Criminal Law I Notes

1. Elements of Criminal Liability

General: Mens rea + Actus Reus = Harm

(A) ACTUS REUS

- A wrongful act or conduct that causes a harm/crime to happen.

- Section 32 Penal Code (PC): Words which refer to acts done also includes illegal
omission.

Types of omission (4)

(a) Against the law

Has a specific provision that denotes it as an offence. ie: Section 289 PC- Negligence
with respect to any animal.

> Lee Sai Yan v PP (unreported)

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 of asphyxia due to
insufficient oxygen.

Held: The accused was still liable as the law imposed an absolute obligation either to
conduct tests to ensure adequate supply of oxygen or a suitable breathing apparatus is
worn. Any person who contravenes this obligation is said to have breached the Act.

(b) Forbidden by law

Such omissions become forbidden due to the presence of certain circumstances;

(i) Based on a particular job’s description

> R v Dytham [1979] QB 722

The defendant was a police officer. He stood by whilst a bouncer kicked a man to death.
He was charged with the offence of misconduct in a public officer. He argued that the
offence could not be committed by an omission as it specifically requires misconduct.

Held: The offence of misconduct in a public offence can be committed by an omission.

The Df was held liable accordingly.

(ii) Based on family ties

- Parent & Child

- Husband & Wife

> R v Bonnyman [1942] 28 Cr App R131

The husband failed to provide necessary treatments to his drug addicted wife. The wife
was helpless and dependant on her husband.

Held: His status as a spouse was necessary to generate the duty but wouldn’t be sufficient
in itself.

> R v Hood (2003) ECWA Criminal 2772

Df by gross negligence by omission allowed his sick wife to remain untreated for 3 weeks
after she had a fall. She died in the hospital when he eventually called an ambulance.

Held: Df was acquitted of murder, but was convicted of gross negligence manslaughter.

- Other family members

> R v Stone & Dobinson [1977] 1 QB 354

Ted Stone lived with his housekeeper and mistress of 8 years, Gwendolyn Dobinson.
Ted's sister Fanny came to live with them. She had mental problems and was suffering
from anorexia nervosa. Ted and Gwendolyn took her in and agreed to look after her.
However, Fanny's condition deteriorated and she was found dead in her bed in appalling
conditions.

Held: Stone and Dobinson were found liable for her death as they had assumed a
responsibility to her by taking her in. They failed to look after her and ensure she got the
medical help she needed.

(iii) The creation of a harmful situation

> R v Miller [1983] 2 AC 161

The Df had been out drinking for the evening. He went back to the house he had been
staying in and fell asleep on a mattress with a lighted cigarette in his hand. He awoke and
saw that the cigarette had started a small fire, went to another room and went back to
sleep.

Held: The Df had created a dangerous situation and owed a duty to call the fire brigade
upon becoming aware of the fire. He was therefore liable for his omission to do so.

(iv) The presence of a contract

> R v Pittwood (1902) 19 TLR 37

The accused was a railway gatekeeper employed to keep the gate shut whenever a train
passed between 7am till late afternoon. One day he left the gate open which resulted in a
collision between a train and a car which was crossing the line, killing one man and
injuring the other seriously.
Held: The accused was liable of a gross negligence as he was paid to keep the gate shut
and protect the public and therefore he may incur criminal liability from a duty arising out
of a contract.

- Section 33 Penal Code: The word “act” includes a series of act and also a single act, the
word “omission” includes a series of omissions and also a single omission.

- Mens Rea = The act has to be done voluntarily ie: mind must be in control of the act
which is an operation of the will.

Generally, involuntary conduct would not warrant the protection by law however certain
circumstances fall under the protection of law;

(i) Insanity (Section 84 PC:

> Sinnasamy v PP (1956) 22 MLJ 36

The appellant murdered his 21 months old daughter however he had a history of being an
epileptic. He had no motive for killing and although he remembered in detail the events
and circumstances preceding and immediately after the event, he had no recollection of
the event itself or why he did it. The appellant relied on the defence of automatism, where
he was under a state of temporary unconsciousness. He tried to bring himself under the
exception under Section 84 ie: insanity.

