LAW555 Criminal Law II - CASE REVIEW I 2018

Case review 1: Public Prosecutor v Norazam bin Ibrahim [2006] 8 CLJ 462

The accused, Norazam bin Ibrahim met with the deceased named as Tan Kuo Seng,
accompanied by his friend, for the repayment of the loan made by the accused. In the
deceased’s car, the deceased demanded for full payment for the week from the accused but
the accused could not do so. He even asked the deceased to give loan to his friend as well but
the deceased ignored him. They had an altercation in which the deceased hurled abusive
words against the accused’s parents and sister. The accused asked the deceased to stop from
doing so but the deceased held the accused’s shirt. According to the accused’s friend who
was also in the car at that time, the deceased had uttered the following words to the accused;
“mak engkau punya puki, bapak engkau punya sial” which roughly translated as “your
mother’s cunt, your father’s ill omen or misfortune”. Apart from that, the deceased also
called the accused as “babi” – pig. Later, the accused took the knife from his pouch which he
had brought earlier and stabbed the deceased. The deceased fell into a drain in his attempt to
leave the place, but was then chased by the accused by the deceased’s car. The deceased
managed to run nearby to the eyewitness’ house where there, he witnessed the accused hurled
a piece of wood and landed right on the deceased’s head. In the deceased’s attempt to run
again, the accused hurled a piece of rock at the deceased which also landed on the deceased’s
head. The deceased collapsed and never regained consciousness again.

Due to those acts, the accused was charged against the Penal Code in Section 300 under the
offence of murder. From the prosecutor, it was submitted that there was evidence of the
accused’s intention of causing the bodily injury to the deceased and that the bodily injury
intended to be inflicted was sufficient in the ordinary course of nature to cause death, as
stated under Section 300 (c) of the Penal Code. In their argument, in order to reduce the
charge from murder to culpable homicide not amounting to murder, the accused and the
defence counsel relied on the defence of grave and sudden provocation, exception 1 of
Section 300. According to Section 302, the punishment for murder shall be hanged to death.
It was also submitted that another defence available for the accused is as under exception 4
of Section 300, as there was sudden fight between the accused and the deceased prior to the
incident.

ISSUES

1. Whether the accused’s intention of causing bodily injury may be gathered from his
combined act of inflicting head and body with a knife, a piece of wood and a rock
sequentially.
2. Whether mens rea for murder may be gathered from indirect evidence by reference to
facts and circumstances of the case.
3. Whether provocation was grave and sudden enough to prevent offence from
amounting to murder and whether the use of abusive and insulting language may
amount to grave and sudden provocation.

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LEGAL PRINCIPLE

The legal rule or principle that derived from this case is that in order to distinguish murder
and culpable homicide, one must look at the intention of the doer. According to Section 299,
whoever causes death by doing an act with the intention of causing death, or with the
intention of causing such bodily injury as is likely to cause death, or with the knowledge that
he is likely by such act to cause death, commits the offence of culpable homicide. Whereas
under Section 300, culpable homicide is murder if (a) the act by which the death is caused is
done with the intention of causing death; (b) it is done with the intention of causing such
bodily injury as the offender knows to be likely to cause death of the person to whom the
harm is caused; (c) is it done with the intention of causing bodily injury to any person, and
the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause
death; or (d) if the person committing the act knows that it is so imminently dangerous that in
must in all probability cause death, or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of causing death. For example, in
this case, it was held that from the accused act of causing such bodily injury by inflicting
head and body with knife, piece of wood and a rock is sufficient to prove that such act were
done with the existence of mens rea.

As for mens rea, as in the sense of intention or knowledge, is not capable of being established
by way of direct evidence. It has to be gathered from indirect evidence by reference to every
facts and circumstances of the case. In regard to this case, the mens rea or the intention of the
accused must be established through the accused’s act as a whole, including the act of
causing bodily injury by inflicting head and body with knife, piece of wood and a rock. These
acts had fall within the ambit of Section 300 (a), (b), (c) or (d).

