ELEMENTS OF CRIME

LAW 2310
SECTION 2
SEM 2,2014/2015

Definition of Law

According to Oxford English Dictionary, law is

defined as the body enacted or customary rules
recognized by a community as binding.

Sir John Salmond in his book, Jurisprudence,

defined law as the body of principles recognized
and applied by the state in the administration of
justice. In other words, law consists of the rules
recognized and acted on by courts of justice. In
short, law may be defined as a body of rules
which are enforced by the state.

John Austin in his book The Province of

Jurisprudence Determined describes law
as a command set by superior being to
an inferior being and enforced by
sanctions (punishment). The superior
being is the state and inferior being is the
individuals. The sanctions are wide and
include imprisonments, fines, damages,
injunctions and decrees of specific
performance.

According to Blackstone, law is a

rule of action prescribed or dictated
by a superior which an inferior is
bound to obey.

Public Law

Public Law is basically the law which

governs the relationship between the
individuals and the state. Public law
may be further divided into two
categories, namely constitutional law
and criminal law. Constitutional law
lays down the rights of individuals in
the state. It deals with questions
such as supremacy of Parliament and
the rights of citizens.

Private Law (Civil Law)

Private Law is concerned with the

matters that affect the rights and
duties of individuals among
themselves. Basically Private Law is
also known as Civil Law. It covers
areas such as contract, torts and
trust. Torts and contract is based on
the obligations imposed by law
whereas the law of trust governs
relationship between trustees and

Criminal Law

Criminal Law is a law codifies the various

offences committed by individuals against the
state. It aims at punishing criminals and
suppressing crime. Thus, Criminal Law
imposes on individuals the obligation not to
commit crimes. A crime is wrong against the
state for which punishment is inflicted by the
state, the proceedings being brought by the
Public Prosecutor. The essential elements of
crime are actus reus (wrongful act) and mens
rea (guilty mind).

Crime

Literally, crime is an offence, wrongful act

that is punishable by law. While in
technical sense, crime is a prohibited act
done with a guilty mind. In short, crime
is defined as an act of disobedience of
the law forbidden under pain of
punishment. The punishments for crimes
range from death or imprisonment to a
money penalty (fine) or absolute
discharge.

According to Blackstone, a crime is a

violation of public rights and duties due
to the whole community.

Both Cross and Jones claimed that

whether an act is a crime or not is really
a political decision. It is up to the State
to regard it as a tort or a crime. In order
to constitute a crime, both the actus reus
and the mens rea must be present.

The Differences between

Criminal Law & Civil Law
CRIMINAL LAW

Offences are against the

states.
Proceedings are initiated by the
states (Public Prosecutor).
Proceedings cannot be
withdrawn, i.e. cannot be
settled outside the court
except with the approval of
Attorney General by virtue of
Article 145 of the Federal
Constitution.

CIVIL LAW

Wrongs are between

individuals.

Proceedings are initiated by

individuals.

Proceedings may be
discontinued and can be
settled outside the court.

CRIMINAL LAW

CIVIL LAW

Burden of proof lies on the

PP and generally does not
shift to the accused.

Burden of proof lies on the

plaintiff and it may shift to the
defendant.

The burden of proof is

beyond reasonable doubt.

The burden of proof is on the

balance of probabilities.

Legal consequences under civil

law are less severe than that
under the criminal law, for
example monetary
compensation; injunction;
specific performance; self
help.

Legal consequences under

criminal law are more severe
than that under the civil law,
for example death sentence;
life imprisonment; whipping
and fine.

CRIMINAL LAW

CIVIL LAW

In term of terminology
used:
- Prosecute.
- v. reads as against.
- Citation: PP v. Accused

In term of terminology
used:
- Sue.
- v. reads as and.
- Citation: Plaintiff v.
Defendant

If PP succeed, the
accused will be
convicted and the word
guilty is used.

The result is judgment

for the plaintiff or
defendant and the word
liable is used.

