LAW505

CRIMINAL LAW I

STUDENT’S NAME:
NURIN AMANI BINTI SUHAIMI

STUDENT’S NUMBER:
2020471096

TUTORIAL GROUP:
LWB03G

LECTURER’S NAME:
DR. AHMAD RIDHWAN BIN ABD RANI

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ANSWER FOR QUESTION 1:

ISSUE:
Whether Jebat can rely on the private defence of body and private defence of property for
causing the death of the three men.

LAW:
Section 96 of Penal Code states that, nothing is an offence which is done in the exercise
of the right of private defence. A person attacked need not run away. He is justified in law if he
retaliates and mounts a counter-attack provided that the injury he inflicts in self defence to his
assailants must not be disproportionate to the injury with which he is threatened. Section 97
states that every person has a right, subject to the restrictions contained in Section 99, to defend
(a) his own body, and the body of any other person, against any offence affecting the human
body; (b) the property, whether movable or immovable, of himself or of any other person, against
any act which is an offence falling under the definition of theft, robbery, mischief or criminal
trespass.
Section 99 states about the restrictions on the exercise of the right of private defence,
which are, firstly, by a public servant acting under colour of his office, secondly, by a person
acting under directions of a public servant, thirdly, when there is time recourse to public
authorities and fourthly, there should, in exercise of the right, the causing of no more harm than
is necessary. Third and fourth restrictions can be applied in this case.
For Section 99(3) to be applied, case Public Prosecutor v Ngoi Ming Sean [1982] 1
MLJ 24 can be referred, which stated that there is no such right when the person has time to
recourse to seek the protection of the public authorities. Another case is Public Prosecutor v
Morzuki Salleh [2004] 5 CLJ 127. The accused was charged for murder. There were two
incidents. The first incident was a quarrel between the accused and the deceased. The second
incident occurred half an hour later when the deceased and his brother searched for the accused.
On locating him, they attacked him with a parang and a chair. During the fight, while the deceased
was making an attempt to slash the accused, it was the accused that stabbed the deceased with
a knife, resulting in the death of the latter. It was contended that the accused, after the first
incident, had time to recourse to the public authorities and that because of this, the accused could
not avail of the defence of self-defence. The court, however, held that it was not the accused who
was dissatisfied and that when he was attacked, he had no prior knowledge or expected that the
deceased and his brother would search for him after the first incident. Although connected with

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the first incident, the right of private defence did not arise before the second incident occurred.
When the second incident occurred, the accused had no opportunity to escape. He was then
attacked and when the deceased attempted to slash him after he had fallen, the accused had no
other choice but no stab the deceased in order to prevent the deceased from attacking him. It
was held that the accused had properly exercised his right of self-defence.
For Section 99(4) to be applied, Public Prosecutor v Halim Din [1999] 4 CLJ 15 also
shall be applied. The respondent was charged for murder. The deceased had been part of an
anti-vice team from an Islamic Religious Council which had, at about 2.00 am, raided the house
that the respondent was visiting. In trying to escape, the respondent, a police inspector,
discharged his weapon killing the deceased. The respondent’s defence was two-fold, one of
which was that he acted in self defence thinking that members of the anti-vice team were local
gangsters. The Court of Appeal, however, ruled that even if the defence of self defence was
justifiable, the accused had exceeded the use of reasonable force by using his gun against a
man armed only with a piece of wood.
Under private defence of person, Section 100(a) of the Penal Code shall be applied. It
states, the right of private defence of the body extends, under the restrictions mentioned in the
last preceding section, to the voluntary causing of death or of any other harm to the assailant, if
the offence such an assault as may reasonably cause the apprehension that death will otherwise
be the consequence of such assault. Assault is defined under Section 351, which states,
whoever makes any gesture or any preparation intending or knowing it to be likely that such
gesture or preparation will cause any person present to apprehend that he who makes that
gesture or preparation is about to use criminal force to that person is said to commit an assault.
The right of private defence commences as soon as a reasonable apprehension of danger
to the body arises from an attempt or threat to commit an offence, though the offence may not
have been committed as stated under Section 102. The offender must have reasonable
apprehension of danger to his body. By referring to the case R v Josiah Onyeamaizu (1958)
AIR 1958 NLR 93, the Nigerian Penal Code states that it is to be observed that the defence of
self-defence is only available if there is a reasonable apprehension of death or grievous harm
and if the person who claims to have exercised that right had reasonable grounds for believing
that the only way to protect himself from death or grievous harm was to kill his assailant. In R v
Cumming (1891) SLR (NS) 41, the accused was acting in what he presumed to be the defence
of his friend.
Private defence of property can be applied in this case as referred to Section 97(b) of the
Penal Code. Section 103(b) states the right of private defence of property extends to the causing

