PREPARED BY: SITI NOOR AISHAH BINTI ABD MANAP (LBA11030088) SHAZA HANANI BINTI ZULKEEFLY (LBA12033210) IRWAN BIN JOHN IMBAYAN (LBA11030294)

DATE: 12th OCTOBER 2015

CRIMINAL LAW I

Question 1

• In the case of Raja Izuddin Shah v PP [1979] 1 MLJ 270, Hashim Yeop Sani J mentioned, “… I have come to the conlusion that the public interest is in no way better served by committing the appellant to prison. The primary purpose of punishment is reformatory and it is clear in this case that he appellant has realized the fact that notwithstanding his status he is not above the law”.

i. Based on the above statement, discuss the function and application of such form of punishment (as stated) in Malaysia.

Draft of Criminal Law Test

• First part- • 1. Read the excerpt carefully.• 2. Decide what form of punishment specifically mentioned in the case of Raja Izzuddin Shah v PP [1979] 1 MLJ 270- reformatory aka rehabilitation• 3. Function of rehabilitation.• 4. Application of rehabilitation- Fine, bond of good give rise to behaviour, and community service.

RehabilitationPurposes Teo Siew Peng v PP [1985] 2 MLJ 125

Teo Siew Peng v PP [1985] 2 MLJ 125

• Sentence on the 1st, 2nd, 4th and 5th appellants was set aside and in substitution, the court decided that in respect of each of the appellants, there shall be two sureties in the sum of $3,000 each. The 1st, 2nd, and 3rd appellants shall each have his mother as one of the sureties. • The 4th and 5th appellants shall have their respective parents as sureties. Gang robbery is a very serious offence and generally would merit the harshest of punishment if an offender is convicted, and this case cannot by any means be regarded as a precedent.

Sentencing ApplicationFines

Court will also take into consideration the person’s capacity to pay

Bond of Good Behaviour Community Service OrderWas first introduced, under section 293, a provision pertaining to juvenile offenders.

An order by the court requires offender to perform services for a specified time period

•ii. Whether such form of punishment may tackle the issue of sentencing disparity.

Draft of Criminal Law Test

• Second part• 1. Define sentencing disparity.• 2. What is the issue?• 3. In your opinion, rehabilitation can solve this problem or otherwise.• 4. Imprisonment effects towards no future, become a better criminal, same goes to juvenile

Sentencing Disparity• Zulkifli b Puasa v PP[1985] 1 MLJ 461 (HC, Brunei)Issue • Whether the rehabilitative sentencing may tackle the issue of sentencing disparity.

Can rehabilitation solve this issue?

YesWhy?Everybody gets equal treatmentExplain:No matter what is your status you will receive same sentence such as fine, bond of good behaviour, and social service.

NoWhy?Not fair, just, and reasonable

Explain:The aristocrats have no problem to pay fine, thus they will repeat the offence again.

The effect of imprisonment

The effect of rehabilitation

Conclusion

Question 2

It is trite law that criminal liability always flows from positive acts of commission, provided that causation and mens rea are established, true to the Latin maxim actus non facit reum nisi mens sit rea (an act does not make a person legally guilty unless his mind is legally blameworthy). In general, there is no criminal liability for omission to act, unless of course expressly provided by the law. Discuss ‘illegal omission’ which may give rise to criminal liability.

Draft of Criminal Law Test

•Discuss on illegal omission that may give rise to criminal liability• - Focus on Section 43 of Penal Code • - Section 32 of Penal Code• - Section 43 gives out 3 situations;

Draft of Criminal Law Test

• 1. Failure to act which is an offence• Cases - Lee Sai Yan v PP

• 2. Failure to act which is prohibited by law• Case - De’Souza v Pashupati Nath Sarkar

• 3. Failure to act which furnishes ground of civil action• Third situations give out four circumstances of duty to act:-

Draft of Criminal Law Test

• 1. Special relationship• Case - Om Prakash v State of Punjab

• 2. Duty voluntarily assumed• Case - R v Instan• - R v Stone & Dobinson

• 3. Duty assumed by contract• Case - R v Pittwood

• 4. Creating dangerous situation• Case - R v Miller• - Benoy Chandra Dey v State of Calcutta

Introduction

• The meaning of actus reus non facit reum nisi mens rea is that an act does not make a person guilty unless his mind is blameworthy. • Mens rea or blameworthy mind is the most difficult component to prove in criminal liability because blameworthiness can have different meanings depending on the offences. • An act can be completed but no liability falls on the defendant if he can disprove mens rea by a good defence or reasonable mistake.

