1.

0 MENS REA

1.1 WHAT IS MEANT BY MENS REA

Mens Rea1 derived from a maxim quoted by Coke in his Institute; actus non facit reum,
nisi mens sit rea, i.e an act does not make a person guilty unless the mind is guilty. The meaning
of mens rea on this maxim explains the mental element of varying standards that is held by the
perpetrator. Here, in criminal law to purport a person has a guilty mind varies from the precedent
cases and the mens rea can be connotes as a guilty mind. This mental element had been stated by
Lord Goddard in the case of Brend v Wood2, “…the court should not find a man guilty of an
offence against the criminal law unless he has a guilty mind”. In the case of DPP v Majewski3,
Lord Simon also said that „mens rea is… the state of mind stigmatized as wrongful by the
criminal law which, when compounded with the relevant prohibited conduct, constitutes a
particular offence‟. S.H Kadish4 also stated: „Mens rea refers only to the mental state which is
required by the definition of thee offence to accompany the act which produces or threatens the
harm‟.

These definitions in fact can be criticised and not all crimes held the same mens rea as it
varies in other crimes. However, like any other crime, there are other degree depends on the state
of mind of perpetrator. In Commissioner of Sales Tax v. Rama and Sons, General Merchant,
Ballia, the court observed mens rea as "The principle of mens rea comes from English Criminal
Law from times when the law was not codified. It was said that actus non facit reum nisi mens sit
rea (the intent and act must both concur to constitute the crime). But this principle has lost much
of its significance owing to greater precision of modern statutes. The nature of intent or the
ingredients of offences are now clearly stated in the statutes and nothing further is required to
establish as offence then what the statute specified. We have words like 'voluntarily',
'intentionally', 'negligently', 'knowingly', fraudulently', 'dishonestly', 'rashly', 'omits', 'without
lawful authority' etc., 'omits', 'without lawful authority' etc., used in various sections of the Indian
Penal Code defining various offence. Proof of the State of mind or of the conduct of the person

1
The concept : a blameworthy frame of mind
2
(1946) 175 LT 306
3
[1977] AC 443
4
[1968] CLJ 273,274
as indicated by the aforesaid word establishes the offence and no further guilty intent or mens rea
need be proved. In fact there are many acts which are offences and do not require proof any mens
rea or guilty intention, for example possession of illicit fire arm."

2.0 MENS REA TERMS – IN SPECIFIC

2.1 INTENTION

From Statutory Offences

Under the common law, the offence of murder as defined in section 300 of Penal Code
requires intention. The mens rea required in this section specifically on intention on limb (a), (b),
(c) and (d). Likewise, in attempt of commit murder and culpable homicide not amount to death
also require mens rea where intention is required by definition include the offence of using
criminal force : s. 350, assault : s. 351, extortion : s. 383, cheating : s. 415, criminal trespass : s.
441, criminal defamation : s. 499, criminal intimidation : s. 503, causing a breach of peace : s
504, outraging a woman‟s modesty : s. 509, generally offences against the State under Chapter
VI of Penal Code one offences of giving false evidence and offences against public justice under
Chapter XI of Penal Code)

Intention in Mens Rea

According to Molly Cheang, intention is the purpose or design with which an act is done.
It is the fore-knowledge of the act, coupled with the desire of it; such fore-knowledge and desire
being the cause of act, in as much as they fulfil themselves through the operation of the will.

In Jurisprudence (1957), Salmond defined „intention‟ an act is intentional if, and in so far
as it exists in idea before it exist s in fact, the idea realising itself in the fact because the desire by
which is accompanied.

In KD Kaur‟s book of Criminal Law, he defines intention in the common parlance, means
purpose or desire to bring about a contemplated result or foresight that certain consequences will
be follow from the conduct of a person. A man is presumed to intend the necessary or the natural
and probable consequences of his act; and this presumption will prevail, unless from the
consideration of all the evidence, the Court entertains a reasonable doubt whether such intention
existed or not. In short, a man is said to have intended the desired act.

Based on the author‟s approached, intention is a desire of a person before the action will
be taken and man‟s intention will result in consequence, either directly or indirect. There are
types or degree of intention wrote down by authors and applied from the cases. According to
Cross & Jones, there are two types of intention, direct intention and oblique intention. The
distinction of intention was drawn by Jeremy Bentham which has two types of intention with
regards to prohibited consequences; direct intention and oblique intention.