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of death or of any other harm to the wrongdoer, if the offence if house-breaking by night. Section
105(5) than states the right of private defence commences when a reasonable apprehension of
danger to the property commences and it continues in house-breaking by night, so long as house
trespass which has been begun by such house-breaking continues. In Mohd Rafi v Emperor
AIR 1949 Lah 375, a party of persons including the deceased had approached the accused’s
house in a threatening manner while armed with deadly weapons. At the same time, they were
shouting out threats of setting fire to the house. But they had neither torches nor inflammable
materials nor there was any attempt made of any kind to set fire. The accused who was standing
in front of his house, shot and fatally wounded the deceased at a distance of 10 to 14 feet while
the man was advancing towards him. The court, in allowing the appeal, stated; In the
circumstances whether the party of Ibrahim numbered five, as the prosecution witness alleges,
or seven, as the defence alleges, it is almost certain that some of them at any rate were armed
with deadly weapons, and their advance in a threatening manner must undoubtedly be held to
have given rise in the mind of the accused to a reasonable apprehension that he was about to
sustain grievous injury at their hands, and it must accordingly be held that in firing his gun so as
to cause fatal injuries to Ibrahim he did not exceed the right to defence of the body.
In Kabiruddin v Emperor (1905) 35 Cal LJ 79, it was decided that where a person prefers
to use force in order to protect the property when he could, for the protection of such property,
easily have recourse to the public authorities, the use of force is made punishable by the Indian
Penal Code. By referring to Punjabrao v King-Emperor AIR 1945 Nag 269, a dispute arose
between the accused and the victim over some property. The victim and her friends had cut crops
in two of the disputed fields. When he heard this, the accused and his friends armed themselves
and went to the market where they attacked the victim’s party. The court observed: Under Section
105 the right of private defence or property against theft continues till the offender had affected
his retreat with the property or either the assistance of the public authorities is obtained or the
property is recovered. The fight took place at about 2 pm or perhaps a little earlier at the orange
market which is 3 to 4 furlongs or about 10 minutes’ walk from the police station-house. The
learned Magistrate of the Appellate Court was entirely right, in my opinion, in his view that if the
accused had time to call his followers to go to the orange market to waylay the victim’s party, he
could also have had time to go to the station-house and ask for police assistance. I therefore
agree that there was no right of private defence in his case.

APPLICATION:

