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Criminal Assignment

Criminal Law 2 (Universiti Teknologi MARA)

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1st ISSUE

Issue: Whether Emy is criminally liable under criminal intimidation towards Fina and Fani
under the Penal Code for threatening them to stop screaming using his Rambo knife.

Law:
Criminal intimidation is defined in section 503 as whoever threatens another with any
injury to his person, reputation or property, or to the person or reputation of any one in whom
that person is interested, with intent to cause alarm to that person, or to cause that person to
do any act which he is not legally bound to do, or to omit to do any act which he is not legally
bound to do, or to omit to do any act which that person is legally entitled to do as the means
of avoiding the execution of such threat.
The purpose of this offence is to induce the person threatened to do, to refrain or omit
to do something. In order to establish criminal intimidation, it must be proven that the
accused not only has actus reus to injure a person, his reputation or property but must also has
mens rea when committing the offence. Hence, the offence must be done with intent to cause
alarm to that person or to cause that person to do something which he is not legally bound to
do. Ratanlal & Dhirajlal’s Law of Crimes defines criminal intimidation comprehensively
where it stated that this offence is in two parts; the first part refers to the act while the second
refers to the intent.
There must also be a threat communicated or uttered with the intention of its being
communicated to the person threatened for the purpose of influencing his mind. Other than
that, Ratanlal & Dhirajlal’s Law of Crimes stated that if it is such a threat as may
overcome the ordinary free will of a firm man, or whatever the nature of the threat, if it is
made with the intention mentioned in the section, it is an offence. Thus, the threat must be
sufficient to overcome the ordinary free will of a firm man and the complainant must feel as a
reasonable man that the accused was going to convert his words into action by virtue of the
case Ramanathan Yogendran v PP.
It is also relevant to consider whether the accused was capable of carrying out the
threat. In PP v Aziz bin Wee, when the complainant wanted to remove the goods of the
respondent, an unlicensed hawker, the respondent shouted: ‘Try if you want to get it’. As the
complainant was about to seize the property, the accused took up a knife and pointed it at the
complainant. The court was of the view that this was a threat to cause injury to the
complainant because the respondent picked up a dangerous weapon, a knife, and without any
doubt, anyone faced with the respondent holding the knife near to him while trying to do his
duty must have been gravely alarmed. It was held that criminal intimidation was present.
In contrast with the former case, in Jogendra Kumar v Hem Chandra, the accused
was an old and sick man aged 74 years. He threatened to kill a boy, the complainant, while
talking to 4-5 persons. Evidence disclosed that none of those present were actually alarmed. It
was held that criminal intimidation did not occur.

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Application:
As defined in Section 503, criminal intimidation can be seen occurred in this
question. The situation fits with the definition given under section 503, where Emy threaten
Fina and Fani with intention to silence them using her Rambo knife. However, in order to
establish the present of criminal intimidation, it must be proven that Emy not only has actus
reus to injure Fina and Fani but Emy also must have intention to hurt them using the knife if
they go against him. By applying the definition given in Ratanlal & Dhirajlal’s Law of
Crimes, criminal intimidation is presence when Emy stopped Fana and Fina from screaming
by scolding them using his real voice and showing them the knife. And the intention for him
to intimidate them is presence as he was there at the first place to abduct them which made
him would do anything to keep them silent.
Applying the case of Ramanathan Yogendran v PP, the threat given by Emy
towards the twin is sufficient for them to follow his order as he was using his real voice, a
man voice and by looking at such circumstance where it was an intense situation he must be
sounded so serious and any reasonable man would believe that he could kill the twin anytime
if they go against his order.
Not only that, it must also be considered whether Emy was capable to hurt the twins
using his knife. As at that moment, the twins were already in the van and in that van it was 3
men against two women. Emy was capable to hurt the twins as they are weak compare to
him. By applying the of PP v Aziz bin Wee, he has the capability to injure them as what he
threaten without no doubt was possible thus criminal intimidation was present. In contrast to
the case of Jogendra Kumar v Hem Chandra, if there was no possibility for Emy to cause
injury towards them then there is no criminal intimidation.

Conclusion:
In conclusion, Emy is criminally liable under criminal intimidation towards Fina and
Fani for threatening them to stop screaming using his Rambo knife as he has fulfilled all the
requirement stated under Section 503 of the Penal Code.

