2. WHAT IS DURESS?
◦ Unlawful threat of harm exerted upon a person to compel that person to perform an act that he or
she ordinarily would not do and the action is against his or her will.
◦ Duress is an excusatory defence.
◦ Defence of duress - criminal defendants who were forced to commit a crime under threat or because
of the actual use of violence.
◦ The defence of duress is provided under section 94 of the Penal Code.
◦ The defence of duress may apply when acts of violence, or threats of violence and harm , are
inflicted on the defendant
4. ELEMENTS FOR DEFENCE OF
DURESS
◦ There must a threat of death or serious bodily harm.
◦ The threat must be immediate or imminent.
◦ The threat must create a reasonable fear in the defendant.
◦ There must be no reasonable means for the defendant to escape the threat except by
committing the crime / not expose to the threat voluntarily
5. DOES PERSUASION ENOUGH TO
SUSTAIN A DEFENCE OF DURESS ?
◦ Annoyance and persuasion are not enough to sustain a defence under the terms of duress.
◦ It requires that the violence or threat of violence completely and reasonably overcame the
courage of the defendant - as it would have overcome the courage of any person of normal
courage
◦ He or she lost control of his will power and essentially acted involuntarily and is thus not liable
for his actions.
◦ Some factors must be taken into account when determining what the defendant's normal level
of courage should have been, including his or her age, weight, height, health, temper and
disposition.
6. ◦ A person commits a crime because he is compelled to do it by threats at the time of doing it,
and the threat cause reasonable apprehension that instant death will results. The threat
directed to himself if he does not compel with it.
◦ As long as the doer did not of his own accord, or short of reasonable apprehension of instant
death(though reasonable apprehension of harm still exists), place himself in the situation by
which he became the subject to such constraint.
◦ Defence of duress can be used in any crime except murder, attempted to murder, offences
included in Chapter VI ( offences punishable with death ) and offences included in Chapter VI
A of Penal Code.
7. CASE 1 : Mohd Yusof bin Hj Ahmad v PP
◦ FACTS OF THE CASE
- Appellant is guilty of trafficking 2700grammes of cannabis
- Deemed to be in possession and knowledge of the said drugs
- He admitted that he carried 2 bags containing cannabis to Padang Besar.
- He did it under the threat from a male, who is Thai national in a hotel in Sadau, Thailand.
- The man threatened him with a pistol, ordered him to carry the 2 bags across
the border to railway station.
8. ◦ IT WAS HELD THAT
- S94: there must be reasonable fear, at the very time, of instant death.
- Person who do criminal act from fear of anything other than instant death, do them at their peril, not
protected by section 94.
- If an offence is completed when all danger of instant death has been removed, the person committing the
offence is not protected under section 94.
- If the accused on his own accord places himself in a situation by which he becomes a subject to the
threats, even if it is a death threat, section 94 does not apply
- Appellant had complied with the request to carry the 2 bags to the railway and reached the station, placed
the bags on the platform and gone to purchase ticket to leave Padang Besar. He had been carrying the
drug for 1 and half hour without making any attempt to seek for help.
- Although the Thai was 20 feet away on the platform when he last saw him, there are people at the public
place, and there are officers from whom he can seek for help. (there is no reasonable apprehension of
death)
- The duress was no longer instant, imminent, extreme and persistent.
- The moment he placed the bag and purchase ticket, mission completed under no such duress present
or continue.
- Conviction confirmed.
9. CASE 2 : Subramaniam v PP
FACTS OF THE CASE :
◦ Appallent was found guilty for being in possession of 20 rounds of ammunition contrary to
Emergency Regulations.
- He raised the defence that :
- he had been captured by terrorists, trained and given ammunition
- at the material times he was acting under duress
- at the time of his capture he intended to surrender.
- with such intention he came to the place where he was found
10. ◦ IT WAS HELD THAT :
- At first, it was submitted that as there was no communist around, there was no duress.
- S94: instant, imminent death, and it must be reasonable and must be supported with evidence. Very
subjective.
- In order to plead for the defence of duress to be upheld, the duress must be imminent, extreme and
persistent
- However, Privy Council held that since, he was found in jungle, he is no way near to the any village or
place with public, the threat is still imminent to him. The terrorists may return anytime.
- He had had a reasonable apprehension of instant death
- The court has extended the meaning of ‘imminent’.
- imminent = near, at hand
11. CONCLUSION
A person forced to commit crimes through appalling threat and had no opportunity for any other
effective choice other than committing it, and his action was in fact, is morally involuntary,
deserve no blame.
