CRIMINAL LAW II NOTES

(i) Non-fatal offences affecting human body

Definition:
s.45 – Life
s.46 – Death
s.11 – Person (orang) including companies/ association/ body of persons
s.44 – Injury
s.299 explanation 3  Fetus in a woman’s womb is not a human

(1) ASSAULT
s.351 – Assault
AR : Making gestures or preparation
MR : Intention / Having knowledge
 The intention/knowledge causes victim to apprehend that the accused making gesture/preparation
is about to use criminal force
 Took place before criminal force

# Ram Singh v Emperor

To be an assault, there must be preparation made together with knowledge that causes reasonable
apprehension of fear.
It was held to be an assault when the accused came sufficiently close to the officers to raise in their mind, a
reasonable apprehension that actual force was likely to be used.

# Datuk Seri Samy Vellu v S. Nadarajah

In this case, Datuk Seri Samy Vellu was under restraint before he could hit the respondent. He stopped
voluntarily because of the presence of the other people. Therefore, there was no present ability to use
criminal force by Datuk Seri Samy Vellu. There was no assault.

# Jashanmal Jhamatmal v Brahmanand Sarupanand

The court held based on the circumstances of the facts and the words and gestures by the accused, there
was an assault. The accused had created reasonable apprehension to the woman when he made a piercing
shout and pointed pistol at her in the dark.

# Birbal Khalifa
The accused objecting to having his thumb print taken by the policeman, produced a lathi and said he
would break the head of anyone who asked for his thumbprint. It was held that his threat was conditional,
therefore not amounting to assault.

(2) CRIMINAL FORCE

s.350 – Criminal force
AR : Using force illegally to cause injury, fear or annoyance
MR : Intention / With knowledge
What is force?
S.349 – causes motion, change of motion, or cessation of motion in 3 ways :
(a) own bodily power
(b) by disposing any substance
(c) animals
* All of these caused contact to the victim without his consent ( S.90)

S. 352 - Punishment

# Rupan Deol Bajaj v KPS Gill

The accused came close to the complainant that his legs were about four inches from her knees. The
accused gestured her to get up and go along with him in front of other ladies causing her to feel
apprehensive and frightened. He blocked her way causing her not able to get up from her chair without
touching his body. The accused then slapped her on the posterior. The court held that the accused is guilty
of using criminal force to outrage the modesty of the complainant.

# Chandrika Sao and Hazari Lal v The State of Bihar

The appellant snatching the account books away from the Mr Singh was done without Mr Singh’s consent.
The snatching of books away has caused a jerk to the hand of Mr Singh in which was holding the book. The
court held that the snatching has caused motion ( the jerk ) which has caused justifiable annoyance to Mr
Singh. The appellant is guilty for using criminal force.

# Bihari Lal v Emperor

The court held that criminal force used must be done in the presence of the accused and the complainant.
It is because the effect of the force used must cause fear, annoyance or injury to the complainant. The
breaking into the house by the accused was done in the absence of the complainant. Therefore, the
accused is not guilty of criminal force.

# Razali Hamzah v PP
The appellant had used criminal force on the complainant with intent to outrage her modesty. The
appellant had inserted something into her private part thus injuring her. The complainant’s hair and
clothes were messy due to the struggle with the appellant and she even had abrasion wounds on her arm
and shoulder. All of these were done without her consent and the insertion of something into the private
part and the struggle depicted motion which had caused injury to the complainant.

(3) VOLUNTARILY CAUSING HURT

s.319 – Hurt : Causes bodily pain, disease or infirmity
s.321 – Voluntarily causing hurt
AR : Act causes hurt
MR: Intention / With knowledge
s.323 – Punishment

# Anis Beg
Infirmity refers to inability of organ to perform its normal function temporarily or permanently.
In this case, the accused was charged with poisoning a number of persons, including a girl which he was
infatuated with a drug, dhatura. He found the pupils of the girl dilated and her condition delirious. The
court cannot find the intention on the part of the accused to cause hurt to any person but no doubt that
the accused must be deemed to have the knowledge that the administering of the drugs was likely to
cause hurt within the meaning of s.319.

# In Re Subbia Goundan
The accused was found guilty for voluntarily causing hurt to his wife which he accidentally hit her and killed
his mother-in law. The blow on the head was delivered with a stick about two to three fingers in thickness.

# Jashanmal Jhamatmal v Brahmanand Sarupanand

Bodily injury refers to unsound or unhealthy state of body or the mind. The accused must deemed to have
intended to cause hurt to the woman when he suddenly appeared in front of her and shouted which
frightened her.

# Madhukar Damu Patil

The appellants were charged under s.328 of IPC for causing hurt to the informant by means of poison in
the sugar cane juice with the intention to commit theft of her ornaments. The court held that such act was
a foul cold blooded and ruthless one, thus do not deserve any sympathy.

# Mat Alias b Mat Jusoh v PP

The appellants were charged for causing hurt to the complainant. They grabbed hold of the complainant’s
hands and another appellant struck the complainant with a golf club causing injuries on the right side of
the ear and his right arm. The police officer who took down the information report testified that the
complainant had serious head injury at the material time. The complainant even attempted to protect his
head by placing his arm on his head and this was fully supported by a medical report that the
complainant’s arm was injured too.

# PP V Datuk Conrad Mojuntin

The court held that the fact the appellants punched Chee only once each shows that their intention was
not to cause serious injuries to him. And the hit on the neck of the complainant with the barrel of the gun
was not a hard hit and did not cause much pain. Hence, the appellants were acquitted from causing hurt to
the complainants.

# Manzoor Ahmad v The State

Hurt need not necessarily show there was physical injuries presence on the body.
In this case, the accused spiked the victim’s drink with copper sulphate an argument causing the victim to
collapse and sent to hospital for a stomach wash. The victim vomited something green, lost motion and his
tongue moisted, which all come under the definition of hurt. The court was of the opinion that the accused
has no intention but his action of spiking the drink with poison was done with knowledge that it will cause
bodily pain and infirmity to the victim’s body. The accused was convicted of voluntarily causing hurt.
# Fairus Nizam v PP
The appellant was charged for voluntarily causing hurt to the victim while attempting to commit robbery,
and also voluntarily causing grievous hurt with a knife. The appellant scuffled with the victim in the car. As
a result, the victim suffered permanent scarring to his nose, and lacerations above his eyebrow and mouth.

(4) VOLUNTARILY CAUSING GRIEVOUS HURT

s.320 – Grievous hurt
s.322 – voluntarily causing grievous hurt or serious injuries
AR : voluntarily causing hurt which is likely to cause grievous hurt
MR : Intention / with knowledge
* The act must be proven to cause injuries that can be fatal to life, not due to vital organs ; cause
excruciating pain; unable to work for 20 days in his ordinary pursuit
s.325 – Punishment

# Rambaran Mahton v The State

There was a quarrel between two brothers. One was dashed to the ground, and the other sitting on his
stomach dealt him severe blows with his fists causing some of his ribs to be fractured, his spleens ruptured
and he was rendered senseless and died in some hours. The court held there could not be any intention to
cause hurt because both of them are siblings but the brother should have the knowledge that the way he
assaulted his brother in the ordinary cause of nature would cause grievous hurt.

# Hori Lal v The State

The appellants were charged for voluntarily causing grievous hurt to the victim. Medical evidence showed
that the injuries were deep which cut the underlying bone but did not amount to fracture. The doctor said
that these injuries are grievous. The court also held that these injuries inflicted by kantas which are
dangerous weapons, thefore convictions under s.326 of IPC is fully justified.

# PP v Dulamit Sulaiman
The deceased started to abuse the accused and 3 friends verbally and threw a bottle of liquor in the
direction of the 4 men, which a fight ensued. The second accused hit the deceased with a plastic chair and
the first accused hit the deceased’s head with a flower pot. The post-mortem showed that the cause of
death were the head injuries sustained by the deceased. The court held that the accused did not have any
intention to cause any form of injuries to the deceased. The accused’s failure was in reacting
disproportionately to the physical and verbal abuse of the deceased but was still convicted under s.325 for
causing grievous hurt.

# Muniandi v PP
The appellant was convicted for causing grievous hurt with a knife for shooting, stabbing or cutting, a
weapon of offence likely to cause death.

# Sultan Mohamed v R
The appellant was charged with voluntarily causing hurt by means of a stick which used as a weapon of
offence is likely to cause death,
# E.K Chandrasenan v State of Kerala
The court held that the accused is guilty for causing grievous hurt when 24 persons having lost their eye
sights permanently after consuming the liquor distributed by the accused, which was stated in clause 2 of
s.320 PC.

# Ramla v State of Rajasthan

The appellant armed with a spear caused injuries on the neck of the victim with the intention of murdering
him while he was asleep. The injuries were near to the main artery but the court held that the injuries
sustained were of simple nature. The court drawn the conclusion that the appellant intended to cause
simple injuries with a sharp weapon and sentenced under s.324 IPC. Appellant would only be charged for
causing grievous hurt if it can be proven that injury endangers the victim’s life.

# Mahinder Singh v Emperor

The accused inflicted wound on the deceased’s leg with the sharp edge and gave other sharp blows with
the back of a gandasa. However the court found that the wound in the leg itself was not dangerous to life.
Hence, the accused only committed an offence falling under s.324 IPC.

# MD Rashid Harun
The accused was convicted for causing grievous hurt to the victim by splashing acid to the victim’s face
which resulted in victim suffering acid burn in the face, neck and body. The victim had to receive
treatments in the hospital for 2 months. After discharged, there were several permanent scars on the
victim’s face causing permanent disfiguration on the victim’s face.

(5) KIDNAPPING / ABDUCTION

s.359 – 2 kinds of kidnapping; kidnapping from Malaysia and from lawful guardianship

s.360 – Kidnapping from Malaysia

AR : conveys person beyond the limits of Malaysia
MR : Intention / without consent
“conveys”  No element of force. No need consent of lawful guardian as long as victim was brought out of
Malaysia. Silent on age limit.

s.361 – Kidnapping from lawful guardianship

AR : takes/ entices minor under 14 years old for Male, or under 16 years old for Female / person of
unsound mind out of keeping of the lawful guardian ( It’s a positive act, not omission )
MR : Without consent / Willfully because act done without consent
EXCEPTION : Any person in good faith believes himself to be the father of an illegitimate child / believes
himself entitled to the lawful custody of such child ; unless the act is committed for an immoral or unlawful
purpose.
EXPLAINATION : “lawful guardian”  any person lawfully entrusted with the care or custody of such
minor or other person

“take”  Just take. No need element of force. Child’s consent is irrelevant.

# Dalchand v The State
Taking need not by force. Onus is on the accused whether to take/ entice victim. It is immaterial whether
the minor girl consented or not. All that is needed is to show there must be taking of a child out of the
keeping of the lawful guardian.
 Entice

# Davood Saheb v The State

Enticement need not be confined to any single form of allurement. Anything which is likely to allure the
minor girl will do. It not always be sweetmeats or money. In this case, sexual intercourse is a form of
enticement. Money although petty sums is enough to entice or allure a minor.

