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1. General Defences - 2
CRIMINAL LAW II
1. CONSENT
Conceptual
• In certain circumstances, the existence or absence of consent forms an
integral part of actus reus - eg: s. 378, 375
• Maxim: volenti non fit injuria (person who consented does not suffer any
loss)
• Ratanlal and Dhirajlal - An act of reason accompanied with deliberation;
the mind weighing as in a balance the good and evil on each side
• A willingness that has been given openly by a person of sound mind in
order to form a rational opinion towards the thing that he has consented
to.
s.90 Penal Code
• A consent is not such a consent as is intended by any section of this
Code—
(a) if the consent is given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act knows, or has
reason to believe, that the consent was given in consequence of such
fear or misconception;
(b) if the consent is given by a person who, from unsoundness of mind or
intoxication, is unable to understand the nature and consequence of that
to which he gives his consent; or
(c) unless the contrary appears from the context, if the consent is given
by a person who is under twelve years of age.
• Consent is not defined in the Penal Code. The nearest description of
consent can be seen under s. 90 of Penal Code
• Re Lock (1872) LR 2 CCR 10 - an active will in the mind of a person to
permit the doing of the act complained of, and knowledge of what is to be
done, or of the nature of the act that is being done.
• Although in most cases, consent involves submission, both are not
synonymous - Augustine Foong Boo Jang v PP [1990] 1 MLJ 225
• Consent becomes a complete defence if invoked in cases fall under s.
87, 88 and 89
Limited application of defence
• s.87 - Act not intended and not known to be likely to cause death or
grievous hurt, done by consent - eg: (sport) R v Bradshaw (1878) 14 Cox
CC 83, (disciplinary action) Emperor v GB Ghatge (1948) 51 QCM LR
103
• Whenever there is certain benefit meant to the person giving the
consent, the defence can be raised
• s.88 - Act not intended to cause death, done by consent in good faith for
the benefit of a person.
• s.89 - Act done in good faith for the benefit of a child or person of
unsound mind, by or by consent of guardian
s.91, Penal Code
• The exceptions in sections 87, 88 and 89 do not extend to acts which
are offences independently of any harm which they may cause, or be
intended to cause, or be known to be likely to cause, to the person giving
the consent, or on whose behalf the consent is given.
• Eg: PP v Dr Nadason Kanagalingam [1985] 2 MLJ 122 - Although it was
argued that the accused had procured abortion for the women in good
faith in order to save her life or mental but the accused did not take
reasonable thought or sufficient step to examine the women
s.92, Penal Code
• Nothing is an offence by reason of any harm which it may cause to a
person for whose benefit it is done in good faith, even without that
person’s consent, if the circumstances are such that it is impossible for
that person to signify consent, or if that person is incapable of giving
consent, and has no guardian or other person in lawful charge of him
from whom it is possible to obtain consent in time for the thing to be done
with benefit: Provided that, this exception shall not extend to— (a); (b);
(c); (d)
2. DURESS
s. 94, Penal Code
• Except murder, offences included in Chapter VI punishable with death
and offences included in Chapter VIA, nothing is an offence which is done
by a person who is compelled to do it by threats, which, at the time of
doing it, reasonably cause the apprehension that instant death to that
person will otherwise be the consequence: Provided that the person
doing the act did not of his own accord, or from a reasonable
apprehension of harm to himself short of instant death, place himself in
the situation by which he became subject to such constraint.
Elements
1. Threat must be one of instant death
2. The threat must be directed to the accused himself
3. The threat need not be made by direct means only
4. The threat must be imminent, extreme and persistent at the time of
commission of the crime
5. The threat is not a result of the person voluntarily exposure to threat
Threat must be one of instant death
- The defence is only available for reasonable apprehension or fear of
threat of instant death at the time of committing the offence.
- Threat in the future shall not be taken into consideration - Chu Tak Fai v
PP [1998] 4 MLJ 246
- Eg: Mohamed Yusof v PP [1983] 2 MLJ 167
The threat is not a result of the person voluntarily exposure to threat
- Explanation 1
- Eg: Mohamed Yusof v PP [1983] 2 MLJ 167

2. 3. PRIVATE DEFENCE
Scope of the right of private defence
• Right of private defence is provided under ss 96 – 106 of the Penal
Code
• It is a complete defence that absolve any guilt even where the accused
has voluntarily causing death of a person
• The right only available to one who is suddenly confronted with the
immediate necessity of averting an impending danger – not of his
creation.