Held: The Appeal Court in upholding the Trial Court’s decision rejected the defence of
automatism and found that the appellant acted on an irresistible impulse and that was no
defence per se.

> Re Pappathi Ammal (19590 Cr LJ 754

The accused, who recently gave birth to a child, jumped into a well with the child at
night. An alarm was sounded, the woman was rescued but the child drowned. The woman
was charged with murder and attempted suicide. She pleaded that she was a sleepwalker
(somnambulism).

Held: The allegation of somnambulism was not substantiated although it proved that it
would constitute unsoundness of mind attracting Section 84.

(B) MENS REA

- A guilty state of mind. It can only be inferred from the facts of the case.
- It is not limited to those whose state of mind includes a particular decision to break
the law but also covers those who act realizing that there is a chance of their conduct
causing the prohibited result.
- Section 39 PC: A person is said to have caused an effect “voluntarily” when he causes
by means whereby he intended to cause it, or by means which, at time of employing
those means, he knew of had reason to believe to be likely to cause it.

* Usually Mens Rea is reflected in the statutory provisions via specific words*
> PP V Ayavoo (1966) 1 MLJ 242

The accused who was subject to an order under the Prevention of Crime Ordinance to
remain indoors 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. He awoke
after he was taken to the hospital. He was then 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 reas as he was
unconscious. He was acquitted.

Types of Mens Rea (5)

(a) Intention – Not defined in the PC (ie: Malaysian’s position is that this falls under the
category of knowledge)

> R v Nedrick [1986]1 WLR 1025

The accused, after threatening to burn out a woman against whom he bore a grudge,
poured paraffin through the letter box of her house and set it alight. Her child died as a
result of the fire. The man claimed that he merely wanted to scare her and did not want
anyone to die. The trial judge directed the jury by stating that “If when the accused
performed the act of setting fire to the house, he knew that it was highly probable that the
act would result in serious bodily injury to someone inside the house, even though he did
not desire it-desire to bring that result about- he is guilty of murder”. The jury convicted
him of murder and he appealed on the grounds of mis-direction.

Held: By foreseeing a consequence as a “virtual certainty” was the equivalent to an

intention to cause those consequences and by proving the former, the presence of
intention is proved.

(b) Knowledge

(a) Types of knowledge (8)

(i) Actual Knowledge

- Knowledge regarding a proven fact and circumstances of the case. It is rarely subject to
direct proof.

(ii) Second Degree Knowledge

- Imputed knowledge. The law imputes the knowledge of certain facts on the accused
although he might not know about it because those facts are available to the accused but
he refused to acquire information regarding them.

(iii) Constructive knowledge

- The accused knew or should have known regarding the said facts.

> William Tan Cheng Eng v PP

The accused was driving in a dangerous manner which could likely cause death.

Held: It has to be proven that the accused knew that his conduct was dangerous. That it
must in all probability cause death/bodily injury as is likely to cause death.

(iv) Reason to believe

- Section 26 PC: A person is said to have “reason to believe” a thing, if he has

sufficient cause to believe that thing, but not otherwise.

- Reasonable Man’s Test: If it was reasonable for a reasonable man to believe. Doesn’t
matter if it is not the actual truth/knowledge.

- Subjective Test: If there is special skill. ie: Section 414 PC- reason to believe
regarding stolen property.

> Ahmad bin Ishak v Public Prosecutor [1974] 2 MLJ 21

The appellant, a penghulu, was convicted on the charge that he voluntarily assisted in
disposing of a cheque which he knew or had reason to believe to be stolen property. The
cheque had been handed to the appellant by an office boy. The appellant had taken the
cheque to a goldsmith's shop and had purchased gold ornaments and had taken the
balance in cash.

Held: The Appeal Court held that the accused knew that the person from whom he had
obtained the cheque was a mere office boy and that the sum made out thereon was
considerable. There was sufficient cause for the accused to have reason to believe that the
cheque was stolen and the conduct of the accused tended to show that the cheque was
stolen. Therefore the presumption under section 114 of the Evidence Act was correctly
applied.

