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“Infancy” is the state or period of babyhood or early childhood. Known as the condition of being a minor and can be defined as a period before one reaches the age of 18 according to British Law. Meanwhile in the Oxford Dictionary of law defines infancy(minor) as someone with limited capacity to contract.

However, Children below the age of 10 cannot commit a crime in Malaysia and this is fully covered under Section 82 of Penal Code. This basically means, that a child younger than 10 is not required to attend any court proceedings for whatever crime he did. Now, there are some rules that the Malaysian law has laid out on how children can be punished for any crimes they do.

The Child Act 2001 applies only if an accused is a “child”. Section 2 of the Child Act specifically defines a person to be a “child” as:

1. A person below the age of 18; and

2. A person who’s 10 years old and above.

As we mentioned earlier, children below 10 years old will not be tried in court for any offence. So the age group of children who can be tried in court for committing crimes are from 10-18 years old. After the age of 18, the child (technically a teenager now) will be tried in a normal court.

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Legally it means not only mental illness, but also believing in spiritual factors such as mystical/religious belief.

Unsoundness of mind can essentially categorised in 3:

(i) due to external factor,

(ii) due to internal/mental functionality, and

(iii) mental deficiency

Trigger/Duration of being categorised ‘crazy’:

1) during certain time

2) all the time

3)suddenly – due to some triggering factor (allergic, blood, shock)

Unsoundness of mind under Section 84 is a legal concept – concern with the question of the accused’s responsibility of his action.

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Intoxication is a defence available to criminal defendants on the basis that, because of the intoxication, the defendant did not understand the nature of his or her actions or know what he or she was doing. The intoxication defence applies in very limited circumstances and typically depends on whether the intoxication was voluntary or involuntary and what level of intent is required by the criminal charge.

If a person was in a state of intoxication at the time of the act or omission complained of and-;

(a) the state of intoxication was such that he did not know that the act or omission was wrong or he did not know what he was doing; and

(b) the state of intoxication was caused without his consent by the malicious or negligent act of another person, he shall be deemed to be a person of unsound mind.

Section 85 (1) is not a defence against Intoxication in court while;

Sec. 85 (2) and Sec. 86 is a defence against Intoxication that can be used in court.

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Section 84

Nothing is an offence which is done by a person who at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that what he is doing is wrong and contrary to law

Under the Penal Code, the accused only requires to prove:

At the time of doing the act

By reason of unsoundness of mind

Incapable of knowing nature of the act, or

Incapable of knowing what he was doing is contrary to the law/wrong

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Section 85. (1)

Save as provided in this section and in section 86, intoxication shall not constitute a defence to any criminal charge.

Section 85. (2)

Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and—;

(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or

(b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.

Section 86. (1)

Where the defence under subsection 85(2) is established, then in a case falling under paragraph (a) thereof the accused person shall be acquitted, and in a case falling under paragraph (b), the provisions of section 84 of this Code, sections 347 and 348 of the Criminal Procedure Code [Act 593] shall apply.

Section 86. (2)

Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.

Section 86. (3)

For the purpose of this and the preceding section “intoxication” shall be deemed to include a state produced by narcotics or drugs.

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Under the Penal Code, the accused only requires to prove:

At the time of doing the act;

Temporary or permanent – must suffer unsoundness of mind during the commission of the offence.

By reason of unsoundness of mind

When the mind doesn’t function properly – mental faculties become impaired and has become destitute of reason, intelligibility and coherence of thought (lost mental balance or equilibrium)

Includes automatism (due to external factors) – sleepwalking.

Incapable of knowing nature of the act, or

Reasoning ability of the accused must be affected

Not   knowing   a   fact   may   not   be   the   same   as   incapable   of knowing

Possibility where the accused suffers from dissociation of ideas where he knows one thing but not the other.

Incapable of knowing what he was doing is contrary to the law/wrong

If the accused knew the nature of his act, he can raise defence under s.84 if at the time of commission he had no idea that it's wrong or contrary to the law

Wrong refers to morally wrong (objective test)

There are two view to this part of s.84 : (i) read disjunctively where   the   accused   are   more   readily   acquitted   or   (ii)   read conjunctively

Elements in Section 84 for automatism in Malaysia;

for automatism, evidence must be proved according s105 of evidence act

if it's due to internal factors, he will be regarded as insane, and s84 is applicable, if successfully established, s348 of CPC will be applicable.

burden of proof on balance of probabilities

if   cases   includes   non   insane   automatism,   therefore   the burden of proof is on prosecution to prove the nonexistence of   the   automatism,   because   the   existence   of   non   insane automatism will negated the mens rea (mens rea is the core of offence that needs to be proven by the prosecution)

if the automatism is due to alcohol or drug, that causes the accused to do unwilled acts, and the accused was drunk not of   himself but   because of   3rd  party,   the  defence  will  be  an absolute defence for him, if it's by himself, s347 and s348 of CPC will be applied.

if drunkenness is caused by the accused himself, but the accused has the intention before committing an offence, s347 and s48 will not be applicable because there is intention before being drunk.