‘A consequences, where it is intentional, may be either directly so, or only obliquely. It may be
so to be directly or lineally intentional, when the prospect of producing it constituted one of the
links in the chain of cause which the person was determined to do the act. It may be said to be
obliquely or collaterally intentional, when, although the consequence was in contemplation, and
appeared likely to ensue on case of the act’s being performed, yet the prospect of producing such
consequences did not constitute a link in the aforesaid chain’

In direct intention, the Court of Appeal had defined intention in the case of Mohan5 as „a
decision to bring about, insofar as it lies within the accused power, a particular consequence, no
matter whether the accused desired that consequence of his act or not‟. By adopting the
definition in the case of Mohan6, the accused acts intentionally with reference to a particular
consequence in the following cases:

a) If he aimed at achieving a particular consequence and believed he was likely to succeed, he act
intentionally with reference to it.

b) If he aimed at achieving a particular consequence although he did not expect that his act
would do so, he acts intentionally with reference to it.

6
[1976] QB 1
c) If he aimed at achieving a particular consequence (although he did not desire it in itself) in
order to achieve an objective which he desired, he act intentionally with reference to the
particular consequence.

These examples showed that a man can be said to intend and decide a consequence
insofar as it lies within his power to achieve of his desired objective. For oblique intention, there
are two cases that a consequence is said to have been intended obliquely, first case is when the
act was not aimed at but the accused foreseen as certain to result. Second, where a person
foresees that a consequence will probably result from his act, although he does not aim to
produce it.

However, it is not clearly stated the nature of intention as intention can be close to motive
and knowledge. Here, we distinguish the different of intention with motive where intention is the
volition or active desire to do an act which is an operation of the will directing an overt act while
motive is the reason or ground of action which prompts the operation of the will by the feeling of
a person. The intention is the state of mind which direct the act which cause such crime for
instance by murdering a person and the motive gained by eliciting the purpose of that act of
murder whether it was done by revenge , hatred, vengeance etc. There is also a good motive
where a person done a crime which motivated by good conscious however the act will not render
lawful what is in fact a crime. Likewise, a bad motive certainly will not make unlawful which is
lawful. In criminal law takes into account only in a man‟s intention but not motive as it is not a
basic of criminal liability. The reason for not allowing motive as a general defence to an offence
is obvious. At presents, it is difficult to prove one‟s intention that the law had to evolve the
maxim that a person is presumed to intend an actual consequence of his act. Motive, being
ulterior intent, will be even difficult to prove. Furthermore, the whole fabric of criminal law will
be destroyed if good motive is allowed for breaking the law and thus go unpunished. However,
the motive can be evidently relevant where it question the intention of a man and gives clue to a
crime although in prosecution is not bound to prove motive in a crime, absence of motive can be
a factor in consideration of the guilt of the accused.

Meanwhile, to distinguish intention and knowledge is when intention to commit an act

may be inferred from knowledge though it can come together, for knowledge is an awareness of
the consequence of an act. A man may be aware of the consequence of his act, though he may
not intend to bring them about. Knowledge can be distinguish from „reason to believe‟ where a
person is supposed to know a thing where there is a direct appeal to his senses, whereas „reason
to believe‟ means sufficient cause to believe a thing but not otherwise.

On case Hyam v Director of Public Prosecutions7, the defendant, in order to frighten Mrs
Booth, her rival for the affections of Mr X, put burning newspaper through the letterbox of
Booth's house and caused the death of two of her children. She claimed that she had not meant to
kill but had foreseen death or grievous bodily harm as a highly probable result of her actions.
Ackner J directed the jury that the defendant was guilty if she knew that it was highly probable
that her act would cause at least serious bodily harm. Although Lord Hailsham LC stated that he
did not think that foresight of a high degree of probability is at all the same thing as intention,
and it is not foresight but intention which constitutes the mental element in murder, the House of
Lords (by a 3-2 majority), held that foresight on the part of the defendant that his actions were
likely, or highly likely, to cause death or grievous bodily harm was sufficient mens rea for
murder.

In the case of R v Nedrick8 , on the fact of the case, a child had burned to death in a house
where the defendant had, without warning, put a petrol bomb through the letter box. He admitted
to starting the fire but stated that he only wanted to frighten the owner of the house. The Court of
Appeal overturned the murder conviction and substituted a verdict of manslaughter as the judge
had misdirected the jury. Lord Lane CJ provided a model direction for a jury about intent in a
murder case where the defendant did a manifestly dangerous act and someone died as a result.
Lord Lane CJ suggested that when determining whether the defendant had the necessary intent, it
might be helpful for a jury to ask themselves two questions: (1) How probable was the
consequence which resulted from the defendant's voluntary act? (2) Did he foresee that
consequence? If he did not appreciate that death or serious bodily harm was likely to result from
his act, he cannot have intended to bring it about. If he did, but thought that the risk to which he
was exposing the person killed was only slight, then it might be easy for the jury to conclude that
he did not intend to bring about the result. On the other hand, if the jury were satisfied that at the
material time the defendant recognised that death or serious bodily harm would be virtually

7
[1975] AC 55
8
(1986) 83 Cr App 267
certain (barring some unforeseen intervention) to result from his voluntary act, then that is a fact
from which they may find it easy to infer that he intended to kill or do serious bodily harm, even
though he may not have had any desire to achieve that result.

