Criminal law I final update

S.304A

            If the prosecution does not have evidence to prove beyond reasonable doubt that the accused had acted intentionally or with knowledge when causing the death of another, s.300 and s.299 cannot be invoked. The alternative section is s.304A where the prosecution has to prove that the accused had acted rashly or negligently. As a result of his act, death has taken place. This section can be invoked when death is caused under various circumstances.

            In deciding whether the accused had acted rashly, the courts must look at all surrounding evidence. In a nutshell, it can be said that if the accused had realized that his act was serious or risky (decided in Balakrishnan) or if the accused was conscious of the illegal consequences that may follow, or he was aware that some kind of mischievous acts may result, then according to Nidamarti, the courts will find that the accused had acted rashly because he had taken the risk knowing of the consequences.

            A person is said to have acted rashly, if they knew of the risk, but they still took it, but with the hope that they will not occur.

            The maximum penalty for s.304A in Malaysia is 2 years imprisonment, whether convicted under rashness or negligence. However, in Singapore, the maximum penalty for causing death by rashness has increased to five years, with the maximum for negligence-based offences remaining at 2 years.

PP v Tiyatun

The accused persons in this case was convicted under s.304A for the ‘force feeding’ of their child.

Lim Hong Eng v PP

Rashness implies a disregard to the possibility of injury or death. It means that the accused having recognized a risk chooses to run that risk anyway.

            Rashness, like intention, will often be a matter of inference from the facts. If a risk is obvious and serious, the court may find it easy to infer that the accused recognized the risk, even if he or she claims ignorance.

Balakrishnan S v PP

The appellants were the commanding officer and supervising officer of a Prisoner of War training course. One soldier died and another was seriously injured as a result of being dunked four times, around 20 seconds each, in a tub containing water. The appellant claimed that he did not realize that such dunking was dangerous. The Court of course did not accept such reason.

S.321 and s.322

            If the facts state that the victim was injured, two sections can be invoked, s.321 and s.322. In order to successfully raise s.321, the nature of the injury should fall within s.319. This section causes a wide range of injuries which includes bodily pain, disease or infirmity.

            In Jashanmal, mental anguish was also considered as hurt within the meaning of s.319. If the prosecution proves that the actus reus of the accused falls within s.319, it has to further prove that the accused caused such an injury voluntarily, s.39. If the facts show that the nature of the injury is serious, severe or grievous, a more appropriate section would be s.322. S.320 defines certain types of injuries as grievous hurt. However, any kind of hurt which endangers or threatens the victim’s life could be considered grievous under s.320(h).

            The mens rea for both sections, s.321 and s.322, is the same (s.39). Therefore, the prosecution has to prove that the accused either had the intention to cause such an injury or had the knowledge that his actions could cause such an injury or he had a reason to believe (s.26) that his action will cause such an injury.

            S.95 is a defence that has been successfully pleaded in the case of Teo Geok Fong. In order to successfully plead this defence, the harm inflicted must be slight. Therefore, it cannot serve as a defence if the accused is charged under s.322. Additionally, the hurt must be of such a minor nature that it can be proven that a person of ordinary sense and temper would not complain.

Defences (ss. 76 – 90)

            The accused will raise defences as a legal justification so that the courts could excuse him for committing the crime that he’s being charged with. Some of these defences completely excuse the accused. On the other hand, some of these defences allow the charge to be reduced.

            The defence of mistake is recognized under 2 sections, i.e. s.76 and s.79. To plead the defence of mistake under both these sections, the mistake must be a mistake of fact and not a mistake of law. Both these sections are very similar because the defendant must have honestly believed in the mistake.

            However, there is 1 difference. Under s.76, the accused can plead the mistake of fact if he honestly believed that he was bound by law to do the act. Under s.79, however, the accused must have honestly believed that he was justified by law to do the act.

