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EXECUTIVE CERTIFICATE IN ENFORCEMENT LAW

ILKAP & FACULTY OF LAW, UiTM SHAH ALAM


MODULE CODE/TITLE: CRIMINAL LAW (LAW 103)
DURATION:

10 HOURS

TEACHING METHODS: LECTURES & INTERACTIVE LEARNING


LECTURER:

ASSOCIATE PROFESSOR DR ZAITON HAMIN

OUTCOME
Upon completion of the course the participants should be able to:
1. Understand the basic concepts and liabilities in criminal law
2. Understand the types and nature of crimes under the Penal code
3. Know the various types of defences in criminal law
4. Apply the knowledge in criminal law in exercising their public duty
CONTENTS
1.

Introduction to criminal law


a. Definition of a crime
b. Differences between a criminal and civil action
c. Functions of criminal law
d. The aims of punishment

2.

Essential elements of a crime


a. Guilty act (Actus reus)
b. Guilty mind (Mens rea)
c. Doctrine of transferred intent
d. Motive

3.

Criminal liability and Anticipatory offences


a. Types of liability
b. Attempt
c. Abetment
d. Conspiracy

4.

Offences against the person


a. Culpable homicide

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b. Non-fatal offences
c. Extortion
5.

Offences against property


a. Theft
b. CBT
c. Cheating

6.

Defences to a crime
a. Mistake of fact
b. Accident
c. Duress
d. Infancy
e. Unsoundness of mind
f. Intoxication
g. Consent
h. Necessity
i. Private/self defence

RECOMMENDED TEXTS
1.
2.
3.

Lee Chong Fook and Che Audah Hassan, Introduction to Principles and
Liabilities in Criminal Law (LexisNexis, 2006).
Koh, Clarkson & Morgan, Criminal Law in Singapore and Malaysia: Text and
Materials, (Butterworth, Singapore,1989).
Ratanlal and Dhirajlal, Law of Crimes, 26th ed., (Bombay Law Reporter,
Bombay, 1987)

RELEVANT STATUTES
The Penal Code
OTHER IMPORTANT MATTERS
Medium of Instruction:

English & Bahasa Malaysia

Assessment:

Continuous class assessment 100%.

Compulsory elements:

Attendance & participation in class

Passing mark:

Grade C (50%)

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TOPIC ONE: INTRODUCTION TO CRIMINAL LAW
1.0

Definition of a crime

1.1

Many definitions of a crime. It may refer to the type of actions involved. For
example, a motorcyclist (Mat Rempit) who drives recklessly on a public road
commits a crime.

1.2

Crimes may consist of acts which most people would condemn as being morally
wrong. For example, a snatch thief who takes the victims handbag by force and
in the process, cause hurt to the victim.

1.3

Prof G. Williams refer to a crime in terms of consequences. He said a crime is a


legal wrong that can be followed by criminal proceedings, which may result
in punishment.

1.4

Legal wrong is an act which is illegal or prohibited by the law.

1.5

Criminal proceedings are usually brought by the State in the name of the Public
Prosecutor. A successful prosecution will lead to punishment such as
imprisonment, fine, whipping etc.
In R v. Roy IL R 42 Cal 422 the court held that the purpose of a criminal trial is
not to support at all costs a theory but to investigate the offence and to
determine the guilt or innocence of the accused

1.6

The burden of proving the case against the accused is on the prosecution. It
has to prove the charge beyond reasonable doubt.

2.0

Differences between a criminal action and a civil action

2.1

Context - Crime is being dealt with in the criminal justice system, while contract
is under the civil law system.

2.2

Parties involved In criminal matters the parties are the State and the accused
person, while in contract the parties are individual as a plaintiff and another
individual as the defendant.

2.3

Abandoning the action In a civil action, the parties may decide to settle the
matter out of court, while in a criminal proceeding, once it has started, the
prosecution cannot simply abandoned it.

2.4

Remedies In a successful criminal action, punishment will be imposed. A


successful civil action may lead to compensation for the victim/aggrieved party.

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3.0

The functions of criminal law

3.1

Criminal law is concerned with illegal behaviour, prosecution, law enforcement


and punishment.

3.2

The functions of criminal law are:


3.2.1
3.2.2
3.2.3
3.2.4
3.2.5

3.3

to maintain law & order


to protect citizens from offensive & injurious conduct
to safeguard against exploitation & corruption
to ensure compliance with regulatory legislation
to punish the offender

The duty of prosecutors in a criminal trial


In PP v Muhari Mohd Jani & Ors [1996] the court pointed out that the duty of
prosecutors which has been observed in our criminal courts, whether they are
Police Officers, Customs Officers or Deputy Public Prosecutors - all representing
the public prosecutor are to represent not the police but the State; and this duty
shall be discharged fairly and fearlessly and with a full sense of the responsibility
attached to his position.
The court stated that the prosecutor must present the facts fairly in the light of
admissible prosecution evidence, conceding to the defence those points of
mitigation which are apparent in the prosecution evidence but equally giving
weight to any aggravating factors which make the offence a serious one.
see also the view of judge David QC in R v. George Maxwell (Developments)
Ltd [1980] 2 All ER 99 at 101.