R v Sullivan [1994] ~ the accused kicked an 86 y/o man – the oldman was known in the neighbourhood as a kind person – accused had an epilepsy and kicked him – issue was whether accused can use insanity

HELD : court held that epilepsy is not automatism but a disease of mind because it is not due to external factors – it's due to internal factors – the epilepsy causes a defect of reasoning on the accused’s part-- can use this defence.

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If a person was in a state of intoxication at the time of the act or omission complained of and-;

(a) the state of intoxication was such that he did not know that the act or omission was wrong or he did not know what he was doing; and

(b) the state of intoxication was caused without his consent by the malicious or negligent act of another person, he shall be deemed to be a person of unsound mind.

Section 85 (1) is not a defence against Intoxication in court while Section 85 (2) is a defence against Intoxication that can be used in court. If accused successful in proving the defence of intoxication, the effect is stated in section 86 of the Penal Code 16 which are:

(1) Where the defence under subsection 85(2) is formed, then in a case falling under paragraph (a) thus the accused person shall be released, and in a case falling under paragraph (b), section 84 of this Code, sections 347 and 348 of the Criminal Procedure Code [Act 593] shall affect.

(2) Intoxication shall be considered for the reason of deciding whether the person accused of had created any intention, specific or otherwise, in the absence of which he would not be blameworthy of the offence.

(3) For the purpose of this and the preceding section “intoxication” shall be deemed to include a state produced by narcotics or drugs.

Types of Intoxication;

Involuntary Intoxication

Involuntary intoxication occurs when someone is tricked into consuming a substance like drugs or alcohol. It can also occur as a result of an allergy to, or the unintended effects of, a legal prescription medication. Involuntary intoxication can be a defence to criminal charges if it prevents the defendant from forming the intent that is required for a crime.

Voluntary Intoxication

Establishing a defence of voluntary intoxication is much more difficult than that of involuntary intoxication. Juries are less likely to accept a defence when the defendant brought the intoxication upon himself or herself. A defendant could argue voluntary intoxication as a defence to burglary because he was so intoxicated he was unable to form an "intent to commit a crime therein".

In general, for crime to occur, two elements must be present simultaneously. The first element is actus reus which is the conduct of a forbidden act or causing  harm. The second element can either be in the form of commission, an actual performance of an act or omission or failure to perform an act imposed by the law. Actus reus means that an act does not make a person guilty of committing an offence unless the act is followed by a guilty state of mind. The second requirement is mens rea, which refers to a blameworthy state of mind accompanied a guilty act. This mental element could exist in several forms such as the  intention   and  voluntariness to commit an act or the reckless conduct of the wrongdoer.

A-G for N. Ireland v. Gallagher

The   Respondent   was   an   aggressive psychopath   and   prone   to   violent   outbursts. This   was   particularly   so   if   he   had   taken alcohol. He was frequently violent towards his wife.   He   had   spent   some   time   in   a   mental hospital for which he blamed his wife. On his release he went out and brought a bottle of whiskey and a knife. He intended to use the knife to kill his wife and brought the whiskey as   he   knew   that   this   would   make   him aggressive to the extent that he would be able to kill. He drank the whiskey and killed his wife with   the   knife   and   a   hammer.   He   was convicted   of   murder   and   appealed   to   the Court of Criminal Appeal N.I on the grounds of a misdirection.  His conviction was quashed.

The Attorney General appealed to the House Of Lords on the grounds that the defence of insanity was not open to him because before taking the drink, when there was no defect in his reason, he had clearly evinced an intention to   kill   his   wife   and   any   temporary derangement of his reason at the time of the killing was the result of his own voluntary action taking the drink.

Held: Appeal allowed. The conviction restored. Where a person forms the intention to kill and drinks   in   order   to   give   themselves  courage,   they   cannot   then   rely   on   their intoxication to demonstrate they did not have the necessary mens rea.

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Wang Shuzhen arriving at the State Courts on Oct 28, 2019. She has been certified by IMH to be incapable of defending herself in court. - ST

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SINGAPORE: A 57-year-old woman who was charged with killing her 63-year-old husband in 2019 has been certified by the Institute of Mental Health (IMH) to be of unsound mind and incapable of defending herself in court.

As a result, the High Court on Friday (Sept 30) ordered a stay of the proceedings against Chinese national Wang Shuzhen, who allegedly killed Teh Hock Pine, a retired policeman, in their Ang Mo Kio flat in the early hours of Oct 27, 2019. Wang faces a charge of culpable homicide for allegedly hitting Teh on the head at least four times with a 2.6kg glass ball that measured about 40 cm in circumference. A soccer ball has a circumference of 68cm to 70cm.

The court also directed the case to be reported to the Law Minister and ordered Wang to be detained in Changi Prison pending further orders by the minister. Under the Criminal Procedure Code, the minister may order the accused to be confined in a psychiatric institution or any other suitable place of safe custody. In August, the prosecution applied for Wang to be remanded for psychiatric observation, for the purpose of obtaining a certificate on her fitness to stand trial.