            A mistake of fact is an error as to the existence of any state of things. It could be made due to inadequate or wrong information. A case in point is Chirangi v State of Nagpur. Here the accused mistakenly believed that he was shooting a tiger when he actually shot his son.

            S.80 allows the accused to plead the defence of accident provided certain conditions are fulfilled. The act done must have been a lawful act and it must have been done in a lawful manner and it must have been done with proper care and caution. In addition to these elements, the defence must also prove that the accident took place without any criminal intention or knowledge.

            In Koh Poh Ing’s case, the accused was charged for causing the death of the boyfriend because he was accidentally stabbed in the stomach while he tried to remove a knife from the accused who was contemplating suicide. Accident was allowed to be pleaded.

            S.82 and s.83 prima facie prevent children from facing criminal sanctions. S.82 encompasses the Latin concept ‘Doli Incapax’. This section stipulates that a child below the age of 10 cannot be punished for any criminal offence. In order to plead this section, the child must have been below the age of 10 at the time the offence took place (irrebuttable presumption).

            S.83 excludes criminal liability of children if they are between the age of 10 and 12. In order to prove beyond reasonable doubt that the child had sufficient maturity and understanding, the surrounding facts of the case must be analysed. If the facts show that the child had hidden the murder weapon or had told lies during questioning so that he will not implicate himself, such facts suggest that the child had sufficient maturity to understand what he did was wrong.

            S.84 recognises the defence of insanity and it is governed by the M’Naghten Rules. In order to successfully plead this defence, several elements must be established. The accused was said to be suffering from unsoundness of the mind (which may be temporary or permanent) at the time he carried out the wrongful act. Unsoundness of the mind is wider than the ‘disease of the mind’ and this unsoundness of the mind must have been of such a nature or severity that it prevented the accused from knowing the nature of his wrongful act or the unsoundness of the mind prevented him from knowing what he did was wrong or against the law.

            A case in point is Jusoh v PP. Unsoundness of the mind in simple terms refers to mental malfunctioning. S.84 only allows the person to plead the defence if the mental malfunctioning is so severe that the accused is completely incapable of knowing what he did or, if he knew, his mental malfunction prevented him from knowing what he did was against the law.

            In PP v Rozman, the court did not allow the accused to plead the defence under s.84 because the court was of the opinion that subnormal intellect was not equivalent to an unsound mind. In Sinnasamy, the court held that irresistible impulse is not the same as an act done with an unsound mind.

            S.90 recognises the defence of consent. However, s.90 clearly stipulated that if the consent was given under s.90(a), (b), and (c), such a consent will not amount to a defence. The defence of consent is recognized and common in sport activities. Normally the consent given will be subjected to terms and conditions. If these terms and conditions are breached, then the offender cannot rely on the defence of consent. Similarly, the consent given may be invalidated if it falls under s.90(a), (b) or (c).

            The Penal Code recognizes intoxication under 2 subsections. The first form of intoxication is considered as involuntary intoxication. Merely been intoxicated prima facie will not be a defence unless the accused due to being intoxicated did not know that his act or omission was wrong or the intoxication prevented him from knowing what he was doing or what he failed to do.

            In order to plead this defence [s.85(2)(a)] successfully, the accused has to prove the following:

 The intoxication was carried out by a third party who did it maliciously or negligently and it was done WITHOUT consent. If consent was given then the defence can argue that the given consent is invalid due to s.90. If all these elements are established then the accused may be acquitted for the offence that he committed.

            S.85(2)(b) recognizes intoxication but it does not stipulate how the accused became intoxicated. The law recognizes this as a defence where it has prevented the accused from forming the intention. Some academics consider this type of intoxication as insane intoxication. Similar to s.85(2)(a), the level of intoxication must have been so great that it prevented the accused from forming the intention.

DPP v Beard – the appellant whilst intoxicated raped a 13 year old girl. She died of suffocation because the appellant put his hand over her mouth to prevent her from screaming.

