the books were obscene.
Held: The offence was a strict liability as the statute (s292 Penal Code) was concerned with
the protection of the public from the corrupting influence of obscene books.
PP v Osman Apo Hamid [1978] 2 MLJ 38
Facts: The respondents were carrying bags of rice in excess of that allowed by the permits
which they produced. Both the respondents admitted knowledge of the fact that they
carried 130 bags of rice but they denied knowledge of the number allowed in the
permits was 80 bags only.
Held: Respondents were convicted as the offence was one of strict liability. It is necessary
for government to maintain a stable and proper price for padi and rice and thus, the
movement of rice and padi in the states and particularly that from the border state of
Thailand should not be allowed unrestricted as to effect the balance of distribution and
price levels in various states.
Effectiveness in Promoting Statutory Objectives

Lim Chin Aik v PP [1963] AC 160
Facts: The accused was convicted of contravening the Singapore Immigration Ordinance
by remaining in Singapore after he had been declared a prohibited immigrant. There
was no evidence that the prohibition order had ever been brought to his attention or that
any effort to do so had ever been made.
Held: It is pertinent to inquire whether putting the defendant under strict liability will assist
in the enforcement of the regulations. That means there must be something he can do,
directly or indirectly, by supervision or inspection, by improvement of his business
methods or by exhorting those whom he may be expected to influence or control, which
will promote the observance of the regulations.
It was not suggested that it would be practicable for him to make continuous inquiry to
see whether an order had been made against him. Clearly one of the objects of the
Ordinance is the expulsion of prohibited persons from Singapore, but there is no
practical or sensible way in which he can ascertain whether he is a prohibited person
or not. Thus, the control of immigration was not one in which the presumption of strict
liability had generally been made, and the requirement of mens rea is not ousted by the
terms in the Ordinance.
Defences
 Both actus reus and mens rea must be present before a crime was said to have been
committed.
 If the accused was able to negate either the mens rea or actus reus or both in the
crime, then the accused will not be liable.
 The accused is not liable because he has an excuse or he has a justification.
 This can be seen when the accused successfully proved any of the available
defences.
Infancy
 Infancy is a defect of the understanding, and infants under the age of discretion
ought not to be punished by any criminal prosecution whatsoever.
 An infant is unable to distinguish between right or wrong or between good and bad;
proof of the fact that a child is under the age of liability is an ipso facto answer to
any criminal prosecution.
Nothing is an offence which is done by a child under ten years of age.
Nothing is an offence which is done by a child above ten years of age and under twelve,
who has not attained sufficient maturity of understanding to judge of the nature and
consequence of his conduct on that occasion.
Elements:
I. Above 10 years and under 12 years
II. Has not attained sufficient maturity of understanding
III. To judge the nature and consequence of his conduct
Ulla Mahapatra v The King AIR (37) 1950 Orissa 261
Facts: A child of 9 years became angry with his friends while holding a knife. He advanced
towards one of his friends uttering threatening gestures ‘I will cut you to bits’ which he
actually did and killed the friend.
Held: The entire action could only lead to one inference, namely that he did what he
intended to do and that he knew all the time that a blow with a knife would effectuate
his intention. He fully understood the nature and consequences of his conduct on that
occasion and was held guilty of murder.
Abdul Sattar v Crown AIR (1949) Lahore 51
Facts: A number of children had broken open the locks of two shop premises and had
entered inside for the purpose of committing theft. They selected only the valuable
goods and left the less valuable or cheap ones behind.
Held: The boys were matured enough as they knew how to break the locks and were able
to select valuable goods only. Their conduct indicated that they were not suffering from
immaturity of conduct.
A v DPP [1997] Crim LR 125
Facts: The defendant took the victim to a remote place where interference from other
people is unlikely to commit an indecent assault.
Held: The defendant brought the victim to the remote place indicated that he knew what he
did was seriously wrong.
Unsoundness of Mind
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.
Elements:
I. At the time of doing the at
II. By reason of unsoundness of mind
III. Incapable of knowing the nature of the act
IV. Incapable of knowing either wrong or contrary to law
At the Time of Doing the Act

Kofri Mustafar v Public Prosecutor [2011] 4 MLJ 196
The crucial time that the accused is said to be suffering from unsoundness of mind, whether
temporary or permanent, is the time of the commission of the offence.
By Reason of Unsoundness of Mind

Azrul v PP
Facts: The appellant killed a person. Evidence showed that after he killed that person, he
shows signs of unsoundness of mind.
Held: Defence of unsoundness of mind is not applicable even though he may not have the
motive to kill. He must have the intention to kill when he stabbed the victim.
Public Prosecutor v Muhamad Suhaimi Abdul Aziz [2005] 2 CLJ 826
Facts: The accused was charged for the murder of his wife under section 302 of the Penal
Code at their house in Kuala Lumpur. The post mortem showed that she had suffered
26 stab wounds.
Held: The psychiatrist’s conclusion was that at the time of the incident, the respondent was
of unsound mind and did not know that his action was wrong in law. Based on the
defence evidence and on prosecution’s failure to lead evidence in rebuttal, the Federal
Court agreed with the trial judge’s acquittal of the accused/respondent on the charge of
murder on the ground of insanity under section 84 of the Penal Code.
Re Pappathi Ammal (1959) Cri LJ 724
The unconscious state known as sleepwalking and somnambulism, if proved, will
constitute that unsoundness of mind attracting the application of section 84 of the
Indian Penal Code.
Jusoh v Public Prosecutor [1963] MLJ 84
Facts: The appellant, who was convicted of murder, relied on the defence of unsoundness
of mind. He had run amok for no apparent reason and slashed his sister-in-law,
inflicting 12 wounds on her, and her two children to death. He then killed a complete
stranger and inflicted several injuries to two other men. A medical officer who was
with the appellant two hours after the arrest, described him as in a daze and
overwhelmed with woe.
Held: There was uncontradicted evidence that at the time of the killing, the appellant was
suffering from mania which would produce in him an irresistible impulse to do what
he did. Although irresistible impulse is no defence, the type of mania from which it
springs, generally produces the consequence that the sufferer does not know what he
was doing was wrong.
Incapable of Knowing Nature of Act

Lee Ah Chye v Public Prosecutor [1963] MLJ 347
In interpreting section 84, there must be a certain state of mind – incapacity of knowing
the nature of the act or incapacity of knowing it is wrong – but in every case this must
exist by reason of unsoundness of mind.
Incapable of Knowing Wrong or Contrary to Law