 Lawful guardian
# DPP v Abdul Rahman
“lawful guardian” in s.361 PC must be given the same meaning with the provisions of s.5 of the
Guardianship of Infants and the explanation to s.361.

s. 363 – punishment for kidnapping

Imprisonment for a term which may extend to 7 years, and also liable to fine

*kidnapping is an act of its own but NOT abduction.

s.362 – Abduction
AR: Compel by force, or induce by deceitful means
MR: Intention ( when using force, or using deceitful means)
*cannot stand on its own. But be with reasons
 There’s force / deception
 Must show specific interest. If cannot be proved, then use general provision

s. 364 – kidnapping/ abducting in order to murder

S.365 – kidnapping/ abducting with intent secretly and wrongfully confine a person
s. 366 – kidnapping/ abducting, a woman to compel her marriage, to illicit intercourse or to a life of
prostitution or knowingly she will be forced or seduced to illicit intercourse or to a life of prostitution
s. 367 – kidnapping/ abduction to subject a person to grievous hurt, slavery or to unnatural lust of a person
or knowingly such person will be so subjected or disposed of
s.368 – wrongfully concealing or keeping in confinement a kidnapped person
s.369 – kidnapping/ abducting child under 10 years old with intent to steal movable properties from the
person of such child

# Chhajju Ram
The distance of the taking is immaterial. It was taking even if a person takes a minor girl without the
consent of the guardian to a distance of twenty or thirty yards.
# Dalchand v The State
The Appellant went to Jogendra Singh’s house to visit and was told by his wife that he went to the bazaar.
The appellant then talked to the victim, which was Jogendra’s 5 years old daughter. When victim’s mother
called the victim to take her food, she saw the appellant taking her daughter away. The appellant said that
he is taking the victim to the sweet shop and would be back within minutes. After half an hour, the victim
did not come back yet. There was evidence that the appellant took the victim from her house. The court
held that without doubt, the appellant had taken or enticed the victim (promise to buy her sweet) out of
the keeping of the lawful guardian without consent of the mother in the absence of the father. Appellant
was convicted under s.363 IPC.
(Here, in the absence of the father, the mother became temporary guardian. And she only consented to
bringing her daughter to the sweet shop, not to other places)

# Sheik Davood v The State

The appellant was convicted under s.363 IPC for taking a minor girl out of the keeping of the keeping of her
lawful guardian which is her father and without his consent. The court held that the girl followed the
appellant home because of the lustful inducement by the appellant and the promise of intercourse by him.
In this case, there was enticing by appellant. There was a special relationship between the appellant and
the victim, as the appellant promised the victim sexual intercourse and money although it was only of petty
sums.

#Ghouse b. Hj Kader v R
In the case, the court took literal approach in interpreting the Islamic law and it was criticized in the case of
DPP v Abdul Rahman. In this case, the appellant was acquitted from kidnapping a minor Muslim girl from
the lawful guardianship of her father. The court held that she had attained puberty, therefore attains the
age of majority. She can enter into contract of her own marriage, according to her own wish. She then has
no guardian and her father’s consent to her marriage is immaterial. Hence, she was not taken out of the
keeping of the lawful guardianship.

#DPP v Abdul Rahman

The court took a more restrictive approach in interpreting the Islamic law. A Muslim girl is only free from
the custody of her guardian as regards to the selection of a husband. A girl’s freedom to marry without the
guardian’s consent does not necessarily deprive her of guardianship for all purposes until marriage. The
consent of the minor girl being taken away was immaterial.

#Neelakandan v PP
The offence of kidnapping is committed if the taking away takes place without the consent of lawful
guardian. Consent of the minor is immaterial. It is not necessary that the commission the offence by the
accused involved fraud or force. A mere leading of a willing child is sufficient to constitute taking or
enticing. In this case, it was clear that sexual intercourse took place with the minor’s consent, but there
was no consent of the parents allowing the child to go with the appellant at all. Consent given must be in
accordance to s.90 of PC.
#Chathu v Govindan Kutty
To sustain a conviction under s.363 PC, there must be proof of taking. A man is not bound to return to her
father’s custody of a girl who without any inducement on his part, has left her home and come to him.
There must be shown that the accused took some active step, by persuasion or otherwise to cause the girl
to leave home. However, the onus is on the accused to stop the victim from leaving her lawful guardian,
even if the victim insisted him to take her. If he induces her, he is guilty.

#Periasawmi Kangani v Emperor

There is sufficient evidence to prove the appellant was guilty of kidnapping from British India. The women
were taken to Ceylon to work as coolies on tea estates and were induced by MISREPRESENTATION that
they were to be married to the sons of the first accused. Hence, they were taken without their consent
within the meaning of the Penal Code. ( s.360 PC )

#Biseswar Misra v The King

A minor who is temporarily away from the house of her guardian does not cease to be in the keeping of
the guardian. It was held that a married girl under 16 years old who left her husband’s house of her own
accord and went to the house of her maternal uncle does not cease to be in the keeping of her lawful
guardian and that a person who induces her at the time to go with her is guilty of kidnapping. Unless,
evidence is clear that the minor has voluntarily abandoned the keeping of the guardian.

# Wahab Osman v PP
The accused was convicted under s.366 of PC for kidnapping a girl to a place in Sg Tong to compel her to
marry him. The accused threatened to kill her if she refused to marry him, and threatened her again in a
house where the she was confined but was rejected. The court held that the accused had indeed planned
to kidnap the girl to compel her to marry him. PP has proven without reasonable doubt that the accused
has intention to kidnap the girl. Intention is the most important element to prove an offence under s.366
s.366 PC
 victim is woman
s.362 – Force ( prove abduction )
 abduction was done to force victim to marry Accused

# Prankrishna Surma
Parameshwari, the wife of Uma Churn Pattuk, left her husband's house at night, taking with her a daughter
of six or seven years old and a son still younger. She went to the house of a cousin of her, who lived in a
house with the accused and his younger brother Guru Dass. The same night, Parameshwari gave her
daughter in marriage to Guru Dass. According to Hindu law a father is the guardian of his children and is
ordinarily entitled to their custody. However, in the case of a very young child, the mother has as good a
right to the custody as the father, and even possibly better. The mother removed the girl from the father's
house for the express purpose of marrying her without his consent, and thereby depriving him forever of
her guardianship and custody. The court held that amount to a taking out of the keeping of the lawful
guardian.

# Jamaluddin Hashim v PP
The court held in offence which has age limit of victim in the most important fact to prove. This case
involved the raping of a girl under 16 years old. The court held that a person’s age can be determined by
using a birth certificate.

# Jagannadha Rao v Kamaraju

In this case, the father had sent his daughter to live with another married daughter of his, who then
without the father’s consent had her married to an inmate of the house. It was held that offence of
kidnapping had not been committed as there was no taking her out of the keeping of the lawful guardian
as she had not left the house of the married daughter, where she was living with her father’s consent.

(6) MISCARRIAGE
s.312 Causing miscarriage
AR : cause a woman to miscarry
MR: voluntarily / with intention
EXPLAINATION: a woman who causes herself to miscarry is within this section
EXCEPTION : medical practitioner who terminates pregnancy in good faith, that the continuance of the
pregnancy would involve risk to the life of the pregnant woman, or injury to the mental or physical health
of the pregnant woman greater than if terminated.

s. 313 Causing miscarriage without consent

# PP v Dr. Nadason Kanalingam

The accused was charged under s.312 PC. He had voluntarily caused a woman with child to miscarry and
such miscarriage was not done in good faith for the purpose of saving her life. There was no indication that
her life was or would be in danger if pregnancy was allowed to continue.

(ii) SEXUAL OFFENCES AFFECTING THE HUMAN BODY

s.375 – Rape
 There must be intercourse, however need not reach climax [ Explanation]
AR : Penetration by penis, not object
[ Penetration by object is under s.377CA which is not covered ]
MR : Intention and without consent of the victim
[ read with the AR when done willfully and with force]

DEFENSE : Consent [ Usually for s.375(b) ]

s.375 (a) + (b) – against her will / without her consent

 The law requires consent to be given by informing or verbally
 S.90 – Know the nature of act + consequences
 Positive condition ie, Took off her own shirt?
 Consent can be invalid under s.375(c)

s.375(c) – Fear of death or hurt or misconception of fact

 Usually in the case of ‘bomoh’ or treatment

s.375 (d) - believing was victim’s husband

s.375 (e) – Unable to understand the nature and consequences to which she gives consent

s.375 (f) – the Accused must have professional relationship / relationship of trust with victim; ie teacher,
hotel attendant, employer and employee

s.375 (g) – victim is under 16 years old [ Statutory rape ]

 whether consent is given or not is irrelevant
* For sex, consent can only be given by the female who are above 16 years old

Incest
s.376A – Incest
s.376B – Punishment
The accused : Male and has knowledge that the relationship is prohibited
The victim : Female who do not agree to the relationship
*Once the relationship between the accused and victim is proven, s.376A is fulfilled

s.377A – Carnal intercourse against the order of nature

The accused : Male
The victim : Male/ Female
AR: Penetration into the mouth or anus of the victim
MR : Intention. Need not show there’s consent

s.377C – without consent

relevant only for punishment

s.377D – Outrages on decency

The accused : Male/ Female
AR : gross indecency
MR : Intention

# Sukma Darmawan v PP
The accused was found guilty unders.377D with the offence of gross indecency. The court held there must
be penetration before one is found guilty under this section.

s.377E – Inciting a child to an act of gross indecency

Child must be < 14 years old
AR : inciting a child to an act of gross indecency, ie carnal intercourse [ rape not included ]
MR : Intention

# PP v Teo Eng Chan

In this case, there was no physical bodily injury found on the victim. There was nothing to connote struggle
as the shirt was not torn. However, the victim gave her consent to in the intercourse in fear of injury. The
injury here was referring to her mind as explained in s.44 PC. She was threatened to get beaten, gang-
raped and to be left in the deserted place

# Jamaluddin Hashim v PP (HC)

F: The appellant was convicted on 2 charges of statutory rape under s375. The victim was below 16 years
old.
I:
To commit an offence of statutory rape under s.375, proof of the victim’s age is very important as well as
the date of the offence committed to make sure the victim is below 16 years old. Back then, an identity
card did not show a person’s real birthdate, therefore the court had to look at the birth certificate of the
victim to determine the victim’s age.

# Mohd Salleh v PP
This case was decided after Jamaluddin’s case. In this case, the court also raised the same issue as in
Jamaluddin’s case that proof of age of the victim is very important. However, the use of identity card is
allowed to determine the age of the victim.

# Moh Zandere Arifin v PP

In this case, the accused was charge for committing the offence of incest to her daughter. The accused had
raped her daughter who a baby boy was born as a result of the sexual intercourse between the accused
and the daughter. The court held the relationship between the two parties needed to be established. Due
to their relationship of father and daughter, both of them are prohibited from getting married under the
law and religion.
# PP v Mohd Ridzwan bin Md Borhan (HC)
F: The accused who was initially charged for rape (s376) was acquitted on the ground of medical evidence
did not corroborate (confirm)/support the evidence that the sexual intercourse committed by the accused
was done without the victim’s consent. Appeal to HC.

The accused commit rape on female malay victim, aged 18 years and 5 months in a durian plantation shed.

L: Burden of proof on PP (According to s375, (1) sexual intercourse; (2) penetration; (3) without consent)

H: Appeal dismissed.

This was because the accused was apparently no stranger to the victim (called 3 days prior) and that the
victim actually had opportunity to run away when the accused was burning rubbish dump. The accused
was not armed too. The victim alleged that she resisted and threatened to call the police when the accused
had sexual intercourse with her twice.

The medical evidence confirmed that the sexual intercourses were result of combined consensual conduct
and behavior of two reasonable adults who were aware of their respective deeds.

# R v Morgan
The defendant suggested the other 3 defendants to have intercourse with his wife, and told them to
expect some show of resistance on his wife’s part but need not be taken seriously since it was only a mere
pretense as she will stimulate her own sexual excitement. The court held that the offence of rape must be
committed without the woman’s consent and by force. The element of consent is very important. The
court held that the wife did not consent to the intercourse. In addition, the court accepted the defense if
one honestly and genuinely believed that the victim has consented on reasonable grounds, rape is not
committed.

