Basic Elements

of
Criminal Liability

1) Actus Reus

2) Mens Rea
 ‘Actus non facit reum nisi
mens sit rea’
An act does not make a person guilty unless his mind is
blameworthy

criminal liability =
a person commits the act (actus reus) +
 guilty state of mind (mens rea)
Actus Reus
The accused must have actually done something, not
merely thought of doing something
Exception : Section 121A of Penal Code
Whoever compasses, imagines, invents, devises or intends
the death of or hurt to or imprisonment or restraint of the
Yang di-Pertuan Agong or any of the Rulers or Yang di-
Pertua Negeri, their heirs or successors, shall be punished
with death and shall also be liable to fine.
How can we prove imagining the death of the YDPA
without occurrence of the actual harm?
Conduct crimes
Result crimes
‘Act’ or ‘conduct’
1) an act or conduct must be voluntary

What if it is involuntary?

 Common law – Defence of automatism

 Penal Code - Defence of insanity – Section 84
 Sinnasamy v PP
‘Act’ or ‘conduct’
2) an act must be broadly interpreted to include certain
omissions to act

 Section 32 : words which refer to an act done extend

also to illegal omission

 Section 43: the word illegal is applicable to

everything which is an offence, or which is
prohibited by law, or which furnishes ground for a
civil action; and a person is said to be legally bound
to do whatever it is illegal for him to omit.
omission
 The Penal Code made it clear that there is no
liability for omission to act unless the omission
can be said to be ‘illegal’.

 Example : A saw B drowning in a river and made

no attempts to save him. His omission is not
illegal within Section 43 and thus there is no
actus reus of any offence.
When an omission provides grounds for criminal
liability?
1) Failure to act which is an offence

 Omissions that are made criminal offences by the Penal Code or

other statutes

 Section 289 of Penal Code : whoever knowingly or negligently

omits to take such order with any animal in his possession as is
sufficient to guard against any probable danger to human life
shall be punished.

 Lee Sai Yan v PP - omission to provide breathing apparatus to

the deceased - offence under Section 34(8) of the Factories Act
1973
When an omission provides grounds for criminal
liability?
2) Failure to act which furnishes ground for civil action

 The law recognizes that even an omission can bring

criminal liability when there is a duty to act. The duty to
act arises in the following circumstances:

a) Special relationship
 Om Prakash v State of Punjab (1961) – the accused omit to
feed his wife and let her starve without allowing her to
leave the house. Held : the husband’s duty is to provide
fund and food. The scheme was to accelerate her death.
The husband is responsible for the wife’s condition.
When an omission provides grounds for criminal
liability?
b) Duty voluntarily assumed
 Even though there may be no special relationship
between the parties, if one person voluntarily assumes a
responsibility towards another, a legal duty to act will be
created.

 R v Instan (1893)
 The accused lived with her 73 years old aunt, who has
gangrene in her leg. During the last 12 days of her aunt’s
life she was not able to feed, move or ask for help. Only
the accused knew of her state and gave no food or
medical assistance. Held: the accused was convicted for
manslaughter.
When an omission provides grounds for criminal
liability?
c) Duty assumed by contract

 R v Pittwood (1902)
 The accused was a railway gatekeeper who was
employed to keep the gate closed when a train was
passing. He left the gate open and a train hit a hay
cart killing one man and injuring another seriously.
Held : there was a gross and criminal negligence.
The man was paid to keep the gate closed and
protect the public. Criminal liability may arise from
the duty arising out of a contract. The accused was
convicted of manslaughter.
When an omission provides grounds for criminal
liability?
d) Creating dangerous situation

 R v Miller (1983)
 The accused was sleeping at his friend’s house. He lit a
cigarette and fell asleep. Later he woke up and saw smoke
on the mattress. He did nothing about it and moved to
another room and went to sleep again. The house caught
fire. The accused was charged for arson. Held: the
accused is guilty of arson. When he became aware that
the events in question had happened as a result of his
own act, he does not try to prevent or reduce the risk of
damage by his own effort or by asking for help from
others.
Mens Rea
 Generally, criminal liability can only be imposed upon a
guilty state of mind whose conduct has caused a
forbidden harm. It is insufficient if the accused has
simply done the forbidden act. He must have done it
with a guilty mind, if not the law regards him as an
innocent.