Shivraj Singh v State of Madhya Pradesh 1975 Cr LJ 1458
The word ‘wrong’ cannot be taken to mean contrary to law. Both are different in nature.
Conjunctive Interpretation (Neither wrong nor contrary to law: None of which)
Geron Ali v Emperor AIR 1941 Cal 129
A conjunctive view was taken when the accused was found incapable of knowing that what
he was doing was ‘either wrong or contrary to law’ by reason of unsoundness of mind
when he killed.
Azro v Public Prosecutor [1962] MLJ 321
The court took a conjunctive view when it stated section 84 required that there must be
unsoundness of mind and that it must lead to one of two consequences, either that the
accused is incapable of knowing that what he was doing was either ‘wrong or contrary
to law’.
Disjunctive Interpretation (“not wrong” or “not contrary to law”)
Ashiruddin Ahmed v The King (1949) Cri LJ 255
A disjunctive view was taken when in setting aside the conviction on the grounds of
unsoundness of mind, the appellant was held incapable of knowing that his act was
‘wrong’.
Jusoh v Public Prosecutor [1963] MLJ 84
A disjunctive view was taken as no mention was made of the other element ‘contrary to
law’.
Acquittal
Section 347 of Criminal Procedure Code:
Whenever any person is acquitted upon the ground that at the time at which he is alleged
to have committed an offence he was, by reason of unsoundness of mind, incapable of
knowing the nature of the act alleged as constituting the offence or that it was wrong
or contrary to law, the finding shall state specifically whether he committed the act or
not.
(1) Whenever the finding states that the accused person committed the act alleged, the
Court before which the trial has been held shall, if that act would, but for incapacity
found, have constituted an offence, order that person to be kept in safe custody in such
place and manner as the Court thinks fit and shall report the case for the orders of the
Ruler of the State in which the trial is held:
Provided that if the Court concerned is a Magistrate’s Court, the Magistrate may in his
discretion, if he considers that the offence charged is not of a serious nature and that
that person can safely be released without danger of his doing injury to himself or any
other person, caution and discharge him.
(2) The Ruler may order that person to be confined in a mental hospital during the pleasure
of the Ruler of the State.
Intoxication
 The general rule is that intoxication shall not constitute a defence to any criminal
liability.
 Intoxication can happen voluntarily or without the accused’s consent, by a third
party.
 It is important to show that the accused was intoxicated, causing him to be insane,
he did not know that such act was wrong or did not know what he was doing, at the
time when he committed the crime.
 If the defence of intoxication was successfully pleaded, then section 86(2) requires
the court to consider the state of intoxication in determining whether the accused
had formed a specific intention to commit the crime.
Suba Singh v PP
Defence of intoxication could nto absolve all criminal duty, it merely lightens the sentence.
(1) Save as provided in this section and in section 86, intoxication shall not constitute a
defence to any criminal charge.
(2) Intoxication shall be a defence to any criminal charge if by reason thereof the person
charged 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 and—
(a) the state of intoxication was caused without his consent by the malicious or
negligent act of another person; or
(b) the person charged was by reason of intoxication insane, temporarily or otherwise,
at the time of such act or omission.
Elements:
i. Being in a state of intoxication
ii. Malicious or negligent act of another (s.85(2)(a))
iii. Intoxication causing insane (s.85(2)(b))
iv. No knowledge at was wrong or what accused was doing
Being in a State of Intoxication

Section 86(3) of Penal Code:
For the purpose of this and the preceding section “intoxication” shall be deemed to include
a state produced by narcotics or drugs.
Chan Kwee Fong v Public Prosecutor [2010] 1 MLJ 441
The effect of intoxication of an accused person can be momentary or transient or long
lasting.
The court would also consider the defence in the light of conduct before and after
commission of the crime as such conduct prior to, during and after the commission of
the offence is highly relevant to determine the state of mind by reason of the
intoxication as different people react differently to the same blood alcohol level.
Malicious or Negligent Act of Another

Public Prosecutor v Tan Chee Kern & Satu Lagi [2002] 1 CLJ 210
The defence of intoxication under section 85(2) was held inapplicable as the accused had
voluntarily swallowed the pills which had allegedly caused his intoxication.
The person who voluntarily gets into a state of intoxication should be responsible for his
actions, unless the intoxication was caused by malicious or negligent act of another.
Intoxication causing insanity

Public Prosecutor v Tan Chee Kern & Satu Lagi [2002] 1 CLJ 210
The accused must establish that, at the time of the act or omission, he was by reason of the
intoxication insane, temporary or otherwise.
Public Prosecutor v Kumaran Kunchi Raman [2010] 3 CLJ 220
Facts: The accused was charged for the murder of his daughter allegedly in the presence of
his wife and his son. The alleged act took place on a Sunday when the accused was at
home drinking alcohol. An argument took place between the accused, his wife and the
deceased following which, the deceased went outside of the house and sat inside their
family car parked in the garage in front of the house. The accused then told his son to
fetch him some petrol as he wanted to fill his motorcycle with petrol. On being given a
small container of petrol, the accused walked to the car with a lighter. He opened the
car door, tossed petrol inside where his wife and the deceased were seated and struck
the lighter. The accused was burnt on the chest in the resulting fire but brushed it off,
the lower body of deceased caught fire from which she later died. The car and garage
also caught fire. The defence was that the accused was drunk and that he intended to
burn red ants infesting the garage.
Held: Although there was no scientific evidence that the accused was drunk, such scientific
results are not conclusive to determine the degree of intoxication of a person. If the
accused was not temporarily insane, then it could not be explained how the accused
could kill his daughter, all because of a minor domestic row. The act of the accused
was mindless and insane. Given the evidence, there was doubt as to whether the
accused in his intoxicated state could have formed the necessary intention or
knowledge to constitute the offence of murder, the accused was acquitted but to be
detained in safe custody at the pleasure of the Sultan.
Public Prosecutor v Tan Ho Teck [1987] 2 CLJ 85
Facts: The accused, charged for murder of his brother, was at the time of the killing
suffering from delirium tremens due to acute alcoholic intoxication. As a result, he was
incapable of knowing the nature of his act or what he was doing.
Held: The court used the language of section 84 of ‘unsoundness of mind’, rather than
section 85(2)(b); and ordered that he be kept in safe custody:
“We find the accused did stab and cause the death of his brother but he was, by reason
of unsoundness of mind at the time incapable of knowing the nature of his act or that
what he was doing was either wrong or contrary to law.”
No Knowledge Act was Wrong or What Accused was Doing

Chan Kwee Fong v Public Prosecutor [2010] 1 MLJ 441
For intoxication to operate as a defence, the accused must prove that by reason of his
intoxication or his insanity at the time of the act or omission:
1) He did not know that such act or omission was wrong; or
2) He did not know what he was doing.
Disjunctively
Aladin v Public Prosecutor [1964] MLJ 345
Facts: The appellant, who had consumed too much alcohol at a wedding feast, later
quarrelled with one ‘O’ but was separated by his brother. Subsequently, the appellant
took a parang and ran to the wedding where he slashed several other persons including
the deceased ‘O’. On his conviction for murder, he appealed contending inter alia that
when he struck the deceased, he was temporarily insane due to intoxication.
Held: All the evidence suggested that the accused knew what he was doing. Thus, he cannot
raise this defence even though he did not know what he did was wrong.
Acquittal
Section 86(1) of Penal Code:
Where the defence under subsection 85(2) is established, then in a case falling under
paragraph (a) thereof the accused person shall be acquitted, and in a case falling under
paragraph (b), section 84 of this Code, sections 347 and 348 of the Criminal Procedure
Code [Act 593] shall apply.
Whenever any person is acquitted upon the ground that at the time at which he is alleged
to have committed an offence he was, by reason of unsoundness of mind, incapable of
knowing the nature of the act alleged as constituting the offence or that it was wrong
or contrary to law, the finding shall state specifically whether he committed the act or
not.
(1) Whenever the finding states that the accused person committed the act alleged, the
Court before which the trial has been held shall, if that act would, but for incapacity
found, have constituted an offence, order that person to be kept in safe custody in such
place and manner as the Court thinks fit and shall report the case for the orders of the
Ruler of the State in which the trial is held:
Provided that if the Court concerned is a Magistrate’s Court, the Magistrate may in his
discretion, if he considers that the offence charged is not of a serious nature and that
that person can safely be released without danger of his doing injury to himself or any
other person, caution and discharge him.
(2) The Ruler may order that person to be confined in a mental hospital during the pleasure
of the Ruler of the State.
Crimes of Specific Intent (s.86(2))