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 By referring to Jebat’s situation, Section 96 of the Penal Code shall apply as it is true this
case is under private of defence as it only involved Jebat and his family. For private defence of
person, Section 97(a), Section 100(a) can be applied in this case and also Section 352. It is
because, the apprehension that death will be the consequence of the assault by the three men
as Jebat saw that they were armed with a parang, a knife and a chisel. Referring to Section 102
of the Penal Code, a reasonable apprehension of danger to the body of Jebat may arises from
an attempt or threat to commit an offence, though the offence may not have been committed as
the three men were armed with a parang, a knife and a chisel. A reasonable man when saw
someone who trying to breaking the house and bring a parang, a knife and a chisel would assume
that he or she are in danger. Thus, this section applied as referred to the case of R v Josiah
Onyeamaizu (1958) AIR 1958 NLR 93. For the situation where Jebat wanted to protect his
family, his wife, Semah, can be referred to the case of R v Cumming (1891) SLR (NS) 41. A
reasonable man will do anything in order to protect his family.
For private defence of property, Section 97(b) should be applied. As stated under Section
103(b), Jebat’s situation was a house-breaking by night as he noticed that the three men breaking
open the door and about to enter his house. According to Section 105(5), the reasonable
apprehension of danger to the Jebat’s property did not happen as when the three men enter his
house, Jebat fired three shots at them aiming the chest and head in a close-range shooting that
resulted of killing all of them immediately. It is instant death. It can be referred to the case of
Mohd Rafi v Emperor AIR 1949 Lah 375. By referring to Kabiruddin v Emperor (1905) 35 Cal
LJ 79, where a person prefers to use force in order to protect the property when he could, for the
protection of body, easily have recourse to the public authorities, the use of force is made
punishable. Jebat preferred to fired three shots to the three men while he could call for the police
or any other person and stay hidden from them for a while, while waiting to be saved. Thus, there
is no right of private defence of person against Jebat while for the private defence of property,
Jebat has the right as he wanted to protect his property in this situation as referred to Punjabrao
v King-Emperor AIR 1945 Nag 269.
Section 99 states the restrictions on the exercise of the right of private defence which it
can be seen in Jebat’s situation, Section 99(3) and (4) can be applied. Jebat has no right to
claim under private defence as at the time the three men attempted to robber his house, he had
the time to recourse to seek the protection of the public authorities. Even though he could not
call for help as his house was very far away from other house, he can call the public authorities
for help and waited for them to come as referred to the case of Public Prosecutor v Ngoi Ming
Sean [1982] 1 MLJ 24 and Public Prosecutor v Morzuki Salleh [2004] 5 CLJ 127. As for

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Section 99(4), there should, in exercise of the right, the causing of no more harm than is
necessary, Jebat’s situation did not need to cause harm by fired three shots at the three men
aiming the chest and head as the three men did not yet robber his house at that time. It caused
to instant death as he aimed at the right place in order to kill them. He may aim at another part
of body, like the leg, but he aimed right at the chest and head which can caused instant death. It
can be referred to the case of Public Prosecutor v Halim Din [1999] 4 CLJ 15.

CONCLUSION:
In conclusion, Jebat can rely on the private defence of property, but cannot rely on private
defence of body for causing the death of the three men.

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ANSWER FOR QUESTION 2:

1ST ISSUE:
i) Whether Abul, Lutfi and Zuri are entiled for attempted robbery.

1ST LAW:
Criminal liability is only incurred when the accused, in behaving in a particular way, causes
by his act, a particular event or result. However, in terms of punishments, this cannot be limited
to only those who successfully cause a specified harm. This is because, the accused who tries is
in as much need of incapacitation and rehabilitation as one who does succeed. The offence of
‘attempt’ is such an offence. No exhaustive precise definition of what would amount to an attempt
to commit an offence is possible. Whether a certain act amounts to an attempt to commit a
particular offence is a question of fact dependant on the nature of the offence and the steps
necessary to commit it. The offence of attempt is an incomplete crime in that liability is incurred
although the act has not reached fruition with the achievement of the intended event or result.
Section 393 of the Penal Code states that, whoever attempts to commit robbery shall be
punished with imprisonment for a term which may extend to seven years, and shall also be liable
to fine. Section 391 states, when two or more persons conjointly commit or attempt to commit a
robbery, or where the whole number of persons conjointly committing or attempting to commit a
robbery, and of persons present and aiding such commission or attempt, amount to two or more,
every person so committing, attempting, or aiding, is said to commit “gang-robbery”. Section
307(1) provides that whoever does any act with such intention or knowledge and under such
circumstances, that if he by that act caused death, he would be guilty of murder, shall be punished
with imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Illustration (b) says, A, with the intention of causing the death of a child of tender years, exposes
it in a desert place. A has committed the offence defined by this section, though the death of the
child does not ensue. Section 397 states, if at the time of committing or attempting to commit
robbery, the offender is armed with or uses any deadly weapon, or causes grievous hurt to any
person, or attempts to cause death or grievous hurt to any person, such offender shall be liable
to be whipped, in addition to any other punishment to which he may be liable under any other
section of the code.
There are four stages of an offence in every crime. Firstly, an intention to commit the
offence, mens rea. The mere forming of an intention to commit a crime and the making of
preparation for its commission are not criminal acts and are not punishable under the law. By

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referring to Houghton v Smith (1975) AC 476 Hailsham LC stated, there is a distinction between
the intention and an attempt to commit it. In addition to intention, there must be an overt act of
such a kind that it forms part of a series of acts which would constitute the offence if not
interrupted. The act constitute attempt must not be a preparatory, but must bear a relation as
being immediately connected with the completed offence. In Maharashta v Mohd Yakub (1980)
SCC (Cri) 513 it was stated that to constitute an attempt that there must be an intention to commit
a particular offence, some act must have been done which would necessarily have to be done
towards the commission of the offence and such act must be proximate to the intended result.
The measure of proximity is not in relation to time and action but in relation to the intention, ie it
must be indicative or suggestive of the intention.
Secondly, the preparation for its commission. Preparation for and an attempt to commit
an offence must be distinguished. A thin line exists between preparation and an attempt. In Arjan
Singh v Public Prosecutor [1948] MLJ 73, it was stated that in relation to the offence of
extortion, in putting another person in fear of an injury and similarly to support a conviction for
attempted extortion, the intending extortioner must have done the act with that intention. The fact
that a letter was found was insufficient. There was no evidence of any attempt to transfer it by
any means to the addressee (victim). The mere act of writing and retaining a letter is not an
attempt to commit extortion but at most, a preparatory step towards the commission of the
offence.
Thirdly, the attempt to commit it, the actus reus. Mens rea for an attempt was affirmed in
the case of State of Maharashtra v Balram Bama Patil & Ors: (1938) 2 SCC (Cr) 320, AIR
1983 SC 305. What the court has to see is whether the act, irrespective of its result, was done
with the intention or knowledge and under the circumstances mentioned in this section. An
attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is
present an intent coupled with some overt act in execution thereof.
Fourthly, the actual commission of the offence. What amount to attempt is the further overt
act on the part of the offender which is directed towards the actual commission of the crime,
immediately and not remotely connected with the crime. If the attempt succeeds, the crime is
completed and the offender will face a change for the substantive offence. On the other hand, a
crime is not complete if something should happen when the attempt to commit it is being made,
the offender is liable for an attempt.

1ST APPLICATION:

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 In this situation, it showed that there is an attempt by Abul, Lutfi and Zuri to rob Jaguar
Bank Berhad at section 14 Shah Alam as they are friend with Zunaidi, the planner of the robbery.
And this robbery is considered as gang-robbery as stated under Section 391 of the Penal Code.
According to illustration (b) of Section 307(1), Abul, Lutfi and Zuri is still liable under this section
even though there is no death of the victims, but, according to the plan, they would be armed with
Glock G45 pistols, which may result in shotting someone, the death of someone. Referring to
Section 397, Zuri may be liable to be whipped as he wanted to shot Daud, who tried to switch on
the panic button which was in direct connection with the nearest police station, even though the
shot had missed the target.
There are four stages of an offence in every crime. Firstly, the intention, mens rea. There
is the intention by Abul, Lutfi and Zuri in attempting the robbery by referring to Houghton v Smith
(1975) AC 476 Hailsham LC. According to Maharashta v Mohd Yakub (1980) SCC (Cri) 513,
there is the intention to commit the robbery and they done as command by Zunaidi, that have 50
years of experience in bank robbery where they disarmed the security guards and forced the bank
manager to open the bank’s safe. As for the proximity to the intended result, they failed it.
Secondly, the preparation for its commission can be referred to Arjan Singh v Public
Prosecutor [1948] MLJ 73, Abul, Lutfi and Zuri had prepared the robbery before the robbery
happened, by referring to the meticulous plan out of friendship made by Zunaidi.
Thirdly, the actus reus, which is the attempt to commit it. They attempt to rob Jaguar Bank
Berhad, but failed to do so as the alarmed was triggered and being caught by the police. It can
be referred to the case of State of Maharashtra v Balram Bama Patil & Ors: (1938) 2 SCC (Cr)
320, AIR 1983 SC 305.
Fourthly, the actual commission of the offence were success as Abul, Lutfi and Zuri
followed the instructions according to the plan they made. Thus, they are liable for attempt under
Section 393 of the Penal Code, which resulted to imprisonment for a term which may extend to
seven years, and shall also be liable to fine for attempt to commit robbery.

1ST CONCLUSION:
In conclusion, Abul, Lutfi and Zuri are entitled for attempted robbery as stated under
Section 393 and 391 of the Penal Code.

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2ND ISSUE:
ii) Whether Zunaidi and Rustam are entitled for criminal conspiracy and abetment.

2ND LAW:
Referring to Mrs Kok Wee Kiat v Kuala Lumpur Stock Exchange Bhd & Ors [1979] 1
MLJ 71, conspiracy can be defined as, ‘to consist of… agreement of two or more to do an unlawful
act or to do awful act by unlawful means. Section 120A of the Penal Code states, when two or
more persons agree to do, or cause to be done an illegal act, or an act, which is not illegal, by
illegal means, such an agreement is designated a criminal conspiracy. Provided that no
agreement except an agreement to commit an offence shall amount to a criminal conspiracy
unless some act besides the agreement is done by one or more parties to such agreement in
pursuance thereof. Illustration (a) of this section states, if A and B agree to embark on a bombing
campaign throughout Malaysia, and either one of them commits an act in furtherance of the
agreement such as acquiring Ammonium Nitrate fertilizer or other bomb making components,
they will each be guilty of conspiracy to cause explosions even though no bombing targets were
identified and no bombing was actually attempted. Section 107(b) states that a person abets the
doing of a thing who engages with one or more other person or persons in any conspiracy for the
doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and
in order to the doing of that thing.
The offence of conspiracy is complete when two or more conspirators have agreed to do
or cause to be done an illegal act, which is itself an offence though the agreed illegal act has not
been done. There must be a meeting of minds in the doing of the illegal act or the doing of the
legal act by illegal means. The gist of the offence is the ‘agreement’ to break the law’. As stated
under Yash Pal v State of Punjab (1978) Cr LJ 189, the ‘agreement’ is the ingredient of the
offence. The actus reus is the agreement to commit the offence. It comprises the agreement to
commit the act and in addition, there must be established the commission by one of the parties
to the agreement, of some act pursuant to the agreement. The mens rea of the offence is reflected
in the intention of the parties that the agreement should be carried out. It is reflected in the
intention of the parties that the agreement should be carried out. The requirement is that the
conspirators intend to commit the offence does not mean that each conspirator must intend to do
those acts that would constitute the complete offence. What is necessary is that at the time of the
agreement, each conspirator should intend that the crime be committed and that he would fulfil
his role in their agreement, even if that role is no more than agreeing that the crime is committed
by another.

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 Abetment is a process by which one or more person engage for commission of an offence.
There are three forms of the abetment as stated under Section 107, abetment includes
instigating, engaging with one or more persons in any conspiracy and an act or illegal omission
takes place because of the conspiracy and aiding. Explanation 3 then states that whoever
masterminds the doing of an act is said to command the doing of that act.
The word ‘instigate’ was stated does not merely mean the placing of temptation to do a
forbidden thing but actively stimulating a person to do it. Instigate was said to mean goad, or urge
towards or to provide, incite, urge or encourage to an act referring to Parimal Chatterji v
Emperor (1932) 60 Cal 327. Instigation can consist of acts which amount to active suggestion or
support or stimulation for the commission of the main act or offence. Advice can also become
instigation if that advice was meant to actively suggest or stimulate the commission of the offence.
Section 108 Explanation 2 makes clear that the actus reus of abetment by instigation is complete
as soon as the abettor has instigated the person abetted to commit the crime whether the latter
consents or not or whether, having consented, he commits the crime or not. In abetment by
instigation, the offence depends on the intention of the abettor and not an act which is to be done
by the person who he abets. Faguna Kanta Nath v State of Assam AIR 1959 SC 673 states
that, it was observed that it was immaterial whether the person instigated commits the offence or
not or the persons conspiring together actually carry out the object of the conspiracy under
Section 107(b). However, in relation to Section 107(c), it must be shown that the unlawful act has
been committed.
Liability of the abetment by conspiracy is only incurred when there is the engagement with
one or more persons in any conspiracy for the doing of a thing and further, an act or illegal
omission takes place in pursuance of the conspiracy and in order to the doing of that thing.
“Agreement of persons to do some illegal act or purpose by illegal means”, as referred to PP v
Datuk haji Harun Idris & Ors (1977) 1 MLJ 180. Abetment by conspiracy requires knowledge of
the abettor that he is engaged in a conspiracy to do a thing by an act or illegal omission. It is not
necessary that all co-conspirators should be equally informed as to the details of the conspiracy
but they must be aware of the general purpose of the plot and also that it was unlawful. In PP v
Datuk Tan Cheng Swee & Ors (1979) 1 MLJ 166, it states that abetment by conspiracy there
must be evidence of an agreement to do some illegal act or to affect a legal transaction by illegal
means. The essential elements of abetment by conspiracy are, firstly, the person abetting must
engage with one or more persons in a conspiracy, secondly, the conspiracy must be for the doing
of the thing abetted, and thirdly, an act or illegal omission must take place in pursuance of the
conspiracy in order to the doing of that thing.

