Criminal Cases

LOWAU’ =) | MeiHui Low
Assault
Section 352:
Punishment section
Section 351:
AR:
1. Gesture or preparation
2. It must be a physical gesture or preparation (not merely using words)
Explanation section 351:

Mere words cannot amount to an assault but words can colour gestures so as to
indicate their meaning.
Eg:
 Rolling up one sleeve, prima facie = innocent action. But if accompanied by
words indicating this was being done in preparation to punch someone, it
would be sufficient preparation or gesture to satisfy s351
 Pointing a sharp knife at one person, prima facie = indicative of an assault,
accompanying words, eg: describing the style or design of the knife, would
prevent the gesture coming within section 351
3. Without willingness on part of the victim. (cause apprehension)
4. Causing REASONABLE apprehension of physical force to be inflicted on the

victim.
 Reasonable man test (cannot subject to the personal or individual personalities

eg: timid or brave) – unfair to the accused
Literal reading of section 351:

 Victim does not have to apprehend immediate physical force is about to be
used against him
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 As long as the accused makes appropriate gesture or preparation + the

intention to cause/knowledge that it is likely to cause apprehension of
immediate force.
 Under literal interpretation criminal liability would be imposed upon those

who cause no physical harm and no fear or apprehension, but who simply
tried to cause such apprehension.
 It is the law of attempt that should be left to deal with such cases.
 ’Apprehension being caused’ is a readily identifiable harm which the
criminal law is rightly concerned.
 Apprehension must be one of the element. Cannot be too literal.
5. Threat of immediate force
 The accused must intend or know that his gesture or preparation will cause
apprehension that he is ABOUT to use physical force.
 Conditional threat/assault does not amount to an assault
a) As long as condition is fulfilled, no criminal force will be about to be inflicted
(the victim has a choice not to be inflicted with criminal force)
b) If there is negotiation, (eg: condition is – PAY NOW, victim beg the accused/
accused knows that victim has no capability to pay on the spot, there is
then assault.)
MR:
1. Intend that the victim apprehend immediate physical
2. Know that it is likely that his victim will apprehend immediate physical force.
Harm: the victim apprehends immediate physical force
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1) Jashanmal Jhamatmal v Brahmanand Sarupanand

1. Brahmanand suddenly confronted the complainant’s wife in the dark at 10.30
o’clock at night.
2. He uttered a piercing shout and extended his arm towards the lady and
pointed a pistol at her.
3. She was ill from nervous shock for some considerable time after the episode.
Held:
1. The accused “put out his hand towards the woman in a menacing manner so
as to cause her to apprehend that he was about to use criminal force”. It was
therefore an assault.
2. It was unnecessary to prove whether there was any particular
implement/instrument in his hand.
Tutorial:
3. No direct interaction between accused and the victim. (can charged under
section 352 and hurt section)
4. Accused’s only action was to shout.
5. Victim was in fear of criminal force.
6. Gesture:
Pointing a gun at victim.
Reasonable fear of infliction of criminal force:
Dark, bottom of staircase, gun
2) Ram Singh v Emperor

Whether the reappearance of the petitioner on the scene with a lathi in his hand and
coming up to a distance of about 12 paces where the officers were amounted to an
offence of assault.
Held:
1. Whether a particular act amounts to an assault depends upon the
circumstances of each particular case.
2. When the petitioner interposed between Mr Rizvi and the cattle he was
removed under the order of Mr Rizvi.
3. He then indulged in the use of abusive language and thereafter went away
threatening that he would return and teach them a lessons.
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4. Soon afterwards he came back with a lathi with his companions who were not
armed.
5. However, when the accused ‘came sufficiently close to the officers to raise in
their minds a reasonable apprehension that actual force was likely to be
used’, it constituted an assault.
3) Datuk Seri Samy Vellu v S Nadarajah

1. The accused challenged the complainant during a debate proceeding.
2. The accused tried to attack the complainant but he stopped after seeing that
there were journalist around.
3. During the process, the accused knocked over a cameraman and beat a TV
crew.
4. When the complainant was leaving the hall the accused lunged the
complainant and tried to hit him.
5. The accused was prevented from hitting the complainant by the people
around.
6. The complainant was chocked and scared.
Held:
1. The allegation ‘cuba memukul saya’ is difficult to prove. It could also be a
conclusion or an opinion of the complainant.
2. It was important to find out if ‘cuba memukul saya’ occurred before or after he
was restrained.
3. The use of ‘cuba’ implies that the accused was under restraint.
Tutorial
4. No reasonable apprehension of force: there were a lot of media (deterrent
enough to stop him to do so.)
5. Mere words are insufficient
6. The accused advanced but stopped by the others.
7. It may be the victim’s opinion as it involved politician who is aggressive and
many people.
4) Birbal Khalifa v Emperor (conditional threat)

1. A rule in the Police Code: any surveille is at home, the proof of his presence
can be secured by taking a thumb impression on the report.
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2. However, it does not impose obligation on the surveille to give the thumb
impression.
3. When the police paid a domiciliary visit on the surveille, je refused to allow his
thumb impression to be taken.
4. On the police officer attempting to take it, he produced a lathi saying that he
would not allow the impression to be taken and if anyone asked for it, he
would break his head.
Held:
1. Before an act can amount to an assault under section 351, it is necessary that a
gesture or preparation should be made by a person which would cause
another to apprehend that the person was about to use criminal force.
2. A preparation taken with words which would cause him to apprehend that
criminal force would be used to him, if he persisted in a particular course of
conduct, does not amount to an assault.
3. The act of the surveille did not amount to an assault and that his conduct
under s353 could be set aside.
** However, section 503 Criminal Intimidation could be used:

“Whoever threatens anther with any injury to his person, with intent to alarm that
person … commits intimidation’
*** It is immaterial under section 503 the threat is purely verbal.
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Criminal Force
Section 352:
Punishment (besides on grave and sudden provocation by victim.)
Section 358: on rave and sudden provocation given by victim
Aggravated criminal force/ assault offence

Section 353: deter public servant from discharge of his duty
Section 354: outrage modesty of a person
Section 355: dishonor a person
Section 356: attempt to commit theft of property carried by a person
Section 357: to wrongfully confine
Section 350:
Criminal Force
AR:
1. Use of force
2. to any person
3. Without that person’s consent:

a. Consent can be expressed or implied
b. One is deemed to have consented to the risk of force when he is engaged in
a pursuits wherein they are liable to be pushed aside (eg: catching a bus in a
rush hour). However, the force must be one which is reasonably expected
in the circumstances.
MR:
1. Intention to use the force to a person: [usage of force]
 Knowledge that the force is likely to be inflicted is INSUFFICIENT. (MUST
be intention)
2. The force is intended to commit any offence or to cause injury, fear, and
annoyance. [aftermath of force]
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 Knowledge that force will illegally cause the offence to be committed or

injury/fear/annoyance is SUFFICIENT.
 S43: ‘illegally’
 S44: ‘injury’
Harm (kesan):
Menyentuh mangsa: kesalahan berlaku, bencana tubuh menyebabkan ketakutan
atau kegusaran
Section 349:
Definition of Using Force:
1. Cause motion. Change motion, or cessation of motion; or cause such motion
to any ‘substance’ as to bring it into contact with the other’s body (or anything
they are wearing or carrying or that is so situated that such contact affects
their sense of feeling)
AND
2. The motion caused by either one of the methods:
a. By own bodily power [illustration (d)]
b. By disposing substance to cause motion without any further act on either
party.[illustration (a)]
c. By inducing any animal to move [illustration (h)]
P.S.:
1. Illustration (f) suggests that any form of unlawful touching is sufficient.
2. However, in cases were the person touched does not move at all, it is going to
be difficult for the prosecution to prove beyond reasonable doubt that there
was no consent.
3. Most person who are touched in a manner to which they object will push the
toucher away. Such motion would bring the case within section 349.
4. Furthermore, s95 plays a role: no criminal liability is the force used amounts
only to slight harm.
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1) Chandrika Sao and Hazari Lal v The State of Bihar