Apart from that, this case also shows that it is important to prove that as to whether such
provocation was sudden and grave enough to prevent it from amounting to murder.
Exception 1 of Section 300 states that culpable homicide is not murder if the offender whilst
deprived of the power of self-control by grave and sudden provocation causes the death of the
person who gave the provocation or any other person by accident. However, this exception is
subject to provisions which are, the provocation is not sought or voluntarily provoked by the
offender as an excuse for killing and doing harm to any person, the provocation is not given
by anything done in obedience to the law or by a public servant in the lawful exercise of the
powers and the provocation is not given by anything done in the lawful exercise of the rights
of private defence. In this case, the deceased was alleged to have provoked the accused with
abusive and insulting words against the accused’s parents and sister. The judgements in this
case followed the case of Ikau Anak Mail v PP and N Govindasamy v PP where both
decided that abusive and insulting words are insufficient to amount to grave and sudden
provocation, which also means, it does not sudden and grave enough to prevent it from
amounting to murder.

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Case Review 2 : Sulong bin Nain Vs. Public Prosecutor (1947) 13 MLJ 138 (CA,
Malayan Union)

The case was in relation to the appellant's appeal, Sulong bin Nain, against the offense
convicted on him, the guilty of carrying a firearm ie carrying two grenades, which
contravened section 3 (1) under the Public Order and Security Declaration of 1946. The fact
of this case was that the appellant was arrested, he was carrying a bag, and in the bag there
were two grenades along with two perfect axes with explosives. During the trial, the appellant
testified that during arrest, he brought two grenades with intent to hand it over to the police.

At the time of the incident, unrest was in Malaya and was under the rule of Malayan Union.
Chaos and wars often happen at that point. Thus, a law has been established, namely the
Public Directive and the Security Declaration which refers to section 3 (1), whoever owns a
firearm is guilty of being guilty and liable. The appellant has been detained under the
Emergency Law prohibiting the possession of firearms when arrested. He was found to have
two grenades and according to him, he intended to carry a bag with a bomb to the police
station. But the court rejected the allegations and he was convicted.

This Emergency Law aims to prevent the possession of firearms rampage upon expiry of the
war and anyone who does so, is liable (SL).

ISSUE

1. Anyone who carries a weapon with the intention of delivering it to the police is found
guilty
2. Whether the sections 76 and 79 of the Penal Code apply and may be used as an
excuse in the case of a criminal liability.

GENERAL CRIMINALS AND GENERAL RULES - BASIC ELEMENTS FOR

CRIMINAL LIABILITY

INTRODUCTION

The basic elements of a criminal liability are the elements that must exist in all crimes.
Without proof of any one, the accused cannot be found guilty of the criminal offense. The
basic element of this criminal act arises from the actus non facitreum act, the penal code of
rea, which means that an act done by a person shall not cause him to be guilty of a crime,
unless he intends so. Maksim introduces two important concepts namely actus reus and mens
rea. The need for these two elements to exist in a criminal offense is important as the
community is only ready to punish if the accused can be held liable for such crime. Because
he was responsible for the criminal offense he was supposed to receive the punishment as
prescribed by law.

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(1) Actus reus

Referring to the act of the accused causing a criminal act. For example, if A stabbed B with a
knife that causes B to die, the actus reus in this criminal offense is the act of stabbing B.

(2) Mens rea

To be liable for a criminal offense, besides having to show the actus reus, the accused must
also be proved to have a mens rea. Mens rea mean malice or a guilty mind. The accused
through his act intentionally intends to commit the criminal offense. Section 39 of the Penal
Code deliberately defines:

A person is said to cause an incident to be 'intentionally' when it causes the incident to be in

the way that he intended to cause it, or in the course of time that it was known or there was
reason to believe it might have caused the incident.

Mens rea is a mental requirement that must be fulfilled and can usually be seen in the
provisions of a particular section. This mental requirement must be fulfilled because criminal
law only punishes the person who committed the crime with intent. For example, in section
300 (a) of the following Penal Code:

Except in matters that are excluded later than this, turn off people are wrong
to kill people-if the act causes it the death was committed with intent to cause
death; ............

