c) Andy was walking his dog.

He saw a group of boys bullying his schoolmate,

George. Andy decided not to get involved and walked away. An hour later, he saw
an ambulance near the area where the bullying took place. He was told that
George died. He regretted his decision not to help George.

The issue here is whether the omission of Andy to help George who was being bullied is
a crime. According to s.43 of the Penal Code if someone is legally bound to do
something, and doesn't do it, it becomes an illegal offence.

The issue here is whether Andy has a legal duty to protect or save Andy. In this case
Andy and George are just schoolmates. There are no provisions or statutes which
states that a student is legally obliged to protect or save another student from any kind
of harm or damage. Unlike a policeman, who is legally bound to save other people who
are in danger, Andy is just a normal citizen who is under no duty to save another person
who is in danger.

The next issue is whether there is a special relationship between Andy and George
which binds him to save George. There will be a duty imposed if someone omits to take
care of someone who he/she is supposed to take care of. For example, parents failing
to take care of their child or employers not taking care of employees in the workplace.
Here Andy and George are just schoolmates. There is no duty for the same person from
a school to take care of each other. In addition this event did not take place in the
school compound but it took place outside the school. So it is proven that there is no
special relationship between Andy and George which imposes a duty to him to save
George.

Hence, it is proven that Andy does not owe a legal duty to George to protect him. So,
Andy cannot be held liable under the law for the death of George. In conclusion, the
omission of Andy not saving George cannot be considered as a crime because mens
rea is absent.

However, is there a moral duty or obligation for Andy to protect George. A moral
obligation is an obligation arising out of considerations of right and wrong. In this case,
Andy knows that George is being bullied and is aware that it would cause him bodily
harm and may cause George to be physically hurt. Here, Andy is morally obliged to
protect or save George. Andy could have called the authorities or anyone nearby. But
instead he walked away. If he acted he could have saved George’s life. But Andy here
has failed to fulfill his moral obligations.
(d) Ali and Abu are 15-year old twins. Abu was watching television when he saw
Ali taking a knife and cutting himself on the wrist. Abu did not stop Ali. Ali was
injured.

The issue here is whether Abu’s omission to stop Ali from injuring himself is a crime ?

The issue is whether Abu’s omission to stop Ali constitutes actus reus. According to s33
of the Penal Code, the word ‘act’ can be a series of acts and a single act. The word
omission denotes a series of omissions as a single omission. In this situation, his
omission does not fall under the categories of omission under s43 Penal code. Abu was
not under any legal or contractual duty to stop Abu from cutting himself. Apart from that,
both of them are also in the same age, i.e. the age of minority, thus there’s no special
relationship between them. This act is also not “illegal” as defined under section 43. In
short,there was no actus reus from Ali.

The sub issue is whether there is a special relationship (familial) between Abu and Ali.

We may refer to the case of Om Prakash v State of Punjab where the accused starved
his wife by omitting to feed her and denying her permission to leave the house.
The court held that the wife was being confined and deprived of regular food and the
responsibility for the condition to which the wife was brought was clear.

Looking at the present case, the situation where Ali decided to slash his wrists was not
caused by Abu as according to the facts of the case, Ali did the act by himself. Even
though there is a special relationship between Ali and Abu since they are brothers, it
does not mean that Ali is obliged to stop Abu from slashing himself.

I would refer to the case of R v Instan where the deceased was healthy until shortly
before her death before she contracted gangrene in her leg which prevented her from
moving and caring for herself. During this time, Instan lived in the house, took in food
from traders (of which she gave the deceased none), omitted to procure medical
assistance and even conducted conversations with neighbours about the deceased
without disclosing her dire condition. The court held that, whilst she had the gangrene
infection, the victim could only be aided by Instan and it was only Instan that had
knowledge of her condition in the final days of her life. On this basis, it was held that
Instan owed the victim a duty of care and that she did not discharge this duty with the
actions mentioned in the facts. The failure to do so was deemed to at least accelerate
the death of the deceased.

Applying this case to the current facts, Ali could have stopped Abu from slashing himself
as he had knowledge and witnessed Abu injuring himself. Ali as a twin to Abu owes a
legal duty to protect or take care of him.
However, it would be different if there exists a special relationship between them. As
said earlier, there would be no legal duty between siblings, but if Ali has a history of
mental health issues and is suffering from them, and Abu is aware of such issues (since
Abu is his brother, it can be assumed that he would have knowledge of his brother’s
mental health issues), it would create a level of dependency between them which would
then give rise to a special relationship between them. When a person is unable to look
after themselves, the person who has control over them would be legally bound to look
after their needs and requirements. They are to make sure that the person under their
care is looked after well and the necessities provided. This of course would naturally
include to look after them from harming themselves. Here, Abu would then be legally
bound to protect Ali from harming himself.