In previous IMH reports, Wang was diagnosed with schizophrenia with psychotic symptoms. The details of IMH’s latest report, dated Sept 28, 2022, were not disclosed in open court in Friday’s remote hearing. At the hearing, Wang's assigned lawyer, Sadhana Rai, applied to discharge herself. Rai said Wang has a "delusional belief that my colleagues are involved in some way or another with her husband". The lawyer said Wang can apply for legal aid again if her mental state improves.

Wang was charged on Oct 28, 2019, with the murder of Teh. She was 54 years old at the time. Police said they responded to a case of unnatural death at Block 633 Ang Mo Kio Avenue 6 at 5.46am on Oct 27, 2019. Teh was pronounced dead by paramedics and Wang was arrested at the scene. The murder charge was reduced to one of culpable homicide in 2021.

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The Ang Mo Kio flat where the incident took place.

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The Ang Mo Kio flat where the incident took place.

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Fig.1 Picture shows the patient's neck after the restraint belt was disentangled.Several parallel lines were marked without scratch wounds, suggesting self-harm

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A 20-year-old man was transferred to a hospital by ambulance because of a disturbance of consciousness and vomiting. He had started drinking 1 h before the Emergency Medical Service was notified of his altered consciousness. His serum ethanol concentration on arrival was 225 mg/dL, and the patient was admitted for treatment of intoxication.

During the preadmission radiographic examination, he repeatedly engaged in dangerous movements, for example trying to stand up on the stretcher, followed by periods of sleeping, shouting meaninglessly, sleeping again, and rising up. By permission obtained from the people accompanying the patient, restraint belts were applied to the patient, with his body in a lateral position to avoid airway obstruction in case the patient vomited. Considering his uncontrollable behaviour, a single room was selected without ECG monitoring.

Three hours after the admission, he was found with cardiopulmonary arrest with one of the restraint belts twined several times around his neck (Fig.​1). Several parallel lines were marked without scratch wounds, suggesting self-harm. The other end of the belt was tied to the steel bar of the bed. Another belt had been taken off and was on the floor. Thirty-five minutes before, he was shouting, and his body and all extremities were tied down by restraint belts. The method of restraining the patient is shown in (Fig.​2).

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(Figure 2) The method of using restraint belts is shown. Intentional hanging, not accidental hanging, was suspected.

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Fig.3 Initial brain CT scan after resuscitation demonstrates unclear border between grey matter & white matter however, blood supply to the brain is normal

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Resuscitation succeeded, and the initial CT showed a normal blood supply to the brain (Fig.​3). However, cerebral swelling progressed, and the patient died from resuscitation-related brain injury 1 month after the admission (Fig.​4).

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Cerebral swelling progressed, and the patient died from resuscitation-related brain injury 1 month after the admission. The CT scan shows the typical findings in resuscitation-related brain injury.

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1. DEFINITION

THREAT

A threat is any communication indicating an intention to do harm. It can be communicated directly or indirectly either by words or by conduct or a combination of both

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2. SECTION PENAL CODE

Threat

Sec. 94

Except murder, offences included in Chapter VI punishable with death and offences included in Chapter VIA, nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence: Provided that the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint

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3. ELEMENTS

THREAT

1. the harm threatened must be death

Section 94 specifies that nothing short of a fear of death will suffice for the defence to be

applicable.

2. the threat must be directed at the accused

S.94 in Malaysia, requires the threat of instant death to be directed at the accused alone.

3. the threat must have been of instant death

Tan Seng Ann v PP [1949]- Court of Appeal reaffirmed trial judge’s decision that ‘only fear of immediate death would be sufficient excuse’. Stated that for duress to be pleaded threat must be imminent, extreme and persistent. Imminent (pp v Nagaenthran a/l K Dharmalingam [2011] ) from when the threat was made to when the crime ordered by the coercer was to be committed.

4. the accused must have reasonably apprehended that the threat will be carried out.

Requires the court to consider what the accused’s belief as to the nature of the threat was, and then to decide whether such belief was reasonably held.

Derrick Gregory v PP [1988]

-accused pleaded duress for a charge of drug trafficking

-contended that his personality disorder caused him to take the threats from his coercer

seriously.

-Supreme Court reaffirmed trial judge’s decision that the accused’s personality disorder had no bearing on his conduct prior to his arrest.

5. The accused has a duty to escape.

Chu Tuk Fai v PP [1998]

The accused had ample time to escape from his coercer during his stay with the coercer for a period of 10 days.

6. The accused must have not voluntarily associated with a criminal group

Accused need to prove he did not on his own accord place himself in a situation whereby he had become a subject of threats’.

Mohamed Yusof v PP, the appellant was charged with trafficking cannabis. He relied on private defence as he claimed that he did it under threat of a Thai national who threatened to shoot him if he did not do as told. The appellant carried out the task. At the railway station he dropped the bags and went to purchase a train ticket, where he was arrested. The court held that he was not being coerced at this point as he had already completed the mission and the duress was not present or continued to be present. The defence of duress was rejected.