2
2nd ISSUE
Issue: Whether Marco and Max are criminally liable under rape towards Fana and Fani under
the Penal Code.
Law :
The definition of rape is provided under Section 375 where a man is said to commit
the offence of rape when he has sexual intercourse with a woman (a) against her will, (b)
without her consent and (c) (d) (e) (f), with her invalid consent.

In the case of Mohammad Arfah Jasmi, ‘Rape’ means taking anything by force and
‘sexual intercourse’ means the insertion of a man’s erect penis into a woman’s vagina
followed by the ejaculation of semen.

Any act of penetration is sufficient to constitute the sexual intercourse to the offence
of rape and it is not necessary to prove anything beyond. The penetration must be by the
penis of the man. The case of Nasrul Annuar Abd Samad can referred to where the victim
felt a penetration and presumed it was the penis of the accused. However, the court allowed
the appeal of the accused as there was no clear evidence to show that it was the accused’s
penis that had caused penetration.

In Section 375(b), consent is defined as an act of reason and deliberation, which

denotes an active will in the mind of the person to prevent the doing of the act complained of.
A woman consents only if she freely agrees to submit herself while in free and unconstrained
possession of her physical and moral power to act in a manner she wanted. It is always a
voluntary and conscious acceptance of what is proposed to be done by another and concurred
by the former, thus a sleeping person can never consent.

This can be illustrated in the case of Rao Harnarain Singh v State, where the
accused urged the husband to bring his wife to the accused’s party where the accused and his
friend force the deceased woman into having sexual intercourse. She cried all night long and
died in the morning. Coldrige J said, there is a difference between consent and submission.
Every consent involves submission, but a mere submission cannot be said to involve consent.
Thus, in R v Olugboja, the emphasis is on the state of mind of the victim immediately before
the act of sexual intercourse. It is no defence that the woman consented after the act.

Although the victim neither screamed nor struggled and submitted to sexual
intercourse without the defendant using force or making any threat of violence, his conviction
was fully justified as the victim was tricked into going into the house after having been
raped by another man and was frightened when she was dragged into the room with the
defendant who was determined to have sexual intercourse with her. The victim was kept
there against her will until she submitted although no force was used or threatened.

This can be referred to in the case of PP v Mohammed bin Majid where the victim
was pulled away from the rubber tree and pushed to the ground, the accused then undressed
and raped her. She decided to submit than struggle as she was afraid that her assailant might
strangle her. Upon evidence of 3bruises, seminal stains and the recent tear of her hymen, the
court found that sexual intercourse took place without her consent.
Application :

In this situation, applying the case of Mohammad Arfah Jasmi, there is an offence
of rape committed by Marco and Max as they had forcefully made sexual intercourse with
Fina and Fani. In contrast with the case of Nasrul Annuar Abd Samad, there is indeed an
act of penetration made by Marco and Max towards the twins when they repeatedly took turn
to rape them.

In pursuant to Section 375(b) of the Penal Code, Marco and Max had raped Fina and
Fani without the girls’ consent. As in this situation, there is no consent given by Fina and
Fani as they were not in a free and constrained possession of their physical and moral power
to act in a manner that they wanted. Even though they were conscious, they were still hurting
and having pain on their faces after being punched by Emy.

Applying the case of Rao Harnarain Singh v State into this situation, even though
Fana and Fani did not resist or struggle while being raped which proves that there was a
submission on their part, it cannot be considered as consent. This is because the twins’ mere
submission was due to incapability of fighting back and exhaustion from being repeatedly
raped by Marco and Max. A mere submission cannot be said to involve consent.

By virtue of case of R v Olugboja, Marco and Max may be convicted on the offence
of raping the twins even though they did not used any force or threat towards Fina and Fani.
This is because they have been waiting in the deserted house while Emy, Alisya and Arina
abducted the twins. After the twins has arrived at the the house, they came out after Emy
summoned them and subsequently raped the twins. This shows that Marco and Max had the
intention to commit the offence and had been prepared to execute their plan which was to
rape the twins. Fina and Fani were kept in the deserted house against their will as they were
being abducted although no force or threat has been made by Max and Marco.

Conclusion:

In conclusion, Marco and Max are criminally liable on the offence of rape under the
Penal Code towards Fani and Fina as the offence falls under paragraph (b) of Section 375.