The rea section for section 300 (a) is the intention to cause death. To be found guilty of
murder under this section, the accused must be proved to have intent to cause the victim's
death. The combination of actus reus and mena rea will prove that the act of the accused, for
example firing at the victim's head, was made with the intention to cause the victim's death.

Mens rea is not something that can be seen, mens rea concluded by the act or the conduct of
the accused as well as the circumstances surrounding the accused in committing a crime. The
Court in the case of Norazam bin Ibrahim asserted that mens rea as a mental element cannot
be proved by direct evidence. This element may only be proven by indirect evidence by
reference to the facts and circumstances of a case being considered by the court. Forms of
injuries and types of weapons used by the accused can help the court to determine whether
the accused intends to commit the crime. For example, in the case of Samer Klom Klom,
accused of using a knife and stabbed the victim 18 times, indicating he intends to cause the
death of the victim guided by the weapon and the nature of his injury. Under the Penal Code,
this element of the rea is represented by the use of certain words such as intentions, with
intent to, fraudulently, negligently and so forth.

The Penal Code provides certain words to describe the mental state of the accused. Among
them is through intentions, knowledge, beliefs, frustration, negligence, fraudulent, deceitful
and evil.

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In this case, the appellant was found carrying a firearm by carrying two grenades in a bag and
he stated that he wanted to hand it over to the police. The court did not accept this reason
because as it is known, at that time, anyone who owns a firearm is said to have committed an
offense because at that time, the grenades were everywhere in the state of emergency. Hence,
the law must impose that anyone who owns a firearm is doing something wrong. In this case,
the appellant knows that he owns or carries the weapon. Thus, it was found that his act of
carrying the weapon had shown that he had intended to carry or possess the item.

For the accused to be convicted of a criminal offense, he should have been proven to meet
both the actus reus act and the rea of the offense. The provisions that deal with the criminal
offense will put this element of rea mens by inserting certain words such as intentions,
knowingly, fraudulently, negligently, with maliciously, hasty and so forth. Since most of the
law is now a written law, the court is usually in the decision to try to give what is in his
opinion intended by the written lawmaker. If no word in the form of mens rea is intentional,
fraudulently, negligent, with evil, deliberately, with its haphazardness or the knowledge
included in the provision. So the court will usually decide that the intention of Parliament is
to not make the element as an element that must be proved for the offense. At the same time,
however, the elements of re-enforcement are the basic elements that must be fulfilled to
prove an offense, before the accused is convicted. This is where the issue is whether the
provision does not put the element of rea mens does not intend to make the element
something that needs to be proven. Or is it still necessary to prove that the element of
rehearsing is still evident even if the provision is silent about it.

Hard liability errors are not the same as absolute liability. The absolute offense liability
means the accused guilty without any mental element and he does not have any excuse,
whether based on common law or statute. This error only requires the re-actus to be proven
for the accused to be convicted. While a hard liability offense is an offense where the Court
set aside the mental element to find the accused guilty. The accused must do the act
intentionally. The act must be in its control. This was discussed by the Court in the case of
Lemon where the Court ruled that the accused was found guilty of publishing the work that
slandered Jesus in his magazine. According to the court to be found guilty of this offense, the
prosecutor does not have to prove that the accused intends to slander. What needs to be
proven is that the publication is intended and the published work is in the form of disbelief.

The case of Sulong bin Nain vs the Public Prosecutor is a hard case where any person who
commits an offense is assumed liable and convicted of such offense without the need to prove
the element of rea or the intention of the perpetrator.

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GENERAL ARGUEMENT

This section will discuss the general delusions which the accused may use to deliberate on
charges of committing a crime committed against him. Apart from this general acquittal, the
Penal Code also provides specific definitions which may be used by the accused as seen in
section 300 of the Penal Code. The success of using this specific diversion will cause the
mistake not to be categorized as a murder mistake but wrongly mistaken people off. The
accused should not have been found guilty if he could use the generosity provided as he even
committed the crime, the accused had a lie about the act. Pursuant to Section 105 of the
Evidence Act 1950, an accused has a burden to prove that there is a situation in his case
which may cause the deceased to apply to his case.