# Chang Wan Chuan v PP

The accused was convicted under both s.376 and s.377C of the Penal Code. The accused has forced the
victim to perform oral sex on him and raped her. The court followed the decision in Din v PP that the
accused is guilty of raping and having carnal intercourse against the order of nature. Medical evidence also
showed that there was lack of consent and there was resistance. The court also held that thrusting his
penis into the victim’s mouth and asking her to suck would tantamount to carnal intercourse against the
order of nature under s.377C.

# Abdullah v R
The accused was charged for the offence of rape under s.376 PC. He contended he had reasonable grounds
for believing, and did in fact believe that the girl was more than 14 years of age and was entitled to be
acquitted under s. 79 of the Penal Code. However, the court found that there was ample evidence that he
had knowledge of the complainant that her age was under 14. The court also found that the complainant
was unable to give her consent, therefore the accused is guilty of rape.

# Bachik Abdul Rahman v PP

The accused was found guilty for raping a kid aged 11 years old and was sentenced to jail for 15 years and
12 whipping.
# PP v Pretum Singh Lall Singh
In this case, the accused had raped his daughter since she was 9 years old until she was 14. The court held
that since the victim was 16 years old, paragraph (g) of s.375 was used.

# PP v Mohamed Malek Ridhzuan bin Che Hassan (COA)

F:
- An appeal by the appellant. Sessions Court charged Appellant on two charges of rape, s376 and was
acquitted. HC affirmed the decision.
- At the time of incident, the victim was 12 yrs 9 mths old and was still schooling. R was 20 yrs old.
- They spent a night at the hotel. They had 2 sexual intercourse.
- Victim’s family couldn’t find her and lodge a police report. When they found her, she was brought to
HKL for medical check-up.
- DNA test show evidence from both the victim and R.
- Prima facie (accepted as correct until prove otherwise) case, the R called for defence.
- R claimed that he only used his fingers. Successfully raised reasonable doubt in SC and HC.
- Tear may be caused by blunt and solid object.

I: Whether the judge made a mistake in law & facts in deciding the tear on victim’s vagina was caused by
the insertion of the respondent’s fingers (index and middle finger) when victim clearly stated that the R
had inserted his genital into victim’s vagina.
- The victim herself strongly believed that the R had inserted his genital as she sucked on the genital (oral
sex) prior to that.

H:
- The absence of semen (spermatozoa) inside victim’s vagina did not mean there is penetration. The
presence of semen was not a requirement by law in order to prove the offence of rape.
- For offence of rape, what was required is penetration and not ejaculation.
- Victim’s consent to have sexual intercourse was irrelevant as the victim was underage.
- 8 years imprisonment for both offences.

(iii) FATAL OFFENCES AFFECTING THE HUMAN BODY

(1) CULPABLE HOMICIDE

S.299, s.304
(a) with intention of causing death
(b) with intention of causing bodily injury likely to cause death
(c) with the knowledge that he is likely by such act to cause death

(2) MURDER
S.300, S.302
 All cases which fall within section 300 must necessarily fall within s.299 but all cases that fall within
s.299 do not necessarily fall within s.300. The difference between the two sections lies with the
certainty of death. If death is a likely result, then it is culpable homicide. If death is certain, then it is
murder.

Murder  culpable homicide by way of 5 exceptions in s.300

S.299 , S.300
AR : Act that causes death / bodily injury that causes death
MR: Intention / knowledge

Difference between s.299 and s.300

 Look at Mens Rea. Both are the same. Requires intention or knowledge
 Look at Actus Rea . Causing death or bodily injury that are likely to cause death
 Difference is only the consequence of the act
Likely to cause death: S.299
Certain to cause death: S.300

Intention – Law of Crimes in India “Knowledge” means the faculty of thinking. (Personal awareness of the
person who commits the act)

s.300 (a) Intention to cause death

# PP v Mohd Asmadi Yusof
In this case, the accused was found guilty for murder under s.302. It was shown that the accused has the
intention to cause the death of the deceased as explained in s.300(a). The accused used bricks to hit the
deceased’s head really hard, which was one of the vital part in human body. The deceased eventually died
due to the serious injuries on the head. The court held that the accused had the intention to cause the
death of the deceased based on the weapon he used, and the argument between the deceased and him
whereby the deceased intentionally hurt the accused.

# PP v Hanafi Mat Hassan

The accused was charged for the crimes of murder and rape of the deceased. Medical evidence showed
the injuries inflicted on the deceased were the cause of death. Death came as a result of ligature
strangulation and blunt trauma to the head. The person who had caused such injuries did so with the
intention of causing her death.

# Tan Buck Tee v PP

The body of the deceased had 5 appalling wounds penetrating the heart and liver. These, in the view of the
court, have been caused by violent blows using a heavy sharp instrument like an axe. These blows must
have intended to kill the person on whom they were inflicted.

# Ismail bin Husin v PP

The appellant was convicted of the murder of Omar and the attempted murder of Rifin. In his defence, he
stated he saw a figure and thinking it was a terrorist, had fired on it. However, the court held that an actual
intention to kill a human being, though formed on impulse and on suspicion that the person is a terrorist, is
in law a murderous intention.

s.300 (b) Intention to cause bodily injury that offender knew to cause death
 Need to show the accused has knowledge that the injury is likely to cause the victim’s death. The
accused has special knowledge of the intended victim and whatever he does, he knows will result in the
victim’s death, even though such bodily injury would not cause the death of any person of good health.

s.300 (c) intention to cause bodily injury that is sufficient in the ordinary course of nature to cause death
# Virsa Singh v State of Punjab AIR 1958 SC 465

Facts:
- The accused thrust a spear into the abdomen of the deceased. This injury caused his death. In the
opinion of the doctor the injury was sufficient to cause death in the ordinary course of nature. It was
found by the Sessions judge that the accused intended to cause grievous hurt only.
-

Held (BOSE J):

- That the prosecution must prove the following before it can bring a case under s. 300 Indian Penal
Code third clause.
(1) It must establish that a bodily injury is present. ---harm: death
(2) The nature of the injury must be proved ( thrust of spear ) ---cause of the death: AR (which part of the
body, the kind of injuries inflicted)
(3) It must be proved that there was an intention to inflict that particular injury, that is to say, that it was
not accidental or unintentional, or that some other kind of injury was intended. --- MR
(4) It must be proved that the injury of the type just described made up of the three elements set out
above was sufficient to cause death in the ordinary course of nature. it must in addition be shown that
the injury found to be present was the injury intended to be inflicted ---whether the injury will cause
death (death is certain) or death is probable.

Even though only one thrust, but was done with force. Medical report: the injury was sufficient to cause
death in the ordinary course of nature. This is for MR(intention).

*Note that better to start off with section 299. When it comes to the 4 th condition, then convert to s.300

The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he
intended to inflict the injury that is proved to be present. In this case, it was proven that the accused
intended to inflict injury on the abdomen area by looking at the amount of force used to thrust the spear
into the abdomen area of the deceased so much so that it pierced through the intestines.

*Follow the steps in Virsa Singh to prove homicide

# Mohamed Yasin bin Hussin v PP [1976] 1 MLJ 156
- In this case the appellant had been found guilty in the High Court in Singapore of the offence of murder
under section 300 of the Penal Code.
- In the course of the robbery the appellant had grabbed the deceased, thrown her to the ground and
subsequently raped her.
- Medical evidence showed that the fatal injuries on the deceased consisted of fractures of the ribs in
the front portion of the chest which had resulted in congestion of the lungs and cardiac arrest. The
injuries were consistent with someone sitting with force on the chest of the deceased as she was lying
on the floor on her back.
- Pathologist’s evidence was that the deceased received a number of superficial injuries, i.e. bruises and
abrasions, bruises on both knees but none of these superficial injuries was sufficient in the ordinary
cause of nature to cause death. The fatal injuries consisted of fractures to her ribs. These fractures had
caused congestion in the lungs, resulted in cardiac arrest.
- The act of the appellant which caused the death, viz. sitting forcibly on the victim's chest, was voluntary
on his part. He knew what he was doing; he meant to do it; it was not accidental or unintentional.
This, however, is only the first step towards proving an offence under section 300 (c)of the PC. Not
only must the act of the accused which caused the death be voluntary in this sense; the prosecution
must also proved that the accused intended to cause some bodily injury to the victim of a kind which
is sufficient in the ordinary course of nature injury to cause death.
- The court held that it could not be proven that sitting on the chest of the deceased could cause death
because the bodily injuries was bruises and abrasions which could not be seen to able to cause death,
therefore allowing the appeal.

300(C) harm: death; injury: heart attack was the cause of death (prove had the intention to cause HA); the
forcibly sat on the chest; intention: no, must prove that he got specific knowledge, only then can be said
that he had the intention. MR was not proven.

- Could have been charged under 304A for “rash” act; rape 392, robbery 392.

# Tham Kai Yau v PP

The deceased and the appellant and his brother had altercation. Bodily injury was present. There was blow
on the head which was fatal. The deliberate use by some men of dangerous weapon leads to the
irresistible inference that their intention is to cause death. During the trial, the medical officer was not
asked on the nature of the injuries was likely to cause death or sufficient in the ordinary cause of nature to
cause death. Therefore, murder was then reverted to culpable homicide not amounting to murder.

Culpable homicide not murder, why?

Because no statement frm the medical officer, the court was not willing to say that it is murder.

Harm: death
Nature of injury: head (shot and bleeding, hammerage)
MR: weapon (axe and chopper) used, the part on the body: head and neck

Culpable homicide may not amount to murder, where the necessary degree of mens rea specified in s. 299
is present, but not the special degree of mens rea referred to in s. 300 of the Penal Code. (MR of the
accused has to reach a certain threshold to make it a murder.)

# Tan Chew Bok v PP

F:
- Charged with s300(c)-murder
- The appellant went to Maria Avenue to borrow money from the deceased’s brother-in-law. But the
brother in law was not in, so he asked from the deceased.
- The appellant was verbally abused (bastard/son of bitch) by the deceased.
- A punched the deceased which later fell.
- Subsequently, the deceased took hold of washing board and attacked A.
- Then the A grabbed a knife from the kitchen to protect himself and also to threaten the D (inside)
pocket.
- The deceased ran upstairs, still abusing the A verbally (screaming- catch the thief)
- Punching, hitting & helding each other neck.
- The A stabbed the deceased in the thigh region & thrust the knife into her mouth to stop her from
shouting.
- Autopsy report: 16 external injuries (12-punches); fatal injury – knife in the mouth.

L: s300(c)
It must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it
was not accidental or otherwise unintentional, or that some other kind of injury was intended.
In the presence case, there was nothing to show that the trial judges were wrong in finding the appellant
had intentionally (not accidentally) caused the injury which resulted in the death of deceased.

A:
In this case, bodily injury was present. Fatal injury was caused by the knife in the mouth. The court held
that there was intention. All that is needed to prove is the accused inflicted the injury on the deceased and
it was done intentionally. The accused must have used such an amount of great force to thrust the knife
into the mouth of the deceased that only the handle of the knife was sticking out of the deceased’s mouth.
Medical evidence showed that the injury inflicted was fatal.

Cause : Excessive bleeding, death occurred in minutes.

MR:
Sufficient in the course of nature.

Argument: Peculiar way she was standing, he had not have the intention to cause such injury.

# PP v Muhammad Rashid Hashim

The accused was charged for committing the offences of rape and murder of the deceased. An autopsy
performed revealed that the deceased suffered multiple injuries and that either the head injury or the
strangulation could have caused the death of the deceased. The court found the accused had intentionally
and unlawfully caused the death of the deceased by inflicting injuries on her that he knew ordinarily in the
course of nature would likely to cause her death.