1. Mr Singh as an Assistant Superintendent of Commercial Taxes, Paid a surprise
visit to the shop of Hazari Lal & Co in Barah town in order to in spect the books
of account maintained by the shop.
2. Mr Singh found 2 sets of account books kept in the shop hence he took them
up and started looking into them.
3. The appellant snatched away both the books from him, passed them on to one
of his servants who made them over to another servant who was on the upper
floor.
4. Mr Singh directed his orderly peon (officer) to recover the books but the peon
was prevented by the appellant from going to the place where the account
books had been taken.
5. In the scuffle which ensued between the peon and appellant, the peon’s shirt
was torn.
6. Mr Singh then lodged a complaint at Police Station.
7. The counsel for the appellant contended that there was no force as provided in
s349 used against the person of Mr Singh and therefore, the act of appellant of
did not constitute the use of criminal force as contemplated in s350. Hence,
the appellant should not be convicted under s353 which is using criminal force
to deter a public servant from discharge of his duty.
Held:
1. One person can said to have used force against another if he causes motion,
change of motion or cessation of motion to that other.
2. By snatching away the books which Mr Singh was holding, the appellant
necessarily caused a jerk to the hand or hands of Mr Singh in which he was
holding the books.
3. His act therefore may be said to have caused motion to Mr. Singh’s hand or
hands.
4. Furthermore, the natural effect of snatching the books from the hand or hands
of Mr Singh would be to affect the sense of feeling (def of Force s349) of the
hand or hands of Mr Singh.
5. Hence the action of the appellant amounts to use of force as contemplated by
section 349.
6. However, mere use of force is not enough to bring an act within the terms of
section 353. It has to be shown further that force was used intentionally to any
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person without that person’s consent, in order to commit an offence or with

the intention or with the knowledge that the use of force will cause injury, fear
or annoyance to the person against whom the force is used.
7. The law has conferred a power upon Mr Singh to inspect account books of a
dealer and for that purpose even pay a surprise visits to the shop of the dealer,
it would follow that there is an obligation on the dealer to allow Mr Singh to
inspect his book of account. Mr Singh was therefore lawfully in possession of
the account books when he took them up and started perusing them.
8. The appellant had no justification to snatch the books of accounts from him.
9. The natural reaction of Mr Singh would definitely be feeling annoyed at the
action of the appellant.
10. Hence the appellant’s act must be held to amount to use of criminal force.
11. The appellant’s act in snatching away the books amounts to obstruction of an
officer making an inspection.
Tutorial:
12. Done by accused, felt by victim (force)
2) Bihari Lal v Emperor

1. The accused was convicted under section 454 of Indian Penal Code for
committing house breaking with the intention mentioned in that section.
2. House belonged to one Hazari. Behari claimed to be Hazari’s adopted son.
3. The house had been vacated by Hazari during his lifetime and was used by the
trustees for the purposes for which it was entrusted to them.
4. Behari went to the house in the absence of the trustees or their
representatives, and broke the lock and thus entered the house.
5. Behari then chained the house from inside.
6. Was there criminal force?
Held:
1. ‘Force’ as defined under section 349 contemplates the presence of the person
using the force and of the person to whom the force is used.
2. When the force was applied to break into the house, trustees were not there.
(there is no show of force)
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3) John George Donovan

 Facts
 Accused spanked a girl to fulfil his sexual perversion
 Facts showed that the girl consented
 Principle
 If an act is unlawful, it can’t be lawful if the person consents to it –
exceptions:
o Wrestling
o Sports
o Chastise by parents
 Since the question whether the accused intended the blows weren’t put to
the jury, the conviction was quashed. Had the question been put and the
jury affirmed, the question of consent would be immaterial
4) Rupun Deol Bajaj v KPS Gill

 Facts
 Indian ladies were sitting in a semi-circle and men at another semi-circle at
a party. The accused sat an empty chair in the ladies’ area. Most ladies
around him left
 He called Mrs Rupun to sit beside him because he had something to talk to
her. As she approached him, he pulled the chair next to him so that it’s
closer to him. She pulled it back, but again he pulled it towards him.
 She returned to her seat. He went to her and stood 4 inches away from
her legs and asked her to follow him. Since their bodies would touch if she
stood, she drew her chair back, got up and went away.
 The accused then slapped her posterior
 Principle
 Test of modesty under s 354 – whether the action of the offender would
shock the sense of decency of the woman
 It was an elites’ party and so the accused at least had the knowledge that
it would outrage her modesty
 s 95 – to prevent penalising negligible wrongs and of trivial characters –
not applicable
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Voluntarily Causing Hurt
Section 323:
Punishment (except provided by section 334)
Section 334:
Causes hurt on provocation
Section 336, 337: cause hurt by an act rashly or negligently as to endanger human
life.
Aggravated hurt offence

Section 324: cause hurt by dangerous weapons or means
Section 327: extort property or to constrain to an illegal act
Section 328: by means of poison etc. to commit an offence
Section 330: extort confession or to compel restoration of property
Section 332: deter public servant from his duty
Section 321:
**this specific provision takes priority over provision of general application (which
includes reason to believe) i.e. definition of ‘voluntarily’ in section39 (applicable for
grievous hurt too)
AR:
1. Causes hurt
2. To any person
MR:
Voluntarily cause hurt=
1. Intention of causing hurt (intend the end result), or
2. Knowledge that hurt to any person is likely (know the end result [such
damage])
Section 319:
Cause hurt = cause bodily pain, disease, or infirmity to any person.
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**Since s321 requires proof of an intention to cause hurt or knowledge of the

