INTRODUCTION TO CRIMINAL LAW

By: Zarriff Iman Nafidz bin Zahril Anwar, K02

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Table of Contents
WHAT IS CRIME? .......................................................................................................................... 2
DEFINITION............................................................................................................................... 2
ELEMENTS OF CRIME .................................................................................................................... 3
ACTUS REUS ............................................................................................................................. 3
MENS REA ................................................................................................................................ 3
STRICT LIABILITY OFFENCES? ......................................................................................................... 4
BURDEN AND STANDARD OF PROOF.............................................................................................. 4
GENERAL DEFENCES...................................................................................................................... 5
MISTAKE................................................................................................................................... 5
ACCIDENT ................................................................................................................................. 6
NECESSITY ................................................................................................................................ 7
DURESS .................................................................................................................................... 7
INTOXICATION .......................................................................................................................... 8
UNSOUNDNESS OF MIND ........................................................................................................ 10
PRINCIPLES OF SENTENCING........................................................................................................ 12

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WHAT IS CRIME?
DEFINITION
"An act which contravenes the
"An unlawful act or default
law, and which may be followed
which is an offence against the
by prosecution in criminal
public and renders the person
proceedings with the attendant
guilty of the act or default liable
consequence, following
to legal punishment,"
conviction, of punishment,"
(Halsbury's Laws of England)
(Allen, 2015)

Criminal law helps preserve Criminal offences are
public order. investigated by law
enforcement agencies such
as the police and customs
during the investigation
phase.
Criminal cases are
prosecuted by the State,
represented by the Public
Prosecutor (PP) as per:
i) Article 145(3) of the
Federal Constitution
ii) Section 376(1) of the
Criminal Procedure Code.

NOT ALL criminal offences are

prosecuted though; some criminal
offences are simply punishable by
monetary fines (eg: speeding)

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ELEMENTS OF CRIME
'Actus non facit
reum, nisi mens
sit rea'

ACTUS REUS MENS REA

(GUILTY ACT) (GUILTY MIND)

ACTUS REUS
No, not this guy! (Marco Reus, Borussia Dortmund captain)

Actus reus refers to:

-> a positive act of crime (bodily movement) (s.43 Criminal Procedure Code)

Eg: Theft, housebreaking, rape, murder

-> a negative act (illegal omission) (s.32 CPC).

Eg: Failure to display vehicle registration plate, not reporting bribes/bribe attempts.

CASE LAW:

POSITIVE ACT (PRIMARY): Rahanny Rojela v. PP [2016] – It was held that the appellant (defendant)
was guilty of the crime of stabbing Teto Chang to death under s.302 PC = PW6’s testimony showed
that the appellant sat on the deceased’s body before stabbing him to death = actus reus =
appellant has criminal liability.

NEGATIVE ACT (ILLEGAL OMISSION): R v. Gibbins and Proctor (1918) – The parents purposely
withheld food to the child and the child died of starvation. It was held that the parents were guilty of
murdering the child.

MENS REA
You sure about that? You were caught red handed on the bedroom floor… you’d be lying if you said THAT encounter was
unintentional man. S.377A of the Penal Code awaits for you… (Context: It Wasn’t Me – Shaggy, 2000)

Mens rea on the other hand refers to: the blameworthiness of mind of the defendant.

It must have been proven that the accused intended to commit the crime on his own accord.

In the Criminal Procedure Code, mens rea is indicated by terms like: ‘recklessly’, ‘maliciously’,
‘voluntarily’.

CASE LAW: Norol Rojik Jun v. PP [2018] – The appellant (accused) murdered his neighbour –> found
guilty for murder -> appealed to the COA on grounds of lack of mens rea -> APPEAL DISMISSED:
Appellant’s mens rea was indicated by the severity of the deceased’s injuries + the type of weapon
used by the appellant.

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STRICT LIABILITY OFFENCES?

SLOs are criminal offences that are committed with the accused criminally liable, without the need
for mens rea (the element is dispensed with).

In other words, for SLOs, actus reus by itself is enough to convict an accused of a criminal offence.

Even the presumption of mens rea can be rebutted if the crime involved concerns an issue of social
concern (sale of food, public health etc.). Examples of an SLO include drunk driving.

CASE LAW: PP v. Osman Apo Hamid [1978] – The accused was convicted of carrying bags of rice
exceeding the number allowed within the production premise (actus reus). Respondents admitted
they carried 130 bags of rice, but were unaware of the 80-bag limit imposed by the premise -> The
accused had no mens rea, but since the mental element was negated by the legislature, they were
found criminally liable anyway.

