ANSWER SHEET

Student ID 1161100245 Course Code UCR2612

Section / Group L2/T13 Lecturer Name Martin Flora

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A crime is a wrong which affects the public or an act or omission that can be punished under
criminal law. In order for a person to be criminally liable, they must have the elements of Actus
Reus which is a guilty act or omission at the time the offence was committed; Mens Rea which is
a blameworthy state of mind; and Causation which is the coincidence of Actus Reus and Mens
Rea.

In accordance to the current case, the main issue is whether Kim is liable under Section
304A of the Penal Code.

Under Section 304A of the Penal Code, causing death by negligence refers to an act or
omission; done with rashness or negligence; resulting in the death of another. In reference to an
act or an omission, Section 33 of the Penal Code states that an act is not only a single act but
also a series of acts and omission denotes a series of omission too. This means that even if the
person’s act or omission did not directly cause the death of someone, he can still be liable under
a series of acts or omissions leading to the death.

Additionally, under Section 43 of the Penal Code, criminal omission is said to occur when
the omission is illegal or if there is a failure to act when a duty to act is imposed. Acts that
consists of illegal omissions include crimes listed under Sections 283 until 298 of the Penal
Code. Additionally, every individual has a duty to act whether it is a duty to act by a statute; a
duty to act by a contract; a duty to act by a special status relationship; a duty to act by voluntary
assumption; or a duty to act by causing a risk or harm. A case that upholds this is that of R v
Instan, where the defendant was the niece of the victim when she invited her aunt to come stay

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 ANSWER SHEET

Student ID 1161100245 Course Code UCR2612

Section / Group L2/T13 Lecturer Name Martin Flora

with her but failed to take care of her and eventually the aunt died. It was held that when a
defendant assumes responsibility to care for another, the defendant would then owe a duty of
care towards the victim. Also, there is the case of R v Miller, which in this case, the defendant
was a vagrant who had spent the evening drinking before returning to the property where he was
squatting. He fell asleep with a lit cigarette in his hand, which started a fire. The defendant woke
and, seeing the fire, took no steps to extinguish it but simply moved to sleep in a different room.
Eventually the whole house caught fire, causing over £800 worth of damage. The defendant was
charged with arson. It was held that the court concluded that as he was responsible for having
created the dangerous situation, the defendant was under a duty to take action to resolve it once
he became aware of the fire. It was not necessary that the defendant was subjectively aware of
the risk of damage posed by the fire, provided that this would be obvious to a reasonable person
who troubled to turn his mind to the matter. The defendant was therefore liable for his omission
to take any steps to put out the fire or seek held, and was accordingly convicted of arson.

Hence, we can infer from above that the Actus Reus under Section 304A of the Penal Code
is the act or omission that causes the death of another as stated in the case of PP v Moo He Hong
& Anor (2018); and the Mens Rea under Section 304A of the Penal Code is, generally, rashness
or negligence.

In relation to the Mens Rea, rashness and negligence are not the same thing. Rashness refers
to knowingly taking on a reasonable risk whereas negligence refers to unintentionally taking an
unreasonable risk.

In the case of PP v Mahfar Bin Sairan (2000), it was stated that a crime in which exists
rashness or negligence does not fall under culpable homicide. As for the case law that discusses
on rashness, Reg. v Nidamarti Nagabhushanam (1872) states that culpable rashness is acting
with the consciousness that mischievous and illegal consequences may follow, but with the hope
that they will not and often with the belief that the actor has taken sufficient precautions to
prevent their happening. Additionally, in Empress v Idu Beg AIR (1881), it was stated that
criminal rashness is hazarding a dangerous or wanton act with the knowledge that is so, and that
it may cause injury, but without intention to cause injury, or knowledge what it will be probably
be caused.

On the other hand, for the case law that discusses negligence, the Reg. Case states that acting
without the consciousness that the illegal or mischievous effect will follow, but in circumstances
which show that the actor has not exercised the caution incumbent upon him, and that, if he had,
he would have had the consciousness. Also, in Empress Case, it was stated that criminal
negligence is the gross and culpable neglect of failure to exercise that reasonable and proper care

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 ANSWER SHEET

Student ID 1161100245 Course Code UCR2612

Section / Group L2/T13 Lecturer Name Martin Flora

and precaution to guard against injury either to the public generally or to an individual in
particular, which having regard to all the circumstances out of which the charge has arisen, it was
the imperative duty of the accused person to have adopted.