4.0

The aims of punishment


This aims will influence the judges and law-makers in their decisions. They are:

4.1

4.2

Deterrence
4.1.1

Individual deterrence is to punish the accused so that he will repent and


will not repeat the offence again.

4.1.2

General deterrence is to ensure that the rest of the society will not be
committing the crime.

Retribution

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4.2.1
an eye.
4.2.2

The old view is that punishment of criminals is to seek vengeance against


the accused for committing the crime. The purpose is an eye for
The new view is the Just Deserts theory which has the purposes of
destroying the unfair advantage accused has gained by committing the
crime and ensuring that the punishment fit the crime.

4.3

Incapacitation is basically to protect the society at large because by imprisoning


the accused, this will keep him away from the society for a certain period of time.

4.4

Rehabilitation purpose is to reform the accused and to encourage him to be law


abiding citizens. This is also called treatment model which is now being used for
drug offenders.

4.5

Reparation is to make the offender undo the harm done to the victim or society
by means of restitution or compensation. For example, vandals have been told to
clean up the graffiti drawn by them.

TOPIC TWO: ESSENTIAL ELEMENTS OF A CRIME


1.0

In any crime to prove the case against the accused the prosecution must show that
the accused did the guilty act (actus reus) and at that time he has the guilty
mind (mens rea).

1.1

The important principle in criminal law is that for a criminal liability, the actus
reus and mens rea should coincide or occur at the same time. However, cases in
England and India have shown that as long as the actus reus and the mens rea
exist, they can occur at any point of time in the criminal transaction.

2.0

Actus Reus

2.1

This element requires that:


2.1.1. The conduct or a physical act must exist.
2.1.2 The conduct must be voluntary.
In other words, at the time the accused commits the act he is conscious of
what he is doing and he is doing it willingly. He is not sleepwalking or
suffering from an epileptic attack when he commits the crime.

2.2

The actus reus may also consists of an omission, but only where the accused is
under a duty to perform the act which he fails to do (see sections 33 and 43 PC).
For example, a person who goes to a swimming pool and fail to save a drowning
boy, who is unknown to him. But if he is a lifeguard at the pool or the boys
father, he is under a duty to save the boy from drowning.

2.3

The guilty act creates criminal liability in 3 situations:


2.3.1

Conduct crime This is where the actus reus relates to the


circumstances of the crime such as time, place, person, state of mind of
the victim. There is criminal liability because the accused has done
something which is prohibited by law.

2.3.2

Result crime The actus reus relates to the consequences of the crime,
for example, death of the victim after being attacked or punched by the
accused (section 299 PC).

2.3.3

Thought crime The actus reus relates to the state of mind of the
accused. For example in section 121A PC, imagining the death or hurt of
the YDPA amounts to a crime.

3.0

Mens rea

3.1

Mens rea is about the mental condition of the accused. The prosecution must
show that the accused is capable of knowing what he is doing and that he has
chosen to break the law. Hence, he can be blamed for his actions and deserves to
be punished.

3.2

There is no single mens rea because there are several mens rea with different
degree as below:
3.2.1

Intention the accused has the aim or desire for a particular result of his
actions or that he foresees that the result of his action to be certain to
occur.

3.2.2

Recklessness the accused did not think about the obvious results of his
actions and he consciously takes the risk of the harm that occurs.

3.2.3

Rashness The accused acts hastily, impetuously, recklessly or acting


without due consideration or regard for consequence. According to
Ratanlal & Dhirajlal's, Law of Crimes, 24th edn, (pp.1509-1510)
Culpable rashness is acting with the consciousness that the mischievous
and illegal consequences may follow, but with the hope that they will
not, and often with the belief that the actor has taken sufficient
precautions to prevent their happening.

3.2.4

Negligently The accused lacks attention as to what ought to be done or


looked after or lack of proper care in doing something. He unconsciously
takes the risk of harm occurring and had not exercised the caution which
he should. Ratantal and Dhirajlal stated that criminal negligence is the
gross and culpable neglect or failure to exercise that reasonable and proper
care and precaution to guard against injury to others.

3.2.5

Knowingly The accused knows about the circumstances and/or results


of his actions.

4.0

Harm in crime

4.1

In section 44 PC it means any injury to the body, mind, property and reputation
of the victim

5.0

The doctrine of transferred intent

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Under section 301 PC the mens rea may be transferred from the intended victim
to the unintended or actual victim, where the accused intends death or knows
that victims death is likely to occur from his act. The effect is that as long as the
accused has the relevant mens rea, he may still be liable for the victims death
even though the identity of the victim is different than the one he intended to kill.
6.0

Motive in criminal law

6.1

Motive is regarded as the cause of the accuseds act or the reason that induces the
accused to act.

6.2

It is not important as an essential ingredient that must be proven as a legal


requirement to show the accused to be guilty.

