LECTURE NOTE 1

INTRODUCTION
• Definition of crime
• Definition of criminal law
• Purpose of criminal law
• Overview of criminal law in Malaysia
 What is crime?
• Crime involves behaviour that has
been designated as criminal by
legislation enacted by Parliament.
– What act is to be considered as crime/
How the act is categorised as crime?
– Sexual intercourse without consent –
rape – crime
• With consent?
– Dishonest – crime
• Dishonesty in marriage?
– Killing of human being – crime
 Components of crime
• Conduct either commission or
omission prohibited by law (actus
reus)
• State of mind accompanies the
actus reus (mens rea)
• A punishment prescribed by law
 Harm and blame
• The normal components of
criminal liability are harmful
conduct and a blameworthy
• Analysis of crime
– Physical elements i.e is the accused
person’s conduct within the definition
of crime prescribed by the
legislation?
– Fault element i.e what was the
accused person’s state of mind
when doing the act?
• Crime involves behaviour so serious
that it cannot be treated simply as a
matter between private individuals
that can be left to be resolved,
through civil law by those individuals.
• Criminal law – public law
• An offence against state
• State takes actions against offender
(AG/ DPP)
 What is criminal law
• Criminal law
– Substantive law
– Procedural law
 Substantive law
• Substantive law
– Defines crime
– Nature of crime
– Penal Code
– Other statutes
 Procedural law
• Detection
• Prosecution
• Punishment
• Administration of criminal justice
• Procedure relating to the conduct of
criminal cases
• CPC
 What is criminal law
• Codification of sets of rules relating
to:
– Commission of crimes
– Punishment
• The causing of an offender to suffer for an
offence
• PP v Musa [1970] 1 MLJ 10
• Functions of punishment
i) Retribution
ii) Deterrence
• Criminal law or penal law is a body
of law relates to crime
• It regulates social conduct and
prescribes whatever is threatening,
harmful, or otherwise endangering to
the property, health, safety, and
moral welfare of people.
• It includes the punishment to people
who violate these laws.
– Crime is a commission of any act in
violation of a law prohibiting it or omission
 The Free Dictionary
• Criminal Law
– A body of rules and statutes that defines conduct
prohibited by the government because it threatens
and harms public safety and welfare and that
establishes punishment to be imposed for the
commission of such acts.
• The term criminal law generally refers to
substantive criminal laws.
• Substantive criminal laws define crimes and
may establish punishments.
• In contrast, Criminal Procedure describes the
process through which the criminal laws are
enforced.
• For example:
– the law prohibiting murder is a substantive
criminal law.
 Purpose of criminal law
• To protect the society by facilitating
the detection and prosecution of
criminal actions while protecting the
rights of the accused.
 Criminal law in Malaysia
• Laws embodied in Penal Code and
other several statutes
• Sources of criminal law in Malaysia
– Penal Code (Indian Penal Code 1860)
– Dangerous Drugs Act 1952
– Dangerous Drugs (Special Preventive
Measures) Act 1985
– Restricted Residence Act 1933 (Rev.
1989)
– Road Transport Act 1987
 Criminal proceedings & legal
punishment
• Criminal proceedings
– To ascertain the criminal liability
– Penal sanction
– Once instituted, can be stayed or discontinued
at any stage
– Long bin Samat v PP [1974] 2 MLJ 152

• Punishment
– Awarded in the process instituted at the suit of
the AG (prosecutor)
– When imposed may be remitted only by the
YDPA or Ruler or Yang di Pertua Negeri
– Punishment upon conviction must be in
accordance with the law within the ambit of
 Penal Code
• Penal Code (main statute) in
Malaysia went through several
stages
• Before the Penal Code, the law
which applied in most states was
Islamic law
 Suffian L.P. in Che Omar bin Che Soh v. Public
Prosecutor
Before the British came to Malaya ... the sultans in each of their respective
states were the heads not only of the religion of Islam but also as the political
leaders in their states, which were Islamic in the true sense of the word,
because, not only were they themselves Muslims, their subjects were also
Muslims and the law applicable in the states was Muslim law. Under such
law, the sultan was regarded as God's viceregent (representative) on earth.
.. .When the British came ... through a series of treaties with the sultans ...
and through so-called British advice, the religion of Islam became separate
into two aspects, viz. the public aspect and the private aspect. The
development of the public aspect of Islam had left the religion as a mere
adjunct to the ruler's power and sovereignty. The ruler ceased to be regarded
as God's viceregent on earth but regarded as a sovereign within his territory.
The concept of sovereignty ascribed to humans is alien to Islamic religion
because in Islam, sovereignty belongs to God alone. By ascribing
sovereignty to the ruler, i.e., to a human, the divine source of legal validity is
severed and thus the British turned the system into a secular institution.
Thus all laws including administration of Islamic laws had to receive this
validity through a secular fiat.
 Development of Penal Code in Malaysia
1. The Straits Settlement Penal Code (1871) –
Penang & Malacca

