GROUP ASSIGMENT FIVE

(a) Advise Opah as to whether she can successfully rely on any defence at her
forthcoming trial.

The issue is whether Opah may raise defence of Necessity as defined under
Section 81 of the Malaysia Penal Code after she was afraid to report the police about
the bulk of ecstasy in her house because Kiki would shot dead her grandson Boboi.
Opah also was aware that Kiki had a reputation for being violent towards those who
owed him money. Section 81 provides that Act likely to cause harm but done without
a criminal intent, and to prevent other harm. Nothing is an offence merely by reason
of its being done with the knowledge that it is likely to cause harm, if it be done
without any criminal intention to cause harm, and in good faith for the purpose of
preventing or avoiding other harm to person or property.
In determine whether Opah may succeed in raising defence of Necessity,
Opah must fulfil the elements under section 81 of the Penal Code.

nothing is an offence which is done by a person who is justified by law, or who

by reason of mistake of fact and not by reason of mistake of law in good faith
believes himself to be justified by law to do it. The phrase justified by Law refers to
something which requires vindication as being in accordance with the law or where
the acts are done in obeying the law or an act done in conformity with the law.
Section 79 deals with the situation where a person thinks that he is justified by the
law to do the act and in other words, it must not be illegal. In determine whether
Opah may succeed in raising defence of mistake, Opah must fulfil the elements
under section 79 of the Penal Code.
The First element require is Mistake of fact consists of unconsciousness,
ignorance, forgetfulness of a fact or present material to the transaction, or in the
belief of the presence existence of a thing material to the transaction which does not
exist or in the past existence of a thing which does not exist. Refered to case
Waryam Singh v Emperor the accused killed a man with several blows from a stick
because he believed in good faith at the time of the attack that object of his assault
was not a living human being. The court refer to Sec 79 and made it clear that mens
rea or an intention to do wrong or to commit an offence did not exist and that the
object of culpable homicide could only be a living human being. In this case, Opah
was still in traumatized and paranoid since the incident last three month that her
house was broke by thieves when she was noticed stranger in the kitchen before hit
and know it was a Ben.
Another case can referred for Mistake of fact is based on Chirangi v State of
Nagpur the appellant killed his son by mistake thinking he was a tiger. He was
suffering from bilateral cataract. There was also evidence he had an abcess in his
leg, which produced a temperature which might have caused a temporary delirium.
This might create a secondary delusion affecting his vision. He thought that by

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reason of a mistake of fact he was justified in destroying the deceased whom he did
not regard to be a human being, but who, he thought was a dangerous animal. He
was, in the circumstances, protected by the provisions of section 79.
The second element is the mistake of fact made in good faith. The test is not
whether the mistake was an easy one to make or whether a reasonable person
could make the mistake. The test, as laid down in Section 52 means that nothing is
said to be done or believed in good faith which is done or believed without due care
and intention. In Public Prosecutor v Tunku Mahmood Iskandar, it was stated that
to satisfy the court of good faith, a person must show that the acted wisely and that
he had reasonable grounds for believing that he ought to do what he did. Opah in
good faith assumes the stranger in the kitchen was a burglar that broke in her house
again after incident last three months. To protect his family, Opah was hit the men
that finally known as Ben, a friend to Opah’s son.

The third elements are Not mistake of law. Mistake of law happens when a
person having full knowledge of the facts come to an erroneous conclusion as to
their legal effect. It is a mistaken opinion or inference arising from an imperfect or
incorrect exercise of the judgement upon facts as they really are. Mistake on a point
of law is no defence in criminal case. Mistake of law ordinarily means mistake as to
the existence or otherwise of any law on a relevant subject as well as to what the law
is. Not mistake of law can be categorised into two which is ignorance as to the
existence or non-existance of law and mistake as to the interpretation of the law.
Ignorance as to the existence or non-existance of law can referred case of
Public Prosecutor v Khoo Cheh Yew & Anor held as accused could escape
liability if he could not possibly have known of the existence of the law he had
offended. In that case, the accused persons were charged with importing pianos,
which being the product of South Africa, were then by law prohibited goods. They
were convicted and on appeal, their conviction was quashed.
Mistake as to its interpretation of some general principle of law or a wrong
interpretation of the law is a mistake of law. The mistaken belief may arise from a
process of reasoning based on facts. An erroneous conclusion may be reached. A
common example is a mistaken belief as to one marital status, for example, a
woman went through what she thought was a wedding ceremony when in fact it was
an engagement ceremony. She was therefore mistaken as to the performance of a
wedding ceremony. This might be considered a mistake of fact. In R v ALB Swaine,
the appellant, the manager of an estate on which the complainant was a squatter
occupying a piece of the estate land on a license fee, had the complainant’s house
demolished after the later caused hurt to the mandore of estate. The appellant was
charged for mischief under Section 426 of the Penal Code. In dismissing the appeal,
it was held that he could not plead that he acted bona fide because in demolishing
the house, he made a mistake not a fact but of what his legal powers were to enforce
the contract of occupation on the land and this was not within the protection of
section 79.
In Opah case, the elements of not mistake of law is not exist and it more on
elements of mistake of fact and mistake of fact made in good faith. In conclusion
Opah may get the defence of Mistake after hit Ben since thought Ben is a burglar
that broke her house. This is because Opah has feeling of traumatized since in last

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three months her house was broke in by burglar. Opah defence of mistake can avoid
her from offence of Section 320 (g) of the Penal Code which is grievous hurt to
cause someone fracture or dislocation of a bone.