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4. CASES LAW

THREAT

Cops arrest man for allegedly threatening to kill the king

Police have arrested a man in his 30s for allegedly threatening to kill the Yang di-Pertuan Agong, Sultan Abdullah Sultan Ahmad Shah. According to Harian Metro, the man posted a photo of the King on Instagram with a threatening caption.

A screenshot of the post had gone viral on social media, with many netizens urging authorities to take stern action against the account owner. It is understood that police detained the suspect in Kajang last night. Selangor police chief Arjunaidi Mohamed will issue a press statement after the man has been remanded.

In a statement on Monday, inspector-general of police Acryl Sani Abdullah Sani said the police had discovered social media posts that touched on racial and religious sensitivities following the elections on Saturday. He reminded social media users to refrain from misusing such platforms to circulate inflammatory content. Stern action will be taken against those who threaten security and public order, including under the Sedition Act

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5. ILLUSTRATION

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1. DEFINITION

PRIVATE DEFENCE

It is a complete defence that absolves any guilt even where the accused has voluntarily caused the death of a person. The right only available to one who is suddenly confronted with the immediate necessity of averting an impending danger that is not of his creation. The accused need to plead the defence upon the prosecution proving that the accused had committed an offence.

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2. SECTION PENAL CODE

Priv. defence

Sec 96 (Nothing done in private defence is an offence)

Nothing is an offence which is done in exercise of the right of private defence

Sec 97 (Right of private defence of the body and of property)

Every person has a right to subject to the restrictions contained in section 99, to defend

1. His own body and the body of any other person, against any offence affecting the human body

2. The property, whether movable or immovable, of himself or of any other person against any act which is an offence failing under the definition of theft, robbery, mischief or criminal trespass or which is an attempt to commit theft, robbery and more.

Sec 98 (Right of private defence against the act of a person of unsound mind)

When an act, which would otherwise be a certain offence is not that offence by reason of the youth, the want of maturity of understanding, the unsoundness of mind, or the intoxication of the person doing the act, or by reason of any misconception on the part of that person, every person has the same right of private defence against act which he would have it the act were the offence.

Sec 99 (Acts against which there is no right of private defence )

1. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if it was done or attempted to be done by a public servant acting in good faith under colour of his office

2. There is no right of private defence in cases in which there is time to have resources to the protection of the public authorities.

3. The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

Sec 100 (When the right of private defence of the body extends to causing death)

The right of private defence of the body extends, under the restrictions mentioned in the last preceding, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right of the following descriptions:

(a) such an assault as may reasonably cause the apprehension that death will otherwise be the

consequence of such assault;

(b) such an assault as may reasonably cause the apprehension that grievous hurt will

otherwise be the consequence of such assault;

(c) an assault with the intention of committing rape;

(d) an assault with the intention of gratifying unnatural lust;

(e) an assault with the intention of kidnapping or abducting;

Sec 101 (When such right extends to causing any harm other than death)

If the offence is not of any of the descriptions enumerated in section 100, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary causing the assailant any harm other than death.

Sec 102 (Commencement and continuance of the right of private defence of the body)

The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues

Sec 103 (When the right of private defence of property extends to causing death )

The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrongdoer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, is an offence of any of the following descriptions:

(a) robbery;

(b) housebreaking by night;

(c) mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;

(d) theft, mischief or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised

Sec 104 (When such right extends to causing any harm other than death )

If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, is theft, mischief or criminal trespass, not of any of the descriptions enumerated in section 103, that right does not extend to the voluntary causing of death, but does extend subject to the restrictions mentioned in section 99, to the voluntary causing to the wrongdoer of any harm other than death

Sec 105 (Commencement and continuance of the right of private defence of property)

(1) The right of private defence of property commences when a reasonable apprehension of danger to the property commences.

(2) The right of private defence of property against theft continues till the offender has affected his retreat with the property, or till assistance of the public authorities is obtained, or till the property has been recovered.

(3) The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death, or hurt, or wrongful restrain, or as long as the

fear of instant death, or of instant hurt, or of instant personal restraint continues.

(4) The right of private defence of property against criminal trespass or mischief, continues as long as the offender continues in the commission of criminal trespass or mischief.

(5) The right of private defence of property against housebreaking by night continues as long as house-trespass which has been begun by such housebreaking continues

Sec 106 (Right of private defence against a deadly assault when there is risk of harm to an innocent person)

If, in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender is so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk

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3. ELEMENTS

PRIVATE DEFENCE

Four conditions must be fulfilled before causing of death can be justified under private defence:

i. The accused must be free from fault in bringing about the encounter;

ii. There must exist an impending peril to life or of grievous life, either real or apparent so as to create an honest belief of an existing necessity;

iii. There must be no reasonable mode of escape by retreat;

iv. There must have been a necessity for taking of life

Where the limits are exceeded in cases of murder, any unpremeditated excess is protected under Exception 2 of s.300 – but it merely mitigates the offence from murder to culpable homicide not amounting to murder

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4. CASES LAW

PRIVATE DEFENCE

Neighbour attacked pensioner in extreme episode of violence, murder trial told

The badly beaten body of 66-year-old Timothy Dundon was found on April 27 this year laying on the floor of his ground-floor flat. He had sustained multiple traumatic injuries, and there was a heavy pine cabinet on his head. Mr Dundon's upstairs neighbour Emmet Morrison is accused of murdering him, and then of going to the home of a 74-year-old acquaintance who lived nearby and attacking him with a knife before headbutting him and gouging his eyes.