Maxim

The principle that a man is not

criminally liable for his conduct
unless the prescribed state of mind is
also present is frequently stated in
the form of a Latin maxim, actus non
facit reum nisi mens sit rea (an act
does not make a person legally guilty
unless his mind is legally
blameworthy).

From this, it can be deduced that as a general rule

criminal liability is only imposed if there is a
coincidence of two ingredients, namely:a) Actus Reus (guilty act): the conduct or action
of the accused which produces or
constitutes
the forbidden harm, for instance, firing the gun
and killing the victim; and
b) Mens Rea (guilty mind): a blameworthy state
of mind, for instance, intending to kill when firing
the gun.

Both elements derive from the above

maxim that shows mere act is not
enough; it must be done with
criminal intention. If there is only an
act per se without criminal intention,
the act is not a crime. In this case,
that person can only be charged but
cannot be convicted.

According to Turner, actus reus may

be defined as a result of human
conduct which the law seeks to
prevent.

And according to Glanville William,

actus reus means the whole
definition of the crimes with the
exception of the mental element.

Actus reus generally, is conduct and

sometimes it is consequence and also of
the circumstance in which the conduct
took place in so far as they are relevant.
Actus reus in other word can be defined
as the conduct or action of the accused
which produces or constitutes the
forbidden harm, and it is not merely an
act but consist of a state of affairs.

Types of Actus Reus

CONDUCT CRIME

Conduct crime consists of

action, which is prohibited
by law or in other words the
accused has done
something that law
prohibits. The criminal
liability is imposed simply to
the accused because this
action need not for result,
for example, in murder it
must be shown that the
accused conduct caused the
death.

RESULT CRIME

The law is interested only in

the result and not in the
conduct which bringing the
result. Result crime also
means that, the conduct of the
accused to cause a prohibited
result, for example, under
Section 41 of the Road
Transport Act 1987, it is an
offence for a person to drive a
motor vehicle on a road in a
reckless or dangerous manner
and thereby causes the death
of a person.

Whole Actus Reus Must be

Proved

There can be no crime unless whole

of the actus reus is proved. For an
act to be an offence, the act must be
complete. In other words, both
elements of criminal liability must be
proved in toto.

In Rex v. White, the defendant put potassium

cyanide in his mothers drink, intending to kill her.
Shortly afterwards, the mother was found dead
with the glass, partly full beside her. Medical
evidence confirmed that death was due to a heart
attack and not poisoning, the amount of
potassium cyanide administered was insufficient
to cause her death. The defendant was only
convicted of attempted murder, because although
death occurred, it was not caused by his conduct
and thus an element of the actus reus of murder
was missing.

Conduct or Act

There is no comprehensive definition is provided in

the Penal Code regarding conduct or act. The only
relevance sections here are section 32, 33 and 34.
However, in section 2 of the Penal Code, it has
mentioned about act or omission.

Section 2: Punishment of offences committed

within Malaysia.
Every person shall be liable to punishment under
this Code and not otherwise for every act or
omission contrary to the provisions thereof, of
which he shall be guilty within Malaysia.

Section 32: Words referring to acts include illegal omissions.

In every part of this Code, except where a contrary intention appears
from the context, words which refer to acts done extend also to
illegal omissions.

According to this section, illegal act is something that is not

acceptable by the Parliament (the ultimate power), whereas omission
means inaction and considered as legal omission when the person is
legally bound to omit. The examples are:-

A person does not help someone who is drowning in a swimming

pool. This is a case of legal omission because he is not bound to help
that person.

A father failed to perform his duty to feed his kids. This is an illegal
omission because it is his duty to take care of his children.

Section 33: Act and

omission.
The word act denotes as well a
series of acts as a single act: the
word omission denotes as well a
series of omissions as single
omission.