likelihood of hurt, an accused who has caused hurt but only intended force, and did
not know that hurt was likely, will not be guilty of voluntarily causing hurt.
***section 95 can hardly be a defence when the cases involve higher level of harm or
where there are fewer mitigating factors in the surrounding circumstances.
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1) Jashanmal Jhamatmal v Brahmanand Sarupanand (same case for assault)
Held:
1. Voluntary act causing serious mental derangement can be equated to
voluntary act causing hurt. [serious mental derangement = hurt]
2. Nothing in s319 suggests that hurt should be caused by direct physical contact
between the accused and the victim
3. Infirmity denotes an unsound or unhealthy state of the body or mind. A state
of temporary mental impairment or hysteria or terror would constitute
infirmity, which falls within the meaning of s319 expression.
4. It was necessary to prove that the accused did the act complained of with the
intention of causing hurt or with the knowledge that he was likely to cause
hurt.
5. In order to induce the woman to vacate the premises, sufficient reaction upon
her nervous system was necessary and the intention must have been to induce
in her a sufficient state of fright or hysteria to serve the accused’s purpose
(induce to vacate).
6. More than mere intention to annoy has to be inferred.
7. Accused had shown intention/knowledge to cause sufficient state of fright to
serve his object (the intention must be executed thoroughly to frighten the
victim):
a. Present himself in the dark before the woman
b. In a sudden and horrifying manner
c. He was appeared to the victim with such the mentality, education and
standing that the apparition she saw was supernatural.
d. Cause inevitable consequence which would be a sharp shock to the nervous
system.
8. Question whether Hurt is simple or grievous hurt would be dependent in
medical report.
9. Duration of state of infirmity would be immaterial.
2) Madhukar Danun Patil

Facts:
The victim was on her way to attend a marriage ceremony and during that time, she
was sitting at a bus stop. 2 men approached her and told her that they were on their
way to attend the same ceremony as well. Later, one of the men offered her a drink
(sugar cane). After having the 2nd glass, she felt dizzy and begin to lose her
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consciousness. She realized later that they were under a bridge and they were trying
to take off her mangal sutra. A rickshaw puller passed by and both of them ran away.
Held: both accused had caused hurt to the victim. Refer to s.324 where they have used
dangerous drugs to make her unconscious (form of infirmity i.e-hurt under s.319). They
were later convicted under hurt.
3) Manzoor Ahmad v State

1. The accused and the 15 years old victim had an argument.
2. The victim complained of a headache and the accused gave him a glass of milk.
3. He added some copper sulphate saying that it was an effective medicine for
headaches.
4. The boy then vomited and collapsed resulting in the admission to hospital.
5. Whether there is knowledge on part of the accused that the act is likely to
cause hurt to the victim?
Held:
1. Copper sulphate is a dangerous poison and everybody knows that it is
dangerous to life.
2. A person of the age of the accused must be presumed to know that such drug
is poisonous.
3. Under these circumstances, he must be presumed at least to know that it is
likely that he will thereby cause hurt to the complainant.
4. ‘Hurt’ is defined to mean either bodily pain or disease or infirmity.
5. The bodily pain or infirmity can be either permanent or temporary.
6. Infirmity = inability of an organ to perform its normal function which may
either be temporary or permanent.
7. By the administration of copper sulphate via a glass of milk, a 15-year-old boy
is thrown into unconsciousness, vomiting with the possible risk of his life by
becoming unconscious for the time being, both bodily pain and infirmity are
caused. Section 95 is not applicable.
8. If the harm is so light that no person of ordinary sense and temper would
complain of it, it is excluded by section 95. However, this is not such a case
which can be ignored under section 95. [distinguished Veeda Menezes v Tusuf
Khan]
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4) Anis Beg v Emperor (Hurt)

Facts : the accused, 16 infatuated with a girl, 12 and persuaded a bout, 12 to take five
Peras that contained dhatura to the girl and her family members. All of them were
poisoned
Held : whether it can be said that the accused knew it to be likely that he will
thereby cause hurt to an of those persons : Dhatura – common drugs and well known
that it was poisonous. Bodily pain and infirmity occurred – most of them unconscious
and coma.
5) Mat Alias bin Mat Jusoh v PP (Dangerous Weapon s324/326)(the principle can
also be used for s 326)
1. The appellant hit the victim with a golf club, in the course of which the head of
the club broke.
2. The appellant parted company with the prosecution’s stance when he
ventilated that the matter at hand fell under s323 rather than s324 on the
premise that the offending instrument which was a golf club did not qualify as
an instrument for shooting, stabbing or cutting,
Held:
1. A golf club is not one of the instruments that could be used for shooting,
stabbing or cutting, but it does not necessarily mean that if used wrongly, the
offender could invoke the restrictive description s and escape prosecution.
2. A golf club could certainly qualify as an instrument that falls under the
purviews of section 324; if when used as a weapon of offence, is likely to
cause death.
3. With the insertion of those qualifying words, a wider berth (role) is given to
this provision, with particular reference to the type of instrument used.
4. Any non-golfer let alone a regular player will not hesitate to opine as to its
obvious effect, where by in a scenario which a metal golf stick were to be
swung in such a violent and dramatic manner, death would be more than likely
to follow,
5. It must be stressed that under section 324, it is not necessary that the manner
of use of the instrument must be as such as is likely to cause death, it is merely
the nature of the weapon that should be taken into consideration. [Means
the manner of use will be a merit for the prosecution?][When the nature of the
weapon is not dangerous, the manner of use comes into play?][Does it mean
golf club is made by metal so its nature is dangerous?][Or the nature of the
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weapon is such that when the weapon is wrongly used it is likely to cause
death?] [Nature + likely to cause death?]
6. Shaik Meera v Regina: There are some implements about which one can say
simply by looking at them or handling them that, used as weapons of offence,
they are likely to cause death.
7. Appeal was dismissed.
6) Muniandi v PP (Dangerous Weapon)

Held:
1. If the instrument used was not for shooting or stabbing or cutting, but it was
likely to cause death if used as a weapon of offence, there is an offence.
2. The words ‘likely to cause death’ qualify the word ‘instrument’ the second time
it occurs and not the first time.
3. Pieces of woods are not instrument for shooting, stabbing or cutting and
therefore to make out an offence under section 326, or section 324, it had to
be alleged and proved that these pieces of woods are instruments which if
used as weapons of offence were likely to cause death.
7) Sultan Mohamed v Regina (Dangerous Weapon)

1. The appellant was charged under section 324 with voluntarily causing hurt by
means of a stick which used as a weapon of offence is likely to cause death.
Held:
1. There is no doubt that this instrument, if used in a certain way, could cause
death, so could many other lesser instruments
2. In determining whether the charge is properly laid under this section is
whether the instrument is intrinsically likely to cause death, not whether the
instrument, if used in certain way, might cause death.
3. This charge should have been under section 323.
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8) Veeda Menezes v Yusuf Khan (s95)

1. The complainant had suffered a small cut when a paper file was thrown during
an argument involving four people.
2. The accused had caused hurt and had intended to do so.
Held:
1. Acquitted of voluntarily causing hurt on basis of s95.
MH: if want to apply s324,

324(weapon + cause hurt = (AR?) voluntarily cause hurt (MR?)] --> 319
--> 321]
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Grievous Hurt
Section 325:
Punishment
Section 335:
Causing grievous hurt on provocation
Section 336, 338: Cause grievous hurt by doing an act rashly or negligently
Aggravated grievous hurt offence