            When the accused pleads the defence of intoxication under s.85, the outcome or the effect of pleading this defence is recognized under s.86(1). S.86(1) explains 2 effects:

1) If the accused successfully pleads s.85(2)(a), he will be completely acquitted.

2) Those who plead voluntary intoxication under s.85(2)(b) will be treated in the same way as if he pleaded the defence of unsound mind under s.84 whereby s.347 and s.348 of the CPC will authorize how such people will be dealt with. It is as though they have successfully pleaded under insanity (s.84).

Provocation

            S.300 has recognized certain defences whereby if successfully pleaded it will reduce murder to culpable homicide. One of it is the defence of provocation recognized under Exception 1 of s.300.

            In order to plead the defence of provocation, certain conditions must be satisfied:

1. The provocative conduct could be something said or something done and it must have been so grave that it caused the accused to lose self-control. The courts have not defined the meaning of grave but have considered the nature and the characteristics of the accused. In PP v Kwan Cin Cheng, the accused killed his girlfriend because of the comments made by her. The court recognized the emotional state of the accused and therefore allowed him to plead the defence of provocation.

            However, in another case, PP v Juminem, the accused was a domestic helper who killed her employer. In this case, the court held that the employer provoked her but the provocation was not considered to be grave. Besides establishing this, courts can only accept this defence if the provocative act or words were done by the victim and not by the third party.

2. Besides establishing these elements, the defence has to also show that the provocation was sudden. There is no clearly defined time-frame where courts have said that defence counsels must satisfy. However, if there is a delay between the provocative act and the death caused, it is logical for the prosecution to argue that the provocation was not sudden and the accused had time to cool off and planned or premeditated the killing.

P.S: Not all the time courts allow the defence of provocation as the accused could have chosen to react or leave the scene.

Nanavati’s case

- The fatal blow should be clearly traced to the influence of passion arising from the provocation and not after passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.

T Paramasparan Thanigajalam v PP [2012] 4 CLJ 309, the accused injured his wife 64 times which in its totality killed her. Accused tried to plead that the wife's confession of infidelity provoked him to kill her. Court rejected the defence.

                                         

Private Defences

s. 96 – right of private defence,

s.97 – defend oneself or another,

 s.99 – when right of private defence is not available

s.100 – right to private defence of s.97(a) extends to causing death

s.102 – commencement and continuance of s.97(a)

s.103 – when right of s.97(b) [property] extends to causing death

s.105 – commencement and continuance of s.97(b)

            S.96 recognises the right of private defence (to defend oneself or another). This right is recognized under s.97(a) and s.102 clearly stipulates that this right can only be exercised if the accused apprehended a reasonable apprehension of fear or danger (RAF). In a situation where death takes place because the accused protected himself or another, the accused will not be charged for causing death if he had used this right according to s.99. Therefore, s.100 excuses the accused if he’s accused of murder or culpable homicide or other offences.

PP v Dato’ Balwant Singh

- The accused in this case was in a car and he had a verbal quarrel with another person, a motorist. The motorist followed his car and took a stick wanting to injure the accused. The accused in many instances asked the motorist not to bother him but to no avail. Eventually the accused shot the motorist twice and the latter died. The issue was whether the accused could rely on the right to private defence. The prosecution tried to argue that the shooting constituted too much force. The Court allowed the accused to rely on s.100 to excuse himself of the criminal offence after looking at all of the evidences and the circumstances in the case.

            S.97(b) provides the right to defend one’s property. The accused is only allowed to exercise this right when he experiences reasonable apprehension of danger or fear to the property. This is recognized under s.105. The law will excuse the accused for causing death under s.103 if it can be shown that this right did not infringe s.99.

            Both these rights are subject to the conditions stipulated under s.99. Therefore, the accused cannot rely on the right of private defence if he acted when there was no fear, or when he used too much force or when he was using force that was not justified. In essence, the defence counsel will raise s.97, s.100, s.102 and s.103 and s.105 on the balance of probabilities and the prosecution will attempt to invoke s.99 with the purpose of showing that the accused should not rely on this defence.