Morrison denies murdering Mr Dundon but has admitted a charge of manslaughter, saying he killed his victim after losing control. The 38-year-old also denies a charge of inflicting grievous bodily harm with intent in regard to the second incident, claiming he was acting in self defence.

The prosecutor said the body of Mr Dundon was not found until the afternoon of April 27 when a neighbour raised welfare concerns about him with their social housing provider. An officer from the housing association went to Mr Dundon's flat and found furniture had been upturned and the body of the tenant was laying face down on the floor in the living room. There was a pine cabinet laying on his bloodied and swollen head. Police were alerted and a murder scene was declared. The defendant was arrested at 3.40pm that day in his upstairs flat. Emmet Morrison, of Heol Catwg, Caewern, Neath denies murder and inflicting grievous bodily harm with intent, and the trial continues.

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5. ILLUSTRATION

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Accident 一 something unintentional, unexpected and comes as surprise.

Although misfortune bears a similar meaning, accident involves injury to another while misfortune involves injury also to the wrongdoer.

Accidents when successfully pleaded will result in acquittal of the accused.

The common usage of accident will render absent the particular subjective mental state such as intention/knowledge which constitute the fault element of the offence.

Eg: Ratnam v R (1937) MLJ 222

In this case, where, in answer to charge of murder or, alternatively culpable homicide not amounting murder, D had claimed that he had turned around with such force that the knife he was holding accidently stabbed victim. He was convinced of culpable homicide not amounting to murder. The COA quashed his conviction on the ground that if the jury had accepted D’s story, the fatal stabbing would have been unintentional and a pure accident.

Consequently there was no evidence to support the charge of culpable homicide not amounting to murder which, like murder requires criminal intention to be established.

The burden of proving the accident lies on the accused.

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Mistake of fact is sufficient for exculpation if what was done would have been lawful had the facts been as they were reasonably supposed to be. In many situations, a criminal defendant may wish to argue that he or she never intended to commit a crime and that the criminal act that occurred was a result of a mistake of facts regarding the circumstances of the crime or a misunderstanding concerning the law at the time. Such mistakes of fact can be applied to a variety of criminal activities, but mistakes of law are only rarely allowed as full defences to criminal conduct.

Mistakes of fact arise when a criminal defendant misunderstood some fact that negates an element of the crime. For instance, if an individual is charged with theft but believed that the property, he took was rightfully his, this misunderstanding negates any intent to deprive another of the property. One important qualification, however, is that this mistake of fact must be honest and reasonable. Thus, a defendant cannot later claim that he or she was mistaken when he or she actually knew the situation. Likewise, the mistake must be one that would appear reasonable to a judge or jury. If the same individual was repeatedly told that the property was not his, and he could not take it, it would no longer be reasonable for him to mistakenly have believed that he could rightfully take the property.

Mistakes of fact may apply to a variety of crimes. Some crimes may set forth that mistake of fact is a defence. Otherwise, if the criminal defendant can prove that the mistake reasonably negated an element of the crime, the defence will usually be held to apply and absolve the defendant of liability.

Mistake of law is a defence that the criminal defendant misunderstood or was ignorant of the law as it existed at the time. The onus is generally placed on individuals to be aware of the laws of their state or community, and thus this defence only applies in very limited circumstances. For example, while a defendant will not be able to claim that he was not aware that murder was a crime, he may be able to argue that he was not aware of some obscure traffic law.

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Section 76. (Bound by Law)

Nothing is an offence which is done by a person who is, or who, by reason of a mistake of fact and not by reason of a mistake of law, in good faith believes himself to be, bound by law to do it.

Section 79. (Justified by Law)

Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law, in doing it.

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Section 80.

Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge, in the doing of a lawful act in a lawful manner, by lawful means, and with proper care and caution.

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1. He or she had been induced by a mistake to commit the criminal act in question.

Sulong bin Nain v PP [1947]

The accused was arrested while he was in possession of two hand grenades. He was charged with the offence of carrying arms under Section 3(1) of the Order and Safety Proclamation. The accused raised the defence of the mistake, claiming that he believed in good faith that he was bound or justified by law to surrender the grenades to the police. The court weighed the conduct of the accused with mistake of fact and found that ‘mistake’ is the use in the sense of misconception or error of judgement not intended to produce the result attained. Therefore, defence of a mistake of fact failed to be a mistake under Section 76 and or 79, as the accused had deliberately carried the hand grenades to the police station.

2. Mistake was one of fact not of law.

3. The accused mistakenly believes that he or she was bound or justified by law in doing the criminal act.

Bound by Law: having legal duty or obligation to perform the conduct complained of.