• The accused need to be plead the defence upon the prosecution
proving that the accused had committed an offence.
• Rights of private defence arises either in defending one’s own body, or
the body of any other person, against any offence affecting the human
body as well as defending one’s property – s.97
Commencement & continuance of the right
• The right commences as soon as a reasonable apprehension of danger
to the body arises from an attempt to commit the offence and continues
as long as such apprehension of the danger to the body persists – s.102
• s.105 deals with the commencement & continuance of the right of
private defence of property – when a reasonable apprehension of danger
to the property commences.
• “Reasonable apprehension of danger” – objective test – Soosay v PP
[1993] 3 SLR 272
• For body – mere threats or force is sufficient – PP v Yeo Kim Bok [1970]
MLJ 204
• For property – must be beyond mere threat or force – Mohd Raffi v
Emperor AIR [1947] Lah 375
Restriction of right of private
defence – section 99
1) Act which does not reasonably cause the apprehension of death or of
grievous hurt, if done, or attempted to be done, by a public servant acting
in good faith under colour of his office
2) Act which does not reasonably cause the apprehension of death or of
grievous hurt, if done, or attempted to be done, by the direction of a public
servant acting in good faith under colour of his office
3) There is time to have recourse to the protection of the public
authorities.
4) Inflicting more harm than it is necessary.
Against act done by or under direction of public servant
• No private defence is recognised under(1) & (2) if the right is used
against a public servant or person under the direction of a public servant
who does an act which does not reasonably causes an apprehension of
death or grievous hurt and have acted in good faith in the course of
discharging his duty – although may not be strictly justifiable by the law.
• “Public servant” – s.21, Penal Code
• “reasonably causes an apprehension of death or grievous hurt” –
depends on the circumstances of the fact – objective test
• “in good faith” – s.52
• “may not be strictly justifiable by the law” – there is an excess of
jurisdiction
Recourse to the protection of public authorities
• No one can claim for right of private defence if he has time or
reasonable opportunity of redress by recourse to the public authorities
such as the police.
• “Time” – reasonable interval between the apprehension and commission
of the offence – it is a question of fact.
• Eg: PP v Seow Khoon Kwee [1989] 2 MLJ 100
• Accused caused the death of a fellow inmate whilst in prison detention –
the right of private defence not available.
Inflicting of more harm than it is necessary
• The amount of force used for private defence should not be more than
what is necessary for the purpose of self-defence.
• Principle of proportionality and reasonableness – there must be
proportion between harm inflicted and harm thereby prevented.
• It is nether measured by objective test – Jai Dev v State of Punjab AIR
(1963) DV 612 – nor scientific measure.
• The extent to which the exercise of right of private defence depends
very much on the reasonable apprehension of death or grievous hurt to
the person exercising the right
• Eg: R v Cumming
• In determining whether the person exercising the rights has reasonable
cause of apprehension of death or grievous hurt; or whether the person is
inflicting more harm than is necessary, the court shall look into several
factors:
1. The relative physique of the parties
• Eg: PP v Yeo Kim Bok, PP v Abdul Manap, Lee Thian Beng v PP
2. The frame of mind and conduct of the parties
• Eg: Jai Dev and Hari Singh v State of Punjab, PP v Ngoi Ming Sean
3. Type of weapon used
• Eg: Lee Thian Beng v PP
4. The nature of the wound inflicted
• Eg: Wong Lai Fatt v PP
5. Whether there was any other way of averting danger
• Eg: Lee Thian Beng v PP
Extent of right of private defence – s.100
a) such an assault as may reasonably cause the apprehension that death
will otherwise be the consequence of such assault;
b) such an assault as may reasonably cause the apprehension that
grievous hurt will otherwise be the consequence of such assault;
c) an assault with the intention of committing rape;
. d) an assault with the intention of gratifying unnatural lust;
. e) an assault with the intention of kidnapping or abducting;
f) an assault with the intention of wrongfully confining a person, under
circumstances which may reasonably cause him to apprehend that he will
be unable to have recourse to the public authorities for his release.