 Why is a person liable for an act?

 A person is responsible for his action because he can
exercise control and choice over his actions. Therefore a
criminal liability can only be justified if a person had
chosen to commit a crime.
Mens Rea
Examples :

1) A throws a glass in the direction of B, which breaks

into shards and injured him.
2) A, walking in a normal manner while holding a glass,
tripped and accidentally drops the glass on the floor,
which breaks into shards and injured B who was
nearby.
The law on Mens Rea
 There is no general provision provided under the Penal
Code on mens rea.
 General provision : general clause stating in the absence of
an express provision to the contrary, mens rea is to be
implied as an element of every offence.

 However, many sections of the Penal Code specifically spell

out the need for mens rea and indicate exactly what
species of mens rea must be proved.
 At other times, a statutory provision may be silent as to
whether any mens rea is required, and if so, what species of
mens rea is required.
Specific mens rea terms
 Section 142 : an offence if a person ‘intentionally joins’
an unlawful assembly.
 Section 304A : an offence if a person ‘causes the death
of any person by doing any rash or negligent act’.
 Section 378 : defines theft as ‘intending to take
dishonestly any movable property’.
 Section 377 : voluntarily
 Section 415 : fraudulently
 Section 219 : maliciously
Intention
 Intention was not defined in the Penal Code. English common
law attempt to define intention.

 R v Nedrick (1986)
 The accused quarrels with a woman. Later he poured paraffin
through the letterbox of her house and set it alight. The
women’s child was killed in the fire and the accused was
charged for murder. The accused claim that he just wanted to
frighten the women and did not want anyone to die. The
question is whether the knowledge as to the consequences of
his action was equivalent of the intention to cause those
consequences.
 Held : foreseeing a consequences as a virtual certainty was the
equivalent of intending that consequences.
Intention
 However, under Penal Code foreseeing or knowing a
consequences to be likely or probable is not equivalent
of intending that result.

 Section 39 defines voluntarily as either an intention to

cause a result or knowledge that it is likely to be
caused.
 Example : A robber plant a bomb at a safe to break it
opens. A security guard walk past it and the explosion
killed him. The robber may not intend to cause the
death of the guard, but if he knew that he was likely to
cause death, he has caused the death voluntarily.
Recklessness
 This concept is unknown in the Penal Code but has been
introduced into other local legislation as a direct borrowing of
English law.

 R v Lawrence (1982)
 Lord Diplock: what is meant by driving recklessly would involve
two things:
a) The accused was driving in such a manner as to create an
obvious and serious risk of causing physical injury to others.
b) The accused drive without having any thought to the
possibilities of there being much risk or knew there was risk
but nonetheless gone to take it.
 Whether the risk was obvious and serious depend on the
standard ordinary prudent driver. As long as the risk was
Rash and Negligently
 The Penal Code used these terms jointly as in Section
304A – ‘causing the death by a rash or negligent act.’

 Re Nidamanti (1872)
 Held : rashness is acting without the consciousness
that illegal consequences may follow, but with the
hope that they would not happen. Negligence is
acting without the consciousness that the illegal
consequences will follow but in the circumstances
that show that the accused has not exercised the
caution incumbent on him.
Rash and Negligently
Rashness is thus realizing the possibility of the
consequences occurring.

 Negligence is not realizing to such a possibility.

Negligence required that if the accused had taken
his time to think of the consequences of his action
‘he would have had the consciousness.’
Applicability of mens rea
 The Penal Code does not have a provision endorsing
the concept of mens rea. However, most writers were
in the view that the doctrine of mens rea is not
applicable if the Penal Code does not say so.
 Example : Section 375 – the offence of rape put the
requirement of against her will, against her consent
and with or without consent if under 16 years old.

 What happens if the accused thought that she was

consenting or she is over the age of 16 when she is not?
Is mens rea applicable or will it be strict liability?