Section 43: Illegal, unlawful

and legally bound to do.
The words illegal or unlawful is
applicable to everything which is an
offence, or which is prohibited by law,
or which furnishes ground for a civil
action.
And in respect of the word illegal, a
person is said to be legally bound to
do whatever it is illegal in him to

Therefore, the conduct is either

voluntary or involuntarily conduct.
Voluntary conduct is an act, which is
done intentionally. Whilst,
involuntarily conduct refers to
conduct which is done without the
free will of the wrongdoer. This
conduct caused by uncontrollable
reflex action or by a physical collapse
brought on by injury or illness.

Conduct Must be Voluntary

In R v. Kemp the accused was

suffering from hardening of the arteries
which might have led to a congestion
of blood in the brain. He had struck his
wife violently with a hammer and it
was pleaded that he was not conscious
of this act because of the state
condition. The jury accordingly found
the accused guilty but insane.

The Penal Code does contain a

definition of voluntarily in section 39.

It was assumed that if an accused

acted in an involuntary manner
during an epileptic fit, the only
possible defence available to him
would be that of insanity under
section 84 of the Penal Code.

In Sinnasamy v. PP, Good J. stated that this is an appeal

against the conviction of the appellant for murder of his
daughter aged 21 monthsThe defence was that the
appellant did the act when in a state of automatism, which
is temporarily loss of consciousness associated with some
types of epilepsyThe learned judge, in his summing up,
was right in rejecting the defence of automatism in favour
of the theory that the appellant acted on an irresistible
impulseIrresistible impulse per se is no defence, and can
only be a defence when it is proved to have been the result
of insanity in law. The onus of proving this lay on the
appellant and, in our view, he did not succeed in
discharging itfor the reasons that we have given, the
appeal is dismissed.

In Re Pappathi Ammal, the accused, who

had recently given birth to a child, jumped into
a well with the child at night. An alarm was
raised and the accused rescued but the child
drowned. The accused was charged with
murder and attempted suicide. In her
defence, she pleaded that she was a
sleepwalker and that during such sleepwalking
she must have walked into the well with her
child. It was ruled that such an allegation of
somnambulism had not been substantiated.

In the recent case of PP v. Muhamad Suhaimi bin

Abd Aziz, the accused, a Petronas executive was
charged with the murder of his wife under section
302 of the Penal Code. The defence advanced was
one of unsoundness of mind at the time of the
commission of the crime. The psychiatrist (DW2)
who examine and observed the accused after his
arrest found that he was suffering from a type of
psychotic illness, namely, delusional disorder
jealous type. DW2 concluded that at the time of
the incident, the accused was of unsound mind and
did not know that what he did was wrong in law.

At the end of the trial, Augustine Paul J. acquitting

the accused and observed that the question of
whether a defence of insanity had been made out
or not was a matter for the court to decide. The
medical evidence on the mental state of the
accused at the time of the incident was not
seriously challenged. Neither was any evidence
in rebuttal led by the prosecution to challenge
the evidence of DW2. Where medical evidence
was unchallenged and there was no evidence to
the contrary, a verdict of murder could not stand.

Omission

Omission generally does not give rise to criminal

liability. Nevertheless, if the omission is illegal
omission, criminal liability will arise. Therefore, if
it is just an omission to moral duty, then there is
no criminal liability. The most common example
of this omission is as illustrated in the
Stephens Digest of the Criminal Law, which
stated that a passerby could not be liable for a
crime if he saw a child drowning in a shallow pool
and he however done nothing although he could
easily save the child without any risk incurred.

According to section 32 of the Penal Code, an act

extends also to illegal omissions. In most cases, it only
requires to prove that the defendant had only carry out
some positive act before criminal liability can be
imposed upon him. Normally, failure to act forms no
liability unless the act is a duty. For example, a
motorist who fails to provide a police officer with a
specimen of breath when properly required to do so
will commit an offence. It is also showed that a person
who is responsible to take care and maintain his/her
children but fail to do so, that is, failure to provide him
adequate food, clothing, medical aid or lodging is also
fall under this offences of pure omission.