S.43 - a person is said to be “legally bound to do” whatever it is illegal in him to omit.

Justified by law: an act which is not prohibited by law is justified by law. (Abdullah v R

[1954])

4. Mistakes were believed by him or her in good faith.

Good faith:

S.52 - Nothing is said to be done or believed in good faith which is done or believed without due care and attention.

Tan Khee Wan Iris v PP [1995]

Whether there was due care and attention

The test is subjective - depending on the position of a person and varies from one case to another.

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Act of child under 10 years of age

Sec. 82 - Nothing is an offence which is done by a child under ten years of age.

Act of a child above 10 and under 12 years of age, who has not attained sufficient maturity of understanding

Sec. 83 - Nothing is an offence which is done by a child above ten years of age and under twelve, who has not attained sufficient maturity of understanding to judge the nature and consequence of his conduct on that occasion.

Sec. 113 Evidence Act - Boy who is below 13 years old is presumed to be not capable to conduct rape. It is rebuttable by way of proving his maturity.

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1. The alleged offence was result of an offence of an accident or misfortune

Meaning of accident under Section 80 is adopted from Stephen J can be seen in the case of Singapore Court of Criminal Appeal in R V Ong Choon which he stated that, it is the effect of an act which is accidental and not the act which caused the effect.

The concept of accident is defined in terms of reasonable foreseeability of a low risk of its occurrence.

Foreseeability of risk definition was used in the case of R v Ong Choon, the meaning of accident was applied and the accused succeeded for defence under Section 80 of the Penal Code.

Fenwick V schmaltz accident is defined as something that happens out of the ordinary course of things which is contrasted form defining accident in terms of reasonable foresight of low risk.

2. The act was done without criminal intent or knowledge

The accused must prove that the act was not performed with a criminal intention or knowledge.

Criminal intention - the purpose or design of doing an act forbidden by the criminal law without just cause or excuse.

3. The act must be lawful and must have been done in A lawful manner and by lawful means

The restriction of the defence requires an act which is mala in se and not mala prohibits.

Section 80 requires a lawful act to be conducted and not with whether the act was conducted in lawful manner and by lawful means.

Although a person did something with a lawful act but not in a lawful manner by lawful means it is inapplicable for defence under Section 80.

R V Ong Choon

D had gripped V’s hand which held a knife that he was trying to stab D with. D suddenly released his grip, resulting in V stabbing himself in the neck.

Although the fight between D and V was unlawful, the accident had occurred while D was doing the lawful act of trying to end the fight by disengaging himself.

PP V Tan Chor Jin

D was charged with the offence under the Arm Offence Act of using a firearm with the intent to cause physical injury.

Court rejected D’s claim to have discharged his pistol accidently on the ground that he was in the process of committing robbery at the time which was clearly an unlawful act.

4. The act must have been done with proper care and caution.

Negligent act cannot be treated as accidental

It is sufficient if it can be shown that reasonable precaution which is usual and ordinary had been taken.

R V Ong Choon

Case of Ong Choon elaborates that merely reasonable precaution and care is required, not utmost care.

E.g. utmost care would have required the accused to inform the victim that he was going to release the grip of the gun. However, reasonable precaution which involves taking-into-account the circumstances of the case, which in Ong Choon’s case was rightfully taken by the defendant. As if the victim knew the defendant would release the grip, then he would have subsequently attempted to stab the defendant.

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3. ELEMENTS / GENERAL PRINCIPLES OF INFANCY

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3. ELEMENTS / GENERAL PRINCIPLES OF INFANCY

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Malaysian criminal law provides absolute protection for children below 10 years who commit crimes. They are given full exemption from their criminal responsibility since they are considered doli incapax, a Latin term which literally translates as incapable of doing wrong (A.W.G Kean, 1937). The Malaysian Penal Code recognises the doctrine of doli incapax.

Under Sec. 82:
The law indicates that children below 10 years are not to be blamed or made criminally liable for their act because they are innocent, immature and decent. Therefore this is an irrebuttable presumption of law and they are absolutely exempted from any criminal liability. Malaysia considers that the age level of absolute criminal incapacity is below 10 years old and the age of criminal responsibility begins at the age of 10.

Another category of protection for children between 10 to 12 years of age is provided in section 83 of the penal code. Children between the ages of 10 to 12 are also protected by the Malaysian Penal Code but the protection is conditional and partial. They can be made criminally liable but if there is a clear evidence that they have not attained sufficient maturity of understanding to judge the nature and consequence of their act, they may rely on this defence

Under Sec. 83:
In principle the burden of proof lies on the child to establish the insufficient maturity of understanding at the time of committing the offence. If they are proven to be immature and incapable of judging their conduct at the time of crime commission, then they may not be criminally liable. However, if they are mature enough, criminal liability may be imposed on them and the punishment is in accordance with the Child Act 2001.

Therefore, 2 things to consider before punishment:

Maturity of understanding

Whether a child has attain sufficient maturity of understanding – shall be inferred from words and actions at the time of the offence

Nature and Consequence of his conduct

The child should also show that he does not know the natural and physical consequences of his conduct.

