Question 1: - Discuss the function and application of such form of punishment (reformatory) in Malaysia. - Whether such form of punishment may tackle the issue of sentencing disparity. Question 2: - Discuss ‘illegal omission’ which may give rise to criminal liability.

1. PREPAREDBY: SITINOORAISHAHBINTIABDMANAP (LBA11030088)
SHAZAHANANIBINTIZULKEEFLY (LBA12033210)
IRWANBINJOHNIMBAYAN (LBA11030294)
DATE: 12thOCTOBER2015
CRIMINAL LAW I

2. 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”.

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

4. 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.

5. Rehabilitation
Purposes
Teo Siew Peng
v PP [1985] 2
MLJ 125

6. 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.

7. Sentencing
Application
Fines
Court will also take
into consideration the
person’s capacity to
pay
Bond of Good
Behaviour
Community Service
Order
Was 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

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

9. 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

10. 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?
• Your
opinion

11. Yes
Why?
Everybody gets equal treatment
Explain:
No matter what is your status you will receive
same sentence such as fine, bond of good
behaviour, and social service.
No
Why?
Not fair, just, and reasonable
Explain:
The aristocrats have no problem to pay
fine, thus they will repeat the offence
again.

12. The effect of
imprisonment
The effect of
rehabilitation
Conclusion

13. 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.

14. 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;

15. 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:-

16. 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

17. 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.

18. 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.

19. 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.

20. • 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.

21. The crucial matter becomes
one of determining the precise
circumstances in which an
omission is illegal.
Sections 43 deals with three
situations;

22. S.43 deals with 3 situations
Failure to act which
is an offence
Failure to act which
is prohibited by law
Failure to act which
furnishes ground of
civil action

23. 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.

24. Lee Sai Yan v PP
(Unreported,SubordinateCourts,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.

25. 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.

26. 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.

27. 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.

28. Duty to act arises in the
following circumstances
Special
relationship
Duty
voluntarily
assumed
Duty
assumed by
contract
Creating
dangerous
situation

29. Special Relationship

30. 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.

31. 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.

32. 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.

33. 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.

34. Duty which is assumed by
contract

35. 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.

36. Creating Dangerous
Situation

37. 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.

38. 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.

39. 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.