BURDEN AND STANDARD OF PROOF

PROSECUTOR ACCUSED

BURDEN OF PROOF: Weakening

BURDEN OF PROOF: Prove
the effect of prosecution's
existence/non-existence of a fact
evidence (s.105 Evidence Act
(s.101 Evidence Act 1950)
1950)

STANDARD OF PROOF: Prima

facie/Beyond reasonable doubt
(s.173(f)(i) and s.180(1) Criminal
Procedure Code.) -> High probability,
but not necessarily 100% certain
(Miller v. Minister of Pension)
STANDARD OF PROOF: Balance of
probabilities (PP v. Yuvaraj, Goh Yoje
v. PP) -> Reasonable degree for
criminal cases is higher than civil cases
(Miller v. Minister of Pension)

Establishment of a prima facie case

(s.173(h)(iii) and s.180(4) CPC) results If the court finds the accused indeed
in the accused being called to enter guilty, he shall be convicted
his defense (Ahmad Najib Aris v. PP (s.182A(2) CPC) but if he's innocent,
[2007]) he shall be acquitted (s.182A(3) CPC)

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GENERAL DEFENCES
Used by an accused to defend himself against a criminal charge to prove that even if he did commit a
crime, he had no mens rea (intention) to do so in the first place as found in Chapter IV of the Penal
Code (s.76-106). Successful defense = acquittal & no mens rea.

MISTAKE

•s.79 Penal Code - any crime done

by any person that is believed to
be justified by law and performed
in good faith (s.52 - "with due
DEFINITION care") by the criminal.
•'ignorantia juris non excusat' -
only mistake of fact can be used
as a defense, NOT MISTAKE OF
LAW.

•The criminal act must be induced by

mistake.
•The mistake must be of fact, not
law.
CONDITIONS •The mistake is made in good faith.
•The accused must mistakenly
believe that he is justified by the
law.

•Chirangi v. State of Nagpur AIR

The former Vice President of the [1952] - Accused killed his son (who
United States, Dick Cheney he thought was a tiger) - he had
bilateral cataract and his mind was
accidentally shot his friend (non-
fatal) during a hunting trip in 2006.
CASES LAW affected by a leg abscess.
•HELD: Conviction was overturned;
the defendant accidentally killed his
son as a mistake of fact.

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ACCIDENT

DEFINITION: A criminal offense performed by

accident, without any intention while doing a lawful
act, with proper care and caution (s.80 Penal Code).

Oxford's geniuses say: "an unfortunate incident that

happens unexpectedly and unintentionally, typically
resulting in damage or injury,"

"SPIDEY ACCIDENTALLY KILLED GWEN,
WHILE TRYING TO RESCUE HER," (THE
AMAZING SPIDERMAN 2)
CONDITIONS:
- Alleged criminal act is the result of an accident.
- The accident causing act was done with no criminal
intention.
- The alleged act was lawful and performed lawfully.
-The act had been done with proper care and
caution (no negligence).

LA ODE ARDI RASILA V. PP (2015) HW SMITH V. EMPEROR (1933)

Armed robbery is A ma n hit & run 2

NOT A LAWFUL cool ies, sleeping
ACT -> pl ea of on the road w/
defence of bl ankets at night -
a cci dent was defense of
REJECTED. a cci dent was
ACCEPTED.

TUNDA V. REX, AIR (1950) KING EMPEROR V. TIMMAPPA (1901)

Dea th during a Accus ed

wres tling match = a cci dentally s hot
the i njury & ki lled his friend
s uffered was whi le hunting for
accidental, there porcupines - NOT
wa s no cri minal A MURDER on
i ntent. a ppeal (accident).

JAGESHAR (1923)

The a ccused tried

to hi t a woman
but hi t a baby
i nstead (died) -
NO ACCIDENT -
a ct wa s unlawful
i n the 1st place.

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NECESSITY
An offence by reason of its being done, with the knowledge that it is likely to cause harm
NECESSITY to others but would've provided greater harm if it had not been committed. (s.81 Penal
Code)

Defence of necessity arises, when an accused DELIBERATELY BREAKS THE LAW, but claims
that it was necessary for him to do so, in order to avert some greater evil.

R v. Dudley & Stephens (1884)

Cannibalizing someone is murder, as the necessity of hunger does not justify theft, much
less murder. The accused were given the death penalty.

PP v. Ali bin Umar [1982]

The magistrate held that since the boat carrying tin-ore (without the Customs' permission)
was in transit and only entered Malaysian waters due to a broken rudder, the accused had
no intention to smuggle tin-ore and therefore did not commit any offense.

DURESS

Only applicable under situations like

this.

s.94 Penal Code - criminal

offences are not considered
so if done under threat of
instant death, EXCEPT for
crimes against the state AND
crime punishable by death.

Threat of instant death must

Mohammad Yusof Hj Ahmad v. PP be imminent and persistent
[1983] - Defense of duress (for
tra fficking drugs) was REJECTED, at all times during the
threa tener had been 20 feet a way DURESS criminal act to the crime
a nd the a ccused had time to alert the performer himself, not even
pol ice but didn't do s o.
his loved ones.

Chu Tak Fai v. PP (1998) - Defense of

duress was REJECTED -> threat was
NOT IMMINENT = the threatener was
not even present at the crime scene,
the a ccused had plenty of time to
es cape but didn't.

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INTOXICATION

Refers to the effect of the intake of intoxicating substances such as drugs/alcohol/other intoxicating
substances.