# Chung Kum Moey v PP

The accused was found guilty of culpable homicide because it could not be proven the accused knew the
shots at the deceased’s forearms were so imminently dangerous that they must in all probability cause
death or such bodily injury as was likely to cause death.

# Peter Ak Merupi v PP
The court held the injuries suffered by the deceased and the manner the injuries were caused fell within
the 3rd and 4th limb of s.300 of PC. The appellants assaulted the deceased with a blunt object like the stick
at the back of the head must have had the intention to cause bodily injury to the deceased. The assault
was done with such great force was definitely done with the knowledge and intention to cause death. Such
bodily injury was sufficient in the ordinary course of nature to cause death. Any human being would know
that the neck and head area is a vulnerable part and any injury to that part would be fatal.

# PP v Megat Shahrizat Megat Shahrur (FC) [2011] 8 CLJ 893

Facts:
- Accused charged with 302
- hitting and stabbing, crying and wanted to escape
- failed to prove 300(d), why?
- the alleged AR and the time the child die, is not conclusive that the AR is the reason of death, and the
post mortem could not identify the reason of death.
- carried the child to the bedroom, the child was sleeping, the court was not clear, was based on
circumstantial evidence, para 18
- establish 299 first and see if death is certain, then move to 300, then the paragraph that wanted to
established
The linkage was not really strong

s.300(d) – Must know that it is so imminently dangerous that it must in all probability cause it death or
such bodily injury is likely to cause death
so have to brg back to 299

# Joy bin Felix v PP

Facts:
- The A with 3 others had planned to rob a taxi.
- The taxi driver (deceased) was asked to drive 4 of them to a secluded spot.
- The taxi driver was then attacked, tied up and moved to the passenger seat.
- A pointed a knife at the deceased.
- Deceased shouted for help & attempted to escape by kicking the front passenger door.
- A then repeatedly punched the deceased’s face.
- The deceased was speechless, motionless and bleeding on his face (still alive).
- A coiled the seat belt around the deceased’s neck and tied the deceased with it (to prevent him from
getting up and fighting back). The taxi driver died.
- Post-mortem: Cause of death to be asphysia due to or as a consequence of neck compression. It was
concluded that a safety belt could have caused the compression over the neck resulting in asphyxia
which caused the defendant’s death. (A’s act of tying a seatbelt round the D’s neck for about 20-30
minutes)
- Both the superior horns of the thyroid cartilage were also found to be fractured.
- Charged under s302 of the PC and was sentenced to death.

Issue
- Should have been convicted for the offence of culpable homicide not amounting to murder under s304,
not for murder under s302
Held:
- Applied limb (d) of s300 which provides that intention is not necessary element and that all that is
required to be proved is knowledge that the act is likely to cause death. Knowledge in mens rea in an
act may not be proved by direct evidence but may be inferred from surrounding circumstances.
(A was in state of panic, did not know what to do and was scared. A claimed did not have the
knowledge that he would cause the deceased to suffocate and could cause death by such act.)
- Knowledge that his act must in all probability cause death or the bodily injury.
(A’s act was so imminently dangerous that in all probability when he tied the seat belt around the
deceased’s neck, it must cause death as such act would undoubtedly stop the breathing of the
deceased)
- Any sane and sensible person would have known that to apply pressure on neck of a human would
cause stoppage of breathing resulting in death as in strangulation; and that tying a seat belt or rope
round the neck of a victim in a coil position and asserting pressure will cause suffocation which will
result death.
- There is no evidence that to show that the A was insane of suffering from any mental disorder which
might impair his knowledge as to the nature of his act.
- This is a clear and simple knowledge to any sane person; no special knowledge is needed to know one
may cause death of such bodily injury as is likely to cause death. This knowledge is not negative by any
mental condition short of insanity (Kenneth Fook Mun Lee v PP)

# Kenneth Lee v PP
The appellant shot the deceased and the cause of her death was due to the injuries sustained from the gun
shot. Medical evidence showed that all injuries were fatal in nature. The court held that firing at a person
at close range with a pistol in the circumstances is an evident risk to human life. It amounts to an act which
is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to
cause death. And that the cause would be covered by s.300(d).

# William Tan Cheng Eng v PP

The court held that was insufficient evidence to find the appellant guilty of murder under the 4 th limb of
s.300 of PC. The court cannot find that the appellant at the material time knew he was driving in a manner
that was so imminently dangerous that it must in all probability cause death, or such bodily injury as was
likely to cause death.

(3) 5 EXCEPTIONS
Burden of proof
# Jayasena v R
The burden of proof to raise the issue of self-defence is on the accused who invoked such defence. The
burden of proof of the prosecution still lies in the prosecutor.

 Exception 1- Grave and sudden provocation

 Provocation must be made by the victim
Provocation must be grave and sudden to deprive the accused of the power of self-control
The offender must have killed while being deprived of self-control caused by self-provocation –NO
cooling off period resulting in the loss of efficacy of the provocation
 Attack must be proportionate to the provocation
 Importance is placed to argue on #2 and #4

# KM Nanavathi v State of Maharashtra

Nanavati was a commander with the Indian Navy. With Nanavati frequently away on assignments for long periods of
time, the lonely Sylvia fell in love with Ahuja, a friend of Nanavati. Nanavati returned home from one of his
assignments and finding Sylvia aloof and distant, he questioned her. Sylvia, who now doubted Ahuja’s intent to
marry her, confessed about the affair to her husband. Nanavati dropped his family at the  Metro Cinema, for a show
he had promised to take them to, but excused himself and headed straight to confront Ahuja. Nanavati went to the
naval base collected his pistol on a false pretext from the stores along with six cartridges, completed his official
duties and proceeded to Ahuja's office. On not finding him there, he went straight to his flat. At Ahuja's residence,
Nanavati confronted him and asked him whether he intended to marry Sylvia and accept their children. After Prem
replied in the negative, three shots were fired and Ahuja dropped dead. Nanavati headed straight to confess and
turned himself in to the Deputy Commissioner of Police. The court held that the facts of this case do not attract the
provisions of Exception 1 to Section 300 of IPC. The conduct clearly shows that murder was a deliberate and
calculated one.

*Provocation was not directly caused by the deceased, but associated with him. The court held that there was
provocation that it’s not every day that the wife made the confession that she has an affair with other men. The
provocation was grave but not sudden because it was about the past. There was a cooling off period of 3 hours
between the provocation, the confession, and the murder. He even went to his workplace to work and took out
the weapons under false pretext. There’s no proof that the accused has lose his self-control. * WORDS CAN BE
PROVOCATION when there existed special relationship

# Bedder v DPP
The appellant could not succeed in raising the defence as he was not provoked by the deceased when she
jeered at him and hit and kicked him, which was then stabbed and killed by the appellant. The provocation
by the deceased was insufficient to cause the appellant to lose self-control thus use violence on the
deceased.

# AG for Ceylon v Don Jon Perera

The court held that the defence of provocation may arise when a person does intend to kill or inflict
grievous bodily harm but his intention to do so arises must from sudden passion involving loss of self-
control by reason of provocation. It was sufficient to say that the ill-will had long existed between the
respondent and the family of the deceased. Stone throwing by the family members of the deceased at the
respondent’s house accompanied by verbal abuse is sufficient to constitute provocation.

# Vijayan v PP
The court held the provocative acts relied upon in this case were not capable of constituting provocation
sufficient to reduce the appellant’s crime of murder to culpable homicide. The court applied the test of
reasonable test – whether the act alleged to constitute provocation would deprive a reasonable man of his
self-control and induced him to do an act which caused the death of the deceased. The deceased’s words
of “ who has given houses to Malaysians?” is not sufficient to provoke the appellant to have kick and stab
the deceased’s on the left side of body.

# Wo Yok Ling v PP
The court rejected the appellant’s defence of grave and sudden provocation and found that he had full
control of himself and knew what he was doing when he attacked his wife with the chopper. The court also
said that even if words by his wife were provocative, no reasonable man placed under the same
circumstances as him would do the acts he did.

# PP v Lasakke
In this case, the deceased had provoked the accused verbally and struck the accused on the head. There
was a commotion and the deceased was killed. It was held that the grave and sudden provocation had
deprived the accused of his self-control and looking at the circumstances, the provocation was sufficiently
grave and sudden to prevent the offence from amounting to murder. Words touch to the core of marriage.

# Ghulam Mustafa Gahno v Emperor

The accused, a Baluchi alleged that a Baluchi will be enraged and deprived of their self-control when a
booja is shown to him. His wife showed booja to him and as a result was killed by the accused. The court
held that an ordinary Baluchi male would not be deprived of the power of self-control when was shown a
booja to the extent of murdering his wife but only hitting her.

# Mat Sawi Bahodin v PP

In this case, the situation of an unhappy marriage as a result of the bickering and the intervention of the
mother-in-law of the accused, which is the victim, became worst then the victim scolded the accused
“babi” causing the accused to lost self-control and killed the victim. The court held that the provocation is
not limited to an incident but a series of continuous provocation. The continuous abuse to the accused has
indeed caused a grave provocation to him.
*Deceased caused provocation by kept scolding with certain words. Note that words can be a source of
provocation when there exist special relationship.

# Ikau Anak Mail v PP

There was some dispute between the appellant and his former wife, the deceased over their joint
property. When the deceased accused the appellant of cheating, he pulled out a knife from his pocket and
stabbed her twice. The court was not satisfied that the appellant had been deprived of the power of self-
control within the requirement of the law.

#Govindasamy v PP
The appellant had inflicted seven wounds to the head of the deceased. It was said that the provocative
conduct of the deceased which affected his religion, his daughter’s honour and his conduct as a father did
not entitle him to the benefit of exception1 of s.300 PC. Medical evidence showed that the appellant had
acted with gross and savage violence on an unarmed man and the retaliation on the appellant’s part was
not commensurate with the degree of provocation.

# PP v Awang Raduan b. Awang Bol

The appellant claimed that he had lost his temper and killed the deceased when the deceased had
described him like someone wanting to steal and challenged the appellant to stab him does not amount to
sudden and grave provocation.

 Exception 2 – Exceeding right or private defence

The accused did not cause any fault which requires him to use self-defence
There must be present some impending danger to life or believe honestly of an existing necessity to self-
defence ( reasonable apprehension of death)
There must be necessity for taking life
There must be no safe or reasonable mode of escape
Act was done with good faith
Towards property or body
 Did not do more than necessary ( proportionality)

# Wong Teck Choy v PP

The accused failed to raise the defence of excess of private defence. He alleged that the deceased wielded
a knife that led him to shoot the deceased out of fear of his own life. However, the court found that the
deceased was unarmed and standing 14 feet away from the accused when he was shot. The accused had
also failed to prove that the deceased had attacked the appellant with a knife.

*There’s no reasonable apprehension of threat to the body using the knife. There was exchange of words,
and the accused retaliated by using the gun. He had exceeded on what is necessary to be done.

# PP v Halim Din
The court held the defence of self-defence by the accused cannot be accepted as reasonable and he has
exceeded his right of self-defence since one of those men was armed only with a piece of wood and being
separated by a fence, could not be a danger to his life. It was obvious that he did not intend merely to give
a warning shot in the air. He in fact intended to shoot anyone who approached him. And he did open fire
towards those two men.

# Ghansham Dass v The State

There was a dispute between the appellant and the deceased. The deceased asked the appellant not to
build the partition wall during the night. This request infuriated the appellant, and the stabbed the
deceased with a dangerous weapon. The deceased was unarmed and the appellant could not have
apprehended that death or grievous injury was likely to be caused on him or other inmates.