This dictation shows that the accused had justified or had something on him who was the
reason for his actions. Little discussion will be made about justification and reason. When the
accused is said to have a reason for committing the crime, the accused's behavior is of
interest. The accused is innocent because there is something on him that causes him to be
blamed, for example if he is not perfectly intellectually or does something in a drunken state,
or the accused is a child who has not attained certain age or has attained age, has not had
maturity.

When the accused commits a crime due to justification, this means that the accused's criminal
act is accepted as being authorized by law. For example “A” kills “B”. The fact shows that B
has come to house A with a knife and attempts to attack A. A attempts to confiscate the knife
and during a fight, A stab B that causes B to die. In this case the act of killing B is justified
because A did it while attempting to defend itself from the B. A attacks here is justified to
commit the crime. Act A is justified by law to defend itself.

Dividing this excuse to justification or excuse also helps the Court in determining the
sentence because of the offense committed for justification, the Court does not have to worry
about this offense again. This situation is different from the crime committed by reason. The
possibility of repeating the same crime is substantial because of the accusation of the accused
to do the act. In this case the accused must be under supervision. For example, for an
unqualified accused, and he succeeded in using this diversion, he must be placed in a
supervisory place, so he will not repeat the same criminal act in the future. But what is certain
is justification or reason, the accused is not found guilty of the crime committed.

Mistakenly understand here refers to misunderstandings and not laws. If the derivative
understands the law, it is very difficult to use with the maxim that states that ignorance of the
law is no excuse. In the case of Bailey (1800) 168 ER 657 where the accused was found
guilty of a criminal act that had been established by Parliament while he was in the middle of
the sea. Although he does not know the provisions of the Act and he has no way of knowing
it, he is still considered liable. What does it mean to misunderstand the law? Understand the
law when a party with knowledge of facts has misplaced the effect of the law. In the case of
AIR Calendars AIR (1934) Sin 52 accused has been to the complainant's house with a court
official to enforce the warrant.

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Court officials call the complainant's name but no answer. The complainant's wife was in the
house at that time. When he sees an unknown person, the complainant's wife has closed the
door of his home. The accused had turned the door off and caused the complainant's wife to
fall and faint. The accused was charged under Section 352 for the crime of violence and was
found guilty. The Court is of the view that the accused is not the person responsible for
enforcing the warrant so he does not have the right to refuse the door to injure the
complainant's wife. It is wrong to understand that this law can happen either because the
accused thinks that the law on a matter is present or not, or misunderstood in relation to the
subjects of the law.

Section 76 and 79 of the Penal Code refer to the misguided diffusion. Section 76 stipulates
that it is not an offense for an accused to do something because it does not misunderstand the
fact that he is obliged to do so by law. While Section 79 refers to the accused who committed
a criminal act for misunderstanding that he was allowed to do so by law. In between these
two sections, Section 79 is broader because permitted by law, may include legally enforced.
Expressions permitted by law refer to the circumstances in which the accused has sufficient
reason to believe that he is authorized to do so. In this case, his deed was not an offense.

What does it mean to misread the truth? Misunderstanding refers to a mistake involving a fact
or fact. This situation may occur because the accused does not have enough information, or
receives false information, forgets, negligent or suspected. To use the mistake to understand
this fact, it is necessary to prove some of the following:

(i) The circumstances of the alleged thing, if true, permit the action of the accused

(ii) The misunderstanding must be reasonable, and

(iii) The misunderstanding must involve misunderstandings in relation to facts and not laws