 Section 86(2) does offer some protection in those situations where the protection of
intoxication under section 85 cannot apply.
 It empowers the court to take into account whether, during the state of intoxication,
the accused had formed an intention, specific or otherwise of committing an offence
in circumstances where section 85 is inapplicable.
 If the effect of the intoxication is that the accused did not form the requisite
intention, section 86(2) is a complete defence.
Intoxication shall be taken into account for the purpose of determining whether the person
charged had formed any intention, specific or otherwise, in the absence of which he
would not be guilty of the offence.
Director of Public Prosecutions v Beard [1920] AC 479
The fact that drink only affects the accused’s mind so that he more readily gives way to
some violent passion, does not rebut the presumption that a man intends the natural
consequences of his act.
Suba Singh v Public Prosecutor [1962] MLJ 122
Section 86(2) can be a mitigating circumstance rendering an accused to be guilty of a lesser
offence because, by reason of the intoxication, he is prevented from forming the
requisite intention from the graver offence.
“If the mind at that time is so obscured by drink, if the reason is dethroned and the man
is incapable therefore of forming that intent, it justifies the reduction of the charge from
murder to manslaughter.”
Public Prosecutor v Kenneth Fook Mun Lee (No 2) [2003] 3 MLJ 581
Facts: The accused was in a state of self-induced intoxication, when he walked to the car
of the deceased, knocked on the windscreen and asked the deceased to come out. The
deceased refused and the accused then shot her. The defence was one of automatism
and alternatively, the defence of intoxication was pleaded.
Held: The court must determine whether the accused had the requisite specific intent in the
light of his intoxication. The intention as envisaged by section 300 is displaced by the
evidence of intoxication on record to show that he did not have the requisite intention.
This means that the act of the accused which gave rise to an inference of intention had
been rebutted. It is on that basis that section 86(2) becomes applicable.
Non-Application of Section 86(2)

Attorney-General for Northern Ireland v Gallagher [1963] AC 349
The protection under section 86(2) would not avail when the accused has formed a prior
intention before taking the intoxicant such as:
1) Where he formed an intention to commit the offence and he drinks in order to give
himself ‘false or Dutch courage’;
2) He will more readily give way to some violent passion.
Consent
 As long as the victim consented to any act, if the act resulted in harm, it should not
be considered as a crime.
 Consent means consent that is freely given, not obtained by force, threats,
inducement or deception.
A consent is not such a consent as is intended by any section of this Code—
(a) if the consent is given by a person under fear of injury, or under a misconception of fact,
and if the person doing the act knows, or has reason to believe, that the consent was
given in consequence of such fear or misconception;
*Injury (s.44): any harm whatever illegally caused to any person, in body, mind,
reputation or property.
(b) if the consent is given by a person who, from unsoundness of mind or intoxication, is
unable to understand the nature and consequence of that to which he gives his consent;
or
(c) unless the contrary appears from the context, if the consent is given by a person who is
under twelve years of age.
*Exception 1: statutory rape, when the victim is below 16 years of age, regardless
of her having given consent to the act (s375(g))
*Exception 2: culpable homicide, where the victim, who must be above 18 years of
age, consents to suffer death or risk of death (s300 Exception 5)
Consent under Misconception of Fact

Pendakwa Raya v Abdul Rahman bin Mohamad [2005] 2 AMR 204
Facts: The complainant had sought treatment from the respondent who claimed to be a
powerful bomoh, for a persisting stomach ailment that seemed untreatable by
conventional medicine. The respondent was said to have convinced the complainant
that sexual intercourse was a necessary part of her treatment and that she would die
without it. The respondent’s defence throughout had been that the complainant had
consented to sexual intercourse.
Held: As section 90(a) of the Penal Code provides that it would not constitute consent if
the consent is given under a misconception of fact, the conviction of the respondent
was restored.
R v Clarence (1888) 22 QB 23
The consent was not vitiated by the fraud of a husband who had connection with his wife,
his concealing from her the fact that he was suffering from gonorrhoea.
Stephen J: “… the only sorts of frauds which so far destroy the effect of a woman’s consent
as to convert a connection consented to in fact into rape are frauds as to the nature of
act itself, or as to the identity of the person who does the act.
Other provisions for Consent

Nothing, which is not intended to cause death or grievous hurt, and which is not known by
the doer to be likely to cause death or grievous hurt, is an offence by reason of any
harm which it may cause, or be intended by the doer to cause, to any person above
eighteen years of age, who has given consent, whether express or implied, to suffer that
harm; or by reason of any harm which it may be known by the doer to be likely to cause
to any such person who has consented to take the risk of that harm.
Ngwa Shwe Kin v Emperor (1915) 30 IC 133
Facts: The deceased believed that he had rendered himself da (sharp-edged instrument)
proof and told the appellant to test his right arm after uttering some charms. The
appellant cut the arm with his da. Unfortunately, arteries were cut and the deceased’s
companions were ignorant as to the method to check arterial bleeding. The deceased
bled to death.
Held: The deceased had given his consent under a misconception of fact, erroneously
believing that he was proof against da cuts. But it cannot be said that the appellant knew
of this misconception or had reason to believe that the deceased was mistaken in
thinking himself invulnerable. The appellant certainly had no intention of causing death
or grievous hurt.
Nothing, which is not intended to cause death, is an offence by reason of any harm which
it may cause, or be intended by the doer to cause, or be known by the doer to be likely
to cause, to any person for whose benefit it is done in good faith, and who has given a
consent, whether express or implied, to suffer that harm, or to take the risk of that harm.
Requirement of Good Faith – Section 52: Nothing is said to be done or believed in good
faith which is done or believed without due care and attention.
Sukaroo Kobiraj v Empress (1887) 14 Cal 566
Facts: The appellant, who was unskilled in surgery, operated on a man for internal piles.
The man died from harmorrhage.
Held: The element of good faith under section 88 was not satisfied as he ‘experimented’
without any knowledge of the procedure even though he had performed at least two
previous operations. Moreover, it could not be said that the deceased had accepted a
risk of which he was aware.
Maung Ba Thaung (1925) ILR 3 Ran 661
Section 88 was applicable to cases of corporal punishment by guardians and school
teachers of children above 12 years of age based on the rationale that when a child of
over 12 years goes to school, it is assumed that the child gives an implied consent to
subject himself to the discipline and control of the school authorities.
Any act done in good faith for the benefit of that person without consent is not an offence
if it was impossible to get consent at that critical point of time.
Public Prosecutor v Dr Nadason Kanagalingam [1985] 2 MLJ 122
Facts: The accused was charged under section 312 of Penal Code for causing a woman
with child to miscarry. He relied on the exception in section 92 of Penal Code where a
medical practitioner may, in good faith, do so if he was of the opinion that the
continuance of the pregnancy would involve the mental or physical health of the
pregnant woman.
Held: The accused had not given reasonable consideration and neither had he come to a
reasonable conclusion that the miscarriage was in order to save her life. There was no
indication that the life was or would be in danger if the pregnancy was allowed to
continue.
R v Flattery
Facts: The victim, together with her mother went to see the ‘prisoner’ for medical advice
to cure her fits. Having told her mother that it is needed to break the nature’s string,
without knowing what that is, the mother consented as long as it is for her daughter’s
good. The victim then went with the ‘prisoner’ to an adjoin room and there had sexual
connection with her, she making feeble resistance, believing that he was treating her
medically, and performing a surgical operation.
Held: The victim, by the fraud and false representations of the prisoner, was induced and
persuaded to allow him to touch and approach her person. There is no evidence to show
that the victim knew that the prisoner was about to violate her person, but, it appears
that she submitted to what was done under the belief that the prisoner was performing
a surgical operation to cure her of her illness. Thus, the prisoner was guilty of the crime
or rape and that the conviction should be affirmed.
Duress
Except for murder, a person committed a crime out of no choice, due to an immediate
threat of instant death to his life is of no offence.
Explanation 1 to section 94 of Penal Code:
If a person joins an organization on his own effort which is likely to compel him to do
illegal acts, he cannot raise the defence of duress under section 94.
Mohamed Yusof bin Haji Ahmad v Public Prosecutor [1983] 2 MLJ 167
If the accused of his own accord place himself in a situation by which he became subject
to threats of another person, whether threat may have been used towards him, the
provisions of this section do not apply.
Elements of duress:
i. Threat of death
ii. Threat is of instant death
iii. Threat is directed at person of accused
iv. Menace of threat present at time of act
v. Threat is objective in character
Threat of Death
Tan Hoi Hung v Public Prosecutor [1966] 1 MLJ 288
The threat must be of death. The basis of the defence is that the accused did not do what
he did by reason of any evil mind but by reason of having been under the threat of death.
Queen-Empress v Latif Khan AIR 1895 20 Bom 394
Any threat of extreme torture or serious injury short of death will not suffice. Nothing but
fear of instant death is a defence for acts such as where a policeman tortures any one
by order of his superior. There must be reasonable fear of instant death.
Threat is of Instant Death