Causation refers to when both the Actus Reus and the Mens Rea coincide. This is in order
establish a criminal liability against an accused for the crime resulting from his act or omission to
act. The types of causation include factual cause and legal cause.

Factual Cause refers to a sequence of events that results in an outcome being caused by one or
more actions or inactions. It requires proof that a person’s conduct was a necessary condition of
the consequence and it is established by proving that the consequence would not have occurred
but for a person’s conduct. It is also known as the “but for causation”.

An illustration of factual causation can be seen in several cases. In the case of R v Pagett, if
the accused had not fired first, the police officers would not have fired their weapons, and then
the hostage would not have died. In the case of R v White (1910), the accused tried to poison his
mother by putting cyanide in her drink but she died of attack and not because of the poison. The
accused cannot be liable for an offence on that consequence (murder), but he is still liable for an
attempted offence (attempted murder).

On the other hand, legal cause refers to a proof that a person is liable in law for whatever
happened. It requires proof that a person’s conduct was sufficiently connected to its occurrence.
It could be merely established if the said person’s conduct was an operating and substantial (not
trivial) conduct, but not necessarily the only cause of the consequence when there are two or
more legal causes of the same consequence. It is also known as the “imputable causation”.

An illustration of legal causation can be seen in a case of R v Smith where if a person

received bayonet wounds during a fight and pierced his lung causing hemorrhage and on the way
to the hospital his friend tripped and dropped him twice. Despite given bad treatment on arrival,
the friend is still liable.

Furthermore, there is a chain of causation which is a series of events. A person will not be
liable if there is an intervening act within this series of events that breaks its chain of causation.
To be more specific, to break the chain of causation it must be shown that there is something
which disturbs the sequence of events (new cause) and it must be extraneous or extrinsic. An
accused will not be liable to have caused the result if there was an intervening act (Novus Actus
Interveniens) which is sufficient to break the chain of causation. However, not all intervening act
can break the chain of causation. The types of intervening acts include act of a third party, act of
the victim, improper medical treatment, and unforeseen natural event.

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 ANSWER SHEET

Student ID 1161100245 Course Code UCR2612

Section / Group L2/T13 Lecturer Name Martin Flora

Another area of discussion that is relevant is that of the foreseeability test. This test is
currently use and applied in order to determine whether one had acted negligently. It looks into
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 such damage or injury. This can be seen in the case of Adnan v P.

Applying the law to the current case, Kim often played with fire and Julia always tried to stop
Kim from doing so. One evening, they were walking in an open field and Kim threw a lighted
match stick on the grass which was very dry. Immediately the field was on fire. Two children,
Beta and Dora were playing hide and seek in the field as well. Beta was hiding behind some
bushes, while Dora was finding for her. They did not see the fire. Julia was horrified when she
saw the children and ran to save them. She managed to safe Dora but not Beta as the fire became
uncontrollable. Kim on the other hand saw the fire, she realized the danger and became very
afraid. She ran home and two days later she was arrested and charged under Section 304A of the
Penal Code for causing the death of Beta. As stated above the Actus Reus of Kim under Section
304A of the Penal Code, is the act or omission of causing the death of Beta. Additionally, the
Mens Rea of Kim under Section 304A of the Penal Code, is rashness or negligence, which in this
case is rashness as referred to above, Kim is acting with the consciousness that mischievous and
illegal consequences may follow, but with the hope that they will not. Additionally, the chain of
causation is not broken as stated above, according to the foreseeability test, Kim could
reasonably foresee that her act would have caused the death of another, in this case, Beta. Also,
when she saw the cause of her actions, she fled the place instead of taking the reasonable action
of calling the firefighters. Hence, we can say that Kim is guilty under Section 304A of the Penal
Code beyond reasonable doubt.

In conclusion, Kim is liable under 304A of the Penal Code for causing death by Negligence as
she has the necessary Actus Reus which is causing the death of Beta; the necessary Mens Rea
which is rashness as she knew that playing with fire was dangerous but wanted to believe
nothing bad will happen, and the necessary chain of causation as she could foresee her actions
would have negative consequences yet she ignored it. Additionally, when the fire broke out, she
ran away rather than taking any reasonable step to reduce it. Hence, she is guilty and can be
punished for a term which may extend to 2 years or a fine or both.

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 ANSWER SHEET

Student ID 1161100245 Course Code UCR2612

Section / Group L2/T13 Lecturer Name Martin Flora

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