 Exception 3 – Public servant exceeding powers

The act was done in good faith ( s.52 PC)
The accused believed his act was lawful and necessary
The act was done without ill-will towards the person he killed
# Dukhi Singh v State of Allahabad
A suspected thief who had been arrested escaped from a running train. A constable pursued to arrest him
and he was not in a position to apprehend him, he fired at him. In the process, he hit the fireman and killed
him. It was held that exception 3 to s.300 covered the case. The constable exceeded the powers given to
him by law and caused the death of the fireman by doing an act, which in good faith, he believed to be
lawful and necessary to discharge his duty

 Exception 4 – Sudden fight

 1There must be a sudden fight [ surpassing the usage of vulgarity and reached the stage of hitting ] -
2There was absence of pre-planning
 Fight and murder of deceased occurred in the heat of passion
 3There was no undue advantage taken or
 4any cruel or unusual act
-The accused and the victim must have good relationship
-Very defensive

# PP v Awang Raduan Awang Bol

The accused was convicted for the murder of a man. The court had rejected the defence of “sudden fight”
as there was no sudden fight at all. There was a verbal exchange over money and the accused later came
back with an axe and knife which he hacked and stabbed the deceased to death.

*There was pre-planning as the accused was provoked when the deceased refused to give the accused
some money. He got angry and intended to kill the deceased. In addition, there was a cooling off period of
1 hour before the murder took place.

# Mohamed Kunjo v PP
The appellant had been found guilty of murder and sentenced to death. The appellant and the deceased
were talking loudly and laughing when they began to argue. The argument degenerated into wrestling. The
appellant then ran to his lorry and returned with an exhaust pipe and delivered a blow to the deceased’s
head. The deceased fell down and the accused continued to hit his head 3 of 4 times and walked away.
Indeed the blows were struck in a sudden fight in the heat of passion but the accused could not prove that
he had not taken undue advantage or acted in a cruel manner or unusual manner. He took undue
advantage when he ran to take the exhaust pipe and he had acted in cruel manner when he kept hitting
the deceased even when the deceased had fallen down.

# Teo Boon Ann v PP

The appellant was convicted of having committed murder of an old woman. He admitted hitting the
deceased with a stool after she put up a struggle. There was no sudden fight, and that the appellant had
taken advantage of his victim and had acted in a cruel or unusual manner. It was considering the
deceased’s age, strength, height and agility. The court also found that the appellant had intention of
inflicting injuries which in the ordinary cause of nature would cause death, falling under s.300(c).

# Vaeyapuri v PP
The accused was convicted of murder. He happened to have a parang in his hands whch he used to cut
firewood. When he reached the house, 3 men attacked him and caught hold of him. In order to free
himself, he tried to stretch out his hands and injured his neck. He was attacked and he did not know he
killed his wife by striking a violent blow on the side of the neck with the parang which as a result she died
almost immediately. The court held that the accused is entitled to an acquittal and the conviction for
murder was substituted with culpable homicide.

# PP v Ramasamy Sebastian
The accused and the deceased had been arguing and quarrelling for some time before the fatal stabbing
took place. The quarrel became violent and they were challenging each other. The court held that the
accused successfully raised the defence as it was clear that the fight occurred suddenly.

# Hanie Hamid v PP
The accused and another person tried to stop a fight between the victim and another person. The fight
involved a chair and a metal stick. The accused suddenly took a knife and stabbed the victim who was
struggling with another person. The court held that the fight was a sudden one.

# Herlina Trisnawati v PP
During the trial, the judge did not accept the evidence at all there was a fight and struggle even though
there was other evidence to collaborate the version. Death was likely. (#3 n 4 was not proven, therefore
reverted to s.299)

 Exception 5 – Consent
Culpable homicide is not murder when the person whose death is caused, being above 18 years old, suffers
death or takes the risk of death WITH HIS OWN CONSENT to die. He knew the nature and consequences
of his consent

(4) Infanticide
s.309A – infanticide
The accused : Woman or the victim’s mother
AR : Act or omission causing the death of newly-born child
MR : Wilfully
When? : When she had not fully recovered from the effect of giving birth to such child, that her balance of
mind was disturbed / post-natal blues
s.309B – punishment

 The act was done during the confinement period, the age of the child is between 1 day and 2 months
old

# PP v Zamihiyah
In this case, the accused was found guilty under s.309A. She waited for 8 years when she finally had a baby.
When the baby was 2 months old, she threw her baby out of window of a moving car. As a result, the baby
died. During the trial, she was proven to have been suffering from puerperal psychosis and this has caused
her acting so.

(5) Death by negligence

(a) Section 304A – Causing death by negligence
This section provides for the offence of causing the death of any person, by doing rash or negligent act
not amounting to culpable homicide. The act was not done intentionally.
AR: Rash or negligent
MR: cannot have intention and knowledge

(i) Rash
# N Nagabhushanam
The court defined the meaning of “rashness” in this case. It requires the offender to have considered the
possibility of the mischievous consequence occurring but to have decided to run the risk.

# PP v Mahfar Sairan
The accused was charged with murder of his wife. They had a fight. Don’t follow, told his wife, the music
was loud, aircond blast. He was alleged to have reversed his car and ran over his wife. He claimed that he
was not aware that the deceased had chased after his car. From the time the deceased had held on to
the mirror(right), the accused is assumed to not do anything rash or negligent that may cause injury to
the deceased. By driving off at the point of time, the accused did not take any adequate or proper
precaution to avoid causing her injuries, and was therefore rash and negligent.(There is a bump, and
there is a sound, he should be able to come down, there were a few stages in the whole incident, he
should have been able (1) look at mirror and see if gt someone, he did not do, he is angry, music aircond
loud, he told don’t follow me>> he bumped ad but never went down (it is safe for him to use a car, it was
negligent; (2) when he hit the victim, he simply move, u surely will feel sth if u hit on sth, it was rashness

MR: Rash; Evidence: The death of the

Test:
A reasonable man in the said circumstances would be aware.

If sb hold onto ur right mirror, will u know? Yes. There is big gap in terms of evidence

KEE HANG BOON

-suffered frm disease, u knew u have this disease, when u r taking the child, u should have to know that.
-he was unable to hold the baby
-no intention because it is father and child
-he is aware, he wanted to take care, he should be able to know yr limitation, so if u r not suppose to do
so, don’t do

Q3
I: Whether Jack – RTA S41(1)(c)

AR: he was texting while driving (lose control)

MR:

Speeding – cannot
Reckless – can (take on everything, u know u r not supposed to text while driving, u know u r not
supposed to speed)
Dangerous – combine everything

S304A – rash (direct cause of death)

Motor vehicle – s41

Compare why use s41 than s304A

(ii) Negligent
# N Nagabhushanam
This case also explains the meaning of ‘negligence’, which is disregarding of a risk which the accused
would have recognised if he had exercised proper caution.

# Lai Tin v PP
The court held that ‘negligence’ under s.304A may be great enough to support a conviction for ‘driving
without due care and attention’ or ‘driving recklessly or at a speed or in a manner which is dangerous to
the public’ but not greater enough to support a conviction for manslaughter.

# Cheow Kok v PP
The court overruled the decision in Lai Tin v PP. The court held that a very high degree of negligence
must be proved before an accused can properly be convicted for manslaughter by negligence and that
the same degree of negligence is required to prove an offence under s.304A of PC

# Lee Lai Siew v PP , Voon Wee Hian v PP

The case is about a sinking of a boat where the ship was allegedly carrying passengers far in excess of the
authorised number of 80 passengers and 4 crews, by 67 persons. The ship travelled for 30 minutes
before sinking resulting in loss of 38 lives. There was evidence of big waves which hit the ship and broke
the windows. The waves resulted in creating confusion and panic seized the passengers on board was the
direct cause of death. Overloading, was held to be a remote factor. The court then held that the master
of the ship was not negligent. The appropriate load-line on each side of the ship was already submerged
in water before the ship took off, however was not discussed in this case.

2 grounds:
1. negligent act
2. direct cause of the death

# Lee Kim Leng v PP

The deceased was killed when she was using the pedestrian crossing by an impact caused by the
appellant’s car colliding with a stationary taxi, forcing the taxi to lurch into her. The appellant was
convicted under s.304A of PC. The taxi driver was held to be negligent as well that he failed to see the
pedestrian until he was almost upon her and stopped the taxi suddenly without giving any signal.

# Woo Sing and Sim Ah Kow v R

The court did not follow the decision in Cheow Kok v PP. The appellant was guilty of negligence within
s.304A. The degree of negligence under this section was not of such a degree of negligence which would
render him guilty of manslaughter in England.

# Anthonysamy v PP
The court followed the decision in Woo Sing and Sim Ah Kow v PP, that the offence under s.304A does
not require the high degree of negligence that is required for manslaughter.

# Seah Siak How v PP

The appellant was charged for causing the death of a man by driving motor car on the road recklessly by
failing to exercise due care and attention. It follows that a charge under s.26 of Road Traffic Ordinance
must show that the driving is such as to amount to rash driving and the driver must be heedless of the
state of affairs on the road at the material time. Evidence was insufficient to find a conviction under s.26
of the Ordinance, but was altered to s.304A of PC.

# Mah Kah Yew v PP

The court here bound by the doctrine of stare decisis, bound by the decision in PP v Mills, accorded with
the decision in Woo Sing v R.

# Lim Chin Poh v PP

It could not be proven that the appellant was not able to exercise proper control of his bus. It was not
proven that the appellant was driving in a manner which is dangerous to the public, like overtaking a
vehicle on the wrong side of it, or overtaking in the face of oncoming traffic. The conviction was reverted
to s.340A of PC.

(b) Causing death by reckless or dangerous driving

Section 41(1) Road Transport Act
(i) Reckless
# PP v Zulkifli Omar
The defendant was driving a trailer-lorry along a trunk road when it collided with a group of oncoming
motorcyclists, killing 5 of them and injuring another 4. To be guilty of driving recklessly, a driver has to
create an obvious risk, or have seen the risk but nevertheless decided to take it.

# Seah Siak How v PP

The appellant was charged for causing the death of a man by driving motor car on the road recklessly by
failing to exercise due care and attention. It follows that a charge under s.26 of Road Traffic Ordinance
must show that the driving is such as to amount to rash driving and the driver must be heedless of the
state of affairs on the road at the material time. Evidence was insufficient to find a conviction under s.26
of the Ordinance, but was altered to s.304A of PC.

# Yen Chee Wei v PP

The appellant driving a Satria was involved in a collision with a Kancil resulting in the deaths of the driver
and three passengers in the Kancil. Evidence showed that the Satria negotiated a bend at high speed,
getting out of control and crashing into the Kancil travelling in the opposite direction. The accused had
created a dangerous situation and his reckless driving had resulted in 4 unnecessary deaths, injury and
suffering.

(ii) Dangerous to public

# Lim Chin Poh v PP
It could not be proven that the appellant was not able to exercise proper control of his bus. It was not
proven that the appellant was driving in a manner which is dangerous to the public, like overtaking a
vehicle on the wrong side of it, or overtaking in the face of oncoming traffic. The conviction was reverted
to s.340A of PC.

# PP v Zulkifli Omar
The lorry-trailer driven by the defendant was in the dire process of overtaking a motor can, at a speed
reckoned excessive for its size and weight, when it collided, tore and rammed into the convoy of motor
cyclists. Evidence showed that the defendant increased his speed to over 80km/h in overtaking the
motorcar and the vehicle tyres made two long brake marks which indicated the defendant was speeding
and driving in a manner dangerous to the public.