Tan Seng Ann v Public Prosecutor [1949] MLJ 87
Facts: The appellant and four Chinese were detained while travelling in a car. As a result
of a key found on his person, the appellant led the police to his house, unlocked the
door with the key found and pointed to the police inspector a revolver lying concealed
in a cupboard. At the trial, he stated that two men brought a small parcel requesting
him to keep it for the night. When told it was a revolver, he objected. In spite of his
non-cooperation, they left the parcel in his house, took him in the car when they were
stopped and arrested by the police.
Held: There was nothing on record to suggest that duress was present or continuing when
the appellant went out in the car with the other men. For the defence of duress to be
succeed, it must be imminent, extreme and persistent.
Threat is Directed at Person of Accused

The threat must be directed at the person of the accused himself. Threats to kill one’s wife,
children, parents, etc will not suffice.
Menace of Threat Present at Time of Act

Mohamed Yusof bin Haji Ahmad v Public Prosecutor [1983]
Facts: The appellant was convicted of trafficking in dangerous drugs. He claimed that he
had been forced to so by a Thai man who had threatened him with a pistol and told him
to carry two bags of cannabis across the border into Malaysia. If he obeyed he would
be paid RM400; if he disobeyed he would be shot. In the present case, apart from being
threatened by the Thai of being shot, he also followed him on foot by keeping a distance
of 20 feet or so away.
Held: There is nothing suggest that when the appellant placed the bags on the platform and
went to purchase the ticket such duress was present or continued to be present.
Although according to the appellant the Thai was about 20 feet away on the platform
when he last saw him, the presence of four police personnel rendered the duress no
longer imminent, extreme or persistent. If an offence is completed when all danger of
instant death has been removed, the person committing the offence is not protected
under the section.
Mistake of Fact
It is a defence for a person to do anything, believing in good faith due to a mistake of fact
that he is bound by law to do it.
State of West Bengal v Shew Mangal Singh (1981) 4 SCC (Cri) 782 (SC)
Facts: There was a civil disturbance and attacks were made upon a police party. The Deputy
Commissioner of Police ordered the accused, members of the police group, to open fire.
Two persons were killed and the accused were convicted of murder.
Held: They were acquitted on the ground that the Deputy Commissioner’s orders were
justified and the accused were bound to obey the lawful orders of their superior officers.
An act which is done by a person, under a mistake of fact, in the belief in good faith that
he is justified by law to do so is of no offence.
Abdullah v R (1954) 20 MLJ 195 (CCA, Singapore)

Facts: The accused was charged with statutory rape of the complainant who was under 14
years of age. The appellant contended that he thought she was over 16.
Held: If the appellant believed in good faith that the complainant was over 16, it would be
a case of mistake of fact. What the law does not forbid it allows, and what a law allows
is justified by law. However, the girl is held to be ‘incapable of giving her consent’ and
that the appellant was therefore guilty of rape.
Elements of Mistake of Fact under section 79:
i. Mistake of Fact
ii. Done in Good Faith
iii. Not Mistake of Law
Mistake of Fact
Bonda Kui v King Emperor AIR 1942 Pat 64
Facts: The accused in the middle of night saw a human dancing in a state of complete
nudity with a broomstick tied on one side and a torn mat around the waist. Thinking it
was an evil spirit, the accused removed her own clothes and with repeated blows by a
hatchet fell the thing to the ground. The ‘thing’ was actually the wife of her husband’s
brother.
Held: The conviction was set aside as she was protected by section 79 that she thought that
she was, by a 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.
Chirangi v State of Nagpur (1952) Nagpur 282
Facts: The appellant killed his son by mistake thinking he was a tiger. He was suffering
from illness causing delusion affecting his vision.
Held: If the accused had for a single moment thought that the object of his attack was his
son, he would not have successfully raised the defence. He thought that by reason of a
mistake of fact that he was justified in destroying the deceased whom he did not regard
to be a human being, but who, he thought, was a dangerous animal. He was therefore,
protected by the provisions of section 79.
Sulong bin Nain v Public Prosecutor [1947] MLJ 138
Facts: The appellant, who was found carrying a bag which contained two hand grenades,
was charged for carrying arms under section 3(1) of the Public Order and Safety
Proclamation. At his trial, he stated that when he was arrested, he was carrying the
grenades with the intention of handling them to the police. The issue was whether a
person carrying arms with a view to handing them to the police was guilty under that
section of the law.
Held: Both sections 76 and 79 only apply to mistake of fact but not mistake of law. If a
person is deliberately carrying arms to the police station, he knows what he was
carrying and he is intentionally carrying those arms. He was not under a mistake of fact
of not knowing what he was carrying. But he was under a mistake of law of not knowing
that he cannot carry those arms even if it was intended in good faith to hand them to
the police. Since it is a mistake of law and not mistake of fact, he is not protected neither
by section 76 nor section 79.
Good Faith
Good faith requires the proof of due care and attention.
Public Prosecutor v Tunku Mahmood Iskandar [1977] 2 MLJ 123
To satisfy the court of good faith, a person must show that he acted wisely and that he had
reasonable grounds for believing that he ought to do what he did.
Pendakwa Raya v Wong Haur Wei [2008] 1 MLJ 170
The defence is not made unless it is shown that the accused exercised due care and attention,
ie it was a reasonable mistake to make.
Public Prosecutor v Teo Eng Chan & Ors [1998] 1 MLJ 670
The defence will be rejected where there is no exercise of due care and attention in
committing the mistake of fact.
Not Mistake of Law

Pendakwa Raya v Wong Haur Wei [2008] 1 MLJ 670
Ignorance of law is not an excuse.
Public Prosecutor v Khoo Cheh Yew & Anor [1980] 2 MLJ 235
Facts: The accused persons were charged with importing pianos, which being the product
of South Africa, were then by law prohibited gods.
Held: There is an exception to the rule of ‘ignorance of law is not an excuse’. The accused
could escape liability if he could not possibly reasonably have known of the existence
of the law he had offended.
Mat Salleh v Sarah (1883) 3 Kyshe 67
Facts: The appellant was convicted of criminal trespass under section 447 of the Penal
Code in respect of the respondent’s house. The appellant entered the house and
attempted to pull it down because he thought that he had purchased it from one Samat.
When the respondent protested, the appellant threw out the apparel, crockery, breaking
and smashing them, released the goats and tore the house completely down and carried
away the materials. The dispute was whether the appellant had the right to do what he
did.
Held: Although some of the acts might have been the cause of injury and annoyance to the
complainant, it was thought the appellant may reasonably be taken to have done what
he did, in pursuance of a right. It is held to be a mistake of fact, as the appellant
mistakenly thought that he has the ownership and right over the house.
Private Defence
The act of exercising the right of private defence is not an offence.
Everyone has the right to defend:
(a) body of his own or other person against any offence affecting the human body;
(b) property of his own or other person against theft, robbery, mischief or criminal trespass
or any attempt to such offences.
There are four restrictions in private defence:
(1) an act done by a public servant acting in good faith under colour of his office;’
(2) an act done by a person acting in good faith under directions of a public servant;
(3) when there is time to recourse to public authorities;
(4) cannot cause more harm than necessary for the defence.
Act of Public Servant under Colour of Office