For example in the case of Chirangi, AIR (1952) Nag 156 accused of killing his son because
he thought his son was a tiger. The accused faced bilateral cataract problems in addition to
experiencing high temperature conditions caused him to experience temporary delirium. As a
result of the combination of these two problems, the accused pretended to be the one who
killed him was a tiger and not his son. He was not found guilty of misunderstanding. In the
case of Bonda Kui, 43 Cri LJ 787 the accused thought he was justified by law to kill a victim
believed to be a human-eating creature. He acted on the wrong ground. See Abdullah's case
(1954) 20 MLJ 195 accused accused of raping and discussing Section 79 arising from the
dictation by the accused that he thought the victim was more than sixteen years old, while in
fact the victim was less than fourteen. While in the case of Sulong Nain (1947) MJL 138 [13]
the court finds that the accused does not have any misunderstanding on whether the item
belonging to his possession of two grenades is so dubious under section 79 that it can not be
used.

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Apart from proving misconceptions, the accused also has to prove that his actions are done in
good faith. Section 52 defines good habits as doing or believing things in spite and care. In
the case of Mat Salleh v Sarah (1883) 3 Kyshe 167 the court ruled that the defendant was
protected by law because the accused reasonably believed that he had the right to the house of
the victim as he had bought the house from Samat. The action of the accused is made in good
faith.

In this case, the accused tried to use sections 76 and 79 as an excuse to the accused. As is
known, section 76 deals with misunderstanding. Whereas Section 79 relates to
misunderstanding of the law. The accused's lawyer argues that his client has erroneous facts
about the goods he has brought and the court finds that the accused does not have any
misunderstanding of what the goods are in his possession and he himself knows that he
brings or possesses a firearm of two grenades under this section 76 shall not be used. Section
79 also does not apply in this case the accused does not have any misunderstanding of the law
and as it is known, everyone is considered to be aware of any such law.

JUDGMENT REASONS AND DECISIONS

The court in his judgment on the appellant's appeal against the conviction for the offense of
carrying weapons ie two grenades which are in contravention of Section 3 (1) of the Public
Instructions and the Security Declaration. The undisputed fact, that is, when arrested, the
appellant carried the bag, and inside it there were two grenades with two axes complete with
explosives. The appellant in his testimony to the court stated that during his arrest he brought
two grenades with intent to hand it over to the police.

The judge in the grounds of his judgment stated that the appellant was found guilty of
carrying a weapon. This is because at that time, the Emergency Law prohibits the possession
of firearms and its purpose is to prevent the possession of firearms rampant after the end of
the war and anyone doing so, is considered to be a heavy liability (SL).

For the reasons, the appellant stated that he intended to hand over the grenade to the police,
the Court did not accept this reason. The judge in his judgment stated that there was no doubt
that the accused had brought the grenade to Seremban for himself, and he had no intention of
giving it to the police. He also knows that the goods he owns are firearms and thus he is
found guilty. As such, the Court decides that the appellant is found guilty of having a firearm
of two grenades which is contrary to section 3 (1) of the Public Instructions and the Security
Declaration. He has been convicted and sentenced to imprisonment for a specified period.

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ANALYSIS

This case relates to OKT in charge of carrying firearms contrary to section 3 (1) under the
Public Order and Security Declaration of 1946. The offense is a strict and absolute
prohibition. The appellant in his argument submitted a false statement of fact under Section
76 of the Penal Code. However, the court rejected it and stated that if a person intentionally
carries a weapon, there is no more misinterpretation of the facts in the law. So, one person did
know that he was carrying a weapon and at the same time intended to carry the weapon.
Therefore, for a criminal offense that is so harsh, then the element of rea is not necessary and
adequate by the existence of element reus actus only.

In general, the appellant tried to use section 76 and 79 as an excuse. In this case, the mistake
of knowing the fact or fact is not acceptable. This is because the appellant knows that he is
carrying a firearm when arrested. Therefore, there is no misunderstanding of facts that can be
proven to prove that he does not know the goods being carried. Section 79 cannot be used in
this case because the appellant knew of the guilt of bringing or possessing firearms at that
time and it was impossible for him not to know the law. This is because everyone is
considered to be aware of the existence of the law.

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