(v) Rashness/Recklessness

- There is no specific provision in the PC, but this type of knowledge has been seen in
certain provisions in the PC. ie: Section 304A(by doing a rash act…), Section 279(so
rash or…), Section 280(so rash or…).

> Adnan Khamis v Public Prosecutor [1972] 1 MLJ 274

The courts had to determine if the standard of proof for a charge under Section 304A of
the PC is a high degree of negligence similar to that required for manslaughter in England
or is the burden same as any act done rashly or negligently as to endanger human life.
Held: The test to be applied for determining the guilt or innocence of an accused person
charged with rash or negligent conduct is to consider whether or not a reasonable man in
the same circumstances would have been aware of the likelihood of damages of injury to
others resulting from such conduct and taken adequate and proper precautions to avoid
causing such damage or injury.

(vi) Malice

- The act requires; (i) An actual intention to do the particular kind of harm that in fact
was done or, (ii) recklessly as to whether such harm should occur or not.

> R v Cunningham [1957] 2 QB 396

The appellant ripped a gas meter from the wall in order to steal the money in the meter.
This caused gas to escape and seeped through small cracks in the wall to the neighbouring
property where his future mother-in-law was sleeping and was poisoned by the gas. He
was charged with unlawfully and maliciously caused the victim to inhale a noxious fume
as to endanger her life.

Held: Malicious means either, (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 occur or not.

(vii) Fraudulently

- Section 25 PC: A person is said to do a thing fraudulently if he does that thing with an
intention to defraud, but not otherwise.
- Need not to prove wrongful gain/wrongful loss.

> PP v Li Chuan Pin [1965] 1 MLJ 133b

This is an appeal by the PP. The respondent was acquitted for a charge of obtaining credit
by false pretences. The learned district judge found as a fact that the respondent made a
false statement that he was the manager of Artisancraft Contractor, when in fact he was
not. He however held that although the respondent might have acted improperly in
making the false declaration there was no evidence that he had shown a criminal intent to
defraud at the time he made the representation and by his subsequent conduct.

Held: In this case the respondent had obtained credit facilities he would not have obtained
if he had not represented himself to be the manager, there was an intention to defraud and
the appeal must be allowed.

(viii) Dishonestly

- Section 24 PC: 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
wrongful loss or gain is said to do the thing “dishonestly”.
 - Must result in wrongful gain/loss.

> Yap Sing Hock & Anor v Public Prosecutor [1991] 2 MLJ 334

The A were directors and shareholders of a company called Yap Sing Hock Holdings Sdn
Bhd (‘Holdings’). Holdings entered into an agreement to buy the shares in a company
called Lien Hoe Sdn Bhd(‘Lien Hoe’). The A were appointed directors of Lien Hoe and
were authorized to operate Lien Hoe’s bank account. They then opened a bank account in
the name of Holdings at HSBC and signed a cheque worth $12m which was transferred
from Lien Hoe’s account to Holdings’ account. The A were each convicted of criminal
breach of trust under S409 of the PC.

Held: For criminal breach of trust to be committed it is important to find whether the A
was actuated by dishonest intention or not. The A, in signing the cheque for $12m, had
employed unlawful means to cause wrongful loss to Lien Hoe and wrongful gain to
Holdings.

(C) STRICT LIABILITY

- Offence of strict liability is one where the element of Mens Rea is not needed.

> Melan bin Abdullah & Anor v Public Prosecutor [1971] 2 MLJ 280

On April 6, 1971, the Utusan Melayu newspaper published a report of a talk given by a
prominent Malay leader and member of Parliament. In the report was an editorial sub-
heading, which, in the English translation reads: "Abolish Tamil or Chinese medium schools
in this country."

The first appellant was the editor-in-chief of the Utusan Melayu, and the second appellant the
author of the sub-heading inserted in the report. They were in the special sessions court on a
charge of publishing a seditious publication. The learned special president held the
publication to be seditious, that the first appellant "was responsible for all publications in
the Utusan Melayu", that the second appellant was the author of the sub-heading, and that
consequently they were both guilty.

Held: Ong CJ held that an offence of strict liability or absolute liability is one where proof pf
Actus Reus alone suffices for a conviction, however morally free form blame the Df may be.