6.3

The courts have allowed motive in order to explain why the accused acts in the
manner he did and as a mitigating factor for sentencing.

6.4

Examples of motive include greed, hatred, revenge, envy, jealousy, love,


compassion, thrill or fun, bragging or showing off skills.

TOPIC THREE: CRIMINAL LIABILITY AND ANTICIPATORY OFFENCES


1.0

Types of criminal liability

1.1

There are many types of liability in criminal law which is discussed below:

1.2

Strict liability This is a situation where the offence does not require the mens
rea. The accused may be convicted of a crime even though he is not to be
blamed.

1.3

Vicarious liability A person may be liable for the conduct of another person.
For example, in an employment situation, an employer would be liable for the
criminal acts of his employees.
In a consumer sale, for example, a shop-owner may be guilty of selling goods
with false trade description even though the employee is selling them at the shop.
The employee can be charged as an abettor or sometimes as a joint principal
offender.

1.4

Corporate liability Companies can be convicted for the acts of its servants or
agents who have the authority to act on their behalf. Under the Organic theory
in the case of Bolton v Graham (1957), there are certain person who controls and
direct the affairs of the company and when they are acting on the companys
business, they are assumed to be the company for this purpose.

1.5

Joint liability A person may become criminally liable for the act of someone
else if it is shown that he and that other person have either a common intention or
a common purpose to commit the crime.
Section 34 PC when a crime is committed by a group of people to further their
common intention, each person in that group is liable as if the act is committed by
him alone. Section 34 does not require proof that any particular accused was
responsible for the commission of the offence.
Cases have shown that there must be a pre-arranged plan or prior planning
(Mahbub Shah v Emperor 1945) by the accused persons and that all the accused
person must participate in the crime (Kumar Ghosh v Emperor 1925). However,
in order to participate, it is not necessary that the accused be physically present at
the scene of the crime (Jai Krishandas v State of Bombay 1960).

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ANTICIPATORY OFFENCES
2.0

This part will discuss the three types of offences that may be involved in
process of committing the crime. These are:
2.0.1 Attempt
2.0.2 Abetment
2.0.3 Conspiracy

2.1

Attempt

2.2

There are three structures of attempt provisions in the Penal Code


2.2.1
2.2.2
2.2.3

2.3

the

Full offence & attempt in same section (e.g., sec 121 pc);
Full offence & attempt in different sections (e.g., in
murder- s. 302 & 307);
Section 511

Meaning of attempt
In Houghton v Smith [1975] the court held that offence must be more than a
preparation, it must not be remotely connected to the offence and must be
proximate/sufficiently close to the offence.

2.4

Physical impossibility
There may be some situations where the accused will be criminally liable for
attempting to commit the crime even though it is physically impossible to commit
the crime. For example, illus (b) S.511PC provides that the accused may be liable
for attempted theft when he puts his hands in the victims pocket but did not find
anything to steal.

2.5

Legal impossibility
The accuseds act is not a crime if he did the act not knowing that the property he
intended to steal is his own.

2.6

Mens rea for attempt


For the accused to be guilty for attempting to commit an offence under section
511 PC the prosecution must show that the accused intends to commit the full
offence.

3.0

Abetment

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3.1

Under section 107 PC, the abetment can be done by:


3.1.1 Instigation
3.1.2 Engaging in conspiracy
3.1.3 Intentionally aiding the commission of the act

3.2

Instigation by the accused may include the situation when he is actively


stimulating, suggesting, inciting, encouraging another accused person to commit
the crime (PP v Datuk Harun Idris 1979).

3.3

Abetment by aiding.

3.3.1

The accuseds act may either be positive act of assistance or negative


act/omission;
3.3.2 The accused must have substantially assists the principal offender;
3.3.3 The accused did the act/omission voluntarily;
3.3.4 The accused did the act/omission prior to or at the time of the crime;
3.3.5 The accused must have the intention to aid. Mere knowledge of the
circumstances is not enough (

3.4

The accused may be guilty of abetting a crime under section 108 PC under these
situations:
3.4.1 abetment of illegal ommission is a crime
3.4.2 abetment for an act which in fact is not committed is also a crime
3.4.3 when the person he abetted is incapable of committing the offence
(children or lunatic)
3.4.4 abetting another person to abet a crime is an offence (a incite b to incite c
to kill d)
3.4.5 the abettor engages in a conspiracy in order to further commit the crime.

4.0

Conspiracy

4.1

Under section 120A PC conspiracy means a group criminality, whereby


criminal liability is attached although the ultimate harm which is planned has not
been committed. The main ingredient of the offence is the agreement, concert or
league between two or more people.

4.2

Kok Wee Kiat v KL Stock Exchange Bhd [1979] held that conspiracy is an
agreement of 2 or more people to do an unlawful act or to do a lawful act by
unlawful means

4.3

Conspiracy continues as long as the conspirators remain in agreement; and as long


as they are acting in accord to further the purpose of the agreement.