2. Penal Code (1936) – Federated Malay States

3. Penal Code Amendment Ordinance (1948) –

Federation of Malaya

4. Penal Code Amendment Act (1976) –

throughout Malaysia (Peninsular, Sabah & Swak)

5. 1936 Code was revised in 1997 – present

Penal Code

Latest amendment made by Act A1471 came into operation 31

Dec 2014
 Criminal law in Federal Constitution

• Limb 4 of the Federal List in the Ninth

Schedule - the Federal List consists of
civil law, criminal law, procedure and
the administration of justice.
• As far as criminal law is concerned, the
Penal Code applies to all individuals
within the Federation.
• Sec 2 of the Penal Code
– Every person shall be liable to punishment
under this Code and not otherwise for
every act or omission contrary to the
 4 core values of Penal
Code
• Carbon copy from Indian Penal Code
• Comprehensibility
– Easily understood by ordinary people who may become
subject to its offences
• Accessibility
– Readily accessible in the form of code
– Explanations and illustrations to promote
comprehensibility and accessibility
• Precision
– Language and expressions are precise/ not vague
• Democracy
– Reflect democracy of a country (by having a specific code,
specific language)
 Structure of Penal Code
• 511 section in 26 chapters

• CHAPTER I (ss 1-5)

– Preliminary

• CHAPTER II (ss 1-52B)

– General explanations and definitions of
core concepts

• CHAPTER III (ss 53-75A)

– relate with punishment (now many
provisions have been superseded by CPC
• CHAPTER IV (ss 76-106)
– General defences/ exceptions

• CHAPTER V (ss 107- 120)

– Abetment

• CHAPTER VA (ss 120A-120B)

– Criminal conspiracy

• CHAPTER VI (ss 121 – 130A)

• CHAPTER VIA (ss 130B – 130T)
– Offences relating to terrorism

• CHAPTER VIB (ss 130U – 130ZC)

– Organized crime

• CHAPTER VII (ss131 – 140B)

– Offences relating to the armed forces

• CHAPTER VIII (ss 141 – 160)

– Offences against the public tranquility
• CHAPTER IX (ss 161 – 171)
– Offences by or relating to public
servants

• CHAPTER X (ss 172 – 190)

• Contempts of the lawful authority of
public servants

• CHAPTER XI (ss 191 - 229)

– False evidence and offences against
• CHAPTER XII (ss 230 - 263)
– Offences relating to coin and
government stamps

• CHAPTER XIII (ss 264 – 267)

– Offences relating to weights and
measures

• CHAPTER XIV ( ss 268 – 294)

– Offences affecting the public health,
safety, convenience, decency and
• CHAPTER XV (ss 295 – 298A)
– Offences relating to religion

• CHAPTER XVI (ss 299 – 377E)

– Offences affecting the human body

• CHAPTER XVII (ss 378 – 462)

– Offences against property
• CHAPTER XVIII (ss 463 – 489D)
– Offences relating to documents and to
currency notes and bank notes

• CHAPTER XIX (ss 491)

– Criminal breach of contracts of service

• CHAPTER XX (ss 493 – 498)

– Offences related to marriage
• CHAPTER XXI (ss 499 – 502)
– defamation

• CHAPTER XXII (ss 503 - 510)

– Criminal intimidation, insult and
annoyance

• CHAPTER XXIII (ss 511)

– Attempts to commit offences