Section 326: by dangerous weapon or means
Section 329: to extort property from the sufferer/ constrain to do anything illegal/ to
facilitate an offence
Section 331: to extort a confession/ to compel restoration of any property
Section 333: To deter public servant from his duty
Section 322:
AR:
1. Act which causes grievous hurt
2. Hurt must be grievous hurt
MR:
1. Voluntarily causing grievous hurt (not following s39) =
a. intends to cause the grievous hurt, or
b. knowledge that it is likely to cause grievous hurt
** Must (causes grievous hurt) + (intends or knows himself to be likely to cause

grievous hurt.) = voluntarily causing grievous hurt
***But if (intends or knows himself to be likely to cause grievous hurt of one kind) +
(actually causes grievous hurt of another kind), still = voluntarily to cause grievous
hurt.
**** if intend to cause hurt, not intend to cause grievous hurt or know that grievous
hurt was likely, the case will only be one of voluntarily causing hurt.
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Section 320:
Definition of grievous hurt:
1. permanent:
a. emasculation
b. permanent privation of sight of either eye
c. permanent privation of the hearing of either ear
d. privation (act of depriving) of any member or joint
e. destruction or permanent impairing of the powers of any member or joint
f. permanent disfiguration of the head or face
2. non-permanent:
g. fracture or dislocation of bones
h. any hurt which:
i. endanger life; or
ii. cause the sufferer to be in severe bodily pain for 20 days, or
iii. Cause the sufferer to be unable to follow ordinary pursuits for 20
days.
** ‘knowledge’ wise: know the END RESULT (such damage)

** ‘intention’ wise: intend the END RESULT (such damage)
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1) PP v Dulamit bin Sulaiman (intention)

Held : The fact that the accused used plastic chair to hit the lower part of the
deceased and that he continued to hit the deceased despite the fact that the
deceased was already bodily injured showed that he intended to cause grievous
bodily hurt to the deceased.
2) Rambaran Mahton v The State (intention etc)

1. This was a domestic feud (quarrel) between 2 full brothers over almost a trifle
and resulted in the death of one of them.
2. It took place on a brinjal field.
3. There was exchange of abuses between the two brothers and the appellant
dashed the victim to the ground and sat upon his stomach and belaboured him
with fists and slaps.
4. That rendered the victim senseless and did not regain his consciousness and
senses.
5. In the opinion of the doctor, the injuries were caused by some hard blunt
substances, which could be strong kicks and fits.
6. The death was caused by shock and haemorrhage as a result of the aforesaid
injuries.
Held:
1. There can be no doubt that the deceased received some serious injuries
including injuries on the head and chest and the spleen which actually brought
about his death.
2. Apart from the grievous hurt, there must be on the part of the accused either
intention to cause grievous hurt or likely knowledge to cause it.
3. S321 of indian penal code provides that whoever does any act with the
intention of thereby causing hurt to any person, or with the knowledge that he
is likely to cause hurt, and does thereby cause hurt, is said ‘voluntarily to cause
hurt, which will in law amount to voluntarily causing grievous hurt.
4. S322: voluntarily causing grievous hurt. Read together**.
5. In other words, the causation of grievous hurt was either in contemplation or
was the likely result of the act done.
6. It is manifest that in the nature of the things it is difficult to obtain direct proof
of what the offender thought was likely to happen. It is a question of inference
from the nature of the act committed by the offender, his conduct and the
surrounding circumstances.
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7. When the act he did in the process of causing hurt of such that as any person
of ordinary prudence knows it likely to cause grievous hurt, he may safely be
taken to have intended grievous hurt, or at least to have contemplated
grievous hurt as likely to occur.
8. The means by which the hurt is caused is immaterial. The manner in which the
grievous hurt was caused was manifest.
9. In this case, the victim had been dashed to the ground. He was wholly
undefended when the accused sat on his stomach and administered him fists
and slaps.
10.The accused had sustained no injuries, which indicating the victim is totally in
the grip of the accused and unable to strike him in self defence. Furthermore, it
appears that the blows must have been given with more than usual force as 3 of
his ribs were fractured and the spleen was ruptured.
11.There could have been no intention on the part of the appellant to cause
grievous hurt to his elder brother but viewing from the way in which he
assaulted his brother, he should have known that he was likely to cause grievous
hurt to him.
12.The offence of causing grievous hurt was rightly convicted.
13.3 criteria:
1) Grievous hurt,
2) Intention/knowledge
3) Voluntarily to cause the grievous hurt.
14.Broken ribs = grievous hurt.
- Weapon is not necessary. The manner is relevant. In this case, sat on the
stomach and punch. (It needs excessive force to break a rib as rib is usually
very strong in order to protect the heart.)
- The accused was charged under causing grievous hurt but not culpable
homicide. This is because the accused tried to revive the victim which negates
his intention to cause death of the victim.
3) PP v MD Rashid Harun (Permanent disfigurement)

1. Respondent splashed acid to the face of the wife.
Held:
1. The offence had brought about a permanent disfigurement to the victim’s
face.
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2. Acid = dangerous weapon

3. The offence rightly falls under section 326.
4) Hori Lal v The State of U.P. (fracture or dislocation of bones)

1. The appellants are residents in same area.
2. Accused Bisram’s cattle strayed into the field and damaged the crop of Deo
Dutt who is the nephew of Sagar Singh and Jeet Bahadur.
3. Deo Dutt then complained to Bisram.
4. Bisram went to Deo Dutt’s house and threatened him and his family members.
5. Deo Dutt lodged police report.
6. Relations between the parties became strained due to the report and accused
stopped working for Sagar Singh and Jeet Bahadur.
7. One day the accused armed with kantas went to the field of Jeet Bahadur and
challenged him.
8. They deal kanta blows on Jeet Bahadur. Jeet Bahadur was injured.
9. Counsel for the appellants contended that the injuries as found by the doctor
do not justify the conviction of the appellants of grievous hurt in as much as
there is no evidence that any of the bones was fractured or that the injured
person was disabled for 20 days or more.
10.It was contended as well that the injuries at most show that the particular
bones which the injuries were inflicted were cut which however does not
amount to a fracture.
Held:
1. Whether the conviction of the appellants under s326 for grievous hurt is
justified depend on the nature of the injuries have been found on Jeet
Bahadur.
2. Injuries on the victim must satisfy the requirements of clause 7 or clause 8 of
section 320 otherwise they will be treated as simple injuries. i.e. fracture or
dislocation of bone or tooth, any hurt which endangers life or which causes the
sufferer to be during the space of 20 days in severe bodily pain, or unable to
follow his ordinary pursuits
3. It is not necessary that a bone should be cut through and through or that the
crack must extend from the outer to the inner surface or that there should be
displacement of any fragment of the bone.
22
4. It is sufficient that there is a break by cutting or splintering of the bone or

there is a rupture or fissure in it, to amount to a fracture within the meaning
of clause7 of section320.
5. As corroborated by the doctor’s medical report, each of the injuries is bone
deep and they are described as cutting the underlying bone.
6. The doctor has also contended that the injuries are grievous.
7. At any rate, the nature of the injuries considered with the evidence of the
doctor would undoubtedly establish that all the aforesaid injuries were
grievous.
8. These injuries were inflicted by kantas which are dangerous weapon and hence
conviction under s326 is fully justified.
** The fracture is more than superficial crack but less than ‘broken’
** ‘fracture’ is not defined in the Penal Code.
** Medical Report is very crucial and important to convey the particular information
needed in a particular proceeding.
5) Ramla v State (endanger life)