(e) Different terms are used to indicate the mens rea in a particular offence. With
reference to the provisions of the Penal Code and decided cases, discuss the
meaning of:

(i) Intention

Intention is the purpose or design with which the act is done; the defendant meant to
cause the result. He knew the consequences and wanted those consequences or
results to happen. Section 39 of the Penal Code provides that a person is said to be
‘voluntarily’ when he intends to cause a result or by means which, at time of employing
those means, he knew or had reason to believe to be likely to cause it.

Some of the provisions in penal code which highlights intention is s.299 which states
that it is culpable homicide where a person who does an act with the intention of
causing death or with the intention of causing bodily injury as it may likely cause death,
or with the knowledge that he is likely by such cause death, commits the offence of
culpable homicide. To cause death or cause grievous injury. Section 300 (a) states that
the act which the death caused is done with the intention of causing death while section
300 (b) provides that the act is done with the intention of causing such bodily injury as
the offender knows to be likely to cause the death of the person to whom the harm is
caused.

We may refer to the case of Hyam v PP. In this case the accused set fire to a house
with the intention to cause grievous hurt to the deceased. Two people died and accused
found guilty on murder. Appealed and argued that intent was for grievous hurt not
murder. It was held that ntent though for grievous hurt applied to murder as well. It was
clear the accused knew the act was capable of causing death and such a result
happened. Guilty as charged
Furthermore, in the case of Tan Buck Tee v PP, the appellant murdered the deceased
by inflicting fiveappalling wounds penetrating the heart and liver using an axe. The
court held that the accused must have intended to kill the person because by referring
to the existence of the evidence, it clearly shows the intention to kill the deceased. In
the case of in PP v Sameer Klom Klom, the accused was charged with murdering a girl
bystabbing her 25 times. The court held that from the evidence, he had intended to
cause not only bodily injury but also to cause death to the deceased.

(ii) Knowledge
Knowledge here means that the accused must be aware or have mental cognition that
his conduct will cause the result. (criminal conduct) Knowledge must be proven from
the inference of the situation and not the knowledge from a reasonable man. Section 39
of Penal Code: A person is said to be ‘voluntarily’ when he knows he is likely to cause
harm.
In the case of Public Prosecutor v Reza Mohd Shah bin Ahmad Shah, it was held that
in drawing inferences from proved facts, the court is entitled to infer
knowledge on the assumption that a person has the ordinary knowledge expected of
him. The court is not concerned with the knowledge of a reasonable man but with
reasonable inferences to be drawn from a situation

In the case of Roper v Taylor’s Central Garages, it was held that when statute does not
contain the word ‘knowingly’, it must examine whether the ordinary presumption that
mens rea is required applies or not. If not applicable, mere doing of the act itself is an
offence and knowledge is irrelevant. There are three degrees of knowledge. First, actual
knowledge that the accused knows for a fact that the relevant circumstances exist.
Second, “second degree knowledge” means that the accused has the means to obtain
knowledge but neglects to make inquiries. Third, constructive knowledge that the
accused ought to have known, which means the accused had the means of
knowledge

In the case of William Tan Cheng Eng v PP the accused drove his vehicle recklessly in
a dangerous manner which later he hit a motorcyclist and killed him. He was convicted
for murder under s.300(d). He appealed the case on grounds that he had no knowledge
that his act might cause death. The court held, someone ought to know that his danger
might kill someone. However, during the material time, since the road was clear and
without traffic, thus therefore no knowledge was established. He was acquitted.
The third type of knowledge is reason to believe.If someone has a reason to believe that
the act might be an illegal act then it will be proven that there was mens rea. In the case
of Ahmad Ishak v PP, the convicted who cashed a stolen cheque, he appealed and
stated that there was no reason for him to believe that the cheque was stolen. The
cheque was received from the office-boy and it was a large sum and the guy also told
me that he forgot his IC at home. There are several reasons to believe it was stolen (at
least a doubt will have been raised). In this case mens rea was established. In contrast
in the case of PP v Tan Ser Juay- Convicted for disposing of watches allegedly having
reasons to believe they were stolen. He was just asked to sell the watches on behalf of
the seller without a receipt or certificate. He only had suspicions. Suspicion doesn’t
amount to reason to believe.