2.2 KNOWLEDGE

From Statutory Offences

In Malaysia, there are few Sections in which the word knowledge is used as mens rea.
For an example, Section 299 states : “...or with the intention of causing such bodily injury as is
likely to cause death, or with the knowledge that he is likely by such act to cause death, commits
the offence of culpable homicide. Besides this section, the word knowledge is also used in
Section 300(d) “....knows that it is....”, Section 166 “...knowingly disobeys the discretion of the
law....”. With such many Sections using the word knowledge, however, the Penal Code does not
provide the meaning of either knowledge or knowingly. To establish that a person can be
convicted of crime based on knowledge, we must first proof that the accused had the knowledge
at the time he committed the crime. It is an important thing for us to firstly understan what is
meant by knowledge.

Knowledge in Mens Rea

Nigam has defined “knowledge” as to know a thing means to have mental cognition of it.
To believe a thing is to assent to a proposition or affirmation or to accept a fact as real or certain
without immediate personal knowledge. Thus knowledge and “reason to believe” are to be
clearly distinguished…Thus belief is somewhat weaker than knowledge but a well-grounded
belief that certain consequences will follow a certain act is ordinarily as good as knowledge.

Knowledge of the circumstances by virtue of which an act or omission is criminal is

expressly required in the case of many statutory offences. What is said here is of equal
application to those offences where a mere event is required.

Knowledge of the circumstances by virtue of which an act or omission is criminal is

expressly required in the case of many statutory offences on account of the inclusion of sme such
word as “knowingly” is not the only word which will have this effect, since it merely says
expressly what is normally implied. 9 Even when no appropriate word appears in the definition,a
requirement of guilty knowledge is frequently implied by the courts. In Sleep10, for example, the
accused was charged with being in possesion of naval stores marked with the broad arrow, an
offence under a statute of William III which has since been repealed. It was held that he must be
acquitted as there was no proof that he knew that thestores in question were marked with the
broad arrow as was in fact the case. In the opinion of the Court for Crown Cases Reserved, the
fact that the accused ought, as reasonable man, to have known of the marking was immaterial.
Similarly in Sweet v Parsley 11, after a different opinion had prevailed in the lower courts, the
House Of Lords held that a person could not be guilty of “being concerned in the management
of premises used for the purpose of smoking canabis‟9 an offence which has subsequently been
modified) in the absence of proof of knowledge of such use.

As Lord Devlin has indicated 12 , there are three degrees of knowledge known to the
criminal law. The first is actual knowledge which maybe inferred from the conduct of the
accused. Where a person has actual knowledge of the circumstances in which he is acting he is
said to act intentionally in relation to them. Knowledge of the second degree consists of wilful
blindness, where a person realise the risk that a surrounding circumstance may exist and
deliberately refrains from making enquiries, the results of which he may not care to have; this is
actual knowledge in the eyes of the law. Wilful blindness is a species of subjective recklessness
with reference to the surrounding circumstances, and it is often called connivance 13. The Model
Penal Code Section 2.02 (7) states that when knowledge of the existence of a particular fact is an
element of an offense (circumstance element) such knowledge is established if a person is aware
of a high probability of its existence (moral equivalent of subjective knowledge), unless he
actually believes that it does not exist. The third degree of knowledge is described as
constructive knowledge. Thus, a person who has knowledge of third degree, if he fails to make
the enquiries which a reasonable and prudent person would make. It is distinguishable from

9
Roper Taylor‟s Central Garages (Exeter) Ltd [1951] 2 TLR 284 per Devlin J.
10
(1861) Le &Ca 44; see also Cugullere [1961] 2 All ER 343
11
[19790] AC 132,[1969] 1 All ER 347; C.& J. Cases.
12
Roper Taylor‟s Central Garages (Exeter) Ltd [1951] 2 TLR 284 per Devlin J.
13
Edwards Mens Rea in Statutory Offences p. 203; see also Ross v Moss [1965] 2 QB 396,
[1965] 3 All ER 145
willful blindness that the failure to inquire is not deliberate; and unlike willful blindness it is only
a sufficient basis in exceptional cases, being necessarily irrelevant where words such as
“knowingly” are used. Constructive knowledge is a species of negligence.