1. The witness did not state if the injuries received by the victim had caused him
to be in severe bodily pain during the space of 20 days or that he was unable to
follow his ordinary pursuits during that time.
Held:
1. The witness seemed to have given his opinion merely on the ground that if the
injuries had damaged the carotid artery, they would have proved dangerous to
the life of the victim. The other 2 grounds were omitted.
2. An injury may be called grievous only if it ‘endangers life’
3. Injury which is actually found itself be such that it may put the life of the
injured in danger.
4. A simple injury cannot be called as grievous simply because it happens to be
caused on the vital part of the body unless the nature and dimension of the
injury or its effect are such that in the opinion of the doctor it actually
endangers the life of the victim.
5. The witness did not depose that the injuries received by victim were as such
dangerous to his life. If the carotid were cut, it would have been a different
23
matter, but the witness did not say that the artery was even touched. The
injuries received by the victim were not grievous then.
6. Crucial question = degree of risk. Question is whether such injury may
endanger life.
** However, the court was easily able to hold that the particular injury,’ having
regard to the delicate nature of the parts which were injured, was one that
endangered life.
Eg: injuries to head
6) Sahat v Hajee Brahim (1888) (20days, Ordinary pursuits)
Held:
1. Paragraph (h) is satisfied where the victim had been rendered ‘insensible’ for 6
days and was ten treated in hospital for more than 14 days.
2. This was ‘proof presumptive at least that he was unable to follow his ordinary
pursuit.
7) Queen Emperors v Vasta Chela (1895) (Ordinary pursuits)

Held:
1. The victim may have been able to pursue normal activities but was a malingerer
(To feign illness or other incapacity in order to avoid duty or work) or had
chosen to remain in hospital for better recuperation (recover in matter of
health of financial).
2. The presumption that ’20 days hospitalization constitutes grievous hurt’ is
rejected.
3. But there is no doubt an extended hospitalization will be very strong evidence
of incapacity over period in question.
8) Yoganathan v PP (1999 SLR) (Ordinary pursuits)

1. The accused was charged with voluntarily causing grievous hurt to the victim by
means of a knife under section 326 of the penal code read with s34.
2. The little finger on the victim’s right hand was to be immobilised for 6 weeks.
3. The victim is a money lender. He could not carry out his money-lending duties
for the 1st 6 weeks following the injury to his finger but he could continue with
his other ordinary daily activities apart from his work.
4. Whether the injury to the victim’s right little finger was sufficiently serious to
be regarded as ‘grievous hurt’.
24
Held:
1. Section 320(h) does not require an injured person to be totally incapacitated
from pursuing all of his ordinary activities during the relevant 20-day period
before the hurt which he has sustained is deemed to be grievous.
2. Section 320(h) provides that hurt is deemed to be grievous, when, inter alia, it
causes the sufferer to be, during the space of 20days, unable to follow his
ordinary pursuits. [HIS ordinary pursuits][vary with people]
3. As long as his injury during the 20-day period of time, prevents him from
continuing with any of his ordinary activities with the same degree of ease as
he did before he was injured, the injury would constitute ‘grievous hurt’
4. Since working is part of the victim’s ordinary pursuits, the fact that his finger
injury prevented him from working as a money lender (there was evidence
showing that he would find it ‘very clumsy’ to count money with one hand)for
the space of 20 days after the injury was sufficient for injury to amount to
grievous hurt under s320(h)
5. Section 320(h) does not impose on the court the nebulous task of assessing the
degree to which the injured person’s ability to follow his ordinary pursuits is
impaired.
9) Mahindar Singh v Emperor (ordinary pursuits, died before 20days)

1. The appellant was said to have inflicted a wound on victim’s leg with the sharp
edge and to have given other blows with the back of the gandasa on 22nd
August.
2. Tetanus set in on 31st August.
3. The victim died due to tetanus on 3rd of September.
Held:
1. The wound on the leg was itself not dangerous to life.
2. The magistrate held that, the injury was grievous hurt because Sarwan Singh
would not, if he had lived, have been able to walk about for the space of 20
days.
3. However, the designation of section 320 of a hurt as grievous to be, during the
space of 20 days, in severe bodily pain or unable to follow his ordinary pursuits
applies only when such effect actually lasts for a period of 20 days, and not
when the sufferer dies before the period has expired.
4. The offence should be one falling under section 324 (hurt, not grievous hurt).
25
 Golf club seems like cannot fall under ‘dangerous weapon’ section 324/326,
that’s why it was discussed and concluded in the case of Mat Alisa that the
nature of the weapon is the element to be discussed.
 Under this case, the gandasa apparently fulfilled the ‘dangerous weapon’ for
cutting. So there was no issue regarding that. However, the issue is whether
tetanus which eventually took away the life of the victim would be considered
as grievous hurt (AR).
26
Abduction/ Kidnapping
A) Kidnapping
Section 363:
Punishment for kidnapping
Offence of kidnapping with intention

Section 364: murder
Section 365: secretly and wrongfully confine
Section 366: compel a female’s marriage
Section 367: to subject a person to grievous hurt, slavery, etc
Section 369: kidnap child under 10 to steal movable property from person of such
child.
Section 368: wrongfully conceal or keep in confinement a kidnapped person
Section 360: Kidnapping from Malaysia:

AR:
1. Conveys a person beyond the limits of Malaysia (regardless age)
MR:
1. With intention
2. Without the consent of the person/ some person legally authorized to consent
on behalf of the person
** section 90: consent
Section 361: Kidnapping from lawful guardianship:

Victim (minor):
male below 14 years old; female below 16; person of unsound mind.
AR:
1. Takes; or
2. Entice the minor/ person of unsound mind
3. Out of the keeping of the lawful guardian
 Positive act
27
MR:
1. With intention
2. Without consent of the guardian (includes custodian)
B) Abduction (no age limit)
Section 362
Definition of abduction:
AR:
1. By force compel, or
2. By deceitful means induces
3. Go from any place (movement of victim)
 Abduction per se is not a crime/substantive offence.