Failure to Act
A) Resulting from Special Relationship
This is illustrated in the case of Walter Gibbins & Edith Rose
Proctor. These were appeal against conviction on matters of law.
Appellants were convicted, on the 18/03/1918, of murder, and were
sentenced to death. The appellants were convicted of the murder of
Gibbinss daughter, Nelly, a girl of 7, it is being alleged that she died
of starvation as the result of a long course of cruelty and neglect at
the hands of both appellants. Gibbins earned good wage, which he
brought home and gave to Proctor to maintain the house and those in
it. There is no evidence that there was not enough to keep them all
in health. And all were looked after except one, namely Nelly, who
was starved to death. Her organs were healthy, and there was no
reason why she should have died if she had been supplied with food.
She was kept upstairs apart from the others, and there was evidence
that Proctor hated her and cursed her.

Darling J. stated that if you think that one or

other of those appellants wilfully and intentionally
withheld food from that child so as to cause her
to weaken and to cause her grievous bodily
injury, as the result of which she died, it is not
necessary for you to find that she intended or he
intended to kill the child then and there. It is
enough if you find that he or she intended to set
up such a set of facts by withholding food or
anything as would in the ordinary course of
nature lead gradually but surely to her death.

B) Creating Dangerous Situation

In the case of R v. Miller, one night while squatting in someone
elses house, the appellant lit a cigarette, and then lay down on
a mattress in one of the rooms. He fell asleep before he had
finished smoking the cigarette and it dropped onto the mattress.
Later he woke up later and saw that the mattress was
smouldering. He did nothing about it; he merely moved to
another room and went to sleep again. The house caught fire.
The appellant was rescued and subsequently charged with
arson. Lord Diplock in the House of Lords observed that once the
appellant had discovered the mattress was smouldering, the
appellant had been under a duty to act. The appellant was
convicted and his conviction on the ground that his course of
conduct constituted a continuous actus reus.

C)

Duty Assumed by Contract

In Rex v. Pittwood, the accused was a railway

gatekeeper who was employed to keep the gate
shut whenever a train was passing during the
period 7 am to 7 pm. Not many trains used to pass
during this day period. One day, the accused left
the gate open with the result that a train hit a hay
cart crossing the line killing one man and injuring
another seriously. The accused was charged with
manslaughter. The accused was found guilty and
sentenced to three weeks imprisonment.

D) Duty Voluntarily Assumed

In R v. Instan, the accused lived with her 73
years-old aunt. The aunt who had been healthy
until shortly before her death developed
gangrene in her leg. During the last twelve days
of her life, she could not fend for herself, move
about or summon help. Only the accused knew
of her state and gave her aunt no food and did
not seek medical assistance. The accused was
charged with manslaughter and convicted.

Mens Rea

The required mens rea varies from

one crime to another. According to
Lord Morris in Sweet v. Parsley
Mens rea is an essential ingredient
of an offence. The requirement to
prove mens rea depends on whether
the statute has clearly or by
necessary implication rules out that
mens rea as a constituent part of
guilt.

Generally, a person cannot be held liable for his acts,

which is done without any intention or guilty mind. It
is unfair to punish a person who negligently done that
act because it is happened without his intention.
However, if a person has the intention to kill his wife,
put poison in her foods, he is liable for his act, even
though his wife is still alive because he had the mala
fide regardless what ever would be the result (that is,
an offence for attempted murder). In the criminal law,
this intention is known as mens rea. Generally, mens
rea signifies guilty mind. In the dictionary, it is defined
as an evil intention or knowledge of the wrongfulness
of an act.

Mens rea is an important element that

must be proved in order to convict an
accused for the offence he/she had been
committed, namely the mental element or
degree of fault that the accused had at
that relevant time. However, mens rea is
not limited to such states of mind. It also
covers those acts, which are done with
the knowledge that there is a chance for
the conducts to cause a prohibited result.

Mens Rea under the Penal Code

There are several provisions under Penal

Code, which make mens rea as a requirement,
for example:Section 142: Intentionally joins unlawful
assembly.
Section 275: Sale of drugs which known to be
adulterated.
Section 304A: Causes the death of any
person by doing any rash, or negligence act.
Section 378: Intending to take dishonestly
any movable property.