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3rd ISSUE

Issue: Whether Emy is liable for the offence of hurt as he punched both Fana and Fani also
for causing Fani’s nose to bleed under Section 321 of the Penal Code.

Law:
Hurt is defined in Section 321 as whoever does any act with the intention of causing
hurt to any person, or with the knowledge that he is likely to cause hurt to any person, and
does cause hurt to any person, is said to “voluntarily cause hurt”.

The term ‘voluntarily’ is defined under Section 39 as when he causes it by means

whereby he intended to cause it, or by means which, at the time of employing those means,
he knew or had reason to believe to be likely to cause it. ‘Hurt’ is the causing of bodily pain,
disease or infirmity to any person by virtue of Section 319 while ‘infirmity’ as interpreted in
Anis Beg is the inability of an organ to perform its normal function which may be temporary
or permanent.

In order to establish the offence of hurt, there must exist both the actus reus, the
causing of bodily pain, disease or infirmity and mens rea, the intention or knowledge to cause
hurt in the case of Manzoor Ahmad v State of Allahabad, after an argument, the accused
fed a boy of fifteen years copper sulphate which caused him to collapse and subsequently be
admitted to the hospital for a stomach wash. It was held that the accused was guilty for
causing hurt.

This offence is punishable under Section 323 where the offender shall be punished
with imprisonment for a term which may extend to one year or fine which may extend to two
thousand ringgit or both.

Application:

As stated in Section 321, hurt is an offence and Emy will be liable if he satisfied all
the requirement for the offence of hurt is established. By looking at the definition given, it
must be proven that Emy did an act voluntarily with the intention to cause hurt towards Fina
and Fina and he must knew that his action will likely to cause them hurt.
As defined under Section 39, Emy’s action is considered as voluntarily as he punched
both of them without anyone telling him to do so and he first attacked Fina because he was
mad at the remarks made by Fina towards him and his friends. He also voluntarily hurt Fani
because Fani was trying to kick him and at that moment he did everything on his own. He
knew he would cause them hurt because he wanted to make them stay quiet so he could
proceed with their plans.
In order to establish the offence of hurt, Emy must cause a hurt as stated in Section
319. In this situation, Emy has managed to cause hurt that satisfy Section 319 where the
moment he punched both of the5m he had cause bodily injury and not just that he managed to
make Fani’s nose to bleed. As interpreted by Anis Beg, he also hurt both of them infirmity by
making both of them unconscious which means he has disrupted their brain to receive enough
oxygen.
 As stated in the case of Manzoor Ahmad v State of Allahabad, there must exist both
actus reus and mens rea on Emy so that the offence of hurt can be established. In this current
situation, Emy actus reus can be seen when he hurt both of them by punching their faces.
Whereas the actus reus can be seen when he done everything by his own in retaliate to the
statement made by Fina and when Fana screamed and tried to kick at him.
Under Section 323, as Emy has satisfied all the requirement to establish the offence
of hurt he shall be punished with imprisonment for a term which may extend to one year or
fine which may extend to two thousand ringgit or both.

Conclusion:

In conclusion, Emy is liable for the offence of hurt as he has established all the
requirement to established the offence of hurt as he punched both Fina and Fani also for
causing Fani’s nose to bleed under Section 321 of the Penal Code.

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4th ISSUE

Issue: Whether Emy, Alisya and Arina are criminally liable on the offence of murder towards
Fina and Fani?

Law:
Culpable homicide is the causing of death of a human being as stipulated in Section
299. In Section 300, culpable homicide will constitute the offence of murder when the killing
of a human being is effected as defined in Sec. 300(a), (b), (c) or (d).

In PP v Nomezam Apandy, in order to establish a prima facie case of murder, the

prosecution must prove the death of the deceased, the deceased’s death was caused by
injuries inflicted on the deceased, the accused had caused such injuries which resulted in the
deceased’s death and the act was committed with the mens rea under any limb of Sec. 300.

The case PP lwn Mohan Dass Ganesan stated that what distinguishes the offence of
culpable homicide and murder is the presence of a special mens rea which consists of four
mental attitudes, i.e. the four limbs under Section 300 in the presence of which the lesser
offence becomes greater.