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12 year old boy was arrested for alleged rape of a 4 years old girl.

The Year Six boy in Batu Gajah had apparently raped the girl, who had been cared for by his babysitter mother. The rape had allegedly taken place thrice since May.

A Bernama report said the boy had admitted to the police after the girl’s mother lodged a report. She had taken her daughter to the clinic last Friday after the girl complained of pain in her private parts. The doctor found a broken hymen as well as other tears and advised the mother to report to the police.

Batu Gajah district police said the boy was released on Wednesday after bail was posted.

“We are currently investigating the case under the Child Act 2001 together with section 113 Evidence Act,” said Batu Gajah police chief ACP Ahmad Adnan Basri today.

“Due to the boy being 12 years old, we cannot investigate the case under Section 376 of the Penal Code because he is protected under section 113 of the Evidence Act on the presumption that a boy under the age of 13 cannot commit rape.”

He said the police were waiting for a medical report and further instructions from the deputy public prosecutor in Ipoh.

The boy was alleged to have raped the girl who was under the care of his mother, who was a babysitter at a nursery in Batu Gajah.

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Sister was charged with causing the death of her brother without intention

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A teenage girl was charged in the Johor Bahru Children’s Magistrate’s Court on charges of unintentionally causing the death of her younger brother in  an incident last week.

However, the accused, aged 17 years and 11 months, pleaded not guilty after the charge under Section 79 was read by a court interpreter in front of Magistrate Zuhainie Zull Kafli.

According to the charge sheet, the teenager was charged with causing the death of her younger brother, which he realised could cause death at their home in Johor Bahru, at 1:50pm, 19 Oct last month.

The accused is charged under Section 304(b) of the Penal Code which carries a maximum prison sentence of 10 years or a fine or both, if convicted.

The prosecution was represented by Johor state prosecution director Tengku Amir Zaki Tengku Abdul Rahman and Deputy Public Prosecutor Hayatul Mirdah Mohd Yunos. They proposed a bail amount of RM10,000 for the accused.

Meanwhile, defence counsels Abd Rahim Ali, Jihad Syahida Nadia Zakaria and Nur Zafirah Norizan applied for the bail amount to be reduced as the accused is still a minor and there is no reason for her to flee.

“In addition, we also take into account the family’s income and schooling background, which means that by next year the accused will sit for the Sijil Tinggi Pelajaran Malaysia (STPM),” said Abd Rahim.

The magistrate allowed the accused to post bail at RM10,000 with one surety, in addition to having to report to the nearest police station monthly.

The court also set December 5 as the date for mention of the case.

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The gangster was so-called because he was blind in one eye. 

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The gangster was so-called because he was blind in one eye. He repeatedly shot a nightclub owner, killing him, before conducting his own defence in court and failing miserably.

He burst into the Serangoon flat on the dawn of Feb 15, 2006, armed with a knife and Beretta pistol. It was the home of his long-time friend and nightclub owner Lim Hock Soon. The gunman first ordered Mr Lim to tie up his wife, maid, and teenage daughter. He then aimed his pistol at 41-year-old Lim, firing five shots into his left thigh, left arm, back, right cheek and right temple before fleeing with accomplice Ho Yueh Keong, a Malaysian.

And so began an international manhunt for Tan Chor Jin, dubbed by the media as the One-eyed Dragon because he is blind in his right eye.

It took just 10 days before he was caught after police stormed a room at the five-star Grand Plaza Parkroyal hotel in Kuala Lumpur - launching a murder trial in which Tan conducted his own defence, before being found guilty. He was hanged in 2009 at the age of 42.

The High Court rejected Tan's multi-pronged defence: that he had been drunk, that the shots were fired accidentally, and that he had acted in self-defence after Mr Lim threw a chair at him.

Labelling his actions as those of an "assured and accomplished assassin", he was sentenced to death. Justice Tay dismissed Tan's claims of an accidental shooting as a "laughable fantasy", because pulling the trigger required strength and a firm grip.

After the judge read out the sentence, Tan's first question was: "Will I be hanged tomorrow?" Again, he asked if he could smoke in prison. Veteran criminal lawyer Subhas Anandan represented Tan in his appeal, which was rejected in January 2008.

Before facing the noose on Jan 9, 2009, he requested that his kidneys, liver and cornea be donated.

It is believed that the 42-year-old asked for one of his kidneys to go to retail magnate Tang Wee Sung, the second son of Tangs' late founder Tang Choon Keng.

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May apply when an individual commits a criminal act during an emergency situation in order to prevent a greater harm from happening.

deliberately breaks the law

necessary

to avoid avert greater evil

Although necessity may seem like a defense that would be commonly invoked by defendants seeking to avoid criminal charges, its application is limited by several important requirements:

The defendant must reasonably have believed that there was an actual and specific threat that required immediate action

The defendant must have had no realistic alternative to completing the criminal act

The harm caused by the criminal act must not be greater than the harm avoided

The defendant did not himself contribute to or cause the threat

Only if all of these requirements are met, will the defense of necessity be applicable. It is also important to note that in some jurisdictions, necessity is never a defense to the killing of another individual, no matter what threat they may present.