 It constitutes ab offence only when committed with the intentions stipulated in
the sections
MR:
1. Intentions:
Section 364: murder

Section 365: secretly and wrongfully confine
Section 366: compel a female’s marriage
Section 367: to subject a person to grievous hurt, slavery, etc
Section 369: abduct child under 10 to steal movable property from person of
such child.
Section 368: wrongfully conceal or keep in confinement an abducted person
Section 374A:
Hostage Taking.
28
1) Periasawmi Kangani v Emperor (Kidnap from Malaysia)

1. The accused induced certain women to leave British India for Ceylon on the
misrepresentation that they were to be married to his sons.
2. After arriving, they were made to work as coolies on tea estate.
Held:
1. The women was induced to go by such misrepresentation.
2. They were therefore, taken without their consent within the meaning of the
Penal Code.
3. There is no evidence to show that the intention of the accused was to subject
the women to slavery.
4. Conviction under section 367 will be altered to a conviction under section 363.
2) Chathu v Govindankhutty (Kidnap from lawful guardianship)

Held:
1. It must be shown that the accused took some actual step, by persuasion or
otherwise to cause the girl to leave home.
MH: Chathu’s case is all about the positive act to be taken. If a minor suggests the
accused to go away with her and the accused only takes the passive part of yielding
to the suggestion, it is not taking.
3) Dalchand v State (rape on 5 year old girl) (Kidnap from lawful guardianship)
(when is ‘taking’ established) (consent of child) (no ‘enticing’, more on ‘taking’)
1. Accused taking and enticing 5 years old girl out of keeping of lawful guardian
without consent of mother in the absence of the father and subsequently
committing a rape on the girl. No proof of any intention of rape at the time of
kidnaping, conviction under s366 is improper while under s363 and 376 is
valid.
2. The appellant, Dalchand, went to the house and was informed by the mother
of Kumari that the father was out to bazaar.
3. Kumari was playing outside the house.
4. The appellant then remained sitting near the wall of the house and talked to
the girl for 5 to seven minutes.
5. He then took the girl away to the bazar close-by in his lap. He told the mother
that he would be back within few minutes when the mother called the
appellant.
29
6. Few people went to the appellant’s house in search of the girl but was
informed by the appellant’s wife that she had asked him to bring the girl back
home.
7. They then went to a field and found the appellant was committing rape on the
girl.
8. The medical report shows that: the hymen of the girl was lacerated and
bleeding on touch.
9. In the opinion of the doctor, the girl had been raped.
Held:
1. (Rape) The doctor was of the view that there could be no injury caused to the
appellant at the hands of the raped girl because she was only 5 years old.
2. The appellant had been righty convicted if the offence under s376.
3. (kidnap + rape)As for the offence under s366 Indian Penal Code, if he had
intended to commit rape from the very beginning, he would not have taken
the girl to his wife. It is likely that the intention to commit rape arose in his
mind some time later on while he was taking back the girl from his house.
4. (kidnap) However, there is no doubt the appellant had taken or enticed the girl
out of the keeping of the lawful guardian without the consent of the mother in
the absence of the father.
5. S361: take/entice
When is ‘taking’ complete:

6. The taking need not to be by force and it is immaterial whether the minor girl
consents or not.
7. It is sufficient to establish ‘taking’ when there is taking of a child out of the
keeping of the parents.
8. On the other hand, enticement needs not to be confined to any single form of
allurement. Offer of sweetmeats is one of such forms. Even the enticing away
of a child playing on a public road is sufficient.
9. The act of taking is not a continuous act.
10.Where the minor has been actually taken out of the keeping of her guardian,
the act is a completed one. There is no slightest doubt the minor girl was
kidnapped.
11. An offence under s363 was committed by the appellant.
30
12. An offence under s366 cannot be said to have been made out. There is no
question of any knowledge that it was likely that she would be forced or
seduced to illicit intercourse, for it was later on he himself who committed the
rape. ?
13.The appeal is partly allowed. His appeal against the conviction under s376 is
dismissed. The appellant is convicted instead under s363.
Tutorial:
1. Section 361: either taking(positive act) or enticing(no positive act)
2. AR:
 Was talking to the child, took her away, told the mother-take the child to
sweet shop, will come bk in a short while
 More of ‘taking’ i.e. carrying the child (positive act)
3. MR:
 In the absence of father, mother can give consent.
 Consent can be expressed or implied.
 It is arguable that when accused informed the mother, there was
consent. However, the consent was present up until the sweetshop (no
MR). When taking the child to his house & field after sweetshop, there
was no consent. (there was MR, done with intention without consent of
guardian)
4) Sheik Davood Saheb v State (what is enticing, taking, sexual intercourse as

enticement) (more on ‘enticing’)
1. The appellant was charged under s366 for having kidnapped a girl aged 16 to
17 with intent that she might be compelled to marry him against her will or
forced or seduced to illicit intercourse with him. However, given the benefit of
the doubt regarding the offence, he was only convicted under s363.
2. The girl contended that the appellant went and called her early in the morning
of that day from her house and took her away with him, and that she was
powerless to resist his call because of 2 betel leaves he gave her which when
she ate, broke down all her power of resistance and made her do whatever he
wanted her to do.
Held:
1. There was no satisfactory proof of the taking or enticing of the girl by the
appellant from her guardian’s custody.
31
2. The court agreed with the observation that:

a. ‘Enticing’ involves that while the person kidnapped might have left the
keeping of the lawful guardian willingly, still the state of mind that brought
about that willingness must have been induced or brought about in some
way by the accused. (try to influence someone)
b. ‘Taking’ is not confined to mere physical taking. There is such a ‘taking’ as is
indicated in the common expression ‘If you will come along, I shall take
you’. The expression ‘taking out of the keeping of the lawful guardian’ must
signify some act done by the accused which may be regarded as the
proximate cause of the person going out of the keeping of the guardian. It is
an act but for which the person would not have gone out of the keeping of
the guardian as he or she did.
3. There was ample evidence to prove both ‘taking’ and ‘enticement’.
4. Court held that the victim did not follow her because of the leaves given to her
and chewed by her. The chief reason why she accompanied the appellant was
that he was having sexual intercourse even a year before, she felt attracted to
that, as she had attained puberty and was remaining unmarried and was
therefore willing to go with him. She was taken and enticed to his house
because of the lustful inducement by the appellant and promise to intercourse
by him. [But for the inducement by the appellant, the girl would not have gone
out of the keeping of the guardian.]
5. Enticement need not to be confined to any single form of allurement. Anything
which is likely to allure the minor girl will do. It needs not be always
sweetmeats or money. It can also be offer for sexual intercourse. There is also
evidence the appellant was giving her a petty sum of money which is enough
to entice or allure a girl like the victim.
6. Even if the girl had sexual intercourse with him at his house a year at before
the offence, s363 and 366 is still with the object to protect the chastity of
minor girls and to give some protection to the parents against predatory
individuals trying to kidnap and debauch these minor girls. So the mere failure
of the parent to detect previous offence by such predators will not be an
answer for a new offence.
7. An infatuation (to inspire or possess with a foolish or unreasoning passion, as
of love) of a proven minor girl with her enticer will be no answer to a charge
under s363. In fact, in certain cases, intercourse with the full consent of a
minor girl will amount to rape.
32
Tutorial:
1. There is special relationship between victim and the appellant
2. AR: enticement – money, sexual intercourse.
3. There is no physical carrying as to constitute ‘taking’
4. Previously had sexual intercourse does not equal to consent from family
5) Ghouse bin haji Kader Mustan v Rex