3. • s.101 – If the offence is not of any of the descriptions enumerated in
section 100, the right of private defence of the body does not extend to
the voluntary causing of death to the assailant, but does extend, under
the restrictions mentioned in section 99, to the voluntary causing to the
assailant of any harm other than death.
• s.103 – The right of private defence of property extends, under the
restrictions mentioned in section 99, to the voluntary causing of death or
of any other harm to the wrongdoer, if the offence, the committing of
which, or the attempting to commit which, occasions the exercise of the
right, is an offence of any of the following descriptions:
a) robbery;
b) housebreaking by night;
c) mischief by fire committed on any building, tent or vessel, which
building, tent or vessel is used as a human dwelling, or as a place for the
custody of property;
d) theft, mischief or house-trespass, under such circumstances as may
reasonably cause apprehension that death or grievous hurt will be the
consequence, if such right of private defence is not exercised.
• s.104 – If the offence, the committing of which, or the attempting to
commit which, occasions the exercise of the right of private defence, is
theft, mischief or criminal trespass, not of any of the descriptions
enumerated in section 103, that right does not extend to the voluntary
causing of death, but does extend subject to the restrictions mentioned in
section 99, to the voluntary causing to the wrongdoer of any harm other
than death.
• In certain circumstances as stated under s.100, the right can extend to
the causing of death subject that the right cannot extend more than
causing harm other than death to the assailant in other circumstances –
s.101
• The extension can be claimed regardless of defending one’s own body
or body of another person
• Eg: Wong Lai Fatt v PP – the appellant stabbed a man who was
attempting forcibly to rape his wife – On appeal acquitted.
• Similar extension is given for right of private defence of property – ss.
103 & 104.
• Four conditions must be fulfilled before causing of death can be justified
under private defence:
i. The accused must be free from fault in bringing about the encounter;
ii. There must exist an impending peril to life or of grievous life, either real
or apparent so as to create an honest belief of an existing necessity;
iii.There must be no reasonable mode of escape by retreat; iv.There must
have been a necessity for taking of life
• Where the limits are exceeded in cases of murder, any unpremeditated
excess is protected under Exception 2 of s.300 – but it merely mitigates
the offence from murder to culpable homicide not amounting to murder.
4. INTOXICATION
s.85 - Intoxication when a defence
1) Save as provided in this section and in section 86, intoxication shall not
constitute a defence to any criminal charge.
2) Intoxication shall be a defence to any criminal charge if by reason
thereof the person charged at the time of the act or omission complained
of did not know that such act or omission was wrong or did not know what
he was doing and—
a) the state of intoxication was caused without his consent by the
malicious or negligent act of another person; or
b) the person charged was by reason of intoxication insane, temporarily
or otherwise, at the time of such act or omission.
s.86 - Effect of defence of intoxication when established
1) Where the defence under subsection 85(2) is established, then in a
case falling under paragraph (a) thereof the accused person shall be
acquitted, and in a case falling under paragraph (b), section 84 of this
Code, sections 347 and 348 of the Criminal Procedure Code [Act 593]
shall apply.
2) Intoxication shall be taken into account for the purpose of determining
whether the person charged had formed any intention, specific or
otherwise, in the absence of which he would not be guilty of the offence.
3) For the purpose of this and the preceding section “intoxication” shall be
deemed to include a state produced by narcotics or drugs.
• Under the Penal Code, defence of intoxication, if successfully pleaded,
is a complete defence and not merely a mitigating factor.
• However, the scope of this defence is limited in its application.
• Eg: If a person is charged for an offence under the Road Transport Act –
ss.44, 45, 45A
• Self-induced intoxication in general is not a defence
• There are three different situations of intoxication that need to be
considered:
i. By reason of intoxication, the accused at the time of the act or omission
did not know that such act or omission was wrong or did not know what
he was doing + his state of intoxication was caused without his consent
by the malicious or negligent act of another person
ii. By reason of intoxication the accused become insane, temporarily or
permanently at the time of his act
iii. The accused is intoxicated, voluntarily or not, in which his intoxication
shall be taken into consideration in determining whether or not he had
formed any intention, specific or otherwise.