For the avoidance of doubt, it should be mentioned that guilty knowledge extends only to
circumstances as prescribed in the definition of the offence in question. Thus, a person is guilty
of the offence of knowingly selling intoxicating liquor to such a person, it being irrelevant, for
instance, that he thinks the person is 16 when he is in fact 17 years old.

It sometimes happens that the accused has had the necessary knowledge of circumstances
but has forgotten them at the time of the conduct in question. In such a case he is treated as
having knowledge at the time if he then had the capacity to restore the circumstances to his mind.

The standard test of knowledge as stated in Cross & Jones is that “did the person whose
conduct is in issue either know of the relevant circumstances or have no substantial doubt of their
existence?

2. 3 NEGLIGENTLY

From Statutory Offence

In Penal Code Malaysia, Section 279, 280, 284, 285, 286, 287 and 304A are the sections
that use negligence as mens rea which alternative to the word rash while in sections 282, 288 and
289, the word negligence is used as an alternative to the word knowledge. Section 269 also uses
the word negligence or unlawful as mens rea.

In India Penal Code, Section 304A state about causing death by negligence “Whoever
causes the death of any person by doing any rash or negligent act not amounting to culpable
homicide shall be punished with imprisonment of either description for a term which may extend
to two years, or with fine, or with both.” There are other sections that include the word
negligence which are Section 286 and 287.

In Singapore Penal Code, section 336 state that “Whoever does any act so rashly or
negligently as to endanger human life...” and in Section 337 “Whoever causes hurt to any person
by doing any act so rashly or negligently as to endanger human life or the…” and section 338
“Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to
endanger …”.

Negligently in Mens Rea

In Criminal Law in Singapore and Malaysia, KL Koh, CMV Clarkson and NA Morgan
define that negligence is inadvertence to the possibility of the consequence occurring. It should
be noted that the above definition of negligence requires that if the accused had stopped to think
about the consequences of his actions “ he would have had the consciousness”. Applying this to
the fact of Elliot v C (A Minor)(1983), if the girl had stopped to consider the consequence of her
actions she would still not, because of her retardation , have had the necessary “consciousness”.
She would thus not be negligent under this test.

Molly Cheang in Criminal Law of Malaysia & Singapore state in his book that the word
negligent refers to the mental state of negligence defendant who commits an act without realizing
what the consequences of that act. Accused did not have this awareness, but a reasonable person
would perceive.

If anything is done without any advertence to the consequent event or result, the mental
state in such situation signifies negligence. The event may be harmless or harmful, if harmful the
question arises whether there is legal liability for it. In civil law (common law) it is decided by
considering whether or not a reasonable man in the same circumstances would have realized the
prospect of harm and would have stopped or changed his course so as to avoid it. If a reasonable
man would not, then there is no liability and the harm must lie where it falls. The word
„negligence‟, therefore, is used to denote blameworthy inadvertence. It should be recognized that
at common law there is no criminal liability for harm thus caused by inadvertence. Strictly
speaking, negligence may not be a form of mens rea. It is more in the nature of a legal fault.
However, it is made punishable for a utilitarian purpose of hoping to improve people‟s standards
of behaviour.

Criminal liability for negligence is exceptional at common law; manslaughter appears to

be the only common law crime, which may result from negligence. Crimes of negligence may be
created by statute, and a statute may provide that it is a defence to charges brought under its
provisions for the accused to prove that he was not negligent. Conversely, negligence with regard
to some subsidiary element in the actus reus of a crime may deprive the accused of a statutory
defence which would otherwise have been available to him.

Advertent negligence is commonly termed as wilful negligence or recklessness. In other

words, inadvertent negligence may be distinguished as simple. In the former the harm done is
foreseen as possible or probable but it is not willed. In the latter it is neither foreseen nor willed.
In each case carelessness, to say indifference as to the consequences, is present but in the former
this indifference does not, while in the latter it does prevent these consequences from being
foreseen. The physician who treats a patient improperly through ignorance or forgetfulness is
guilty of simple or inadvertent negligence; but if he does the same in order to save himself
trouble, or by way of a scientific experiment with full recognition of the danger so incurred, his
negligence is wilful. It may be important to state here that the wilful wrong doer is liable because
he desires to do the harm; the negligent wrong doer is liable because he does not sufficiently
desire to avoid it. He who will excuse himself on the ground that he meant no evil is still open to
the reply: - perhaps you did not, but at all event you might have avoided it if you had sufficiently
desire to do so and you are held liable not because you desired the mischief, but because you
were careless and indifferent whether it ensured or not. It is on this ground that negligence is
treated as a form of mens rea, standing side by side with wrongful intention as a formal ground
of responsibility.