Though an act of killing may fall under one or more of the four limbs in Sec. 300, in
order to constitute murder, it is only necessary to establish that an act falls within only one of
the four limbs. In PP v Tham Kai Yau, a higher degree of mens rea is essential in
establishing the offence of murder.

Whether the offence is culpable homicide or murder depends upon the degree of risk
to human life. If death is a likely result, it is culpable homicide. If it is the most probable
result, it is murder.

This situation falls under Section 300(d) where the offender knows it is imminently
dangerous that it must in all probability cause death.

In PP v Mahfar bin Sairan, it is insufficient for the accused to merely know that
some grievous hurt would be caused to the deceased. The knowledge required is no less than
knowledge that his act would in all probability cause death or such bodily injury as is likely
to cause death. The accused must know that his act was so imminently dangerous and
committed in utter disregard that death would result from such act.

The limb contemplates the doing of an imminently dangerous act to people in general
and not to a particular individual. This can be illustrated in the case of William Tan Cheng
Eng v PP, where the accused drove his car recklessly and in a dangerous manner,
disregarding other users of the road, as he was chasing the car in which his ex-girlfriend and
another man rode, and as a result killed a motorcyclist. It was held that the conviction was set
aside as it had to be proven that 7the accused knew that his act of driving in such a manner
was so imminently dangerous that it must in all probability cause death or such bodily injury
as was likely to cause death.
 Further, the limb restricts liability to only cases where there is no excuse for incurring
the risk of causing death. Culpable homicide with knowledge that an act is imminently
dangerous will not amount to murder where the accused has an excuse for incurring the risk.
It means something which is a justification of the act and does not merely mitigate the crime.

The case of Emperor v Dhirajia can be referred to. In this case, the accused, while in
panic and trying to escape her husband, jumped down a well with her baby in her arms. The
baby died and the accused was convicted of murder. It was held that on appeal, it was found
that the accused’s fear and panic was enough of an excuse to conclude that she did not know
that her act would in all probability cause the baby’s death.

In addition, Section 304A of the Penal Code provides for the offence of causing the
death of any person, by doing any rash or negligent act not amounting to culpable homicide.
The rash or negligent act refers to the act which in the immediate cause of death and not any
act or omission, which can at most be said to be a remote cause of death.
The test of standard of negligence enunciated in the case of Adnan bin Khamis v PP
is whether or not a reasonable man in the same circumstances would have been aware of the
likelihood of damage or injury to others resulting from such conduct and taken adequate and
proper precautions to avoid causing such damage or injury.

In the case of PP v Mahfar bin Sairan, the deceased had chased after the accused’s
car and had held on to the wing mirror of his car. Forensic evidence clearly established the
deceased had been run over by the accused’s car. It was held that the accused could not have
been unaware of the likelihood of injury to the deceased when he drove his vehicle off while
the deceased was just by the side of the car holding on the wing mirror. He was expected
under the circumstances to have taken proper precautions to avoid causing injuries to the
deceased in which he failed. Therefore, he was rash and negligent or both.

Application:

To constitute an offence of murder under Section 300 of the Penal Code and
applying the case of PP v Nomezam Apandy and PP v Tham Kai Yau, Alisya, Arina and
Emy must have a higher degree of mens rea which mean they need to have the intention to
kill Fana and Fina where in this situation they do not as they thought they were already dead.

In this situation, Section 300 (d) of the Penal Code applies where the act of dumping
unconscious bodies in the river is imminently dangerous and in all probability would cause
death as the unconscious bodies who still might be alive will drown to death when they are
awake.

Following the case of PP V Mahfar bin Sairan, Emy, Alisya and Arina clearly
understand that the act of dumping bodies in the river is imminently dangerous and would in
all probability cause death if the bodies are still alive. However, in this situation they thought
that Fana and Fina were dead which means they do not have the intention that death would
result from the act of dumping th8e bodies in the river.

Referring the case of William Tan Cheng Eng v PP, Emy, Alisya and Arina could
not have been said to understand that their act will cause death as they thought that Fana and
Fina were already dead.
 Emy, Alisya and Arina who thought that Fina and Fani were already dead, dumped
their bodies in the river which could be an excuse to conclude that they did not know that
their act would in all probability cause the death of Fani and Fina as quite similar to the case
of Emperor v Dhirajia.

