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CONSENT

• There are four provisions:-


– Section 87
– Section 88
– Section 89
– Section 92
• Section 87 :- it provides for the running of risk of
injury with consent
• Section 88 and 89 :- the doer may run the risk of
causing grievous hurt with the consent of the
victim and for the benefit of the victim
• Section 92 :- the act is intended for the benefit of
the victim but without consent

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• Consent:- an act accompanied by deliberation
which includes the balance of good and evil
on each side.
• Case: Abdul Hamid :- Consent is freely given
and not by force, threats, deception or
inducement.
• Case: Abdul Rahman bin Mohamad:- Consent
is voluntary in accordance with or concurrence
in what is done or proposed by another

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Section 87
• Elements:-
– It is not intended to cause death/grievous hurt
and it is not known by the doer to cause
death/grievous hurt
– The victim is above 18 years
– Consent must be given either express or implied
to suffer that harm or by reason of any harm
which it may known to the doer to be likely to
cause to the victim

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• A consent under s. 87 may be used to justify any harm,
short of death or grievous hurt.
• E.g: in a lawful games, pastimes or operations
• But it will not cover where the doer intends or knows that
death or grievous hurt would be caused
• It would only covers situation where the doer intends or
knows the act from its nature he would cause harm less
than grievous hurt
• Case: Ngwa Shwe Kin
The appellant was charged for causing the death of the
deceased due to the injury that he suffered. Prior to that,
the deceased told the appellant that he was proof da
(sharp-edged instrument). The conviction against him was
set aside because he has no intention to cause the death of
the deceased and he did not used great force and it cannot
be said that he intended to cause the death or grievous
hurt

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Section 88
• Elements:-
– There is no intention to cause death
– It was done in good faith for the victim’s benefit
– Consent had been given either express or implied
to suffer the injury or risk
• It only covers situation where the doer does
not intends to cause death although he knows
that it would likely to cause grievous hurt

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• Good faith means the act must be done in due care and
attention as in s. 52.
• Mere pecuniary benefits is not a benefit for the of purpose
s. 88, 89 and 92.
• Case: Sukaroo Kobiraj :- the appellant was unskilled
surgeon and operated a man and he was died due to the
haemorrhage. The court held that there is insufficient
element of good faith since he knew that he has lack of
knowledge and he experimented it with the deceased. It
could not be said that the deceased had consented to take
the risk when he was unaware of it.
• It also covers situation of corporal punishment by
guardians and school teachers for the purpose of
correctional behaviors of the children.
• The child who is above 12 years is said to give an implied
consent to subject himself to the discipline and control of
the school authorities

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Section 89
• Elements:-
– It must be done in good faith / persons
– It is for the benefit of the child above 12 years / unsound
mind
– Consent must be given either express or implied by the
persons who have lawful charge of that person.
• It does not covers situation where:-
– There is intention to cause death/attempt to cause death
– The doer knows that the act is likely to cause death or
grievous hurt/ attempt to cause grievous hurt except it is
for the purpose of preventing death/grievous hurt /to
cure any grievous hurt/infirmity
– The abetment of such offence

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Section 92
• Elements:-
– It must be done for the benefit of the victim and done in good faith
– It is done without the victim’s consent ; OR
– If the circumstances is impossible to obtain consent of the person /
unable to give consent and had no guardian / lawful person in charge
of him from whom it was possible to give consent in time
• The restriction is subject to the same restrictions as in s. 89
• Case: Dr Nadason Kanalingam
the accused was charged for causing a woman’s miscarriage. But
there was an exception to the medical practitioner where if it is
done in good faith and in the opinion of the medical practitioner
that if the continuance of pregnancy, it would involve mental or
physical health of the woman. But in this case, there was no
indication that the woman’s situation fell in the exception

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Issues relating to Consent
• Section 90:- Consent is not a consent when it
is given:-
– under fear of injury, misconception of fact and
the doer knows / has reason to believe the
consent is given due to the misconception of
fact/fear
– from unsoundness mind / intoxication and does
not understand the nature and consequences of
the consent
– Consent given by a person who is under 12 years
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• When it is given under fear of injury, the injury
must be any harm which is illegal harm caused
to any person in body, mind,
reputation/property as in s. 44
• Consent given by a child above 12 years may
not be valid if it concerns with:-
– Rape where the victim is below 16 years and
consented to it
– Offences under section 300 under exception 5
where the victim consents to suffer death or risk
of death, he must above 18 years

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• If the consent given under misconception of
fact, it would not be a valid consent
Case: Abdul Rahman bin Mohamad where
the victim gave the consent to the offence due
to the misconception of fact that she was
undergoing a treatment with the accused.
• However, misconception does not always
vitiated consent.
Case: R v Clarence where it was held by the
court that the consent does not vitiated by
fraud when he concealing from the wife that
he suffered gonorrhea.
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NECCESSITY

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• Section 81:-
– The elements are:-
• There is knowledge that it is likely to cause harm
• It is done without criminal intention to cause harm
• It is done in good faith for the purpose of preventing / avoiding harm
to person / property
• There was a threat of harm to person/property in a necessity situation
• It was such a nature and imminent as to justify the accused’s action
• It was explained that:-
– An act would be an offence in some cases but it would be an
excuse if the person can show that it was done in order to avoid
consequences which could not be otherwise be avoided if they
followed, it would have inflicted harm to a person or other
person whom he is bound to protect inevitable/irreparable evils,
that no more harm than was reasonably necessary was inflicted
for that purpose and it was not disproportionate to the evil
avoided.

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• The basis of S.81 is that it is permissible to cause harm
in order to avoid harm to person/property
• But the harm must be in nature and so imminent to
justify the accused’s conduct
• There are 2 approaches:-
– The balancing of evil approach :- it is permitted to commit
lesser evil in order to prevent greater evil
– The approach that harm to be avoided must, if judge
objectively be found to be out of all proportion to that
actually caused by the defendant’s conduct
Case: PP v Ali Omar where the court acquitted the accused
for carrying tin-ore in a local craft without the permission
DG. They claimed that their boat had a broken rudder
forcing them in distress to enter into Malaysian waters
See also the case of Muhammad Sarwar v State PCD and
Gopal Naidu v Emperor

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• Case: United States v Holmes
the principles that was derived from the case
are:-
-self-preservation is not a defence of
necessity
-no man has a right to take another’s life to
preserve his own
-there is no necessity that can justify
homicide

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