INFANCY

‘Consequence of the Conduct’

- Infancy is a defence in criminal liability It is not defined in the Penal Code but it is not
because the infant has no mens rea. the penal consequences to the offender that
- Cannot distinguish between right or wrong are referred to but the natural consequence
or between good or bad. which flow a voluntary act.
There are two provisions regarding the
defence of infancy:-
- S.82 of PC - ↓ 10 years old
- S.83 of PC - ↑ 10 years old, ↓ 12 years old

 S.82 of PC
Nothing is an offence which is done by a child
under ten years of age.
- Absolute immunity as he is unable to
distinguish between right and wrong

Walter v Lunt
The parents of the child were acquitted when
they were found in possession of the stolen
tricycle. The tricycle was brought home by the
child who is 8 years old. The parents knew
that the tricycle was a stolen one but instead
kept it on their premises. But they were
acquitted because of the child was unable to
form the intention for a crime and he could
not steal and thus the tricycle was not stolen.

 S.83 of PC
Nothing is an offence which is done by a child
above ten years of age and under twelve,
who has not attained sufficient maturity of
understanding to judge of the nature and
consequence of his conduct
on that occasion.

- Non-attainment of sufficient maturity must

be pleaded and proved

Abdul Sattar v Crown AIR

A group of children was held of having
sufficient maturity when they knew how to
break the locks and able to select valuable
goods only and left the cheap ones behind.

Ullah v The King AIR

A child of 9 years old was held guilty for the
offence of murder when he was angry to his
friend and advanced the knife towards his
friend and threatening to cut him. The child
did the act and killed the friend.
Held : The child is capable of knowing the
nature of his conduct which expressed his
intention
CONSENT
- No exact definition of consent in the PC
However,
S.90 of PC explained the circumstances
whereby where consent may be quashed :
A) Consent known to be given under fear or
misconception and
B) Consent of a person of unsound mind
C) Consent of a child
What is consent?
Pendakwa Raya v Abdul Rahman bin
Mohamad
“Consent that is given freely. It is not
obtained by force, threats, inducement or
deception. While consent involves
submission, it does not follow that a mere
submission involves consent”
S.90 of PC - There is no consent when it is
given
a) Under fear of injury or misconception of
fact
- Consent given under fear of injury is given
under fear of any harm illegally caused to any
person in body, mind, reputation or property
- A misconception of fact, which may arise
from fraudulent or innocent misconception,
vitiates consent.
PP v Abdul Rahman Mohamad
The complainant sought treatment from the
respondent who claimed to be a powerful
bomoh, who convinced her that sexual
intercourse was necessary as part of her
treatment and that she would die without it.
The respondent contended that the
complainant had consented to the sexual
intercourse.
Held: The complainant submitted to the
respondent’s will under the misconception of
fact that she was undergoing treatment by a
prominent bomoh and that death, insanity or
disaster would befall her if she disobeyed or
refused.
(b) From unsoundness of mind or intoxication
(c) By a person under the age of 12, unless
the contrary appears from the
context
- Although generally consent given by a
person above the age of 12 may be valid, the
age of consent for some offences varies.
 S. 375(g) : The offence of statutory rape,
when the victim is below 16 years of age
regardless of her having given consent to
the act
 S.300, Exception 5 : The offence of
culpable homicide, where thevictim, who
must be above 18 years old, consents to
suffer death or risk of death.
S.87 of PC - Acts done with consent
Elements :
- There was no intention to cause death or
grievous hurt and the doer did not know that
the act was likely to cause death or grievous
hurt
- The act was done to any person above 18
years old
- The act was done to a person who had given
express or implied consent to suffer that
harm
- To justify any harm less than death or
grievous hurt usually arising in lawful games
- Consent would not be a defence where the
doer intends or knows death or grievous hurt
would result
It is only a defence where:
- The doer intends to cause harm less than
grievous hurt
- The doer does not intend to cause death or
grievous hurt
Ngwa Shwe Kin v Emperor
The deceased, who was a middle-aged
believer in charms, believed that he had
become da proof. In proving this, after
uttering some charms, he told the appellant
to cut his right arm with his da.
Unfortunately, the deceased’s arteries were
cut, causing him to bleed to death. The court
held the defence of consent could be raised
as the appellant did not use great force and
the deceased had given assurance that he
was invulnerable.
S.88 of PC - Acts done with consent, for the
benefit of any person
Elements:
- There was no intention to cause death
- The act was done in good faith for the
benefit of a person (S.52 of PC)
- The act was done to a person who had given
express or implied consent to suffer that
harm
Sukaroo Kobiraj v Empress
The appellant, who was unskilled in surgery,
operated on a man, who then died from
haemorrhage.
Held : The element of good faith under S.88
was not satisfied as the appellant had
‘experimented’ without any knowledge of the
procedure even though he had performed at
least 2 previous operations. Further, it could
not be said that the deceased had consented
to the operation when he was unaware of it.
S.89 of PC - Acts done with consent of the
guardian, for the benefit of a child or person
of unsound mind
Elements:
- The act was done in good faith
- The act was done for the benefit of a person
under 12 years of age, or of unsound mind
- Express or implied consent had been given
by the guardian or person having lawful
charge of that person
S. 89 does not apply to:
- The intentional causing or attempting to
cause death
- Acts which the doer knows are likely to
cause death or grievous hurt unless it is for
the purpose of preventing death or grievous
hurt
- The abetment of any such offence
Maung Ba Thaung
S. 89 of PC is applicable to the administration
of corporal punishment by guardians and
teachers upon school children under 12 years.
S.92 of PC - Acts done without consent, for
the benefit of a person
Elements:
- The act was done in good faith
- The act was done without the person’s
consent
- The circumstances were such that consent
was impossible to be obtained at the time
S. 92 does not apply to:
- The intentional causing or attempting to
cause death
- Acts which the doer knows are likely to
cause death or grievous hurt unless it is for
the purpose of preventing death or grievous
hurt
- The abetment of any such offence
PP v Dr Nadason Kanagalingam
The accused was charged for causing a
woman’s miscarriage. It is an exception that a
medical practitioner, in good faith, may do so
if he was of the opinion that the pregnancy
was detrimental to her. However, the accused
had not given reasonable consideration or
reach a reasonable conclusion that the
miscarriage was to save her life as there was
no
indication that her life would be in danger.