• The effect of the three situations:
i. Entitle for acquittal – s.86(1)
ii. Special acquittal by reason of insanity – however he shall be dealt with
under s. 84 of PC and ss. 347 & 348 of CPC as an insane person – s.
86(1)
iii. In the absence of any intention, the accused shall be entitled for
acquittal – s.86(2)
• Intoxication is not defined by the PC.
• An intoxication can be caused by alcohol or intoxicating liquor. It can
also be caused by produced of narcotic or drugs – s.86(3)
• Indra Wijaya Ibrahim v PP – Dormicum tablets + a small bottle of stout
cases; Mohd Sulaiman v PP – beer + Erimin tablets, Tengku
Joharis Badlishah v PP – cannabis intoxication
• In order to successfully raise this defence, the accused must show that
he falls under one of the situations under s.85(2) or s.86(2).
• The burden is on the accused, on the balance of probabilities, where if
he failed to prove this, he will still be liable of the offence.
• Bare statement of the accused that he was drunk at the time of the act
or omission is inadequate – Ismail bin Uk Abdul Rahman v PP [1974] 2
MLJ 180
• Certain medical conditions may give rise to a successful plea
• Eg: PP v Tan Ho Teck [1988] 3 MLJ 264 – The accused suffers from
‘delirium due to acute alcoholic intoxication’ – he does not know that what
he did was wrong or he did not know what he was doing – successfully
plead insanity under s.85

4. • Medical test determining the level of alcohol in the blood is relevant.
• Where the accused failed to call expert evidence to show that the
probable alcohol levels in his blood at the time of the offence and show
how that level of intoxication would have affected him, the defence of
intoxication may fail – Eg: PP v Ahmad Raduan bin Awang Bol [1998] 5
MLJ 460
• However, blood alcohol levels can never be a conclusive evidence to
determine the degree of intoxication of the accused as different person
react differently to the same blood alcohol level. – eg: PP v Ramasamy A/
L Sebastian [1991] 1 MLJ 75
• The conduct of the accused immediately prior to or after the commission
of an offence need to be considered.
• Eg: Liew Koh Tai v PP [1965] MLJ 54 – The accused described in detail
what he did – the house was ransacked, necklace was taken, the
accused washed out his clothes – intoxication was not established.
• Even if the accused behaved in an abnormal manner but the evidence
clearly established that the accused knew that what he was doing was
wrong or knew that what he was doing – defence will not succeed – eg:
Aladin v PP [1964] MLJ 345
• Where an offence requires the mens rea of intention – s.86(2) can be
relied on as a mitigating factor to have the accused be guilty of a lesser
offence due to the fact that he did not by reason of intoxication form the
requisite intention for a graver offence
• Eg: PP v Teo Heng Chye – accused was convicted under s.304(b)
instead of s.302
• Juma'at bin Samad v Public Prosecutor [1993] 3 SLR 338
Kenneth Fook Mun Lee v Public Prosecutor [2007] 2 MLJ 130
• Section 86(2) of the Penal Code only affects offences which require
intention, specific or otherwise. It excludes other types of mens rea. Since
cl (d) to of the s 300 of the Penal Code, involves merely knowledge and
not intention, it is not within the ambit of s 86(2). Intoxication is thus
irrelevant in securing a conviction for murder if knowledge as per cl (d) of
of the s 300 of the Penal Codeis proved beyond reasonable doubt by the
prosecution.
5. INFANCY
PROVISIONS
1. S.82 – Act of a child under 10 years of age
• Nothing is an offence which is done by a child under ten years of age.
2. S.83 – Act of a child above 10 and under 12 years of age, who has
not attained sufficient maturity of understanding
• Nothing is an offence which is done by a child above ten years of age
and under twelve, who has not attained sufficient maturity of
understanding to judge of the nature and consequence of his conduct on
that occasion.
• S.82 provides for conclusive presumption that a child under the age of
10 years old cannot commit a crime.
• This constitute an irrebuttable presumption that a child under the age of
10 is doli incapax – cannot discern between good & evil
• Thus, once it is established that a child is under the age of 10 he will be
totally exempted from any criminal liability.