Explanation 1 to section 99(1) of Penal Code:
A person is not deprived of his right against an act done by the public servant unless he
knows or has reason to believe that the person doing the act is a public servant.
Bhawoo Jivaji v Mulji Dayal (1888) 12 Bom 377
Facts: The accused, a police constable on duty, suspecting the complainant was carrying a
stolen cloth went to the complainant and questioned him. The accused claimed that the
statement made by the complainant was false and wanted to hold the cloth to examine
it closely. The complainant objected and assaulted the accused, then the accused
scuffled the complainant and arrested him. The complainant charged the accused for
wrongful restraint and wrongful confinement.
Held: Even though there might not have been a complete basis of fact to justify a reasonable
suspicion that the cloth was stolen property – still the complainant had not right to resist
the accused when he tried to detain the cloth, as the accused was a public servant acting
under colour of his office, and his act was not one which caused the apprehension of
death or grievous hurt.
Under Direction of Public Servant

Explanation 2 to Section 99(2) of Penal Code:
A person is not deprived of his right unless he knows or has reason to believe that the
person doing the act is acting by such direction of public servant.
Time to Recourse to Authorities

PP v Ngoi Ming Sean [1982] 1 MLJ 24 (HC, Seremban, Malaysia)
Facts: The accused, a police detective, was charged with culpable homicide not amounting
to murder. An argument broke out in the toilet when the deceased claimed he was
unable to urinate while the accused was standing there. The accused showed his police
authority card but the deceased continued to be aggressive. The accused retreated to
the bar but was pursued by the deceased, whereupon he shot the deceased in the course
of a struggle when “cornered” by him.
Held: There is no right of private defence when the person has time to recourse to seek the
protection of the public authorities. However, in this case, there was no way out for the
accused as he was cornered in the small space near the toilet. The assault by the
deceased had indeed assumed a dangerous form and 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.
No More Harm than Necessary

PP v Ngoi Ming Sean [1982] 1 MLJ 24 (HC, Seremban, Malaysia)
Facts: Same as above.
Held: His act which caused the death of the deceased was done in the exercise of his right
of private defence and was not in excess of that right.
Public Prosecutor v Halim Din [1999] 2 CLJ 81
Facts: The deceased had been part of an anti-vice team from an Islamic Religious Council
which had, at about 2.00am, raided the house that the respondent was visiting. In trying
to escape, the respondent, a police inspector, discharged his weapon killing the
deceased.
Held: Even if the defence of self defence was justifiable, the accused had exceeded the use
of reasonable force by using his gun against a man armed only with a piece of wood.
Private Defence of Person

A private defence may extends to cause death where the offence is:
(a) assault reasonably causing the apprehension that death will otherwise be the
consequence;
(b) assault reasonably causing the apprehension that grievous hurt will otherwise be the
consequence;
(c) assault with intention to commit rape;
(d) assault with intention to gratify unnatural lust;
(e) assault with intention to kidnap or abduct;
(f) assault with intention of wrongfully confining a person under circumstances causing
him to apprehend he will unable to have recourse to public authorities.
Musa bin Yusoff v Public Prosecutor [1953] MLJ 70
Facts: The deceased had attacked the accused with a knife. The accused managed to wrestle
the knife from the deceased and then stabbed the latter once in the chest.
Held: If the defence requires the accused to escape further injury by resorting to less
violence or running away, this would be a greater restriction on the right of private
defence than the law requires.
Public Prosecutor v Yeo Kim Bok [1971] 1 MLJ 206
Principles of private defence of the person:
1) A defender need not wait till he is actually attacked.
2) He is not obliged to run away, the law does not require a citizen to behave like a
coward.
3) A defender may pursue the aggressor. A defender is not only not obliged to retreat
but he may even pursue his enemy till he finds himself out of danger.
4) If the defender is unable to escape, he may turn around and attack.
5) A defender need not coolly reflect on his right or measure his blows. The law does
not require that the accused should have exercised a calm and cool judgment and
that he should weigh his acts in golden scales.
6) A defender can make sure that his defence is effective.
7) A defender may inflict injuries on his aggressors for the purpose of defence as well
as for preventing further aggression. Even if the aggressor is disarmed, if there is a
possibility of his wrestling the weapon from the defender, the latter has a right to
use violence, but of course not to cause his death. But he can even cause death if
one of the two aggressors is still armed.
Private Defence of Property

Private defence of property may extend to cause death in case of:
(a) robbery;
(b) house-breaking by night;
(c) mischief by fire committed on any building, tent or vessel which is used as a human
dwelling, or as a place for the custody of property;
(d) theft, mischief or house-trespass, under such circumstances as may reasonably cause
apprehension that death or grievous hurt will be the consequences, if such right of
private defence is not exercised.
Mohd Rafi v Emperor AIR 1949 Lah 375
Facts: A party of persons including the deceased had approached the accused’s house in a
threatening manner while armed with deadly weapons. At the same time, they were
shouting out threats of setting fire to the house. The accused who was standing in front
of his house, shot and fatally wounded the deceased at a distance of 10 to 14 feet while
the man was advancing towards him.
Held: It is almost certain that some of them at any rate were armed with deadly weapons,
and their advance in a threatening manner must undoubtedly be held to have given rise
in the mind of the accused to a reasonable apprehension that he was about to sustain
grievous injury at their hands, and it must accordingly be held that in firing his gun so
as to cause fatal injuries to Ibrahim he did not exceed the right of defence of the body.
Accident
A lawful act, done in a lawful manner, with proper care and caution if resulted in a crime
by an accident or misfortune, will not be considered as an offence.
Elements of Accident:
i. The act was an accident or misfortune;
ii. It was a lawful act done in a lawful manner by lawful means; and
iii. The act was done with proper care and attention.
Accident or Misfortune
Ratnam v R [1937] MLJ 222
To constitute a defence, the act must be unintentional and a pure accident.
Lawful Act, Lawful Manner and Lawful Means

Jagesher v Emperor (1923) 24 Crim LJ 789
Facts: A woman interfered in a fight between her husband and the accused while carrying
a baby on her shoulder. The accused accidentally struck the baby and it died two days
later from the effect of the blow.
Held: Although the child was hit by accident, it was held the accused was not entitled to
the protection of section 80 because at the time, the principal act of the accused in
beating a person was not a lawful act.
Kong Poh Ing v PP [1977] 2 MLJ 199
Facts: The accused told her boyfriend that she wanted to commit suicide as he had betrayed
her. When she showed him a knife, he hugged her and told her not to die. He then
attempted to wrench the knife from her. They fell and he was ‘accidentally’ stabbed in
the stomach.
Held: The defence of accident was allowed, as it was yet to be an unlawful act of attempting
to suicide by mere words.
Proper Care and Caution