Tutorial Guidelines

S.95

1. Critically evaluate the accuracy of this statement.

Section 95 of the Penal Code serves no purpose. It should therefore be removed.   (may not be correct)

            S.95 of the Penal Code provides a complete defence whereby it legally excuses the offender for causing harm of such a nature that a person of ordinary sense and temper would not complain. This section only excuses the offender if the harm was said to be slight. S.44 clearly stipulates that an injury caused illegally to any person, in body, mind, reputation or property would still be considered as harm. In essence, s.95 recognises the harm caused by the defendant but excuses him primarily because the injury caused was so minor that the person of ordinary sense and temper considers it to be so minor that he does not complain.

            S.95 has been raised in several cases. In Veeda Menezes v Yusuf Khan, the complainant suffered a small cut when a paper file was thrown during an argument involving 4 people. The accused intended to cause such hurt but he was still acquitted under s.95. This shows that s.95 has been used to completely excuse the offender since the cut caused is so slight that the person of ordinary sense and temper would not complain.

            Similarly in Teo Geok Fong v Lim Eng Hock, the accused was acquitted under s.95. In this case, the accused slapped her husband’s face. There were no marks on his face and he did not seek medical attention. S.95 was able to be applied as the victim did not seek medical treatment, showing that the harm caused by the accused was of a nature that a person of ordinary sense and temper would not complain.

            However, what is slight harm is not defined in the statute thus case law has to be resorted to. In Manzoor Ahmad v State of Allahabad, the accused gave a 15 year old boy a glass of milk containing copper sulphate, saying it was to cure headaches. The boy suffered diarrhoea and vomiting. The accused could not rely on s.95. This indicates that the harm caused was actually serious as it has failed to be considered ‘slight’ under s.95. The court here has drawn a boundary between a slight harm and a serious one.

            Furthermore, in Lim Hean Nerng v Lim Ee Choo, the accused punched a 70 year old man in the face and some ‘tenderness’ but no bruising had resulted. The court held that s.95 was not available to the accused. The implication is that the harm caused was not considered slight by the courts taking into account the physical condition of the accused. Additionally, the judgement is in line with the courts stand to not condone domestic violence.

            Based on the cases raised and discussed above, s.95 of the Penal Code definitely serves some purpose in excusing persons who have caused harm so slight that a person of ordinary sense and temper would not complain. However, s.95 is not clear since it is silent as to what constitutes slight harm. The extent of the applicability of s.95 is unclear, thus the section should be amended to expressly specify what constitutes slight harm.

Guidelines to Answering Problematic Questions [Question 1]

1) Read the facts properly and identify the wrongful act that took place

(a) death                                                          (b)Hurt or Grievous Bodily Hurt

Based on the fact that the victim had died, the prosecution could raise s.300 or s.299 or s.304A.

However, the fact states that she shot the victim 3 times knowing that he is a human being, it is likely that the prosecution could raise s.300(a).

2) In order to obtain a successful conviction under s.300(a), the prosecution has to prove the ingredients of this section beyond reasonable doubt (DPP v Woolmington).

3) S.33 states that the AR can be a positive act. Accordingly, Yeta has carried out a positive act by shooting the victim 3 times.

4) Besides proving the AR, the prosecution has to prove the MR of s.300(a) where it has to prove that Yeta had the intention to cause death when she shot the victim 3 times.

Cite 2 or 3 relevant cases and apply

Bhagwant Appaji v Kedari Kashinath, Tan Buck Tee v PP, Ismail bin Hussin v PP

Apply the cases and mention that Yeta had the intention to cause death.

5) Having established the AR and MR of s.300(a), prima facie Yeta could be convicted under s.302 of the PC.

6) However, based on the facts, Yeta could rely on several defences so that she is not punished under s.302.