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Act likely to cause harm but done without a criminal intent, and to prevent other harm

Sec. 81 Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property

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3. ELEMENTS / GENERAL PRINCIPLES OF NECESSITY 

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3. ELEMENTS / GENERAL PRINCIPLES OF NECESSITY 

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1. The defendant must reasonably have believed that there was an actual and specific threat that required immediate action

Under the defense of necessity, an individual must reasonably believe, first and foremost, that there is an imminent and actual threat that requires immediate action. Thus, for instance, a school bus driver may be driving a bus of school-aged children when he loses control of his brakes as he is approaching a steep turn on a mountain road. He is faced with an actual and immediate threat that the bus may go out of control and drive off the road, risking the lives of countless children on the bus.

Like other crimes, most states require that this threat would be reasonably apparent to the average individual and is not a threat that the defendant experienced only subjectively. Here, a reasonable person would certainly agree that an out of control bus with children on it is an actual threat to safety.

2. The defendant must have had no realistic alternative to completing the criminal act

Because the defense of necessity is essentially a justification for the criminal act, it is imperative that the defendant had no other realistic options available to him at the time the criminal act was committed. If he did, his criminal actions would not be justified. This does not mean, however, that no alternative whatsoever must exist. Generally, the individual will always have the option to simply let the greater harm occur and refrain from acting criminally, but courts have determined that this is not a “realistic” option.

In the example, for instance, if the bus driver had access to an emergency braking device that was designed to stop the bus when the regular brakes failed, he would not be justified in committing a criminal act to prevent collision because he had a realistic alternative available to him.

3. The harm caused by the criminal act must not be greater than the harm avoided

When an individual is evaluating whether it is necessary to undertake a criminal act in order to avoid a more serious problem from arising or occurring, the individual must be certain that no greater harm will arise from his or her criminal act than from the situation that would be avoided.

For instance, if, in order to avoid driving off the mountain road and plunging down the steep incline, the bus driver elects to drive the bus into a barn in order to stop the bus, he must be certain that no greater harm will come from this choice. Because it is a barn and perhaps appears empty to him, his criminal act of destroying the barn and any property inside will likely be considered less harmful than the lives lost if the bus careens over the road. However, if the bus drivers only alternative was to drive the bus into an area crowded with other people, he might, in fact, cause more harm through this alternative than would be prevented.

4. The defendant did not himself contribute to or cause the threat

any defendant claiming the defense of necessity cannot have contributed to or caused the threat that they were later seeking to avoid by committing the criminal act. Thus, if the bus driver had been advised by his mechanic that the brakes on his bus were failing, but decided not to have them replaced, he could have difficulty claiming the defense of necessity because his failure to act responsibly contributed to the threat he faced.

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Roger Pleau drove his friend, Eldon Deegan, to the hospital while drunk.

A Nova Scotia man has beaten a drunk driving charge using the defence of necessity after he argued he had no choice but to drive an injured friend to the hospital last year.

According to an Amherst provincial court decision released on Tuesday, Roger Pleau and friend Eldon Deegan were drinking beer at Deegan's apartment in Upper Nappan on Oct. 4, 2012, while their wives went to bingo in Amherst.

They weren't allowed to smoke in the apartment, so Pleau and Deegan went outside for a cigarette. The apartment was on the second floor of a complex and Deegan stumbled down the stairs, gashing his scalp on an iron rail and sustaining a concussion.

The men were locked out of the apartment building and both keys for the building — the main and the spare — were with their wives. Neither man had a cellphone.

Deegan was incoherent and having difficulty breathing. Pleau, 54, from Maccan, panicked and drove his friend to the local hospital, according to court documents.

At the hospital, the nurse noticed Pleau appeared drunk so she called police. Pleau was found to have blood alcohol readings of 110 and 100 milligrams of alcohol per 100 millilitres of blood.

Amherst provincial court Judge Paul Scovil noted in his decision, "Obviously, if Mr. Pleau and Mr. Deegan were non-smokers none of this would have occurred."

"There are any number of reasons for individuals to quit the habit of smoking. This case outlines another one."

In acquitting Pleau on the drunk driving charge, Scovil said, "Mr. Pleau thought his friend was going to die. I accept what Mr. Pleau testified to. He gave evidence in a forthright and credible manner. No doubt credibility is key in cases like this.

"His inability to call 911, the panic of being locked out of the apartment building with someone in obvious medical distress would lead the accused to take the action he did."

Scovil warned his decision should not be taken lightly.

"This should not be taken as condoning impaired driving. Nor should the public think that the defence of necessity is an easy one to make out," he wrote.

"Rare is the case that such evidence would be accepted, but this is such a case."

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Screenshot of article from TheStar on 4 July 2019

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Screenshot of article from theSun on 4 July 2019

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Screenshot of article Roger Pleau drunk case 