# Ramiah v PP
The appellant, a bus driver intended to turn right into Jalan Perhentian but did not stop at the junction.
The bus collided into a scooter coming from the opposite direction and the pillion rider died as a result of
the collision. The accused was at fault in creating that dangerous situation. Turning right into the side
road without stopping to give way to through traffic is dangerous driving.

# PP v Mat Zali Lahman (HC)

Facts:
The accused was charged with driving a motorcar in a manner which having regards to all circumstances
laid out in S.41(1) Road Transport Act 1987, was dangerous to the public, and caused the death of a 14
month old infant. The accused’s car came from the opposite direction. In the course of overtaking, the
accused had encroached into the deceased infant’s father’s right of way and collided head on with his
motorcar. As result of the collision, the infant died. The infant’s father evaded to the left onto the grass
road shoulder and did give warning by flashing his high light to the accused but the accident was not to
be avoided.

S.41(1) Road Transport Act 1987:

1a) by driving a motor vehicle recklessly (MR);
1b) by driving a motor vehicle at a speed;
1c) by driving a motor vehicle in a manner which having regard to all circumstances (including the
nature(bended road, in the morning), condition(child car seat was yet to be mandatory) and
size of the road(kampong road), and the amount of traffic which is or might be expected to be
on the road) is dangerous to the public; and
1d) either one or the above mentioned driving has cause the death of a person.

Held:
The court held that 2 things needed to be established before one can be convicted for driving in a
manner which is dangerous to the public:
(a) There must be a situation created by the accused which viewed objectively, is dangerous
(b) Such driving had caused the death of the deceased

Application:
The accused was coming from the opposite direction, in the course of overtaking a motorcar in front of
him, at a speed reckoned(considered) to be excessive, encroached into the infant’s dad right of way and
rammed into the infant’s father’s car head on. The force of collision had pushed the car off the road and
the sketch plan showed there were 2 long brake marks which are indicative that the accused was
speeding. Viewed objectively, he had created a dangerous situation by overtaking a car in front of him
and was certainly at fault.

Appeal allowed and accused need to call for defence.

(iv) OFFENCES AGAINST PROPERTY

What is property?
There are 2 different words used in the Penal Code :
(a) Section 22 – Movable property
 Including corporeal property of every description, except land and things attached to the earth, or
permanently fastened to anything which is attached to the earth.
 Normally used for offences such as THEFT, STOLEN PROPERTY and ROBBERY because the offender
needs to take the property away from the owner
(b) Property
 Normally used for CRIMINAL MISAPPROPRIATION, CRIMINAL BREACH OF TRUST and CHEATING.
 For forgery, it involves document as defined in Section 29

(1) THEFT
S.378 – Theft
AR : Take or moves the property belonging to others
MR: Dishonestly or intentionally
 s.24 – Dishonestly
Doing anything with the intention of causing wrongful gain to one person or wrongful loss to
another, irrespective of whether the act causes actual wrongful loss or gain

# PP v Goo Kian
Theft is taking away of movable property in the possession of someone out of that person’s
possession without his consent with intent to cause wrongful gain or wrongful loss

 Dishonestly requires the intention to cause wrongful gain or loss, the intention must exist at the
time of moving the property. It is a condition that must exist in the mind of the accused when he
intends dishonestly to move the property. It is not theft if there is no intention at the time of taking
S.379 – Punishment for theft
S.379A – Punishment for theft of a motor vehicle
S.410 – Stolen property
S.411 – Dishonestly receiving stolen property
S.413 – Habitually dealing in stolen property

The elements :
(a) Intention to take dishonestly
(b) The property must be movable
(c) It should be taken out of the possession of another person
(d) It should be taken without the consent of the person
(e) There must be moving of the property

Questions to ask :
(a) Is it movable?
(b) Who has the possession of the property?
(c) Is there any dishonest intention, ie took without consent?

# Sitabai Purshottam v Emperor

The accused has sold a barge to the complainant and received part of the purchase price. She seized the
barge from the complainant when the latter failed to pay the balance of the purchase price. However,
before seizing the barge, the accused had written a letter to the complainant informing him that the
contract will be cancelled if the balance of the purchase price is not paid. The accused had believed that
there’s no delivery in law, thus cannot be convicted of theft because she has not been shown to have any
dishonest intention in seizing possession of the barge.

# Rex v Lim Soon Gong

The respondents were charged for committing theft of sand from the foreshore, which the property
belongs to the Crown, thus committing an offence punishable under section 379 of Penal Code. The
Crown is entitled to every part of the foreshore between the ordinary high and low water marks, not the
respondents. Any person, who takes sand from an unalienated land without authority from the Crown,
thus does an act forbidden by section 13 of the Crown Land Encroachment Ordinance.

# Che Man bin Che Mud v PP

The appellant was involved with Harun, a clerk in Bank Negara to defraud the BNM of RM 22.2 million.
Harun was responsible for handling cheques for advance subscription for Government securities. BNM
received a cheque for RM 22.2 million from BSN got such subscription. By forging his superiors’
signatures, he remitted the money to the account of the appellant at a branch of Bank Bumiputra at
Menara Dayabumi where it was credited in to account of Che Man & Partners and subsequently paid out
on cheques issued by the appellant. The appellant could not be convicted of theft because the money
was moved via transaction within the bank system’s and not physically. The money of RM 22.2 million
was not moved as it was not a movable property and the money was withdrawn with the bank’s consent
because the money was in the appellant’s account.
# K.N Mehra v State of Rajasthan
The taking out of the aircraft by the accused for an unauthorised flight gives him the temporary use of
the aircraft, for his own purpose and temporarily deprives the owner of the aircraft, which is the
Government of its legitimate use. He even started the engine himself by misrepresenting to the
mechanic that he had the permission of the Section officer in charge. The appellant had dishonestly
taken the aircraft without the consent of the government. The movement of the property need not be
permanent in order to constitute theft. The movement can be for temporary purposes.

# PP v Hong Ah Huat
In this case, the accused dishonestly retained the 4 spray pumps and 6 tins of paints. When some of the
objects were recovered at the back of the house of the accused and a motorcycle a little distance away, it
was the accused who led the police to the discovery of these articles. Mere production of property by
itself would not necessary prove his possession. It would at most show that he had knowledge where the
property was kept or concealed. There must be a statement made to the effect that he had the
possession even though the articles are concealed in another man’s property.

# Ajendranath v The State of Madhya Pradesh

The appellant has been convicted for assisting in concealment of the stolen property under s.414 of IPC.
The appellant has stolen 5 bales containing woollen shawls and mufflers from two railway stations. The
appellant even made a statement showing readiness to point out the stolen property at the police
station. He attempted to sell a few mufflers a day. He even was seen arriving at the house, removing
properties which looked like bales from a car to the house. These circumstances showed he has assisted
in concealment of the property.

# Raja Mohamed v R
The appellant has committed theft under section 381 of the Penal Code in respect of 2 dozens of drinking
glasses from his company. However it was not proved that the glasses have been removed out of the
possession of the company.

To constitute theft, there must an intention to take dishonestly any movable property out of the
possession of another person without that person’s consent. It is sufficient if the person who has formed
such dishonest intention moves that property in order to such taking; and it is not necessary for him to
move that property out of the possession of the other person.

# Ward v PP
Two appellants were convicted of theft of certain articles under section 380 of the Penal Code. They
admitted taking the articles but contended that they did not take with any criminal intention. They
thought that when the owner required the articles, they would return them to him. Whoever with the
intention of gaining property by unlawful means moves that property or with the intention of retaining by
unlawful means property which he did not intend to acquire, moves that property though he does not
intend to deprive him permanently of it, is said to commit theft.

# Albakhar v PP
The appellant was convicted of dishonestly retaining stolen property - 7 plants of orchids which he knew
or had reason to believe was stolen property. There was no evidence that the plants had been brought to
the house by the appellant and that they were in his possession instead of the other members of the
house. In Ratanlal’s Law of Crimes, where property is found in a house occupied by several person, mere
discovery of any stolen property in the house is insufficient to prove that the possession was of any of
these persons. Since there was insufficient evidence, the appellant was acquitted.

# PP v Ramiahon
The three accused was prosecuted for house-breaking in order to commit theft. The 3 accused broke into
the living room and removed a trunk containing a large quantity of property. The first accused stated that
the complainant owed him money and he removed the property because he thought if he kept it for a
few days the complainant would pay the debt. He had no intention to steal while the other 2 accused
was merely assisting the first accused to remove the property. It was evident that it should be theft
under the Code to take goods in order to keep the person entitled to the possession out of his possession
for a time although the taker does not intend to himself appropriate them or to entirely deprive the
owner of them.

# Ahmad bin Ishak v PP

The appellant was convicted of the charge of voluntarily assisted in disposing of a government cheque
which he knew or had reason to believe it was a stolen property. The cheque had been handed to the
appellant by an office boy in the name of another person and it was a crossed cheque. The appellant
then took the cheque to a goldsmith’s shop and purchased gold ornaments and taken the balance in
cash. The accused’s conduct itself tends to show that he knew the cheque was stolen.

(2) EXTORTION
S.383 – Extortion
AR : An act/ threat which puts any person in fear of any injury and induces the person put in fear to
deliver to any person any property or valuable security or anything signed or sealed which may be
converted into a valuable security
MR : Intentionally

S.384 – Punishment for extortion

S.44 – Injury
 Any harm whatever illegally caused to any person, in body, mind, reputation or property
S.385 – 389
 Extortion is not completed. It’s still on the stage of putting any person in fear of injury [ Still an
attempt] because there’s no delivery of property

# Pendakwa Raya v Isa bin Johnit

In this case, there is no extortion but only wrongful confinement. The respondents wanted to get
back their property from the victim’s father therefore confining the victim. There were several
chances for the victim to escape but he sympathised with the respondents hence did not left. The
offence of extortion was not proved because the respondents met the victim in order to ask for
their money back and not to extort him. There was wrongful confinement when the victim was
pulled into the car. He was restrained beyond circumscribing limits. his movements in the car was
restricted.

# Vincent Lee v R
The appellant was a volunteer special constable and was duly vested with all the powers and
privileges of a police officer. It was alleged that, armed with these powers, he had extracted money,
threatening various persons who were smoking chandu with arrest. The word ‘injury’ in s.383 of the
Code is defined as harm illegally caused. The court held that the exercise of legal powers however
done can never constitute harm as defined in s.44 of the Penal Code.

# Abu Hassan v PP
It was held in this case that putting a person in fear of injury through the exercise of legal powers
did not constitute an offence of extortion. The court stated that an essential part of the offence of
extortion is putting a person in fear of ‘injury’. The ‘injury’ is harm caused and it follows the exercise
of legal powers can never constitute harm as defined in the Code.

# Beh Tuck Seng v Rex

The appellant approached the complainant and wanted to collect $ 10.80 for expenses. He further
said “everyone has joined, what about you?”. The complainant, who was a stall holder, took this as
a threat and feared that if he did not pay, he would be beaten or his stall upset. Hence, he paid over
the sum of money. There is no suggestion that the appellant had any business to collect any money
from the complainant. All that is necessary is that a person should be intentionally put in fear of any
injury should be dishonestly induced to deliver any property or valuable security. In this case, it was
clear that the complainant was put in fear and that he was induced to hand over the money.

# Tan Cheng Kooi v PP

The appellants had mooted the idea of forming a partnership to produce phonographic films.
Subsequently, the complainant decided not to participate. One of the appellants demanded from
the complainant some money for traveling expenses. According to the complainant, the first
appellant did not appear happy when he made the demand and when he further said that he would
not befriend the complainant, the complainant alleged that he became frightened and took these
words as a threat. The complainant had only $30 but said he would go home to fetch $ 50. He
however went to make a police report and returned to the bar telling the appellants he could not
get the money. The appellants were displeased and their faces became black with anger. The
complainant became frightened and was produced a booklet to sign. Before he could sign, four
detectives pounced on the appellants and arrested them. The court held that there was no threat
of injury because the complainant was allowed to go back to get the money when he does not have
enough money. He was not even fearful when asked to pay $50.

# PP v Kang Siew Chong

A threat to exercise a legal power in an illegal manner is an ‘injury’ within the meaning of S.44 of
the Penal Code. The accused was charged with attempted extortion by putting a courting couple in
fear of injury and induced them to deliver cash $50 to him, an offence punishable under section 385
of the penal code. A threat made with the object of exacting payment of money which is not due, is
an abuse of exercise of that power and is illegal. Such threat made with such an object constitutes a
threat of injury within the meaning of S.44 of the Code.

# Ling Kai Huat v PP

It was said while to threaten to use the process of the law is lawful; to do so for the purpose of
demanding money or other illegal purpose is unlawful and constitutes injury under section 44 of
the Penal Code. The second appellant, a police constable had extorted money from TSH by
threatening to take action against him for trading without a license. The second appellant was in
fact attached to the traffic branch of the police force and nothing to do with the inspection of trade
license. And he was off duty on the day, hence charged with extortion.

(3) ROBBERY/ GANG ROBBERY

s.390 – Robbery
 There is either theft or extortion
Accompanied by violence/force
AR : Theft/ Extortion to cause hurt or injuries
MR : Dishonestly / Intentionally
S.392 – Punishment for robbery

s.391 – Gang robbery

 More than 2 persons
S.395 – Punishment for gang robbery

S.393 - Attempt to commit robber

S.394 – Voluntarily causing hurt in committing robbery
S.396 – Gang robbery with murder ( + S.300)
S.397 – Robbery when armed or with attempt to cause death or grievous hurt

# PP v Sanli bin Sunggoh

Both defendants were charged with gang robbery and that in the commission of it, the murder of
one Ong Hong King was committed by one of them, hence committing an offence punishable under
s.396 of the Code. They were also charged with causing grievous hurt to one Ong Cheng Ham while
committing gang robbery and therefore committing an offence under s.395 read with s.397 and
punishable under s.397 of the Code. The court held that both defendants intended to kill the
victims, before the attack on Ong began. The second defendant did use a deadly weapon, a knife in
attacking Ong and consequently falls within s.397 of the Code.

*Note : S.395 can be read with S.397 because it can be identified in this case which defendant is the
one who cause death to the son and grievous hurt to the father.

# Muda bin Zainal v PP

In this case, the appellants were convicted of gang-robbery under section 395 of the Penal Code in
Kampong Bakong, Kelantan. The learned trial judge contended that the appellants were armed with
deadly weapons, to wit, large cutting knifes, axes and a rifle and thereby commit an offence
punishable under section 397 of the Code. However, the court held that s.397 was not meant for
gang-robbery and does not create a separate offence in conjunction with section 395. S.397 must
be used for specific person. In this case, s.397 cannot be used because the person who caused
grievous hurt cannot be identified.

# Subramaniam v PP
Three accused had place a knife at the victim’s stomach before taking away her ring, bracelet and
necklace on the night of incident. The court held that the three accused were guilty of robbery
under s.392 of the Penal Code.

# Bishambhar Nath v Emperor

The accused persons first belaboured the complainant and his servant with fists, kicks and lathis
after losing their bet at the dart shooting stall and subsequently committed the theft of the cash of
the complainant. Whatever injury was caused to the complainant and his servant, it was caused
when the assault was made upon them with the primary object of enabling the accused to the
committing of the theft. The assault or the beating had no relation whatever to the commission of
the theft, although the theft was committed at the same time or immediately afterwards.

# Rex v Yeo Kim Watt

The first and second appellants were jointly charged under sections 392 (Robbery) and 397
(Robbery when armed) of the Penal Code. The second appellant was armed with a deadly weapon,
a pistol but the first appellant was not. Both of them were convicted of robbery under section 392.
The second appellant as he was armed with a pistol was sentenced to an additional punishment
under s.397. (Why in this case not charged with s391 instead since it can falls under gang robbery?)

The court decided that provisions of section 34 (common intention) are applicable to section 397 in
respect of the offences defined when that section is used conjointly with section 392 or 393. Note
that s.397 did not create a separate offence and that section 34 could not be invoked to administer
additional punishment upon others charged. This position was used in Muda bin Zainal and
followed in Subramaniam v PP. and its provision is to be invoked only against an offender who
actually acts in contravention of that section.

# Talib b Haji Hamzah v PP

The gang-robbery was committed during broad daylight at a jewellery shop in a busy shopping area
indicated the robbery was planned very thoroughly. It can be properly inferred that they discussed
all the relevant matter such as what arms, how many should they carry and which of them should
be armed etc. The learned trial judges held that the person who fired the shot from the taxi did
intentionally fire at Indros. As the shot was fired at Indros by one of the robbers while he and his
four companions were carrying away the booty, the act of firing was done in the commission of the
gang robbery.
(4) CRIMINAL MISAPPPROPRIATION OF PROPERTY
S.402A – Definition of agent including advocate and solicitor
S. 403 – Dishonest misappropriation of property
AR : Misappropriates or convert to his own use, or causes any person to dispose any property
MR : dishonestly ( s.24 of Penal Code )
Property : Includes movable property and non-movable property; does not belong to accused
Note : Forgery can happen at the same time. Don’t have to prove how the property is obtained and
‘trust’. Need only to show the property is given to the accused and he used the property as if it is
his. Property is taken without consent.
 The act is done solely by the accused
 The property is legally own, eg money entrusted to the bank, but the officer misappropriated them

S.404 – Dishonest misappropriation of property possessed by a deceased person at the time of

his death
 The property must belong to the deceased at the time of death and had not been in the
possession of any person legally entitled to such possession.

Element :
(i) Property does not belong to the accused
(ii) Misappropriate or convert to his own use
(iii) Done dishonestly
 The length of time in misappropriating or converting the property for its own use, whether temporary
or permanent is irrelevant. Refer to Explanation 1 and the illustration to Explanation 1 to Section 403

# Wickrasooriya v PP
The appellant, an accountant in Sime Darby, Malacca was convicted on criminal breach of trust in respect
of monies he had received and payable to the company. It was his duty to receive monies payable to the
company, to bank them and to keep proper accounts. There was evidence that the appellant had received
the monies payable to the firm and in breach of his duty had failed to credit the firm with the said
amounts. The appellant had deliberately withheld these vouchers to ensure the amounts involved were
not credited to the company accounts while he retained the money and that his intention in doing so was
dishonest.

# Sinnathamby v PP
This case involved the taking of quarries from the Department of Quarries belonging to Jabatan Kerja Raya.
The property involved does not belong to the accused.

# Mohamed Adil v PP
The appellant, a headmaster deducted certain sums from the salaries of the teachers as their contributions
to a co-operative society. The general orders required the payment to the society to be made by crossed
cheque but evidence showed that some cheques were made out payable to cash and endorsed by the
appellant. The contributions were furthermore having not been paid to the society. The essential thing to
be proved in CBT is whether the accused was actuated by dishonest intentions in misappropriating or
converting property entrusted to him. The accused was entrusted with the money and he misappropriated
them, thus did so dishonestly.

Non-accounting or temporary retention of money is not evidence of an offence unless there is dishonest
intention.

# Khairuddin Hj Musa v PP
The accused had misappropriated the money owned by Bank Rakyat and converted to his own use when
he withdrawn the money illegally via different transactions.

# Tuan Puteh v Dragon [ misappropriate and convert to own use ]

The accused has taken the company’s cheque and forged his employer’s signature and tried to cash the
cheque by bringing it to the bank. However, the cashing of the cheque failed as the signature could not be
read and the cheque was returned.

(5) CRIMINAL BREACH OF TRUST

S. 405 – Criminal breach of trust
AR : misappropriate/convert to his own use/ uses/ disposes property or wilfully suffers other
person to do so
MR : Dishonestly
 In violation of any direction of law prescribing the mode in which such trust is to be discharged
 In violation of any legal contract ( contract involved the accused )
 There’s trust in holding the property and had dominion over the property
 It is insufficient to prove only there’s dishonest misappropriation, but there need to be in violation
of any direction of law or of any legal contract whether express or implied.

Elements :
(i) Entrusted with the property or had dominion over the property. The accused obtained the
property with trust. Look at illustrations (a) – (c) of Section 403
(ii) The accused dishonestly misappropriate the property and converted to his own use or dispose
the property or wilfully suffer other person to do so

S.406 – Punishment for CBT

S.407 – CBT of trust by carrier
S.408 – CBT of trust by clerk or servant
S.409 - CBT of trust by public servant or agent

# Periasamy a/l Sinnappan

The first appellant, the Chief Executive Officer of a Co-operative Central Bank Limited (CCB) was
charged with three counts of criminal breach of trust under the old s.409 of the Penal Code while the
second appellant was charged with abetment of the offences under s.109 of the Code read with section
409. Evidence was clear that the first appellant as the CEO at the material time had the dominion and
as such entrusted with CCB’s property. However, it was the Mathimugam, the Managing Director cum
Chairman who was empowered with dominion over the CCB’s property and the first appellant did not
know and that 2nd appellant did not inform him that the FMFB shares were not yet received. Therefore,
the first appellant was acquitted of the charge.

# PP v Lawrence Tan Hui Seng

In this case, an advocate and solicitor took a certain sum of money from the Client’s account of the firm
for the use of the firm. He was in such capacity entrusted with dominion over certain property
belonging to the clients of the firm, had committed criminal breach of trust. The court held that at the
time of commission of the offence, the accused had intended to make restitution as soon as possible
could not constitute a defence. Even temporary misappropriation or conversion of money or dishonest
use or disposal of it in violation of law or any legal contract whether express or implied or wilfully
suffering any person would amount to CBT.

# PP v Yeoh Teck Chye [entrustment , AR/MR]

In this case, the 2nd accused was the manager of a bank and it was alleged that he had approved
payment of cheques to the 3 rd accused although in excess of the overdraft facilities given to the 3 rd
accused, even though he had no authority to give such overdraft facilities. The 2 nd accused was charged
with CBT, whilst the 3rd accused was charged with abetment. The 1 st accused was the Deputy General
Manager of the Bank who had authority to grant overdraft within limits and some of the cheques
passed by the 2nd accused had the initials of the first accused in the register of cheques. The first
accused was charged with abetment of CBT by the 2 nd accused. The second accused was entrusted with
dominion over the funds of the Bank. This was a trust implied by law and under this trust, he could only
pass cheques for payment within the limit. The second accused was charged for two charges of CBT,
one for approving cheques in excess of the overdraft facilities and approving other cheques for
payment in excess of the credit balance where no overdraft facilities had been approved. The other
charge is for dishonestly disposing of the fund of the Bank by approving for payment cheques drawn on
two accounts, when no security had been taken in respect of the overdraft.

(a) Entrustment
# Rex v Tan Ah Seng
The respondent received $40 for the purpose of renting a house to be used by some prostitutes
and misappropriated it. It was held that the definition of “in any manner entrusted” was wide
enough to cover money entrusted to a person even if it had been entrusted to him for an illegal
purpose.