Court in the case Anthonysamy14 ruled the word negligence in the Penal Code have the
same meaning as used in civil cases and not a higher degree of negligence or gross negligence.
The court in this case felt that the provision of sessions has issued section 304A of criminal
negligence should accept the principle that is used in England. Criminal act under section 304A
does not make it as offence in killing with intent. Sentence of imprisonment imposed by the
section is not exceeding 2 years. The same position has been discussed in the case of Adnan bin
Khamis 15 . But there are also cases of the opinion that the negligence of the criminal cases

14
(1956) 22 MLJ 247
15
[1972] 1 MLJ 274 FC
requires a higher standard than the standards set by the civil cases. Opinion is presented as the
court concerned injustice may occur when using the same standard in criminal law.

Judge in the case of Re Nidamarti Nagabhushanam (1872) 7 Mad HCR 119 said that
“Culpable negligence is acting without the consciousness that the illegal and mischievous effects
will follow, but in circumstances which show that the actor has not exercised the caution
incumbent on him, and that, if he had, he would have consciousness. The imputability arises
from the neglect of the civic duty or circumspection….”

2.4 REASON TO BELIEVE

From Statutory Offences

Section 26 of the Penal Code states, “A person is said to have “reason to believe” a thing,
if he has sufficient cause to believe that thing, but not otherwise.”

Reason to Believe in Mens Rea

In the case of Ahmad bin Ishak16, the court decided that “reason to believe, knowledge,
intention are things in a man‟s mind and therefore we cannot see or hear it. The most important
thing here is that we have to 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. As in the
case of Tan Ser Juay 17 , the Honourable Chief Justice accepted the Indian authorities on the
interpretation of the phrase "reason to believe" in sections 411 and 414 of the Penal Code, as
requiring the prosecution to prove facts from which a reasonable person would necessarily
believe, not merely suspect, that the goods were stolen. The court also believes appellant's
evidence does not raise any doubt in the court's mind as to his guilt, in finding that on all those
facts he had reason to believe that the watches in question were stolen property. The court held
that the suspicions of the appellant must have been aroused, but the law does not allow for a
conviction based merely on suspicion.

16
[1974] 2 MLJ 21
17
[1972] 1 MLJ 6
 In the case of Koh Hak Boon18, the court believes that 'Reason to believe' in s 414 does
not involve the necessity of showing that the circumstances were such that a reasonable man
must have felt convinced in his mind that the property he was dealing with was stolen property.
It involves a lesser degree of conviction than certainty and a higher one than speculation. The
matters which contribute towards a person having reason to believe something are not those
which a court would require as proof of that thing. Whether or not a person had 'reason to
believe' certain property was stolen property for the purposes of ss 411 and 414 is a test to be
applied by the court, but from the perspective of the accused person. It must relate to the
standards of belief of a reasonable man and not to those of any particular accused person.
However, some element of subjectivity must be involved because what might be apparent to a
person with specialized knowledge of a certain field might not be apparent to a layman of even
very high intelligence. The court must assume the position of the actual individual involved (ie
including his knowledge and experience), but must reason (ie infer from the facts known to such
individual) from that position like an objective reasonable man.

It is apparent from the cases that 'reason to believe' involves a lesser degree of conviction
than certainty and a higher one than speculation. The matters which contribute towards a person
having reason to believe something are not those which a court would require as proof of that
thing, since 'reason to believe' is not itself a standard proof, as opposed to that which must be
discharged by the prosecution in persuading the court of the existence of such reason.

2.5 FRAUDULENTLY

From Statutory Offences

In Penal Code S.25 defines “Fraudulently”:-

“A person is said to do a thing fraudulently if he does that thing with intend to defraud but not
otherwise.”

There are many terms of “Fraudulently” on the sections in Penal Code such as Section 206, 207,
208, 210, 242, 247, 253, 261, 262, 263, 264, 265, and 463. There are also sections that

18
[1993] 3 SLR 427
juxtaposition the term of “fraudulently” and “dishonestly” in section 209, 246, 247, 464, 471,
474, 477, 496 of Penal Code.

Fraudulently in Mens Rea

According to Glanville Williams, mental states may be required by implication, such that
the statutes creating an offence of false statement are sometimes held impliedly to require an
intent to deceive or defraud, even though there are no words to effect; but on other occasion in
the case of Heron, the court held that the offence is committed merely by knowingly doing
something that in fact violates the word of the statute.