Specific terms of Mens

Rea
A) Intention
Concept of intention is nowhere
defined in the Penal Code. Usually
intention is used in relation to
consequences. A person clearly
intends a consequence if he wants
that consequence to follow his action.
This is whether the consequence is
very likely or unlikely to result.

In the case of Nor Hasnizam bin Ab Latif v.

PP, the Court of Appeal dismissed the appeal
and affirmed the sentence of the High Court
and held that on the matter of intention to kill,
it was a matter of inference from the nature of
the wounds. The bone of contention of the
defence was that the injury caused to Yong was
accidental. From the nature of the injuries
inflicted on Yong, it could be inferred that the
appellant must have intended to kill Yong within
the meaning of section 300 of the Penal Code.

B) Recklessness
This concept is unknown to the Penal
Code but has been introduced into other
local legislation, such as the Road
Transport Act 1987, for example:Section 41: Causing death by reckless
or dangerous driving
Section 42: Recklessness and
dangerous driving

C) Knowledge
Knowledge and reason to believe
are to be clearly distinguished. Belief
is somewhat weaker than knowledge
but a well-grounded belief that
certain consequences will follow a
certain act is ordinarily as good as
knowledge.

In PP v. Kalaiselvan, the accused was

charged with trafficking in 807.4g of cannabis.
At the end of the prosecutions case, Augustine
Paul J. acquitting the accused and discharging
him without calling upon him to enter his
defence. The learned judge observed that
even if the presumption applies, it only goes to
show that the dangerous drugs were concealed
with the knowledge of the accused. It is trite
law that mere knowledge is insufficient to
constitute possession of the dangerous drugs.

D) Rashly and negligently

While each of these terms has a
separate meaning, the Penal Code
generally uses them jointly as in
causing death by a rash or
negligent act contrary to section
304A of the Penal Code.

In the case of PP v. Mahfar Sairan, the accused was charged with

the murder of his wife where he was alleged to have caused her death
by driving his car into her on the road in front of their house after he
had reversed the car out of the porch. Kang Hwee Gee J. stated that
In order to establish an offence under s.304A of the Penal Code that
is that the accused caused the death of the deceased by any rash or
negligent act, all that was required of the prosecution was to prove
that the act of the accused in causing his car to come into contact
with the person of the deceased was rash and/or negligent. The test
was whether or not a reasonable man in the same circumstances
would have been aware of the likelihood of damage or injury to others
resulting from such conduct and taken adequate and proper
precautions to avoid causing such damage or injury.
The accused accordingly was convicted under s.304A of the Penal
Code, and sentenced to imprisonment for a period of 6 months with
effect from the date of arrest.

E) Malignantly
Malignantly means maliciouslyA
thing is done maliciously, if it is
done wickedly or in depraved or
perverse or malignant spirit,
regardless of social duty and
deliberately bent on mischief.

The term malicious itself appears in

section 219 and 220 of the Penal Code.
Being undefined, it is permissible to look
at English law to discover its scope and
meaning. This word not only to be
understood in the sense of wickedly or
with ill will but as requiring either actual
intention to cause the relevant harm or at
least foresight of the risk of causing the
particular type of harm.

F) Dishonestly
This concept is defined in section 24 of the Penal Code.
In PP v. Wong Kim Fatt, Dato George K.S. Seah FJ stated that To
establish dishonesty, it is not necessary that the prosecution should
establish an intention to retain permanently the property
misappropriated. An intention wrongfully to deprive the owner of
the use of the property for a time and to secure the use of the
property for ones own benefit for a time may be sufficient. It is not
necessary to prove in what precise manner the money or property
was misappropriated. The essential thing to be proved is that the
accused was actuated by dishonest intention. The failure of the
accused to account for the money proved to have been received by
him or giving a false account as to its use is generally a strong
circumstance against the accused. The mental act of intent to
deprive the owner of his property is the gist of the offence.

G) Fraudulently
This type of mens rea is defined in
section 25 of the Penal Code.