# Harihar Prasad vTulsi Das Mundhra

The respondents who were the secretary and headmaster respectively of that school were alleged
to have been misappropriating the provident fund money of the school. Both were jointly entrusted
with the provident fund belonging to teachers of the school as custody and having dominion over
the said amount of money, disposed the money in violation of law prescribing the mode in which
the trust was to be discharged. They have dishonestly used the money illegally for personal benefits
and have failed to account for the same when called upon to do so. Hence, the court held it was
right to charge them for CBT.

# Chin Wah v PP
The complainant lent the gold necklace to the appellant in order that the latter’s wife could wear it
at a party. The necklace was not returned to the complainant although she frequently asked for its
return. Eventually, the appellant admitted that he had pawned it. The appellant had dishonestly
misappropriated the necklace entrusted to him and converted it for his own use when he pawned
the necklace. The appellant was rightly convicted for CBT.

(b) Dominion
# Chang Lee Swee v PP
The appellant being an agent, namely the Executive Director of Finance of TDMB and in such
capacity entrusted with the funds of the said company committed CBT by transferring the funds to another
company called KJDB without the approval of the Board of Directors. However, the court came to a
conclusion that the appellant, even after he was appointed as an executive director in charge of the
financial affairs, was not in a position to manage the funds of TDMB without the overall control of the
managing director of TDMB. Hence, the appellant was not entrusted with nor had complete dominion over
its fund. Appellant could not be charged with CBT when he has no dominion over the funds.

(c) AR/MR
# Yeow Fook Yuan v Regina
The first appellant, the honorary treasure of a trade union with such capacity entrusted with dominion
over property was charged of wilfully suffering the second appellant, the general-secretary of the union,
to dishonestly misappropriate two sums amounting to $7500 from the funds of the union contrary to
section 406 of the Penal Code. The evidence was that the revenue of the union was deprived entirely
from subscriptions paid by the members. The first appellant allowing these monies of the union to be
taken by the second appellant amounted to an offence of CBT in that in his capacity as treasurer of the
union being entrusted with the funds of the union, he wilfully suffered the second appellant to
dishonestly misappropriate the total sum of $ 7500 from the funds of the union.

#Hj Maamor b Hj Abdul Manap v PP

The accused entered into various agreements with the shareholders of KSB to purchase their shares
through his company called KWSB. The purchase was to be paid for by the accused with his own money
and partly by way of intercompany loans from KSB to KWSB which by then had become KSB’s holding
company. The accused was initially charged for CBT in respect of the loans. On appeal, one of the
matters for consideration was whether the accused had dishonestly used of disposed of the sum of
money in violation of law or of any legal contract which he had made touching the use of the sums of
money. The only relevant provision was section 132(1) of the Companies Act which imposed the duty on
a director to act honestly and use reasonable diligence in the discharge of his office at all reasonable
times.

In essence, the offence of CBT is an offence relating to property and its commission is directed against
the beneficial owner of the property. There can be no CBT where the beneficial owner consents to the
use of the property in particular way.

# Sathiadas v PP
The appellant, a traffic clerk employed by the Malaysia-Singapore Airlines received monies from
consignees of cargoes but had not made any relevant entries in the sales return and had not submitted
the monies to the Kuala Lumpur head office of the company. The mere failure of the appellant to
account for the monies entrusted to him might not be a foundation for his conviction but when he was
unable to account and render an explanation for his failure inferred misappropriation with dishonest
intent.

# Murni b. Hj Mohamed Taha v PP

The appellant was paymaster of an army camp. He was entrusted with money was to use cheques
issued by the Treasury to pay serving soldiers. Discrepancies were revealed and the appellant was
convicted on charges of CBT. The evidence showed a design by the appellant to cheat the Treasury by
converting to his own use various sums of money returned to him by way of unpaid balances. Although
the appellant could not be said to have appropriated the money entrusted to him in violation of any
direction of law, he was violating a term of his contract of employment as a public servant which obliged
him to follow the State Financial Regulations. The appellant was rightly convicted of CBT.

S.411 – Dishonestly receiving stolen property

AR : Receives or retain any stolen property
MR : Dishonestly
 Discuss ‘possession’
 The accused knows or have reason to believe the same to be stolen property
 Property obtained via theft, extortion, robbery, CMA, CBT and cheating

(6) CHEATING
S. 415 – Cheating
AR : Deceiving any person to deliver any property or retain any property, or induces them to do or omit
to do something which is likely to cause damage or harm to any person in body/mind/ reputation/
property ( s.44)
MR : Fraudulently / Dishonestly [ Intentionally ]

S.416 – Cheating by personation

S. 417 – Punishment for cheating
S.420 – Cheating and dishonestly inducing delivery of property

Note: Mere deception or dishonesty is not a criminal offence. To establish the offence of cheating, the
complainant would have to show not only he was induced to do or to omit to do certain act but this
induced commission or omission on his part caused or was likely to cause him some harm or damage in
body, mind, reputation or property. A post-dated cheque is a mere promise to pay on a future date
and a broken promise is not a criminal offence. [ Chidambaram v Shanmughan PIllai ]

Elements:
(i) Deceiving any person
(ii) Deception induces the person deceived to deliver or retain any property
(iii) Deception induces the person deceived to do or omit to do something which is likely to cause
damage or harm to body, mind, reputation or property

# Low Cheng Swee v Rex

The accused has dishonestly insuring his motor car with two insurance companies without disclosing to
either such of such companies the fact he had insured it with another company and by receiving from
companies money under the two policies. Both companies paid for the claims, as each company assumed
it was the sole insurer. The accused was convicted for cheating for dishonestly concealing from both
insurance companies to get compensation from both companies.

# PP v Chen Kee Nan

The respondent was alleged to have placed an order for 35 sacks of rice, and after delivery of the rice, he
gave a post-dated cheque for $1460 as part payment instead of a cash payment of $2055 as agreed.
Subsequently, the respondent gave another post-dated cheque for the balance sum of $595. Both
cheques were dishonoured when presented to the bank on the due dates. There was no money in the
respondent’s account to meet any of those cheques. It is obvious that when the respondent issued the
post-dated cheques to the complainant, he did not expect they would be cashed in the normal course.
Besides that, nearly all the goods in the shop had been moved through the back door of the shop few
days before the cheques were due to be presented to the bank. The evidence collected showed there
was dishonest intention on the part of the respondent.

# Baboo Khan v State

The accused pretending to be the famous eye specialist of Aligarh induced the complainant to allow him
to perform an operation on the right eye of his 12-year old son. The boy had been previously been shown
to a certain Dr Gupta, who had declared that his eye to be incurable. But the accused made an incision in
the boy’s eye lid and extracted some whitish matter and then bandaged up the eye and told the
complainant to pay him. Personation is clearly established. It was clear that the accused deceived the
complainant inducing him to allow an operation to be performed on his son. Damage or harm in mind
was caused to the complainant as he was the deceived person by the act which he was induced to do on
account of the deception practised by the accused. The permission on operation must have inevitably
have caused him a good deal of mental anguish.

# Re D.C Henry
The accused obtained goods from a shopkeeper and gave post-dated cheques in payment which were
subsequently dishonoured. The learned Magistrate found that the accused must have known that he
would not have funds in the bank to meet the cheques when they were due for presentation. There’s
cheating when he paid the post-dated cheques when he knew he can’t pay.

# Khoo Kay Jin v PP

In this case, the goods valued approximately $14000 were delivered on 15 August 1962, but no payment
was made. However on the 18 th August 1962, the complainant accepted 4 post-date cheques totalling
$14000 in payment. These 4 cheques were not in fact presented for payment until October 1962, by
which the appellant’s account had been closed. However, when the complainant accepted the cheques
on 18th August 1962, he did not put himself in any worse position than he had been from the moment
when he had delivered the goods without receiving payment and the purchase price had become due.
Accordingly, it could be said he had suffered any damage as a result of agreeing to accept the cheques.
There was no cheating because the complainant himself did not specify what the deception was and
there was no evidence that the complainant was induced by any deception into accepting the post-dated
cheques in payment.

# Seet Soon Guan v PP

The appellant had used the Police Diary which was a false document and which he knew was a false
document in disciplinary proceedings in order to bolster up his defence to the disciplinary charged
preferred against him. That diary was fraudulently used because the appellant used it with the object of
producing it as evidence at the inquiry, as a genuine diary, in support of his defence and to corroborate
oral evidence at the inquiry, thus deceiving the adjudicating officer. The purpose of deception was to
induce the adjudicating officer to clear the appellant of the charge against him and to ensure he was
retained in the service of the Government as a police officer.
Note : Fraudulently does not necessarily connote deceit and injury to the person deceived. It may, but it
need not do so. A person acts fraudulently if he acts with intention that some person be deceived and by
means of deception, either an advantage should accrue to him or injury, loss or detriment should befall
some other person or persons.

# Yong Yong Peng v Rex

The appellant was charged for cheating Yap Chan Guan by deceiving him to believe that a cheque of $150
would be met and so induced him to deliver 10 bags of flour. The appellant was also charged for
cheating Chua Tian Seng by deceiving him to believe a cheque of $ 209.19 would be met and so induced
him to deliver 13 dozen tins of “Barlova”. The fact that the Chop closed down the very day on which
notice of dishonour was given and that everything valuable was removed, is a distinct evidence of
fraudulent intent. There was also a false representation that the appellant intended to pay for the goods
when he had no such intention.

# Mohamed bin Kasdi v PP

In this case, there was no cheating. The complainant was in a plan with the appellant to bribe the officials
to be selected for one of the vacant posts and evidence clearly showed that the complainant would go to
some length of trouble to be successful in his application. But for some reasons, the money was not or
could not be handed over. On the official rejection of the complainant’s application, he became annoyed
and decided to sue the appellant. The complainant had not been deceived when the appellant obtained
$200 from him on a false representation that it was required for the interview.

(7) FORGERY
s.463 – Forgery
 Involves document as a tool to deceive
AR : Making false documents or part of document
MR : Intentionally to cause damage or injury to the public or any person …

s.464 – 3 ways of making false documents

(i) Has authority to dishonestly or fraudulently makes, signs, seals or executes a document or part of
document
(ii) Without authority, dishonestly or fraudulently, by cancellation or alters a document
(iii) Dishonestly or fraudulently causes any person to sign, seal or execute or alter any document by
reason of unsoundness of mind or intoxication cannot, or by reason of deception practised upon him he
does not know, know the contents of the document or the nature of the document [ x sempurna akal/
mabuk walaupun mempunyai kuasa  tidak faham apa2 yang berlaku ]

s.465 – Punishment for forgery

# Hoo Chee Keong v PP (No. 2)

The appellant was charged under s.474 of the Penal Code for having possession of three credit cards
knowing them to be forged and with intent to use them as genuine. 2 exhibits purported to be
MasterCard credit cards on the face of it. They fall within the definition of ‘document’ under section 29
of the Code. It was disclosed that the said cards were counterfeits made to resemble the genuine, hence
were forged cards. The 2 exhibits clearly gave authority to a merchant to deliver any movable property or
render any services to the holder of the said cards. Even if they are not deemed valuable security, they
are certainly documents which purport to give authority ‘to deliver any movable property’ to some
person, and are therefore, one of the many types of documents described in s.467 of the penal code.

# Datuk Haji Harun b Hj Idris v PP

The court held that the minute or part of the minute used was a forgery. The appellants were charged for
jointly committing forgery for the purpose of cheating under s.468 of the Penal Code. A minute was
forged to indicate the resolution of the bank to pledge their shares for the purpose of obtaining a loan
from FNCB. The minute was a false document within the meaning of S.464(a) and was intended to be
used for the purpose of cheating. Cheating is defined in section 415 as a deception to induce someone to
do something.