State Government, Madhya Pradesh v Rangaswami AIR 1952 Nag 268
Facts: The respondent fired on the deceased under the impression that it was the hyena
which had been seen in the vicinity on the previous day. His companions also shared
the impression. At the time of shooting, it was raining, the sky was overcast and
visibility was poor. The respondent said he had not expected a human being to be there
and the object he had aimed had a brown covering. The deceased was wearing agunny
sack at that time.
Smith v Emperor (1925) 53 Cal 333
Facts: The accused was driving a car at night at 10 miles per hour. He entered a road which
was under repair and was closed to traffic. He ran over two coolies sleeping on the road
with their bodies completely covered up except for their faces.
Held: The accused was not guilty of causing death by rash and negligent act as it could not
be said that he should have looked out for persons making such abnormal use of the
road. The accused had no mens rea and it was therefore a pure accidental act or
misfortune.
Necessity
Acts done with the knowledge that it is likely to cause harm, but done without any criminal
intention in good faith for the purpose of preventing other harm to person or property.
Explanation to Section 81:
It must be considered that whether the harm to be prevented was so imminent as to justify
or excuse the risk of doing anything that is likely to cause harm.
Public Prosecutor v Ali bin Umar [1982] 2 MLJ 51
Facts: The respondents had been charged under section 49(1) of the Customs Act 1967 for
carrying tin-ore in a local craft without the permission of the Director-General of
Customs. They claimed as a defence that their boat had a broken rudder forcing them
in distress to enter Malaysian waters.
Held: Necessity justified the respondents to enter the Malaysian waters on specific reasons
that their boat was in distress due to the broken rudder. In those circumstances, it would
be necessary for the respondent to seek shelter for the safety of the boat and to preserve
the lives of the crew in such distress.
Muhammad Sarwar v State PCD (1979) Lahore 711(2)
Facts: The accused and others, in order to prevent their houses from imminent danger of
being washed away or getting submerged y flood waters, erected a retaining wall. The
victims started to demolish the wall, whereupon the accused and others attacked them.
Held: Till such time that this imminent danger to their homes continued, the accused party
had the right under section 81 in taking all such actions, which in normal circumstances
would otherwise had been illegal, to prevent their houses being washed away or getting
submerged due to accumulated rain water.
R v Dudley and Stephens (1884) 14 QBD 273
Facts: The two accused, with a third man and a 17-year old boy, were cast away on the
high seas in an open boat, 1600 miles from land. They drifted in the two boats for 20 days.
When they had been eight days without water and fearing that they would all soon die
without some sustenance, the defendants killed the boy who was likely to die first. The
men ate his flesh and drank his blood for a few days. They were then rescued by a passing
vessel and were subsequently charged with murder.
Held: If the boy had attacked the accused and tried to kill them, it is justifiable to kill him
in private defence. However, the boy did not do anything. He was an innocent who was
killed and eaten not because of any wrongdoing on his part but simply because he was the
weakest. The defence of necessity was denied.
United States v Holmes 26 Fed Cas 360
Facts: The accused with 8 other seamen and 32 passengers were in an overcrowded lifeboat.
Fearing that the boat would sink, he threw 16 passengers overboard. The crew was
directed ‘not to part man and wife, and not to throw over any women. There were no
other principles of selection.’ The next morning, the survivors in the boat were all
rescued.
Held: The case does not become ‘a case of necessity’ unless all ordinary means of self-
preservation have been exhausted. The peril must be instant, over-whelming, having
no alternative but to lose our own life, or to take the life of another person. Whether or
not ‘a case of necessity’ has arisen, or whether the law under which death has been
inflicted has been exercised as to hold the executioner harmless, cannot depend on his
opinion, for no man may pass upon his own conduct when it concerns the right and
especially, when it affects the lives of others.
Participation
Participation
Same Offence Different Offences
Common Object
Common Intention Abetment Criminal Conspiracy
(unlawful assembly)
s.34 s.107 s. 120A
s.149
+Kee Ah Tee
+Mimi Wong +Datuk Haji Harun
+Lee Chong Dek +Natu v State Idris +Emperor v
+Vincent Ban Ka +Ong Chin Seng +Paul Ratnam v The +Chew Chong Jin
+Tan Kheng Ann Law Society
+Neo Ben Chee
+Mabok Shah +Rancis v PP
+Ramli bin Awang
+Kumar Kaur
Common Intention
When a criminal act for a common intention is done by several persons, each of them is
liable as if the act is done by him alone.
Essence of Section 34:
i. Some criminal act
ii. Criminal act done by several persons
iii. Common intention
iv. Participation in the criminal act
Common Intention
Mahbub Shah v Emperor
Facts: The appellant Mahbub Shah and one Wali Shah were out on a shooting game when
they heard shouts for help from one Ghulam Quasim Shah who was being attacked by
the deceased, Allah Dad. Wali Shah, in trying to rescue Ghulam, shot and killed Allah
Dad while the appellant injured one Hamidullah Khan. Both men were convicted of
murder read with section 34.
Held: While the appellant and Wali Shah had the same or similar intention to rescue
Ghulam by using their guns, if necessary, there was no evidence that the killing of Allah
Dad was in furtherance of a common intention. In order to infer common intention, it
is necessary to prove that the criminal act was done pursuant to a pre-arranged plan.
Whether or not the persons have pre-arranged plan can be determined by: conduct of the
parties, weapons used and the nature of wounds inflicted.
R v Vincent Banka
Facts: The two accused set out to commit robbery and in the process, murder happened.
Held: There must exists common intention to commit the crime actually committed and it
is not sufficient that there should merely be a common intention to “behave criminally”.
The evidence was inconclusive as to which of them inflicted the fatal wound or who
carried the knife. There is no common intention to commit the murder, as the common
intention is only to commit robbery.
Mimi Wong v PP [1972] 2 MLJ 75
Parties are only required to have the common intention to do a particular criminal act which
ultimately leads to an offence being committed in furtherance of the common intention.
“If A and B form a common intention to cause injury to C with a knife and A holds C
while B deliberately stabs C. C died. B is guilty of murder. Applying section 34, A is
also guilty of murder.
It is only the mens rea of the actual doer which is necessary to establish the offence charged
for which all the participants would be collectively liable. The intention that is the
ingredient of the offence constituted by the criminal act is the intention of the doer and
must be distinguished from the common intention of the doer and his confederates. It
may be identical with the common intention or it may not. Where it is not identical with
the common intention, it must nevertheless be consistent with the carrying out of the
common intention otherwise the criminal act done by the actual doer would not be in
furtherance of the common intention.
Chew Cheng Lye v R
The appellant’s conviction of theft of bicycle through section 34 was quashed because there
was no evidence that he had kept watch, assisted the other person in removing the
bicycle or otherwise participated in the offence.
Mere presence does not imply participation unless it is for the purpose of facilitating the
offence (such as being the lookout person).
Participation in the Criminal Act