(Position of Mohammedan girl who has attained puberty) (Only applicable to
Hanafi, Malaysia practises Shafi’e)
1. The appellant was appealing against his conviction on a charge of kidnapping.
2. The appellant kidnapped a female under the age of 16 years from her lawful
guardian.
3. He committed an offence punishable under section 363 of Penal Code.
4. The appellant contended that the girl has attained puberty and therefore was
discharged from guardianship from whose keeping she could be kidnapped.
5. The appellant also submitted a ground that the girl was no longer a minor
according to Mohammedan law. The offence of kidnapping from lawful
guardianship can only be committed in respect of a minor or of a person of
unsound mind.
Held:
1. The Kathi said that: ‘according to a hanafi school a girl who has attained the
age of puberty attains the age of majority and is at liberty to contract her own
marriage according to her own wish. Her father’s consent is utterly immaterial
to her marriage then after puberty, for a Mohammedan girl. A girl who has
attained puberty is major in all matters and has no guardian.
2. Puberty is presumed on the completion of the 15th year.
3. Sidgreaves CJ: Minors are those who have not arrived at the age of puberty or
reached the age of 15 years. On their arriving at the age of puberty or at the
age of 15 years, whichever shall happen first, such persons cease to be minors.
4. The girl having attained her puberty, she had no guardian, therefore she was
not taken out of the keeping of the lawful guardian and that on this ground the
appeal was allowed.
Tutorial
1. AR: enticement: marry her + special relationship
2. MR: without consent of the guardian = intention
33
3. The right should be exercised by her to he extent that she may reject the
potential husband selected by the family.
6) Wahab Osman v PP (section 366)

4. The appellant was convicted for the offence under s366
5. At the material time, the appellant kidnapped a 19 years old girl and drive her
to another place
6. He threatened her to kill her if she refused to follow the appellant’s will to
marry her. The girl rejected him.
7. He imprisoned her in a house where the girl refused to marry her again.
(confine at a secluded place)
Held:
1. For the offence of kidnapping a girl in order to force her to marry anyone as
against her will under s366, it must be proven that:
a. The taking away of a female
b. The act must be done with intention so that the girl will be forced
(compelled) or made known the probability to be forced to marry the
appellant as against her will.
2. It is immaterial whether the appellant has achieved the meaning as laid down
under s366 or whether the girl eventually agreed to marry him.
3. Intention can be inferred from the fact of the case, the conduct of the
accused and the surrounding circumstances after the act of ‘kidnapping’ has
occurred.
4. The accused invited the girl to get marry on the day itself at Thailand. It shows
that the accused was overwhelmed with the thought to marry her. However,
the intention of the accused was done forcefully and against the will of the
girl. (despite the fact that no preparation of the marriage was done.)
5. The violence towards the girl portrayed the malicious intention of the
accused.
Tutorial:
1. Victim was pulled in before the message was conveyed to her. (abduction)
2. He asked the girl but was declined.
3. S366: must prove the intention to marry first before abducting her.
4. Not necessary to prove there is marriage as long as there is intention.
34
7) Neelakandan v PP (Consent of child immaterial)

1. 15 years old girl told her mother she was going to school but she did not
eventually
2. He went to a house and had sexual intercourse with the accused.
Held:
1. Offence was committed if the taking was without the consent of the lawful
guardian
2. The consent of the child was immaterial.
8) DPP v Abdul Rahman (lawful guardian)

Held:
1. Expression of ‘lawful guardian’ must be construed in accordance with the
explanation to section 361 other than guardianship of infants act (person
entitled to the custody).
2. Explanation: guardian includes one who is entrusted with the care or custody or
such minor or other person.
9) Pritam Singh v PP (abduction - compel)

1. The victim was 17 years old. She was invited by the accused to get into a taxi
and then she was driven to Penang by the accused and stayed there for a
month.
2. The accused forced her to have illicit intercourse with him
Held:
1. The victim was over the age of 16. The charge could not be kidnapping, it
should be abduction.
2. Prosecution has to prove that the accused took away the victim by
force/compulsion where the charge is for abduction. It is not required for a
case of kidnapping.
35
Miscarriage
Section 312:
AR:
1. Cause woman to miscarry
A. Woman with child
B. Woman quick with child (motion of foetus can be felt and perceived by
mother) [heavier punishment]
MR:
1. Voluntarily cause a woman to miscarry (s39?)
** including a woman who causes herself to miscarry
***excluding a registered medical practitioner who causes miscarriage:

a. In good faith
b. To save the life of the pregnant woman
c. To save the pregnant woman from injury to the mental or physical health.
[pregnancy involves greater risk than if the pregnancy is terminated]
Eg: mangsa rogol, mangsa sumbang mahram.
36
1) PP v Dr Nadason Kanagalingam
1. The accused was charged under section312 for voluntarily causing a woman
with child to miscarry and such miscarriage was not done in good faith for the
purpose of saving her life.
2. With her consent.
3. The accused defended that the woman was suffering from bad/enlarged
varicose veins and she might die of pulmonary embolism.
Held:
1. The ingredient required to be proved by prosecution:
a. The woman who was caused to miscarry was pregnant
b. The accused voluntarily caused her to miscarry
c. Such miscarriage was not caused by the accused in good faith for the
purpose of saving the life of the woman.
2. The prosecution had proved all the ingredients beyond reasonable doubt.
‘miscarriage was not caused in good faith’ cannot be proved by positive act of
the accused, prosecution have to depend on the negative fact or non-existence
of facts to infer or indicate that it was done in good faith/without good faith.
3. The accused failed to give consideration - had not come to a reasonable
conclusion that he had to cause miscarriage to the woman In order to save her
life. No indication that the woman’s life will be in danger if the pregnancy is
not terminated.
4. It was testified that bad varicose veins can cause blood clots and result in
pulmonary embolism, pulmonary embolism however can be caused by various
other diseases.
5. Procuring an abortion is a serious matter and t should only be done as a last
resort to save the life of a woman or to save a woman from becoming a
mental wreck.
6. Accused had not given reasonable thought and had not taken enough steps to
examine the woman further. His finding that the woman had enlarged or bad
varicose veins is no other than the result of his mere clinical examination.
37
Infanticide
Section 309B:
Punishment
Section 309A:
1. Accused: Woman
(Notwithstanding had not fully recovered from the effect of giving birth, and by
reason thereof he balance of her mind was then disturbed)
2. Victim: newly born child
AR:
1. Wilful act; or
2. Omission
MR:
1. Wilful (with intention)
PP v Zamihiyah
1. The prisoner threw her 2-month-old baby out of a moving car and the baby
dies.
2. She had puerperal psychosis, a disease associated with childbirth and which
persists for 2 months after childbirth.
Held:
1. That act would have been murder which attracts the death sentence but the
law of our country recognize the illness and the murder charge has been
amended to one under section 309Apunishable under section 309B.
2. The court takes into consideration the fact that the prisoner waited 8 years
long for the birth of her only child, a baby girl and she has now lost the child.
38
Death by negligence
1) Penal Code
Section 304A:
Punishment (mandatory, imprisonment < than 2 years, or/and fine)
Section 304A:
AR:
1. The act causes death of human being
** This act must be the proximate and efficient cause of the death’, wholly or
mainly responsible for the death or that it was directly attributable to his
conduct.
** Death must be resulted without the intervention another’s negligence.
MR: (lower level of MR)