However, in applying Section 304A of the Penal Code, the act of dumping the
unconscious body of Fina and Fani who they thought were dead is an act of rash or negligent
as they did not take any precautions to check if they were really dead before doing so. Hence,
their crime will not be reduced from murder to culpable homicide not amounting to murder
merely because they were under some misapprehension for a time during the completion of
their criminal plot.

Referring to the case of Adnan bin Khamis v PP and PP v Mahfar bin Sairan,
Emy, Alisya and Arina could have been unaware that Fani and Fani were actually still alive
but they were expected under the circumstances to have taken proper precautions to check if
they were still alive which they have failed. They were rash and negligent.

Conclusion:

Therefore, Emy, Arina and Alisya are criminally liable for the offence of murder
under Section 304A of the Penal Code.

9
5th ISSUE

Issue: Whether or not the defence of provocation is available for Emy, Alisya and Erina to
exclude them from the liability on the offence of murder towards Fina and Fani under
Section 300 of the Penal Code?

Law:

Under Section 300 of the Penal Code, there are a few exceptions in which an offence
will be that of culpable homicide not amounting to murder if the accused is able to bring his
act within one of the five exceptions. The exceptions are stipulated under Section 300,
Exception (1), (2), (3), (4) and (5). It includes defence of provocation, exceeding right of
private defence, public servant exceeding powers, sudden fight and consent.

Exception 1 of Section 300 stipulated that where, the offender, whilst deprived of
power of self-control by grave and sudden provocation, causes the death of the person who
gave the provocation, or causes the death of any other person by mistake or accident. There
are five elements that need to be fulfilled in establishing the defence of provocation.

The first element is the provocation must be grave and sudden. In Abdul Razak
Dalek, sudden involves two elements which are provocation must be unexpected and that the
interval between provocation and the homicide should be brief.

The second element is the link between the provocation and the killing. In KM
Nanavati, the fatal blow should be clearly traced to the influence of the passion arising from
that provocation.

The third element is the cooling period. The offender must have killed while being
deprived of self-control caused by the provocation. In Mohammed Yassin, the court held
that the incident that occurred the previous day did not constitute a grave and sudden
provocation as there was a cooling period of one night.

The fourth element is proportionality of retaliation. The retaliation should not be

disproportionate to the provocation. In N Govindasamy, the appellant’s act of inflicting
seven fatal wounds to the head of the deceased was found to be disproportionate to the
deceased’s conduct which affected the appellant’s religion and conduct as a father, as well as
his daughter’s honour.

The fifth element is the application of the reasonable man test. In Ikau Anak Mail,
the court held that it is necessary to satisfy that such acts of provocation which deprived the
accused of the power of self-control would have also deprived a reasonable man.

Application:

In this situation, there was provocation made by Fina and Fani towards Emy, Alisya
and Arina. The twins provoked 1E0 my and her friends by calling them pondan , make fun
of their appearance and accused them of being perverts. However, the provocation did not
justify Emy’s, Alisya’s and Arina’s act of killing the twins as all the elements to establish the
defence of provocation under Section 300 Exception 1 was not fulfilled.
 The first element is not fulfilled as the provocation cannot be considered as grave and
sudden. In applying the case of Abdul Razak Dalek v PP, although the provocation was
unexpected since the twins accidentally met the girls at a shopping mall, the provocation was
not sudden as the interval time between the provocation and the act of killing them is not
brief. After the provocation, Emy and her friends did not immediately preceeded with the act
of killing them and instead, they went home after the incident and made a revengeful plan.
Even though the second element is fulfilled since their act of killing them is as a result from
the provocation, the third element is not fulfilled as there is indeed a cooling period. There
was a cooling period of a few hours after the provocation happened.

The fourth element is also not fulfilled as the the retaliation is not disproportionate to
the provocation. The provocation made by the twins was just a few mere hurtful words as
compared to what Emy and her friends did to the twins. The retaliation made which include
abduction, raping and eventually killing them is disproportionate to the provocation made by
the twins. Lastly, the fifth element is also not fulfilled as a reasonable man would not act to
such extend of killing the twins. A reasonable man would be deprived of self-control as a
result from the provocation, but will not act to the extend of killing such person.

Conclusion:

In conclusion, although there was provocation made by Fina and Fani towards Emy,
Alisya and Arina, the defence of provocation will not be successfully raised by them as all
the elements required to establish such defence is not fulfilled.

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