Barendra Kumar Ghosh v King Emperor AIR 1925 PC 1
Facts: Several persons appeared before the sub-post master who was counting the money
on the table and demanded the money. In the mean time they opened fire killed the sub-
post master and ran away without taking any money. The accused was, however, caught
with a pistol in his hand and was handed over to the police. The accused denied the
charge of sections 302 and 34 as he was simply standing outside and had not fired at
the deceased.
Held: It was satisfied that the sub-post master was killed in furtherance of the common
intention of all, the accused was convicted even if he had not fired the fatal shot.
Lord Sumner: “even if the appellant did nothing as he stood outside the door, it is to be
remembered that in crimes as in other things they also serve who only stand and wait…”
Common Object
Every person being the member of the unlawful assembly at the time of offence, is guilty
of the offence done by any member for their common object, or the offence known by
the members which is likely to be committed for the common object.
Section 149 must be read together with section 141 for the meaning of unlawful assembly.
They may not have the common intention to commit a particular offence as required by
section 34, so long as they have common object and the offence was done for the
common object is sufficient. They may have private intentions of their own with the
common object.
Essence of section 149:
i. There must be an unlawful assembly, as defined in section 141;
ii. Criminal act must be done by any member of such assembly;
iii. Act done is for prosecution of the common object of the assembly or such which
was likely to be committed in prosecution of the common object;
iv. Members have voluntarily joined the unlawful assembly and knew the common
object of the assembly;
v. Mere presence and sharing of common object of the assembly makes a person liable
for the offence committed even if he had no intention to commit that offence.
Mohd Haikal bin Mohd Khatib Saddaly & 7 Ors v Public Prosecutor [2009] 4
AMR 504
There is no need to have a total of five or more persons at any one time. The membership
may be changed as members may join in and out. So long as the total number of
members of the unlawful assembly over the whole duration constitutes five or more,
that would be sufficient to attract section 149.
Osman Ramli v PP
Facts: A group of 15 males surrounded 4 victims at a park. A person in the group repeatedly
asked one of the victims threatening questions and a fight broke out.
Held: Common object of the assembly was to cause hurt to others (inferred from the
threatening questions). If the accused chose to remain present in the assembly beyond
the point where threatening questions were asked, the inference was that he or she
shared the common object of that assembly.
Abetment
Abetment may take place by:
(a) instigation;
(b) Engaging in a conspiracy;
(c) Intentionally aiding in the commission of the act
Explanations on what would constitute abetment:
1. The abetment of an illegal omission may be an offence though the abettor may not
himself be bound to do that act;
2. It is not necessary that the act abetted be committed or effect requisite to constitute the
offence be caused;
3. It is not necessary that the person abetted should be capable by law of committing an
offence or have any guilty intention or knowledge (like the abettor);
4. The abetment of an abetment to commit an offence is also an offence;
5. It is not necessary to the commission of the offence of abetment by conspiracy that the
abettor should concert the offence with the person who commits it. It is sufficient if he
engage in the conspiracy in pursuance of which the offence is committed.
Abettor is liable even when the act is abetted and a different act is done provided the act
was a probable consequence of the abetment. Illustration (c).
Abettor is liable even when the offence caused by the act is different from that intended by
the abettor provided that the abettor knew that the act abetted was likely to cause that
effect.
Instigation 107(a)
Haji Abdul Ghani bin Ishak & Anor v Public Prosecutor [1981] 2 MLJ 230
The word ‘instigate’ as stated does not merely mean placing temptation to do a forbidden
thing but actively stimulating a person to do it.
PP v Datuk Haji Harun Idris [1977] 1 MLJ 180
Advice can also become instigation if that advice was meant to actively suggest or
stimulate the commission of the offence.
Isaac Paul Ratnam v The Law Society [1976] 1 MLJ 195
Facts: The appellant, who was a lawyer in Singapore, was charged with abetment by
instigation in the dishonest or fraudulent removal or concealment of property under
section 424. He had sent a letter to the general manager of Cemini’s branch office, to
dishonestly remove the cars and other movable property belonging to the company.
Held: He was convicted of abetment. By handing the letter to a person in Singapore to be
delivered to Kuala Lumpur, he had committed abetment by instigation.
Abetment by Conspiracy 107(b)

Abetment by conspiracy consists in the combination and agreement of persons to do some
illegal act, i.e. to affect some illegal purpose by illegal means.
Elements:
i. The person abetting must engage with one or more persons in a conspiracy
ii. The conspiracy must be for the doing of the thing abetted
iii. The illegal act or omission must take place in pursuance of the conspiracy
Distinction between 107(b) and 120A(b):
Section 120A(b) requires only the performance of ‘some act in pursuance of the conspiracy’
which may not be of direct relevance to the object of the conspiracy; while section
107(b) appears more restrictive in that the act done must be in order to the performance
of that thing, ie the object of the conspiracy.
Abetment by Aiding 107(c)

Abetment by aiding takes place when a person by the commission of an act intends to
facilitate and does facilitate the commission of an offence.
Public Prosecutor v Tee Tean Siong & Ors [1963] MLJ 201
Facts: The accused persons were charged for abetting the exhibition of pornographic films.
Held: Mere attendance as spectators at the show cannot amount to abetment which was
defined in terms of an act in relation to the thing that is charged.
The aiding must occur prior or at the time of the commission of an offence.
Ramabatar Agarwalla v The State (1983) Cri LJ 122
Mere giving of an aid will not make the act an abetment of an offence, if the person who
gave the aid did not know or had no reason to believe that an offence was being
committed or contemplated.
Criminal Conspiracy
Section 120A of Penal Code:
When two or more persons agree to do, or cause to be done:
(a) an illegal act; or
(b) a legal act by illegal means,
Is a criminal conspiracy.
Meaning of illegal: Section 43.
Yash Pal Mittal v State of Punjab (1978) Cri LJ 189
The agreement is the ingredient of the offence. It is not necessary that all the conspirators
must know each and every detail of the conspiracy so long as they are co-conspirators
in the main object of the conspiracy.
Mens rea: What is necessary is that at the time of the agreement, each conspirator should
intend that the crime be committed and that he would fulfil his role in their agreement,
even if that role is no more than agreeing that the crime is committed by another.
Abdul Rahman & Ors v Emperor AIR 1935 Cal 316
Criminal conspiracy may come into existence and may persist and will persist so long as
the persons constituting the conspiracy remain in agreement and so long as they are
acting in accord, in furtherance of the object for which they had entered the agreement.
Marija Balayya v State of Orissa (1976) 42 Cut LT 374
Facts: Naxalite leaders came to Orissa and had meetings at nine different places at different
dates exhorting people to join their party. The substance of their speech was that a
Government of poor people should be established after overthrowing the present
government, rich Sukahars should be robbed and if necessary may be killed and their
wealth and lands distributed amongst the poor. Should the police intervene, they would
be destroyed with bombs. The police were alerted and arrests made and the Naxalite
literature recovered.
Held: The object of distributing the richness of the rich to the poor is noble, though the
method proposed, namely by robbing the rich, is illegal, within the meaning of 120A(b).
But, under the provision, there must be some act done by one or more parties to the
agreement to constitute an offence of conspiracy. But here, there was no action, and the
mere exhortation may not satisfy the requirements of section 120A.
R v Chew Chong Jin [1956] MLJ 185
Facts: The accused was charged with abetting by conspiracy in the illegal importation of
gold into Singapore contrary to the Prohibition of Imports Order 1950. The accused,
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.
Held: He was acquitted as the prosecution failed to establish a prima facie case that the
accused was engaged in a conspiracy. The essence of a conspiracy is the meeting of the
minds of at least two persons. The parties must go beyond the stage of negotiation or
exhortation. A decision must be reached to commit the prohibited object. The parties
need not be in direct communication with each other but the decision must have been
communicated between the parties.
Emperor v Hiremath AIR 1940 Bom 365
Facts: The accused was charged with inter alia conspiracy to murder one Muchkandappa
through the invocation of witchcraft. The first attempt was between January and August
1938 when all the accused conspired together to murder Muchkandappa by means of a
form of witchcraft.
Held: There was a conspiracy to murder as the real agreement was to cause death even
though none of the accused understood witchcraft when they entered into the
conspiracy, being the means to cause death.
Attempt
Whoever attempts to commit an offence punishable with imprisonment, where no express
provision is made by statute, be punishable for such an attempt.
Intention
Preparation
Attempt
Actual Commission
Preparatory Act
Arjan Singh v Public Prosecutor [1948] MLJ 73
There was no evidence of any attempt to transfer the letter by any means to the addressee
(victim). The mere act of writing and retaining a letter is not an attempt to commit
extortion but at most, a preparatory step towards the commission of the offence.
Thiangiah & Anor v Public Prosecutor [1977] 1 MLJ 79
Facts: The accused was an employee of an estate responsible for putting fertilizers for the
rubber trees. Some bags were not used and were found hidden behind a tree. When the
accused came in the evening in his car to load them, he was apprehended and charged
for attempted theft.
Held: There was no attempt to commit theft as the act was still premature and still at the
preparatory stage. There must be some further overt act by the accused and clear
intention to steal. The judge suggested that if the management had waited perhaps until
the accused was about to leave the compound of the estate then there might be
attempted theft or even theft.
Tan Beng Chye v Public Prosecutor [1966] 1 MLJ 173
Facts: The accused had taken the complainant to some bushes, removed his shorts and inner
pants. He then made complainant to take off her trousers leaving her in knickers which
she refused to take off. Just then, a passer-by came and complainant shouted for help.
The accused was arrested, charged and convicted of attempted rape.
Held: There was no sufficient evidence in the act to constitute an attempt to commit rape.
Actus Reus of Attempt