Section 32 of Penal Code

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

Section 43 of Penal Code

Section 43 of the Penal Code stated that the word illegal is applicable to every thing which is an offence, or which is prohibited by law, or which furnishes ground for a civil action and a person is said to be legally bound to do whatever it is illegal in him to omit.

• Penal Code shows that while criminal liability always flows from positive acts of commission (provided causation and mens rea are established), there is no liability for omissions to act unless the omission can be said to be illegal as defined by S.43.• This means that a stranger can with impunity watch a small child drown in a shallow pool even though he could have saved the child’s life with a minimum effort and with no risk to himself. His omission is not illegal within S.43 and thus there is no actus reus of any offence.

The crucial matter becomes one of determining the precise circumstances in which an omission is illegal.

Sections 43 deals with three situations;

S.43 deals with 3 situations

Failure to act which is an offence

Failure to act which is prohibited by lawFailure to act which furnishes ground of civil action

Failure to act which is an offence

• This must refer to omissions that are independently made criminal offences by the Penal Code or other statutes.• Example; Section 289 of Penal Codes that states, “Whoever knowingly or negligently omits to take such order with any animal in his possession as in sufficient to guard against any probable danger to human life shall be punished”. If an accused failed to exercise the requisite control over such an animal in his possession with the result that it killed a person, the accused’s failure to act would be an illegal omission which could constitute the requisite actus reus of the offence of culpable homicide.

Lee Sai Yan v PP (Unreported, Subordinate Courts, Singapore)

• The accused is a site engineer on a building worksite. He did nothing to prevent the deceased entering a bored hole that needed cleaning. The deceased, wearing no breathing apparatus, was lowered into the deep hole in a bucket where he died from asphyxia due to insufficient oxygen. • The accused’s omission to act in this case was held to be an offence. Accordingly, Section 43 it was an illegal omission. It follows that if the prosecution had wished to charge the accused with a more serious homicide offence under Section 299 or Section 304A there would have been no problem in establishing the requisites actus reus of these offences. Both require the accused to have committed an act. Under Section 32 this illegal omission would have constituted such an act.

Failure to act which is prohibited by law

• Many failures to act which are prohibited by law are offences and will fall under the category already discussed. However, the two terms are not synonymous. Certain failures to act could be prohibited by law yet not be offences. • For instance, Section 115 of the Women’s Charter (Singapore) (Cap 353) in Singapore provides that it shall be the duty of a parent to maintain or contribute to the maintenance of his or her children either by providing them with such accommodation, clothing, food and education as may be reasonable. • While such a failure to act is prohibited by law, it is not in itself an offence. However, being prohibited by law it is not itself an offence. However, being prohibited by law it will constitute in illegal omission capable of forming the actus reus of a criminal offence.

De’Souza v Pashupati Nath Sarkar [1968] Cri LJ 405

• The defendant was a captain of a ship which arrived at Sandhead 110 miles off the port of Calcutta and had to wait there for pilotage. While there the deceased, a junior engineering on the ship, fell ill.• When his condition deteriorated, several requests were made of the captain to remove the sick man to Calcutta.• For five days, from the first requests for removal, nothing was done. During this period at least five ships, including some belonging to the same company as the accused’s ship, left Sandhead daily for Calcutta.• No request was made for any medical help from any of these ships. On the fifth day the ship was plotted into Calcutta port and the accused radioed for the deceased to be removed to hospital.• The following day the deceased died of infective hepatitis with hepatic coma with hepato revel failure.• The accused was charged, inter alia, with an offence contrary to Section 304A Indian Penal Code but petitioned the High Court to have the proceedings against him quashed.

Failure to act which furnishes ground of civil action

• This situation is to discover whether an omission to act furnishes ground for a civil action that necessitates reference to the civil law of Singapore and Malaysia, which is primarily for the law of tort. Such law is for present purposes virtually identical to English law. However, this by no means solves the problem for two reasons. First, the English civil law on this topic is far from clear. Secondly, the extent to which it is permissible to rely on English criminal cases on this matter is controversial. These English cases initially based themselves on the English civil law, thus inducing all the Indian commentators to assume that reference to them is permissible. • However, there has been a growing awareness in the UK that great caution needs to be exercised before indulging in any cross-referencing between criminal law and civil law as the objects of these two branches of the law are so diverse. The result has been that English criminal cases have developed independently of civil cases. The Penal Code however did not specifically links criminal liability for omissions to civil liability. It thus follows that before any English case can be used in Singapore or Malaysia care must be taken to ensure that it reflects the civil law as well as the criminal law. Bearing this important caveat in mind it would appear that the law shown that an omission only furnishes ground for civil action and thus criminal liability if the accused is under a duty to act.