There are differences between fraudulently and dishonestly as what had been stated in the
statute and in the case of Vilma, Dr v Delhi Administration19, Dr Vilma purchased a car in his
minor daughter‟s name and got the insurance policy transferred in her name. The car met an
accident the appellant filed two claims against the insurance company and his daughter sign it
and have the receipts acknowledging the payment and compensation. The appellant was
prosecuted under section 467 of Indian Penal Code on insurance company‟s complaint that the
appellant alleged in fraud. The court interprets within the definition of section 463 and 464 under
false document and forgery; both descriptions had the same meaning of mens rea i.e.
“fraudulently” and “intention to commit fraud”. Secondly had been noticed two adverbs
„dishonestly‟ and „fraudulently‟ in section 464 are used alternatively indicating thereby that one
excludes the other. The Indian Penal Code defines them under section 24 and 25 respectively.
The word „defraud‟ includes an element of deceit which is an important ingredient of the
definition of the word “fraudulent” but for the definition of “dishonestly” illustrated as wrongful
gain or wrongful loss. Only either one arises of the issue and not both. If the expression
“fraudulently” were to be held involved in this case, the element of injury to the deceived party,
it would be reasonable to assume the injury should be something more than pecuniary or
economic loss.

If we look at the case of Seet Soon Guan v PP20, in Buhagiar J‟s judgment, he interpreted
that the correct meaning of “fraudulently” used either by itself or in juxtaposition with the term

19
A.I.R 1963 S.C 1572
20
(1955) 21 MLJ 223
“dishonestly” or together in Sec. 209 of Penal Code. “Dishonestly” and “fraudulently” are dealt
in section 24 and 25 respectively. Buhagiar J support for the view made by the judges in a
Calcutta Full Bench Case, Abbas Ali (1897) that “fraudulently” does not imply deprivation of
property to be found in other sections of the Code21. The Court held that the fraud does not
necessary indicate a deceit or injury. A person is said to act fraudulently if he intended to deceive
his victim and that deception will gain advantage to him or cause injury to the victim.

Also, in King Emperor v Tha By Aw22, the appellant was guilty of cheating under section
417 of the Indian Penal Code with false representation of his name (real name Tan Sein) and by
representing the place he resided in another town. His deception was to obtained more opium and
by law regulates in possession of only the weight of three tolas of opium obtained from licensed
vendor. On Hartnoll J‟s judgment the act of deceit is fraudulent within the meaning of section
415 and in his opinion; it is suffice to adopt the definition of Sir James Stephen23 that the first
element is intention to deceit and secondly either actual or possible injury or an intent to expose
of injury or risk to possible injury by means of deceit or secrecy that there is no doubt that there
has been fraudulent conduct within the meaning of section 415 of Indian Penal Code. However,
in Ormond J‟s judgment, the deception was done dishonestly within the meaning of section 23
and 24 because by means of deceit he gained opium which was not his own, and which he would
not gained but for deceit.

2.6 DISHONESTLY

From Statutory Offences

In Penal Code S.24 defines “Dishonestly”:-

“Whoever does anything with the intention of causing wrongful gain to one person or wrongful
loss to another person is said to do that thing „dishonestly‟.

There are many terms of “Dishonestly” on the sections in Penal Code such as Section 209, 415,
247, 378, 383, 403, 404, 405, 411, 420, 421,461, 464, 471, 474, 477 and 496.

21
Koh. K.L, Criminal Law in Singapore and Malaysia Text and Materials page 605-606
22
(1907) 4 BLR 315
23
He quoted in his book, History of the Criminal Law of England , in the case of Muhammad
Saeed Khan (1898)
Fraudulently in Mens Rea

According to Glanville Williams, the crime may require the absence of a particular kind
of intention, knowledge or belief. In a crime of dishonesty such as theft and obtaining by
deception require absence of honest intent. A person who has intentionally taken money from
another may defend himself against charged of theft by saying that he took it in order to recoup a
debt owed by him. His intention to obtain payment of the debt can be regarded as an honest
intention which removes the criminality of his intentional taking of the money.

In theft, dishonesty requires the intention to cause wrongful gain or wrongful loss. This
intention to make dishonest exist at the time of moving the property in Sec. 378 in illustration
(h)24 and (i)25. Another example is that there is no dishonesty when A pick up his friend‟s book
which was carelessly left at the restaurant, intending to return it after he has read it. On the other
hand, if A form an dishonest intention not to return it he may liable for criminal misappropriation
of property. It is wrongful to take property by knowing the property belongs to another person or,
if the property belongs to him, he knows the other person has a right to retention26. If a person
took lost property, there may be criminal misappropriation but there is no dishonesty intention27.