H) Voluntarily
This concept is defined in section 39
of the Penal Code.

Proof of Mens Rea

The fact that a consequence is

proved to be the natural and
probable result of the accuseds
actions does not mean that it is
proved that he or she intended or
foresaw such a result; the magistrate
or the judge must decide.

In the case of Kochu Muhmmad Kunju Ismail

v. Mohmmad Kadeja Umma, the accused took
learned opinion that she had capacity to
effectively divorce her husband under personal
law applicable to her, and she went through such
formalities as required and gave notice to her
husband, waited for sometime and then
remarried the third accused. The court held that
her belief that she was free to marry again would
negative criminal intent or knowledge on her part
and that was a good ground for acquitting her.

In the celebrated case of Dato Seri Anwar bin

Ibrahim v. PP, the appellant, the former Deputy
Prime Minister, had been convicted on four amended
charges of corrupt practice under s. 2(1) of the
Emergency (Essential Powers) Ordinance No. 22 of
1970. He was sentenced to six years imprisonment in
respect of each of the four charges and the sentences
running concurrently from the date of conviction. He
appealed against both conviction and sentence. At
the appeal, one of the issues which the counsel for
appellant had raised up was that the learned judge
failed to address his mind to the question of mens rea.

The Court of Appeal judge in replying to that

submission, had cited the case of PP v Dato Haji
Mohamed Muslim bin Haji Othman (1983), where
Hashim Yeop Sani J said:
Now the question of mens rea. I need only say
that mens rea is necessary in every criminal
offence save those which the legislature thought
fit to expressly exclude. But mens rea can be
proved in diverse ways. Here mens rea is
proved if the accused knew or ought to have
known of the conflict between his public duty as
member of the Exco and his private interest in
the approval of the application.

The learned judge stated that It does not become part of

the hearing of an appeal to indulge in an exercise whereby
the court must spell out every conceivable circumstance
whether criminal intent is present or not. It is true that the
learned trial judge may have unwittingly failed to mention
the words mens rea but if he has examined every single
piece of evidence relevant to the proving of a charge,
which he has done in this case, and in fact found it proved,
that would not fatal in his view to the prosecution case. In
this case, the judges said that they are not convinced with
the submission of the appellants counsel on this issue and
more satisfied that the prosecution has proved its case.
Therefore, the appeal was dismissed.

The relationship between

Actus reus and Mens rea

The mens rea coincide in point of time with the act

which causes the actus reus. Mens rea implies an
intention to do a present act, not a future act.
According to Holmes, There is no law against a mans
intending to commit a murder the day after tomorrow.
The law only deals with conduct.
If the defendant does an act with intent thereby to
cause the actus reus, and does so, it is immaterial that
he has repented before the actus reus occurs, so
where the defendant dispatched suitcases which she
know to contain cannabis from Ghana to London, her
repentance before the importation took place was no
defence,.

Where the actus reusis part of a larger

transaction, it may be sufficient that the
defendant has mens rea during the transaction,
though not at the moment the actus reus is
accomplished.

The general rule is that an offence can be

committed only where criminal conduct is
accompanied by some element of fault (guilty
mind). However, some offences need not to prove
the guilty mind such as strict liability offences.

Conclusion

The legal maxim actus non facit reum nisi mens sit
rea means that an act cannot constitute an offence
unless it is accompanied by a guilty mind. From this
maxim, two elements must be fulfill, that is actus reus
and mens rea.

Actus reus is the act or conduct or the circumstances

of the forbidden act which is prohibited by law. Crime
can be divided into two. They are conduct crime and
result crime. The conduct must be a voluntary conduct
in order to make the accused liable for an offence. An
involuntary conduct can be a defence to escape
liability.

Meanwhile mens rea means as guilty

mind or an evil intention or knowledge of
the wrongfulness of an act. A person
cannot be held liable for the crime
committed without having an intention in
his mind before commits that crime and
during that commission. The prosecutor
must prove this element together with
actus reus in order for the accused to be
held liable.