Duty to act arises in the following circumstancesSpecial relationship

Duty voluntarily assumedDuty assumed by contract

Creating dangerous situation

Special Relationship

Om Prakash v State of Punjab AIR [1961] SC 1782

• The accused starved his wife by omitting to feed her and denying her permission to leave the house. • Raghubar Dayal J held that it is only when a person is helpless and is unable to look after himself that the person having control over him is legally bound to look after his requirements and to see that he is adequately fed.• Such persons according to him are infants, old people and lunatics. He contends that it is no part of a husband’s duty to spoon feed his wife as his duty is being simply to provide funds and food. • Presumably, the better rationale is that one owes a duty to those who are dependent on and reasonably expect assistance from one. To this extend it could be argue that this whole category can be subsumed within the following broader one.

Duty Voluntarily Assumed• Even though there may be no special relationship between the parties, if one person voluntarily assumes a responsibility towards another, a legal duty is to act will have been created.• The real basis of the duty in such cases is the dependence and reasonable expectation of assistance springing from such a gratuitous assumption of responsibility.

R v Instan [1893] 1 QB 450• The accused lived with her 73 year old aunt. The aunt who had been healthy until shortly before her death developed gangrene in her leg. During the last twelve days of her life she could not fend for herself, move about or summon for help. Only the accused knew of her state and gave her aunt no food and did not seek medical assistance. The accused was charged with manslaughter and convicted. • The prisoner was under a moral obligation to the deceased from which arose a legal duty towards her. The prisoner has wilfully and deliberately left unperformed with the consequence that there has been an acceleration of the death of the deceased owing to the non-performance of that legal duty. It is unnecessary to say more than that upon the evidence this conviction was most properly arrived at.• A helpless person has been taken into the home of the accused and being isolated from the rest of the world is totally dependent on the accused.

R v Stone & Dobinson [1977] 1 QB 354

• The defendants (common law husband and wife) were of low intelligence. One day they were visited by S's sister Fanny and took her in providing her with a bed but over the following weeks she became ill. She did not eat properly, developed bed sores, and eventually died of blood poisoning as a result of infection. The defendants had not obtained any medical assistance for Fanny although they had known that she was unwell. The defendants were convicted of manslaughter. The• Court of Appeal held that the defendants had been under a common law duty to care for Fanny. This duty had arisen from their voluntarily assuming the responsibility for looking after her, knowing that she was relying on them. The defendants' failure to discharge this duty was the cause of the victim's death.

Duty which is assumed by contract

R v Pittwood [1902] 19 TLR 37

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

Creating Dangerous Situation

R v Miller [1982] UKHL 6• One night while squatting in someone else’s house, the appellant lit a cigarette and it dropped onto the mattress. Later he woke up and saw that the mattress was smouldering. He did nothing about it and merely moved to another room and went to sleep again. As a consequence, the house caught fire. The appellant was rescued and subsequently charged with arson, contrary to Section 1(1) and (3) of the Criminal Damage Act 1971. • At his trial he submitted that there was no case to go to the jury because his omission to put out the fire which he had started accidentally could not in the circumstances amount to a sufficient actus reus. The judge ruled that once he had discovered the mattress was smouldering the appellant had been under a duty to act. • The appellant was convicted. The court of appeal upheld his conviction on the ground that his whole course of conduct constituted a continuous actus reus.

Benoy Chandra Dey v State of Calcutta [1984] Cri LJ 1083• The accused or petitioner applied for revision of the judgement dismissing his appeal and confirming his conviction under Section 340A Indian Penal Code. • A naked, live galvanized electric wire had been connected from the house of one Gopal to that of the petitioner. • 13 year old boy while passing in front of the petitioner’s house touched the wire and died instantly from electric shock.

Conclusion• It has been proved by the cases and the verdicts of the courts that omission in some circumstance can lead to some serious crimes such as murder and manslaughter. • There are cases where omission gives rise to gross negligence and it needs to be brought in a circle of statue and there should be some proper laws and statue to tackle with this type of omission. It can only be made possible by making a clear and bold laws where failing to act should be punished. • The parameters of the duties should be much clearer. In the cases relating to close relation there should be a line drawn between who owes duties towards whom. It would be very much difficult to punish all the bystanders who watched a child drowning. In the complicated cases of omission it should be the court who decides the duties or negligence. In each and every case the punishment for the omission should be dealt with outmost care.