Thiangiah & Anor v Public Prosecutor [1977] 1 MLJ 79
An attempt to commit a crime is an act done with the intent to commit that crime, and
forming part of a series of acts, which would constitute its actual commission if it was
not interrupted.
State of Maharashtra v Mohd Yakub (1980) Cri LJ 793
To constitute an attempt:
(a) there must be an intention to commit a particular offence;
(b) some act must have been done which would necessarily have to be done towards the
commission of the offence;
(c) such act must be proximate to the intended result. The measure of proximity is not in
relation to time and action but in relation to the intention, ie it must be indicative or
suggestive of the intention.
Abhayanand Mishra v State of Bihar AIR 1961 (SC) 1698
Facts: The appellant was convicted cheating to enter university under section 420 read
together with section 511 of Indian Penal Code. He had applied to the Patna University
for permission to sit for a test as a private candidate, representing falsely he had a BA
degree, and he had been teaching in a certain schools. In support, he had forged
certificates purporting from the schools. The university authority accepted the appellant
and gave him permission. When the truth was found out, he was prosecuted.
Held: A culprit first intends to commit the offence, then makes preparation for committing
it and thereafter attempts to commit the offence. If the attempt succeeds, he has
committed the offence; if it fails due to reasons beyond his control, he is said to have
attempted to commit the offence. Therefore, attempt to commit an offence can be said
begin when the preparation are complete and the culprit commences to do something
with the intention of committing the offence which is a step towards the commission
of the offence.
Public Prosecutor v Kee Ah Bah [1979] 1 MLJ 26
Facts: The appellant was charged in attempting at fraudulent evasion of export duty on tin
ore. He had hidden the tin-ore in his car. He left the immigration checkpoint at JB
causeway and approached the customs check point. When the car was about 10 yards
from the check point, the custom officer signaled him to stop. The appellant reversed
and made a U-turn and escaped back to JB. The car was discovered and the appellant
was prosecuted.
Held: Since the respondent was still within Malaysian territory, there must have an
irrevocable intention to leave the country what the court described as a further step to
commit the completed offence before there can be an attempt.
Preparatory Acts: Making of the secret compartment in the car, obtaining and loading
the tin ore into the car and driving up to the immigration check-point to present his
travel document.
Attempt: Passed through the immigration check-point to show his intention to leave the
country. (after the immigration, the goods are at law to be exported)
Actual commission: Passed through the custom check point and left Malaysian territory
(which is yet to be done)
Hence, the appellant can be said to have attempted the offence since he has passed through
the immigration check point, even though he has not passed the custom check point.
Public Prosecutor v Zainal Abidin bin Ismail [1987] 2 MLJ 741
Facts: The accused was charged with attempted rape. He lay on top of the complainant
with the intention of penetrating her but abandoned his plan when he was unable to
obtain an erection. He did not remove his trouser.
Held: The act relied on as constituting the offence must be more than an act preparatory to
the offence but must be proximate to and not merely remotely connected with the
offence. Notwithstanding that he failed to penetrate the girl by reason of his inability
erection, he did attempt to penetrate the girl when he lied on top of the girl, with his
expressed intention of having intercourse are sufficient in law to constitute an attempt
of rape.
Mens Rea of Attempt

Om Prakash v State of Punjab AIR (1961) SC 1782
The expression “whoever attempts to commit an offence” in section 511 can only mean
“whoever intends to do a certain act with the intent or knowledge necessary for the
commission of an offence”.
Abhayanand Mishra v State of Bihar AIR 1961 (SC) 1698
There must be intention to commit the complete offence.
Impossible Attempts
Munah binti Ali v PP [1958] MLJ 159
Facts: The accused was trying to procure an illegal abortion, inserted an instrument into a
woman’s vagina with a view to cause a miscarriage. Unknown to her, that woman was
in fact not in pregnancy. Thus, it was impossible to cause miscarriage.
Held: By referring to illustration to s.511, it is an offence if someone to thrust his hand into
a person’s pocket with intent to steal, notwithstanding the pocket is empty. In a charge
of attempting to cause a woman to have miscarriage, it is not necessary for the court to
be satisfied that the woman is pregnant.
Queen Empress v Niddha (1891) XIV ILR All 38
Facts: The accused was determined to resist his lawful apprehension and was armed with
a loaded gun. For that purpose, he aimed it in the direction of the person seeking to
arrest him, presented the weapon and pulled the trigger. If fell on the nipple but the cap
did not explode. The gun failed to go off.
Held: He cannot escape criminal responsibility because of a fact unknown to him and at
variance with his own belief intervened to prevent the result of his act happened. The
failure of discharge the weapon was wholly independent of any action of the accused.
Therefore, he did attempt to kill.
Disclaimer: This note is intended to serve as a last minute revision. For in-depth
understanding, please read the full case and text books.

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Criminal Law I Notes

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Contents

ELEMENTS OF CRIME .................................................................................................... 4

Involuntary Conduct Caused by Disease of Mind

Failing to Act When it is an Offence

Failing to Act When Prohibited by Law

Duty arising from creation of a dangerous situation

Mens Rea (Mental State)

Causa Causans (Strict Test)

Sine Qua Non (‘But For’ Test)

Breaking the Chain of Causation (Novus Actus Interveniens)

Coincidence of Actus Reus and Mens Rea

Presumption of Requirement of Mens Rea

Rebutting the Presumption

Social and Public Welfare

Effectiveness in Promoting Statutory Objectives

At the Time of Doing the Act

By Reason of Unsoundness of Mind

Incapable of Knowing Nature of Act

Incapable of Knowing Wrong or Contrary to Law

Being in a State of Intoxication

Malicious or Negligent Act of Another

Intoxication causing insanity

No Knowledge Act was Wrong or What Accused was Doing

Crimes of Specific Intent (s.86(2))

Non-Application of Section 86(2)

Consent under Misconception of Fact

Other provisions for Consent

Threat is of Instant Death

Threat is Directed at Person of Accused

Menace of Threat Present at Time of Act

Abdullah v R (1954) 20 MLJ 195 (CCA, Singapore)

Not Mistake of Law

Act of Public Servant under Colour of Office

Under Direction of Public Servant

Time to Recourse to Authorities

No More Harm than Necessary

Private Defence of Person

Private Defence of Property

Lawful Act, Lawful Manner and Lawful Means

Proper Care and Caution

Same Offence Different Offences

Participation in the Criminal Act

Abetment by Conspiracy 107(b)

Abetment by Aiding 107(c)

Actus Reus of Attempt

Mens Rea of Attempt

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