7. Based on the facts that the victim died due to the wrong treatment, she could argue that it was not her shooting that caused his death. Courts have decided several cases pertaining to similar issues.

Courts in deciding cases such as R v Smith, R v Malcherek and Steel, and R v Blaue, have held that despite the intervening acts, it was the initial wounds which have caused the death of the victims. Therefore, it is very likely that Yeta could still be responsible for his death.

However, in R v Jordan, the court held that the intervening act broke the chain of causation which would mean that Yeta is not liable under s.300(a). She could be charged for causing grievous bodily hurt under s.322 or attempting to cause death under s.511.

8) Alternatively, Yeta could argue that she did not intend to kill her husband. In R v Latimer, where the facts were very similar to the present case, the courts held that if the wrongful act was carried out with the requisite mens rea, the defendant will be found guilty even if the victim was an unintended individual. The law is not concerned with who you kill.

9) Since the facts show that she shot her husband mistakenly, i.e. she mistook him for Badman, she could raise the defence of mistake found under s.76 and s.79. Under such circumstances, she would have to prove on a balance of probabilities that she was bound to shoot her husband or she was justified in shooting her husband respectively.

10) Finally, Yeta could raise the defence of accident under s.80. She should not have had the criminal intention to kill. Killing is not a lawful act. She did not exercise proper care and caution. Therefore, she may not rely on this defence.

Conclusion: Yeta is likely to be convicted under s.302 for causing death under s.300(a) since the defences may not be available unless she can prove that the chain of causation is broken where her conviction will be reduced to GBH under s.322 or attempting to cause death under s.511.

Importance of causation (summary of model answer)

            In order to establish an offence, the prosecution must prove that the defendant had committed the actus reus of that offence. S.33 clearly states that the actus reus could be a single act or a series of acts. Additionally, the section states that such acts could either be positive acts or omissions. Causation is a concept that relates to the actus reus of that offence. Courts referred to this concept only when an intervening act had accelerated the death of the victim after the defendant had injured the victim. Thus, causation is only of importance when an intervening act coupled with the actus reus of the defendant had caused the death of the victim.

            This concept is important because it assists the courts to determine whether the defendant who caused the injury or the person who caused the intervening act should bear the legal responsibility of causing death to the victim. In cases such as R v Smith, and R v  Malcherek and Steel, the courts have established, determined or decided that the persons who caused the initial wound will be legally responsible for the death of the victims despite the fact that there were other acts that contributed to the death of the victims. In deciding the causal link, the courts applied the ‘but for’ test and found that in all these cases the chain of causation was not broken. Thus, it was possible for the courts to decide the criminal responsibility of those who caused the death and the criminal responsibility of those who caused the intervening act.

            Besides that, this concept allows the accused to reduce his criminal liability by relying on an event that took place after he committed the actus reus or initial act. In R v Jordan for instance, although the defendant had stabbed the victim during a fight, he successfully relied on the intervening act (incorrect medical treatment) primarily to argue that he was legally not responsible for the death of the victim. Although this case was criticized, it shows that it is possible for the accused to reduce or evade his criminal liability by proving on a balance of probabilities that the death was caused by some other event.

            This concept is also important because it opens doors or creates opportunities for defendants to rely on any other factor so that their punishment is reduced. [Discuss R v Blaue, R v Pagett, R v Halliday] In all these cases, it is shown that courts are prepared to consider different types of acts as intervening acts. However, courts have strictly refused to accept such justifications that could absolve the defendant from his liability.

            Malaysian law too recognizes this concept of common law but has provided statutory solutions that courts could rely on when faced with such legal dilemma. Under Malaysian law, if the courts are confused as to who should bear the criminal responsibility under such circumstances, reference should be made to Explanation 1 and 2 of s.299. In essence these explanations clearly state that the chain cannot be broken despite the presence of an intervening act. Thus, it can be said that the concept is of importance and these Explanations provide guidelines to courts so that the link between the death and the defendant can be made.

CONCLUSION: