ANSWER SHEET

Student ID 1181301587 Subject Code UCR2612

Lecture Section L2 Lecturer Name DR FLORA/MS ELIYA

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Q1.
The cardinal principle of a criminal liability is that, both actus reus and mens rea must be
present. This is in accordance with the maxim actus non facit reum nisi mens sit rea which
gives the meaning, a person is not guilty of an act unless the act was done with a guilty
mind. Actus reus is defined as committing a forbidden act or committing that which causes
a result prohibited by law while Mens rea is an accompanying blameworthy state of mind.
Generally, in order for criminal liability to occur, there must be an act causing an effect

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Student ID 1181301587 Subject Code UCR2612

Lecture Section L2 Lecturer Name DR FLORA/MS ELIYA

prohibited by law coupled with the state of mind at the time of the harmful act. As such, it
is a requirement that actus reus and mens rea must coincide to create a criminal liability.
The approach strictly applies the cardinal principle that actus reus and mens rea must
coincide to attract liability. This strict approach is further illustrated in the case of Queen
Empress v Khandu Valad where in this case, the victim, which is the accused’s father in
law was struck on the head with a three blow by the accused. The accused then placed
firewood under the victim’s head and set a fire to the hut in order to cover the death of the
victim. Upon investigation, a post mortem reports showed that the cause of the victim
death was due to the injuries from the burning and that the blows on the head was only
amounted to an attempt of murder. Thus it was held by the court that the accused cannot be
charged with murder as his intention did not coincide with the act of setting fire to the hut.
The same approach can be seen applied in the case of Palani Goundam v Emperor, where
the accused in this case struck his wife’s head until she lost consciousness. While believing
his wife to be dead, the accused hung her by means of rope to fake her death by making it
looks like a suicide. The court held that the intention of the accused must be judged in the
light of what he supposed to be the circumstances. as such, a man is not guilty of culpable
homicide if his intention is directed towards what he believed to be a lifeless body.

These two cases implicates that for a criminal liability, it is strict that both Actus reus and
mens rea must coincide. However, there is an exception to the strict approach. This
exception is further illustrated in the case of Fagan v Metropolitan Police Commissioner.

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Student ID 1181301587 Subject Code UCR2612

Lecture Section L2 Lecturer Name DR FLORA/MS ELIYA

In this case, what happened was that Fagan had accidentally driven onto a policeman’s foot
while parking his car. At this stage there was no mens rea. The policeman then shouted at
Fagan to move the car off his foot at which Fagan refused to and later was convicted of
assaulting a police officer. Fagan contended that there cannot be an offence in assault in
omitting to act and that it was accidental, thus he lacked the mens rea when the act causing
damage had occurred. He contended that for assault, both mens rea and actus reus must be
established at the same time. The Court held that the actus reus continued until the car was
driven off the foot. By stretching the actus reus to cover the refusal to move the car, the
actus reus and mens rea did coincide. The implication of the principle in Fagan’s case now
treats the actus reus as one continuous transaction until there is presence of the required
mens rea. This is the exception of the Extended Act to the strict approach. A provision in
our Penal code also demonstrates the principle in which Section 33 of the Penal Code
states that “act” denotes a series of acts as well as a single act. As such, referring to
Fagan’s case, even though actus reus and mens rea did not coincide during the wrongful
act, the court will still look at the circumstance in which where there were a series of
wrongful acts took place, the court will stretch the actus reus to cover the wrongful act and
therefore, the mens rea and actus reus did coincide.

The implication of Fagan’s case can also be seen in the case of Shaiful Edham bin Adam
v PP where the accused in this case stabbed the victim and believing her to be dead, he
then threw the victim into a canal. The autopsy report shows that the real cause of death of

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Student ID 1181301587 Subject Code UCR2612

Lecture Section L2 Lecturer Name DR FLORA/MS ELIYA

the victim was drowning and not due from the stab wound inflicted. The accused argued
using the Coincidence principle to escape liability that his mens rea and actus reus did not
coincide. The court rejected his argument and held that a series of act may in some
circumstances be regarded as forming part of a larger transaction. Thus it is observed that
as long the accused has the mens rea at any duration during the continuing act or larger
transaction, it is sufficient to make the accused liable for the offence.

In conclusion, the court applied Fagan’s approach so that the accused will not escape his
liability just because actus reus and mens rea did not coincide. Therefore, by considering a
series of wrongful acts as one continuing act or as an extended act, it allows the mens rea
to be present at any duration during the continuing act, thus the accused will never be able
to escape his liability of his wrongful doing or crime.

Q2. (a) Whether the taxi driver can be liable for causing injuries to Gabby under the
principle in R v Smith?

In this case, the taxi driver had stabbed Gabby and being charged for murder under Section
302 of the Penal Code and he claimed that he should not be liable since she died after
being treated by a doctor who provided wrong medication. To give rise to criminal liability,

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Student ID 1181301587 Subject Code UCR2612

Lecture Section L2 Lecturer Name DR FLORA/MS ELIYA

it is not sufficient that the accused had a culpable state of mind and it must be proved that
the crime was caused by some conduct on his part. In determining the legal causation, the
act must have been a substantial and operating cause. Break a chain in causation means
that the accused will not be liable for the crime if the sequence of cause and effect set in
motion by his or her act is interrupted by another extraneous cause. However, to prove
there is a break chain in causation there must be something unreasonable and extraneous.
In the case of R v Smith, the defendant stabbed the victim who was dropped twice on the
way to the medical centre. The treatment given was described as palpably wrong. The
court held that the stab wound was an operating cause of the victim’s death and it did not
matter that it was not the sole cause.

In application, wrong medication treatment will not necessarily break a chain of

causation. In this situation, the initial cause is the taxi driver stabbed Gabby and due to that
Gabby death resulted from the original wound not from the wrong medication treatment.
The taxi driver's act will remain as an operative cause. In fact, if an initial cause continues
to be a significant cause when the prohibited outcome occurs, it is said to be the cause of
the outcome, even if other causes are acting in the same direction, unless the subsequent
causes are "overwhelmingly" to blame. Hence there is no break a chain in causation
because at the time of Gabby’s death, the stabbing was still an operating and substantial
cause. Therefore, the taxi driver could be liable for murder under section 302 of the Penal
Code.

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Student ID 1181301587 Subject Code UCR2612

Lecture Section L2 Lecturer Name DR FLORA/MS ELIYA

In conclusion, the taxi driver can be held liable for murder because there is no break a
chain in causation in this case.

Q2.(b) The concept of transferred malice means the fault elements of crime where the
mens rea can be transferred from intended victim to the actual victim. However, to apply
this doctrine, the mens rea and the actus reus of the crime must coincide. Section 301 of
the Penal Code states that any person who doing any illegal act which he intends or know
likely that act will cause death, commits culpable homicide by causing death of any person
or the culpable homicide committed by the offender is of the description of which it would
have been if he had caused the death of the person whose death he intended or knew
himself to be likely to cause. According to section 301 of the Penal Code the accused
would still be liable for his intention killing the initial victim as his intention has been
transferred to the third party. Even though, break the chain of causation of the crime had
occurs, this doctrine of transferred malice will prevent the accused from escaping his
liability if the accused’s illegal act failed to kill his initial victim but his act killed another
third party. As in the case of PP v Mohd Khayry Ismail, section 301 of the Penal Code is
applicable and the accused in this case was found guilty and being charged under section
302 of the Penal Code for murdering the third party. In this case, the accused intended to

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Student ID 1181301587 Subject Code UCR2612

Lecture Section L2 Lecturer Name DR FLORA/MS ELIYA

cause injuries to the initial victim but he failed to do so and due to his illegal act, he had
caused the death of C who is a third party.

Q3. Whether Danny can be liable for causing death to Roy by negligence.

Danny encouraged Roy his son to try rock climbing, however he suddenly lost his
sensation and caused Roy’s death by negligence. Section 304A of the Penal Code states
that anyone who causes death of any person by doing any rash or negligence act is not
amounting to culpable homicide. In order to prove that the act amounts to negligence and
not culpable homicide, there are a few elements needed to establish. First, the accused had
caused the death of the deceased, the death was caused by negligent act and the accused act
did not amount to culpable homicide. The accused must not have the mens rea of intention
or knowledge to cause death. If the accused had intention or knowledge, it will fall under
Section 300 or Section 299.

To be convicted under Section 304A of the Penal Code, the accused act must have caused
the death of the victim and the chain of causation must not be broken by any intervening
act. In the case of Nidarmati Nagabhushnam, culpable negligence is defined as acting
without knowing that the illegal and mischievous consequences will occur, but in
circumstances that show that the actor did not exercise the caution that was owed to him.
And that if he had, he would have been aware. In other illustrations, H drove the car in a

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Student ID 1181301587 Subject Code UCR2612

Lecture Section L2 Lecturer Name DR FLORA/MS ELIYA

manner that was objectively dangerous, having regard to all the circumstances. However, it
is not proved that he realised his driving was dangerous. H can be found guilty by
negligence under Section 304A.

the accused had caused the death of the deceased, the death was caused by negligent act
and the accused act did not amount to culpable homicide. The accused must not have the
mens rea of intention or knowledge to cause death. If the accused had intention or
knowledge, it will fall under Section 300 or Section 299

In application, to establish negligence, it must be proven that the death of the victim was
caused by a negligent act by Danny. Next, it must be proven that Danny does not have the
intention to cause Roy’s death. Based on the facts, Danny suffered from a neurological
disorder. A common symptom of neurological disorder is loss of muscle strength. Danny
ought to know that when we went climbing he will need muscle strength and furthermore
that he is bringing his 6 year old son, he ought to take extra care to ensure safety of both
parties. When Danny still insists on going climbing, despite the knowledge that he suffered
from neurological disorder, he can be said to have negligently caused the death of his son
Roy. The next element to prove is that Danny must not have the intention to cause the
death of Roy. This can be proven where Danny had put a safety gears to Roy and greatly
regretted his act. This shows that Danny does not have any intention to cause Roy

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Student ID 1181301587 Subject Code UCR2612

Lecture Section L2 Lecturer Name DR FLORA/MS ELIYA

death.therefore, this requirement is fulfilled. as such, Danny can be made liable under
Section 304A of penal code for negligently causing the death of Roy.

The next issue is whether Danny could rely on the defence of the accident.

In this case, Danny claimed that it was purely an accident as he had fastened the safety
gears to Roy but he suddenly lost his sensation which caused him to fall. Therefore the
applicable defence for Danny is accident. According to Section 80 of the Penal Code any
act which is done by an accident or misfortune and without any criminal intention or
knowledge in doing lawful manner in lawful act and with proper care and caution shall be
liable. There are certain conditions and elements that need to be fulfilled.

The first element is the act must be unintentional and a pure accident. In the case of
Ratnam v R, any harm done by the appellant intentionally and with the knowledge that the
act most probably will cause harm then it is not considered as an accident. The second
element is the accident or misfortune must have occurred during the performance of a
lawful act, done in a lawful manner and by lawful means. In the case of R v Bradshaw,
where the accused was a player in one team while the deceased belonged to another.
During the game, both the accused and the deceased were charging towards the ball
whereupon the accused jumped into the air and struck the deceased in the stomach with the

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Student ID 1181301587 Subject Code UCR2612

Lecture Section L2 Lecturer Name DR FLORA/MS ELIYA

knee. They both collided and fell. The accused was hurt but the deceased was carried away
and died the next day from a rupture of the intestines. The accused was charged with
manslaughter. Hence the court held that the accused was not acting with malicious nor
intention because he was following the rules of the game. As a result, he is not acting on
purpose in a way that he knows will result in death or injury. However, if the act is
unlawful, then the defence would be inapplicable. This can be seen in the case of Jagesher
v King Emperor, where a woman interfered with a fight between her husband and the
accused. During the interference, she was carrying a baby on her shoulder, then the
accused without intention accidentally struck the baby and the baby died due to being
struck by the accused. It was held that even if the accused had no intention and the baby
was struck by accident, the act of the accused beating a person was not lawful, and he
cannot use this defence.

The third element is in doing the act there must be the exercise of proper care and caution.
In the case of State v Ramgawami Narshimha Naidu, due to the accused mistook the
deceased for a hyena, the accused unintentionally fired his gun at the deceased. When he
performed that act, it was raining, the sky was overcast, and visibility was poor and he
thought that it was a hyena because it was covered with a gunny sack in brown colour. The
court held that the accused exercised the care and caution that a prudent and reasonable
man would consider adequate in the circumstances of the case.

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 ANSWER SHEET

Student ID 1181301587 Subject Code UCR2612

Lecture Section L2 Lecturer Name DR FLORA/MS ELIYA

In application, Danny's act is considered as an accident and misfortune. This is because

we can see in the situation where he had fastened the safety gears to Roy but he suddenly
lost his sensation which caused him to fall. Danny also didn’t have any intention to cause
harm to Roy since he just wanted to teach his son to try the climbing sport. Therefore, the
absence of criminal intention or knowledge at the time Danny accidentally caused Roy
death. Next, the action made by Danny is a lawful act as we can see that he already
fastened the safety gears to Roy but he suddenly lost his grip and sensation. Lastly, in order
for Danny to rely on the defence of the accident he must prove that the act was done in a
proper care and caution as Danny ensures that the safety gear worn by Roy has been
fastened. It was proven that Danny’s act was done with proper care and caution.

In conclusion, all the elements of the accident are fulfilled and Danny may rely on the
defence of the accident.

Q4.(1) Whether Ah Hong can be convicted of his offence under section 302 of the
Penal code for the death of Minah.

Ah Hong was charged for the murder of Minah under Section 302 of Penal Code. Murder
is defined in Section 300 of Penal Code where it stated that culpable homicide will
constitute the offence of murder when the killing of a human being is effected as defined in
limbs (a) to (d) of the same section. According to Nomezam Apandy v PP , in order to

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Student ID 1181301587 Subject Code UCR2612

Lecture Section L2 Lecturer Name DR FLORA/MS ELIYA

establish a prima facie case of murder, the prosecution must prove the death of the
deceased, the deceased death was caused by injuries inflicted on the deceased and was
cause by the accused which resulted in deceased death and lastly that the act was commited
with the mens rea under any limb of section 300 of penal code. In the case of Tham Kai
Yau, the court requires a higher degree of mens rea in order to establish the offence of
murder. If death is a likely result, it is culpable homicide; if it is the most probable result, it
is murder.
The first limb of section 300 states that act done with intention to cause death is murder,
the secong limb provides that act done with intention to cause bodily injury knows likely to
cause death, while the third limb of section 300 provides that act done the intention to
cause bodily injury sufficient in the ordinary course of nature to cause death is murder and
the fourth limb provides that act done imminently dangerous that it must in all probability
caused death or bodily injury likely to cause death is murder. For the offence to be murder
under Section 300, if it fall within the ambit of limbs under section 300, then it is the
offence of murder.

The most suitable limb to apply in this situation is the third limb. The third limb of
Section 300 of penal code (Section 300(c)) provides that an act done with the intention to
cause bodily injury sufficient in the ordinary course of nature to cause death is murder. In
the case of Yap Biew Hian v Public Prosecutor, it was stated that to establish murder
under this limb, it must be proved that firstly, the accused caused the victim’s death.

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Student ID 1181301587 Subject Code UCR2612

Lecture Section L2 Lecturer Name DR FLORA/MS ELIYA

secondly, the act was done with the intention of causing bodily injury and the injury must
be intentional. Thirdly, it was sufficient in the ordinary course of nature to cause death.
According to Virsa Singh v State of Punjab (1958) whether the injury would be sufficient
in the ordinary course of nature to cause death, would be a matter of deduction from the
nature of the injury and has nothing to do with the question of intention. Murder under the
third limbs is further illustrated in the case of Public Prosecutor v Aziz Md Shah, where
the accused was charged with murder of a three(3) years old child by repeated blows to the
abdomen of the child. The accused admitted the blows were intended. the court found from
the bodily injury presence and the high probability that the injury was sufficient in the
ordinary course of nature to cause death, the offence was murder.
In determining whether the accused had the intention to inflict the injury, it is not necessary
that the accused intended to cause the detailed injuries. According to Tan Cheow Back v
PP, the unusual nature of an injury and the high degree of chance by which it was inflicted
should not exclude the formation of an intention to inflict that particular injury within the
meaning of Section 300(c).

In application, to establish Ah Hong’s liability for the offence of Murder of Minah,

applying to the case of Nomezam Apandy, it must be proven the deatch of the deceased. In
our situation, Minah is already deceased due to spinal injury due to blunt force trauma as
stated in the autopsy report. Minah died due to an injury inflicted to her spine. next,
according to the police investigations, the accused, Ah Hong had indeed caused such

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Student ID 1181301587 Subject Code UCR2612

Lecture Section L2 Lecturer Name DR FLORA/MS ELIYA

injuries to the deceased in which the investigation shows that Ah Hong had frequently hit
Minah with sticks and iron rods besides punching and kicking Minah. in addition to that,
the testimony from Bibah, Minah’s former colleague stating that Minah does not have any
injuries of obvious disabilities when she started working and was in normal condition. She
only found recently that Minah was in a very weak condition after she was found at Ah
Hong’s grocery store with serious injuries all over her body including her face and body,
ulcers in the right knee and paralysis from the waist down. She was also left starved for
two days. Applying the third limb of Section 300 ( Sec.300(c)), and referring to Yap Biew
Hian’s case, the circumstances show that Minah had bruises all over body and was
paralysed from waist down. From the police investigation, it is found that Ah Hong had
frequently hit Minah with sticks and Iron rods besides punching and kicking her. In
addition to that, the evidence from the medical reports shows that Minah’s death was due
to Spinal injury due to blunt force trauma. By putting both pieces of evidence together, it
can be seen that due to the injury inflicted by Ah Hong, he had caused the death of Mina.
The evidence that Minah was paralysed from waist down usually is caused due to injury to
the Spinal due to the Spinal being one of the vital organs of humans. If it was injured, it
can cause paralysis or death. The injury done by Ah Hong can be seen is done with the
intention to cause bodily injury as proven from the Police Investigations that he frequently
hit Minah. Lastly, the injury inflicted by Ah Hong to Minah is sufficient in the ordinary
course of nature to cause death.

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Student ID 1181301587 Subject Code UCR2612

Lecture Section L2 Lecturer Name DR FLORA/MS ELIYA

Referring to Virsa Singh v State of Punjab (1958) The deduction from the evidence is
that the nature of the injury inflicted to Minah is very serious and grave as it can be seen
that Minah is paralysed from waist down and thus this shows that she has injury to her
spine and she was in a very weak condition upon being found by Bibah. Spine is known as
a vital organ and the fact that she was left starved for two days can also show that she did
not receive any immediate medical attention or have any energy in her, therefore can
worsen her condition and lead to her death. Referring to Tan Cheow Back v PP, There is a
high degree of chance by which the injury that was inflicted to Minah can cause injury to
her spine and that blunt force trauma can be caused by the hitting with Stick and iron rod
or kicking and punching to Minah body by Ah Hong. Therefore, as all requirement for the
third limb is met, it can be said that Ah Hong indeed has caused the murder of Minah
under Section 300(c), act done with intention to cause bodily injury suffient in its ordinary
course of nature to cause death. Similarly to the case of Public Prosecutor v Aziz Md
Shah, as Ah Hong has the intention to cause bodily injury to Minah which is sufficient in
its ordinary course of nature to cause death, Ah Hong can be made liable to the offence of
Murder of Minah under Section 302 of the Penal Code.

In conclusion, as per the case of Nomezam Apandy v PP, Ah Hong has committed the act
within the mens rea under the limb of section 300, specifically the third limb of section 300
of penal code. Therefore, Ah Hong may be convicted for the offence under Section 302 of
Penal Code.

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Student ID 1181301587 Subject Code UCR2612

Lecture Section L2 Lecturer Name DR FLORA/MS ELIYA

Q4.(2) Whether Ah Hong could be convicted of any offence if it is found that the
injuries suffered by Minah are the result of Ah Hong’s Actions. ( Minah does not die)

In this case, where Minah does not die, Ah Hong may be convicted for the offence of
grievous hurt under Section 322 of Penal Code for voluntarily causing grievous hurt.

Section 319 of Penal Code defines hurt as whoever causes bodily pain, disease or
infirmity to any person is said to cause hurt. Section 322 provides that whoever voluntarily
causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause
grievous hurt, he is said to “Voluntarily cause grievous hurt”.

According to Sng Siew Ngoh v Public prosecutor, for the offence of grievous hurt, it is
necessary to show that the hurt was caused voluntarily, the accused intended or knew he
was likely to cause grievous hurt and the hurt caused was grievous hurt. Section 320 of
Penal Code further defines kinds of hurt as “grievous”. Subsection (d) of Section 320
lists privation of member or joint as grievous hurt where an injury which causes permanent
loss of use of a limb or joint is defined as grievous hurt. In addition, Subsection (h) of the
same provision states that any hurt which endangers life, or which causes the sufferer to

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Student ID 1181301587 Subject Code UCR2612

Lecture Section L2 Lecturer Name DR FLORA/MS ELIYA

be, during the space of twenty days in severe bodily pain or unable to follow his ordinary
pursuits as grievous pain. under subsection(h) of Section 320, three limbs to the provision
states that hurt which endangers life, hurt which causes the sufferer to be within 20 days in
severe bodily pain or unable to follow his ordinary pursuits is hurt which endangers or
incapacitates under subsec (h). According to Yoganathan R, the principle is that if a
person is prevented from carrying out his ordinary pursuits during that period of time with
the same degree of ease as he did before he was injured, the necessary requirements would
be satisfied.

In application, applying Sng Siew Ngoh v Public prosecutor, The hurt caused to Minah
can be said to be voluntarily and intentionally as it can be proven by the police
investigations which shows that Ah Hong frequently kicks, punches and hits her with a
stick and an iron rods. This evidence is sufficient to show the hurt was caused voluntarily
and is intended to cause hurt as it is repeatedly done by Ah Hong to Minah until she was in
a very weak state and paralysed from waist down.
Furthermore, Minah has suffered bruises all over body including her face and that she also
had ulcer in her right knee and she was paralysed from the waist down. Minah has suffered
a permanent loss of use of her limb as she suffered from paralysis from the waist down as a
result from injury she received from Ah Hong. As such, this type of hurt falls within the
ambit of grievous hurt listed under Section 320(d) of Penal Code.

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Student ID 1181301587 Subject Code UCR2612

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Additionally, Minah also suffered from ulcer in her right knee. This type of hurt falls
within the ambit of subsection (h) of Section 320 as hurt which causes the sufferer to be
within 20 days in severe bodily pain or unable to follow his ordinary pursuits. The
presence of an ulcer in her knee resulted in statistically significant lower quality of life and
will have poorer quality of life. Knee ulcers can last anywhere from a few weeks to years if
it is not properly treated. From evidence, it can be seen that Minah is in a very weak state
and she was also was left starve for two days, this shows that she did not receives any
proper medical help and thus has cause her to have hurt which causes her to be in severe
bodily pain and unable to follow her ordinary pursuits for more than 20 days. Applying
Yoganathan, since Minah is prevented from carrying her ordinary pursuits due to her knee
ulcer and her paralysed limbs from waist down, it can be said that the necessary
requirement for grievous hurt is satisfied.

In conclusion, Ah Hong may be made liable for causing grievous hurt to Minah under
Section 322 of Penal Code for causing privation of member or joint and causes hurt which
causes Minah to be, within 20 days in severe bodily pain and unable to follow his ordinary
pursuits under subsection (d) and (h) of section 320 of Penal Code.

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