ASSESSMENT 1 -LAW505

CRIMINAL LAW 1

PREPARED BY:

ALIFF ZIKRY BIN MOHD DAUD (2020470864)

CLASS: LWB03I

PREPARED FOR:

DR. NOR AKHMAL BINTI HASMIN

DATE OF SUBMISSION:

16TH NOVEMBER 2021

LAW 505 CRIMINAL LAW 1 – ASSIGNMENT 1

QUESTION 1
The deterrence theory of punishment is that one of the aims of punishments is for the purpose
of deterrence in which by providing sufficient sentences, it will threaten and deter anybody from
committing any further crime. It can be discussed in two ways such as individual and general
deterrence. Individual deterrence is where an offender deterred himself or herself from
committing any further crimes due to his fear influenced by an obnoxious experience of the
given punishment. General deterrence on the other hand, can be regarded as the punishments
are given as a message and serves to be an example to the public of the consequences in
committing a crime. For example, the punishment for drug offences for possession of drugs as
per Section 39B (1) of Dangerous Drugs Act 1952 is of the mandatory death sentence. Even
when in other countries the punishment is usually much lenient, in Malaysia, the sentence is
severe as to deter the people from being involve in any illegal activity. Deterrence can work in
two ways i.e., regular punishment and exemplary punishment. In the latter punishment which
means that an offender being given a higher and more severe punishment than others in a
similar crime, it serves the purpose to deter and demotivate others from doing any crime
specifically during a period where the degree of the crime is on the increase therefore raising
the chances of the aim in deterring to be achieved. In Yau Kong Ki v Public Prosecutor
[1989] 2 MLJ 189, the judge opined that the purpose of deterrence is for the others to ponder
regarding the severity of punishments and dissuade themselves from becoming a menace to
society.

Next, the second theory of punishment is the reformation-based punishment with the aim
of such sentences to have a rehabilitative impact towards the offenders. The rationale behind
such theory can be clearly understood as it seeks to encourage offenders to become a law-
abiding citizen and turn a new page in their lives. For instance, a convicted drug addict is sent to
a rehabilitation center with the hopes of them changing and controlling their urges once
released into society. In the case of Raja Izzudin Shah v. Public Prosecutor [1979] 1 MLJ
270, the accused pleaded guilty for assaulting a police officer and was sentenced to 3 years
imprisonment. The accused appealed and was granted a reduced sentence of bond of good
behavior and a fine on the basis that the accused pleaded guilty, was remorseful and
compensated the victim. Such sentence can be considered rehabilitative as it helps the offender
to realize that he is not above the law despite his royal status. The notions of reformation can
also be achieved by providing sentences with affirmation towards the factor of rehabilitation and
reformative. In Teow Siew Peng & 4 Ors v Public Prosecutor [1985] 2 MLJ 125, the
appellants were young first offender who were convicted under Section 395 of the Penal Code
which provided for the punishment of one year imprisonment and three stroke of rotan to the
four appellants while the fifth appellant, who were of youth, were sentenced to a year detention
in Sarawak Boys’ Home and two strokes of rotan. The court opined that the sentencing of
deterrence factor is a prominent feature, however, it must also be considerate on the
rehabilitation perspective particularly emphasizing the fact that the appellants were also first
time young and youthful offenders. The judge also posited that the better sentence would not be
to send them to prison or imposing the sentence of whipping to shape the offenders to become
good citizens. Therefore, the appeal court reverse the decision of the lower court since the latter
court flawed in their decision to consider adequately the reformative factor in providing
sentencing. Thus, rehabilitation factor in punishment of laws can be achieved by providing
sentences by which is to reform and redirect the offenders to become better individuals, instead
of wholly purposed to severely penalized the wrongdoers for their crimes.
QUESTION 2

a) To identify as to whether a person is criminally liable for an offence, the person must
fulfill the elements of actus reus and mens rea which also known as the cardinal
principles. Actus reus is the forbidden act commit that led to a result prohibited by the
law while mens rea is the blameworthy of the mind accompanying the former element.
The case of Rahanny Rojela v Public Prosecutor [2016] 1 LNS 1164 supplies an
example of an actus reus of murder. In such case, a witness saw the accused stabbed
the victim several times in the chest which caused his death. The act can be seen to be
on a voluntarily basis as the accused was aware of what he was doing and wasn’t forced
nor threaten to commit such crime. In the present case, the element of actus reus
towards the accused is present since there was a forbidden act committed by A which is
causing hurt which led to the death of B i.e., A slaughtered and beheaded B therefore
such act will fall under Section 300 and 302 of the Penal Code as murder and if found
guilty, will be sentenced to death. It can also be seen that the act was voluntary because
there was no element of duress or self-defense of A’s part. Also, the conduct of A
beheading B led to a result crime of murder. In determining mens rea, the said element
is also fulfilled since there was foreseen intention to commit murder by A. By referring to
the case of R v Nedrick [1986] 1 WLR 1025, to determine intention, the act of the
accused must be probable to have illegal consequences and whether the said accused
foresee such consequences. In such case, A was aware of what he did to B and gave no
relevant defenses which can be construed to him foresaw the consequences of his act
which is probable due to him slaughtering and cutting off the head of B. Therefore, the
element of mens rea is fulfilled. By utilizing the strict approach, the actus reus and mens
rea of A’s act did coincide due to the presence of an offence of murder and the accused
statement of him being aware and knew of what he had done to the victim which proved
the presence of intention. Thus, A is criminally liable for the death of B.
 b) The issue is whether Hazli and Nazri are criminally liable for the incident stated.