• However, under s.83, a child who is above 10 years old but under 12
years old is capable of committing an offence – unless it can be shown
that he has not attained sufficient maturity of understanding to realise
what he is doing or to judge the nature and consequence of his conduct.
• Thus, children under these age has a conditional defence (Eg: Ulla
Mahapatra)
Maturity Of Understanding
• Whether a child has attain sufficient maturity of understanding – shall be
inferred from words and actions at the time of the offence
• The child must plead that he is lack of maturity of understanding as it is
ordinarily presumed unless the absence is proved by the defence.
And Consequence Of His Conduct
• The child should also show that he do not know the natural and physical
consequences of his conduct
• It is not refer to penal consequence of his conduct but consequence that
results from a voluntary act.
6. INSANITY
Section 84, Penal Code
- Act of a person of unsound mind.
- A person who could successfully raised the defence of insanity shall be
found not guilty by reason of insanity. This is due to the fact that the
person has lacked in mens rea of the committing the crime.
• The sanity of an accused person may be raised in different stages:
1.When the accused is called upon to enter his plea
- After charge has been read to the accused, the court has to ascertain
whether the accused person is fit to plead – if his fitness to plead is
suspected by the court by looking at the demeanour and conduct of the
accused and the court has reason to believe that the accused person is of
unsoundness of mind and consequently incapable of making his defence,
the court is bound to investigate as provided under s. 342 of the Criminal
Procedure Code
- At this stage, the court will only concern with the mental capacity of the
accused at the time he enters his plea, and not at the time of commission
of the crime
- If the court is satisfy that the accused is fit to enter his plea, the trial shall
then proceed, according to the plea of the accused.
- If the court is not satisfied with the fitness of the accused to plead, the
court shall order the accused to be detained for observation in any mental
hospital not exceeding one month – s.342(3) Criminal Procedure Code.
- Before the expiration of the period, the medical superintendent is
required to certify the mental state of the accused. If the accused is
certified to be of sound mind and capable of making his defence, the
court shall proceed with trial. The accused may then opt to raise the
defence of insanity as part of his argument.
2. When the accused raise insanity as a defence
- There are two opinions as to whether an accused who has been found
unsound at the time of the commission of the crime is obliged to raise the
defence of insanity:
i) The accused could choose not to raise the defence of insanity – PP v
Misbah bin Saat [1997] 3 MLJ 495 held that an accused person who has
recovered from his unsoundness of mind and who is fit to stand trial may
choose not to raise the defence of insanity.
ii) The accused should raise the defence or have the court to raise such
plea – PP v Ismail bin Ibrahim [1998] 3 MLJ 243 held that an accused
person who has insanity available to him as a defence is not at liberty to
enter a plea of guilty. Even if the plea of insanity is not raised by the
accused, it is nevertheless the duty of the court to inquire into it if there is
evidence of such plea on record.
• At the time of doing it
• Unsoundness of Mind

5. At the time of doing it
• The accused must be suffering from mental disability at the time he
doing the alleged offence required under the M’Naghten Rules and
Section 84
• The evidence of mental disability must be proved by medical or
psychiatric examination of the accused after the commission of the
alleged offence.
• Insanity may be due to any cause; permanent or temporary but what is
essential is the accused should suffering from that insanity at the time he
committed the crime.
Unsoundness of mind
• Section 84 employed the phrase “unsoundness of mind” which imply a
broader scope compared to the M’Naghten Rules i.e. “labouring under
such a defect of reason, from the disease of mind”
• Unsoundness of mind shall covers mental defects both congenital and
post-natal, such as idiocy, madness, delirium, melancholia, mania,
hypochondria, dementia, hallucination and every possible form of mental
affection known to medical science.
• Unsoundness of mind usually need to be proven by medical
evidence the entire mental history of the accused shall be relevant both
before and after the particular commission of act. Evidence of mental
disorder in near relatives or ancestors shall also be considered.
The test under M’Naghten Rule implies that:
Disease of mind on the other hand is disease that impair the ordinary
sense of the mental faculties of reason, memory and understanding (Lord
Diplock, R v Sullivan)
- It is irrelevant whether condition of the mind is curable or incurable.
e.g.: Hypoglycaemic coma as a result of failing to take food after taking
insulin (R v Bailey)
“Defect of reason” must be more than a momentary confusion or absent-
mindedness. It must be a deprivation of reasoning power.