In criminal misappropriation, mens rea by means of dishonesty, there are three general
points must be taken, firstly, even if the exclusion of the rightful owner form his property is
sufficient to constitute “misappropriation”, and is regard as causing “wrongful loss” to him under
terms of section 23, such conduct only be criminal if it can be proved that the accused had
intended to cause wrongful gain or wrongful loss. Secondly, it will be more difficult to draw an
inference of dishonesty where there has been misappropriation in the sense of retention. Thirdly,
the last point about dishonestly in the context of criminal misappropriation concerns temporary
appropriations.

24
A had committed theft with intention to take the ring and to sell it by hiding from Z‟s view so
that when it loss is forgotten
25
A delivers his watch to Z, a jeweller, to be regulated. A not owing any debt from Z for which
the jeweler might lawfully detain the watch as security, enters the shop openly and took the
watch from Z‟s hand with force. What A did not commit to theft and was not done dishonest
although A committed criminal trespass and assault.
26
Illustration (f) and (j) of section 378 of Penal Code
27
Illustration (g) of section 378 of Penal Code
 Mens rea for dishonest appear in the cases of misappropriation, conversion and use of
disposal in violation of law or contract by the entrusted person himself. In context of Criminal
breach of Trust, a series of cases has shown that negligence or a failure to account for entrusted
property does not, without more, constituted dishonestly.

There are two case to look upon when a person taking another‟s property as security for
debt. In Kadirawail v Kader Meedin (1881), the accused took some jewellery from the person of
the deceased woman who was his debtor. He made clear to those present there that he intended to
retain the jewellery only as security for the debt. The court held that that a dishonest intention
had not been proved and theft was not committed. Another case in PP v Ramiah28, the three
accused were prosecuted of house-breaking in order to commit theft in contravention of section
454 of the Penal Code. The three of them broke into a house of complainant and removed a trunk
containing a large quantity of property. Some days later the trunk was found in the possession of
one of them and the properties are still intact. The property was kept for a few days so that the
complainant start paying off the debt and the accused had no intention of stealing at all. In India
case, a similar fact, Sri Churn Chungo (1895) also took place when the creditor took property of
debtor for a time by force or taking goods of debtor against his will to put pressure on him to
compel him to discharge his debt; and it must follow that a person who does so is guilty of theft
within the provision of Indian Penal Code. All of three accused were found not guilty and
discharged.

Also, there are cases of intention of a person to take property without consent under
dishonesty. In the case of Packer Ally v Savarimuttu29, the accused approached the storekeeper
of an estate and asked to join him taking away rubber suggesting they should share the proceeds.
The storekeeper report to Superintendent then authorized the storekeeper to let the accused have
the rubber and directed him to cause the accused to sell the rubber. The point view is whether the
fact that the consent of Superintendent the removal of rubber the offence of theft as defined on
section 366 had been committed. The consent mentioned in this section as a condition which
must be the mind of the accused when he intends dishonest to remove the property. The act in
this section had committed by the accused and the accused convicted to theft. And in the case of

28
(1959) 25 MLJ 204
29
(1916) 2 CWR 216
Raja Mohamed v R30, the appellant remove two dozen boxes of glasses from company‟s store
room at ground floor. The boxes removed to first floor but not had been removed from the
premise. Ambrose J concedes that to constitute a theft must be an intention to take dishonestly
any movable property out of possession of another person or without consent. The court held that
it is sufficient if the accused, who has formed an dishonest intention, move that property in order
to such taking—it is not necessary for him to move the property out of the possession of a
person.

2.7 MALIGNANTLY

From Statutory Offence

In Malaysia, Section 270 of Penal Code state that whoever malignantly does any act
which is, and which he knows or has reason to believe to be, likely to spread the infection of any
disease dangerous to life, shall be punished with imprisonment for a term which may extend to
two years or with fine or with both. India Penal Code also constitutes the same Act. The next
element of mens rea is malignant which has been constituted in Section 219 and 220 of Penal
Code. Penal Code has provided some sections which include the word rashly. Those sections are
279, 280, 284, 285, 286, 287, 336 337, and 304. In India Penal Code, Section 304A provide that
“Whoever causes the death of any person by doing any rash or negligent act not amounting to
culpable homicide shall be punished with imprisonment of either description for a term which
may extend to two years, or with fine, or with both.”