In order to establish criminal liability, the cardinal principles of actus reus and mens rea
must be proven to exist and coincide with each other to have a grounded case against the
accused. Firstly, the principles of actus rea must be proven by performance of unlawful and
prohibited act with notions of voluntarily causes. According to Section 43 of the Penal Code,
the word “unlawful” or “illegal” is used to define everything that is an offence that is prohibited by
the law or would be a cause of action for a civil suit. In matter relating to the case of snatch
theft, it can be classified as an offence under Section 390 of the Penal Code on the ground of
robbery. Under Subsection (2) of the section, theft can only be categorized as robbery only
when the offender(s) would voluntarily cause or attempt to hurt any person, unlawfully restraint
or even cause death or fear to carry away and rob the properties of the victims to be obtained
by them. For another distinguishable examples as had been thoroughly formed in Wong Kon
Poh v New India Assurance Co Ltd (1971) 2 MLJ 131, a person pickpocketing another
person’s bag without him knowing and obtaining any items or belongings without the persons
consent is considered as thievery. On the other hand, a person who violently and aggressively
confront in the presence of a person while being armed with dangerous weapons in order to
snatch away any property, while also attempts to cause harm or death to the victim in order to
forcefully instilled fear, is considered to be pure robbery. The essence of theft as robbery can be
clearly seen in Illustration (e) where it stated under an example in which, “Z is walking along a
road. A on a motorcycle snatches Z's handbag and in the process causes hurt to Z. A ride away
with Z's handbag. A has therefore committed robbery”. By further looking at the case of Nga Po
Tet v Emperor (1970) 2 MLJ 131, the learned judges ruled that in order to construe a case as
robbery, the offender must use violence and threats in his attempt to commit the act of thievery.

In situations where there is more than one robber i.e., two or more people conjointly
commit the crime of robbery or attempt to commit the crime of robbery, Section 391 of the
Penal Code will come into effect. In such section, if any persons (two or more persons) are said
to be together or conspired and helping each other in committing any commission or attempt to
commit such crime, it would amount to “gang-robbery”. The term conjointly based on the case of
Dhambaru Dhar Injal [1951] 3 Ass 365, can be legally define as unity actions by the
individuals participating in such act. Therefore, the term conjointly would mean that a person
would assist or aided any of the offenders in the commission of their acts in crime.

To complete the criminal liability, the element of mens rea (guilty/blameworthy of mind)
must be at present. The performance of a prohibited crime or a forbidden act must coincide with
the offender’s having a guilty mind or he was aware and knew what the act he commits was
illegal and constituted to a crime. To simplify, when a person performs an act with mens rea, he
had decided to break any set of laws, and by that, he is blameworthy and should be sentenced
to punishment. Intention is the prominent feature of mens rea in matter relating to crime. The
notions of intention had not been clearly deliberated in the Penal Code, but it can be defined in
the case of Yap Sing Hock & Anor v Public Prosecutor [1992] 2 MLJ 714, where the court
posited that intention means intends to commit a crime and offence, which during the time or
before the commission of the act, he had foresaw the consequences of his act and he still
commit to do such an act which would obviously resulted in a forbidden act. The essence of
probability is not sufficient to be equal as an intent, as intention will need to be examined based
on the facts and circumstances of each case.

By referring to the recent case of Hazli and Nazri, the act of robbery was not completed
as per Section 390 of the Penal Code. This is due to the fact that both of the suspected
offenders pulled out from their attempt to snatch away the pedestrian’s handbag when they saw
the policemen on patrol. Even when there is a pre-element of using violence and dangerous
weapons in their attempt to rob, it is not sufficient make them liable as there were no direct
contact between them and the pedestrian. Therefore, the essence of robbery cannot be proved
against them as per Nga Po Tet v Emperor. Plus, the two persons would also not be liable
under Section 391 of the Penal Code as even with the proven fact that both agreed and
conjointly planned to aid one another in their plans to commit robbery as stated in Dhambaru
Dhar Injal, the stated reasons that there was no direct attempt nor completion of the crime of
robbery would be enough to make them not liable under such offence as in a whole, it was
merely an act short from being an attempt to commit robbery. Thus, both of them could be said
to not be liable under Section 390 and 391 of the Penal Code which also construed actus reus
unable to be proven.

In discussing the notions of mens rea, both Hazli and Nazri can be seen to have a guilty
mind and intended to commit the act of robbery. By virtue of the case of Yap Sing Hock & Anor
v Public Prosecutor, both of them planned to do such act, and before even doing it, they would
be reasonably presumed to know the consequences of committing the robbery by using
dangerous weapons which may hurt and traumatize other people, and even after knowing and
having the information from such presumption of act, they still decided to proceed with their
illegal actions. Therefore, mens rea has been proven and established. Plus, there were intent to
use force and threats as to deprived others from their property i.e., the presence of using a knife
as a mean to cause hurt and fear to the victims. However, the planned crime did not thoroughly
succeed as Hazli and Nazri pulled out in the last moments in order to avoid their acts and
offence being noticed by the policemen. Even when the mens rea was established, they would
not be criminally liable due to the fact that a guilty act or actus reus had failed to be proven on
their part. Therefore, the cardinal principles of actus reus and mens rea did not coincide.

To conclude, Hazli and Nazri are not criminally liable for the incident stated.