- Mental impairment should be caused by a disease. Malfunctioning of
mind as a result of external factor such as violence, drugs, hypnothic etc
cannot be considered as constituting disease of mind.
• Unsoundness of mind on the other hand has the advantage of bringing
within its scope various conditions and affections of the mind which
ordinarily do not come within its meaning but with regard to exemption of
criminal liability they stand on the same footing
• E.g: R v Kemp - it was held that brutish stupidity without rational power
was excluded from disease of mind This may well fall within the ambit
of Sect. 84
• Other distinction that can be seen is that disease of mind under
M’Naghten Rules is qualified by the “defect of reason” whereas
unsoundness of mind under Sect. 84 has no qualification.
• The legal and medical concept of unsoundness of mind may overlap.
Eg: a mental patient who medically suffers schizophrenia, paranoia or
lunacy may also fulfill the elements of unsoundness of mind as stated
under s.84
• Eg: In PP v Mohamad Shuhaimi bin Abdul Aziz [2002] 5 MLJ 233 – it is
settled law that the question whether a defence of insanity has been
made out or not is a matter for the court to decide. It will be observed that
the medical evidence on the mental state of the accused at the time of the
incident was not seriously challenged...In the circumstances, the defence
advanced is not one that can be rejected with ease.
Elements
• Incapable of knowing:
– Nature of the act
– Doing what is either wrong or contrary to law
Incapable of knowing
• The unsoundness of mind must affect the legal responsibility before the
defence can succeed.
• It must impair the cognitive faculties of the accused and affect his
reasoning ability. It is not enough to simply show that he had failed to use
his power of reasoning.
• The accused must go on to show that because of his insanity either he
did not know the nature of his act OR if he did know this, he did not know
either he was doing wrong or contrary to law.
• The term ‘know’ had been broadly interpreted as equivalent to the
accused being incapable of reasoning with some moderate degree of
calmness as to the nature or wrongness of the act. (Stapleton v The
Queen) such interpretation suit the requirement under Sect. 84
• M’Naghten Rule had adopted a narrower interpretation as the issue is
“whether or not the accused knew” and it is possible that not knowing a
thing but still not be incapable of knowing it.
Incapable of knowing: (1)Nature of the Act
• Refers to the physical nature of the act (R v Codere)
• The words of M’Naghten rule are “nature and quality of the act”. In
Codere case it was held that quality refers to physical and not moral
quality implies the same principle under Sect. 84
• Therefore, a person acting in a state of automatism would not know the
nature of his act (R v Sullivan)
Incapable of knowing:
(2) Doing what is either wrong or contrary to law
• This phrase has given rise to considerable debate, i.e.:
• Whether the wrong refers to a moral wrong or to legal wrong?
• Whether the phrase “wrong or contrary to law” should be read
disjunctively or conjunctively?
• With regard to the 1st issue, the proper view is that the wrong refers to a
‘moral wrong’. It cannot refer to a legal wrong since such interpretation
will render redundant the alternative phrase “contrary to law”. Thus the
word wrong in Sect. 84 should means morally wrong (Stapleton v R)
• However, it is uncertain whether the moral wrong should be interpreted
subjectively or objectively.
• Thus, should subjective approach being adopted, the moral standard of
the accused would have to be considered. On the other hand, should the
objective approach being adopted, the standard would be construed
according to the ordinary standards adopted by a reasonable men.
• With regard to the 2nd issue, we should determine whether the phrase
should be read conjunctively or disjunctively.
• If a disjunctively view is applied, this would mean that only one of the
conditions need to be satisfied for an acquittal (Ashiruddin Ahmed v King).
On a conjunctive approach, the accused must show that he did not know
the act was morally wrong and it was contrary to the law (Geron Ali v
Emperor).
• In Malaysia, the position is still uncertain. In Azro v PP, conjunctive view
appears to have been adopted. However in Jusoh v PP, the same judge
i.e. Thomson CJ had adopted a disjunctive approach when he declared
that it was sufficient for the purpose of Sect. 84 if the accused by reason
of unsoundness of mind did not know what he was doing was wrong.