Accused must be
in a state of
intoxication.

Accused (due to CONDITIONS The state of

intoxication)
does not know FOR DEFENSE intoxication
occurred without
that his actions
were against the OF his consent
(involuntary).
law. INTOXICATION

The state of
intoxication
rendered him
insane/his mind
unsound.

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Occurs when a person consumes

intoxicating substances without their
knowledge, often from others' malicious
intent (they themselves had no malicious
intent/intent to take the substance).

Found under Section 85(2)(a) of the

Penal Code.

Usually results in instant acquittal (under

Section 86(1) of the Penal Code), since
the accused has no mens rea and any
criminal actions occurring while
intoxicated can be linked to unsoundness
of mind (Section 84 of the Penal Code).

The accused deliberately intoxicates

himself with an intoxicating
substance voluntarily, including
situations to provide them with more
courage. (section 85(2)(b) PC).

s.85(1) PC - Normally, voluntary

intoxication is not a valid form of
general defense.

AG for Northern Ireland v. Gallagher

[1963] - The accused drank to
provide himself with 'Dutch courage'
to kill his wife.
HELD: Defense rejected, drunken
intent = mens rea = intent =
criminally liable.

PP v. Mohd Nor Riza Mat Tahar

[2011] - voluntarily ingesting beer
before committing a crime = drunken
intent = mens rea = intent =
criminally liable.

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NEW! (TO BE INTEGRATED INTO NEXT SEM’S CURRICULUM, BY MADAM JUSNIZA)

HOWEVER, even in the case of voluntary intoxication, if the effect of intoxication was such that he
was totally insane while intoxicated, to the point of his mind being totally unsound when
committing a criminal act under said intoxication, he can be acquitted (except for drunk driving,
which cannot use this defence because drunk driving -> SLO -> no mens rea needed, actus reus is
enough for criminal liability).

VOLUNTARY
INTOXICATION
(s.85(2)(b) Penal
Code)

ACQUITTAL
(under
unsoundness
of mind, s.84
Penal Code)
TOTAL
INSANITY,
CAUSED BY SAID
INTOXICATION
(s.85(2)(b) Penal
Code)

• Accused consumed alcohol • Accused had been voluntarily

before murdering someone and intoxicated when committing
pleaded for insanity. the particular crime.
• The court acquitted him under • Defense counsel successfully
s.84 Penal Code on grounds of used the general defense of
unsoundness of mind (his total insanity.
insanity was caused by the • Accused was acquitted.
intoxicating effect of the
alcohol).
PP v. Kumaran
PP v. Tan Ho
a/l Kunchi
Teck [1988]
Raman [2008]

TIPS: In PBQs, intoxication is always twinned with unsoundness of

mind = explain in-depth about intoxication ONLY for Law (ILAC)
and based on the facts of the case, state whether defense is
successful and can plead under unsoundness of mind (s.84) -
conclusion – acquitted or not, based on unsoundness of mind.

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UNSOUNDNESS OF MIND

s.84 Penal Code: Any criminal offense that is

committed by a person who is of unsoundness mind,
incapable of knowing the nature of the or realises
that his action breaks the law = not an offense.

Test for unsoundness of mind: McNaghten's Rules:

i) i. everyone is presumed sane until the contrary is
proven (similar to 'innocent until found guilty')
ii. Legal insanity only exists if the person indeed
does not know that his act was wrong (with
supporting witnesses' testimony)

Proven by R v. McNaghten [1843]: The accused had

murdered the PM's private secretary (he actually
targeted the PM himself, Robert Peel), he had been
under the delusion that Peel had injured him.
HELD: McNaghten was acquitted on grounds of
insanity.

Syahmie bin Hassan v. PP [2017] - accused

attempted to plea under unsoundness of mind -> his
facts (hiding deceased's body inside a mattress,
attempting to escape from the town after murder)
pointed to premeditated murder -> Appeal rejected,
accused convicted.

Successful plea for unsoundness of mind =

ACQUITTAL + ADMITTANCE INTO A MENTAL
INSTITUTE FOR TREATMENT (JUSOH V. PP, 1963)

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PRINCIPLES OF SENTENCING

DEFINITION: the final stage

of a criminal trial after the The law does not impose a Rather, only the max and
accused has pleaded guilty fixed sentence for each min. sentence are fixed (see
or has been convicted of a crime. Penal Code).
crime.

It is within the court's Aggravating & mitigating

discretion to impose any factors will be considered by
sentence within the the courts before
permitted rnage. sentencing.

AIMS OF SENTENCING

RETRIBUTION FOR: DETERRENCE

➔ Victim’s death ➔ Individual
RETRIBUTION (for family) deterrence DETERRENCE
➔ Public ➔ General (public)
vengeance deterrence

AIMS OF
SENTENCING

TEMPORARY Must suit the offender’s

INCAPACITATION: Prison character to reform him so
INCAPACITATION that he can resume his REHABILITATION
PERMANENT
normal, useful role in
INCAPACITATION: Death
society (Lim Yoon Fah v. PP
penalty
[1971]

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