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2ND APPLICATION:
Referring to Mrs Kok Wee Kiat v Kuala Lumpur Stock Exchange Bhd & Ors [1979] 1
MLJ 71 and Section 120A of the Penal Code, it is true that Zunaidi and Rustam is entitled for
criminal conspiracy as they made agreement together with Zuri, Lutfi and Abul in order to do an
unlawful act, which is robbery. By referring to illustration (a) of Section 120A, Rustam is also
entitled for criminal conspiracy, even though in the agreement between them, he would only stay
inside the car waiting for them to run away after having got the money and the act to do so did
not include robbery, he will be guilty. Referred to Yash Pal v State of Punjab (1978) Cr LJ 189.
The offence of conspiracy is considered complete as there are more than two conspirators that
agreed to do an illegal act. Actus reus of the agreement stated to rob Jaguar Bank Berhad at
section 14 Shah Alam is to commit the offence. The offence was successfully been committed
as three of them, Zuri, Lutfi and Abul managed to open the safe and put the money in the two
bags that they brought with them. As for the mens rea, the intention of the parties, whose are
Zunaidi, Rustam, Zuri, Lutfi and Abul are stated as they went into the Jaguar Bank on the agreed
date. At the time of the agreement, each of them intends that the robbery committed and that
they would fulfil his role in their agreement.
According to Section 107(b) of the Penal Code, Zunaidi and Rustam are entitled under
abetment as in Explanation 3, it referred to Zunaidi, the mastermind of the robbery. Instigation
shall be applied towards Zunaidi as he drafted the meticulous plan out of friendship between
them. It can be referred to Parimal Chatterji v Emperor (1932) 60 Cal 327 and Section 108
Explanation 2. The unlawful act, which is robbery, has been committed even though they been
caught by the police at the end, according to Faguna Kanta Nath v State of Assam AIR 1959
SC 673.
Liability of the abetment by conspiracy also incurred in this case as there is that
engagement with more than one person in the conspiracy. It can be seen in PP v Datuk Haji
Harun Idris & Ors (1977) 1 MLJ 180. Abetment by conspiracy requires knowledge of the abettor,
Zunaidi that he is engaged in the criminal conspiracy between them to rob the bank. Even Rustam
not the abettor, but, he aware of the general purpose of the plot and it is also considered unlawful.
For the effect of the abetment, referring to PP v Datuk Tan Cheng Swee & Ors (1979) 1 MLJ
166, the evidence of the agreement to rob the bank is when they went into the Jaguar Bank and
being caught by the security guard and also the police. The illegal means referred to the Glock
G45 pistols that they brought. According to the essential elements, Zunaidi abetted engage with
more than one person as they are five of them. First element is satisfied. As for the second

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element, the conspiracy that they made are for the doing of the thing they abetted, which is,
robbery, also satisfied. Third element also been satisfied as the illegal omission take place in
pursuance of the conspiracy, which is the Jaguar Bank Berhad.

2ND CONCLUSION:
In conclusion, Zunaidi and Rustam are entitled for criminal conspiracy and abetment.

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__________________________

Name: NURIN AMANI BINTI SUHAIMI

Matric Number: 2020471096
Programme code: LW224

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