In Singapore Penal Code, Section 336, 337 and 338 include the word rash. Section 336
“Whoever does any act so rashly or negligently as to endanger human life …”

Malignantly in Mens Rea

The definition of malignant has not been defined clearly in Penal Code, therefore we
shall refer to the definition given in the case of Bromage v Prosser. The court held that malicious
element occurred in the situation where by the act conducted by the accused has been done with
an intention, and without any reasonable ground. The conducted act will cause harm towards
others. This also has been stated in the case The Moghul Steamship Company, Limited v

30
(1963) 29 MLJ 339
McGregor Gow & Co. What happens in this case is that the defendant is the owner of the ship
that trade between China and Europe. To enable them to gain a monopoly on the trade routes,
they form an association and offer services for the carriage of goods from China to Europe by s
owner of the ship and the competitive to defendant. Plaintiff was dismissed by the association
and it cause losses. Defendant will only be liable if the act proved his action was made without
justification. Only action made without justification is considered as malignant. According to the
court, wrong act or can‟t be justified is like using force or coercion. In this case the court found
that the defendant did not do the things that the defendant's actions were not made with the
malicious intention to cause damage or prejudice to the plaintiff.

In R v Cunningham, Bryne J state that “ we have considered….the following principle

which was propounded by the late Professor CS Kenny… : „in any statutory definition of a
crime, malice must be taken not in the old vague sense of wickedness in general, but as requiring
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 ( i.e. the accused has foreseen that the
particular kind of harm might be done, and yet has gone on to take the risk of it). It is neither
limited to, nor does it indeed require, any ill-will towards the person injured.‟…We think that
this is an accurate statement of the law…In our opinion, the word maliciously in a statutory
crime postulates foresight of consequences….”

2.8 RASHNESS

From Statutory Offence

In Undang-Undang Jenayah Di Malaysia, Siti Zaharah and Datin Noraini mention that the word
rash become mens rea in some sections of the Penal Code. This word can be seen in sections
279, 280, 284,, 285, 286, 287, 336 337, and 304.

Rashness in Mens Rea

“Rashness” also not given its meaning by the Penal Code. The question of whether an
accused person has committed a rash act will be determined by looking to what precautions to be
taken by a reasonable person in that circumstance.31 In determining whether an act is an act done

31
Subba Rao S V (1953) Hyd 95.
with intent or in haste, judgments are made on the consequences of the act. If the result is likely
to occur is low, then the act is usually said to be done with intent.

In Criminal Law in Singapore and Malaysia, KL Koh, CMV Clarkson and NA Morgan
state that rashly and negligently has a separate meaning, the Penal Code generally uses them
jointly as in “causing death by a rash or negligent act” contrary to Section 304 of Penal Code.

Molly Cheang in Criminal Law of Malaysia & Singapore32 state that rashness occurs if
the accused is aware of the risks that will occur due to the actions, determined to continue the
action despite aware the risk and the absence of a reason to do the act. This rash act also known
as conscious negligence because even though the accused know the risk, he still committed the
act.

In case Nga Min Tat33, the court ruled that rashness is an act done in hurry, made without
consideration or care. In case Chamman Lal, the court ruled that rashness and negligent act are
two different forms of action. Rashness under criminal law, the act must be done even though the
accused know that the consequences of the act would cause injury. Criminal elements exist as he
continues to commit the act without regard the consequences which result from that act.

What is meant by rash under the section 304, is best explained in the case N
Nagabushanam, the court held that rash refers to act done by accused, which he is aware or
conscious that it may cause injury or damage but he insisted to take the risk. He believes that he
has taken sufficient precaution or care. The important factor to be considered is whether the
accused was aware. Judge in the case of Re Nidamarti Nagabhushanam (1872) 7 Mad HCR 119
said that “Culpable rashness is acting with the consciousness that mischievous and illegal
consequences may follow, but with the hope they will not and often with the belief that the actor
has taken sufficient precautions to prevent their happening. The imputability arises from acting
despite the consciousness luxuria. Rashness is thus advertence to the possibility of the
consequence occurring.”

2.9 WATONLY

32
Molly Cheang, 1990, Criminal Law of Malaysia & Singapore, Principle of Liability,
Profesional Law Books Publisher , ms 32.
33
(1898)PLJB 426.
From Statutory Offence

In our Penal Code, Section 153 has the word wantonly appearing.

Watonly in Mens Rea

Nigam has defined “wantonly”, “…means the doing of a thing recklessly or

thoughtlessly, without regard for consequences. It implies a disposition not evil, but reckless or
mischievous. A man may do anything “wantonly”, when he has no reason to do it; but he does it
because he takes pleasure in doing it, though he knows that its consequences to others may be
serious.