1. Rash(gopoh), or
2. Negligent
** Not equal to intention/knowledge (s299/300)
2) Road Transport Act 1987
Section 41(1):
Punishment (mandatory, imprisonment > 2 years, < 10 years, AND fine)
Section 41(1): (manner of driving)

AR:
1. Driving of a motor vehicle on a road which causes death.
MR:
1. Reckless (melulu); or
2. At a speed (with intention/ knowledge)(exceed speed limit); or
3. Drive at a manner which is dangerous to the public having regard to the
circumstances:
a. Nature of the road (eg: highway or residential area)
b. Condition of the road (malam/siang/hujan/cerah/ etc etc)
c. Size of the road
d. Amount of traffic which is or might be expected to be on the road
39
MH dumb dumb : Rash 340A vs reckless 41(1) ?

section 41 means that it concerns itself
for S.304A is a general offence under the
with driving, from the most basic
penal code (reasonable man test)
understanding
as long as you do something senseless,
so anything which causes danger,
you know of the danger but you still do,
COUPLED with driving, is an offence
and that act you are doing is going to
DRIVING is the main problem, the manner, cause death
how you drive
you know of the risk
whereas under s.41, driving is the issue
but you still do it senselessly
so driving is not an offence by itself
that ACT itself is an offence
but texting while driving makes driving an
it must be an active offence
offence (manner of driving)
texting is normal
=driving in an unorderly manner
but if texting while driving, texting
becomes an offence
the focus is on texting under 340A
To apply section 41(1), i have to prove he To apply section 304A, i have to prove that
does something, and the act cause the the driver does something (which can be
driver to handle his vehicle in reckless unrelated to driving manner) which shows
way, where he ignores the consequence that he neglects the possibility of the act
that will affect the public safety, to cause accident.
Rash action of the driver, causes the driver Any act which is rendered a thoughtless
to drive recklessly act of the driver, can fall under it.
A wider section but the punishment is not
Stricter approach in proving the case. as grave as section 41(1)
** The meaning of ‘reckless’ and ‘rash’ might be similar but the subject matter
required by the provisions are different.
Reckless: 41(1)
- lack of care/attention, doing something dangerous and not worrying about the
risk and the possible result
40
Rash: 340A
- does not do what a responsible driver should do, act resulting from
characteristic of thoughtless, impetuous behavior
Rash: Foresee particular kind of harm might be done, yet still go on to take the risk of
it. Recognition of a risk that death may ensue. (Lack awareness)
Knowledge: know it will cause the final outcome. A degree of awareness is
contemplated, namely, knowledge that death is a likely consequence.
Rashness/reckless:
Known as conscious negligence. Even though the accused realises the risk of
committing, he does it anyway
Negligent:
Failure to exercise proper care which a reasonable man in the circumstances would
exercise so as not to harm others. The accused does something without knowing the
consequence.
It is not the difference of the meaning of rash and reckless which makes the provision
different.
It is the subject matter required by each provision + the strictness is different.
Tutorial question regarding texting while driving

Can apply either 1st limb/3rd limb. 2nd limb is not applicable because speeding itself
is not the cause the accident happened.
However, 1st limb is hard to be applied because it involved the state of mind of the
driver inferred from the indefinite evidence from the surrounding circumstances.
3rd limb, on the other hand, is easier, as the prosecution needs to prove only the 4
little element + it is dangerous to the public.
PS(tutorial): As the driving in a dangerous manner is illegal, any consent given to the
driver to drive in such a manner is invalid too.
**refer tutorial booklet
41
Section 304A (Penal Code)

Lee Lai Siew v PP
1. The appellant was the last-minute appointed master of the capsized ship.
2. The ship was allegedly carrying passengers far in excess of the authorized
number of 80 passengers and 4 crews.
3. The ship was put to sea and travelled for about half an hour.
4. However, due to the alleged overloading and other defects, the ship sank
resulting in the loss of lives.
5. He was charged under section 304A of Penal Code for doing a negligent act
amounting to culpable homicide.
Held:
1. Same as the overloading of a lorry cannot be regarded as a rash and negligent
act within the meaning of section 304A Penal Code, the overcrowding of a boar
which is capsized owing to strong wind has to be no offence under this section.
2. With regard to the defects: If the mechanical defect in the vehicle was such
that it could not be detected without meticulous examination of the
machinery, it cannot be laid down that criminal liability could be fastened on
the accused on that ground.
3. There was evidence showing that the ship is still covered by the survey made in
august 1974 and the next survey was not due until august 1975, which is in
about 5 months’ time after the tragedy.
Emperor v Akbar Ali: Where there was no rashness and negligence (MH:
manner of driving, use of road = rash/negligence) on the part of a lorry
driver charged under section 304A for having run over and killed a woman,
so far as his use of the road and the manner of driving was concerned, the
fact that the accused's lorry had no horn or had inefficient brakes cannot
be taken into consideration in convicting the accused under section 304A
though they can be made the subject of a prosecution under the Motor
Vehicles Act, when it is clear that the absence of the horn or the
inefficiency of the brakes was not in any way responsible for the accident."
4. , it was in evidence that the ship sailed normally for about half an hour. In
another 15 minutes the ship would have arrived at Sebatik Island. There was
evidence of heavy waves which hit against the ship and which broke the
window glasses. There can be no doubt in my view that those found drowned
met with their deaths through drowning caused by the waves, the winds and
swell at the rough patch referred to by the witnesses. There was also evidence
42
that the waves resulted in creating confusion and panic seized the passengers
on board the ship.
5. Overloading if there be, can only be a very remote fact in causing this tragedy.
Tutorial:
 S304A: the act must be the direct cause of the accident
 The ship was not sea worthy.
 It would not be detected unless it is detected via the survey.
 Then coupled with the wind, the overloading, the ship eventually sank.
 It was not fair to put the blame on the accused himself.
 As it was not the accused’s act which causes the accident directly.
Empress of India v Idu Beg (Rashness)(section 304A)

1. The accused struck his wife a blow on her left side with great force.
2. She dies of ruptured spleen
3. The spleen was slightly enlarged at the time of the blow
Held:
1. Direct violence, willfully inflicted, cannot be regarded as either rash or
negligent act.
2. There may be in the act an absence of intention to kill/to cause such bodily
injury as is likely to cause death, or knowledge that death will be the most
probable result, or even of intention to cause grievous hurt, or of knowledge
that grievous hurt is likely to be caused,
3. But ‘hurt’ at very least must be presumed to have been intended or to have
been known to be likely to be caused.
4. Since such intention/knowledge is present, it cannot be said that the act
amounts no more than rashness or negligence.
5. Since the evidence shows that the blow was given willfully and consciously, the
consequence resulted from it could not change a wilful and conscious act into
a rash or negligent act.
Nidamarti Nagabhushanam (rashness v negligent)(section 304A)

Held:
1. Rashness: requires the accused to consider the possibility of mischievous
consequence occurring but decided to run that risk
43
2. Negligence: disregarding a risk which the accused would have recognized if he

had exercised proper caution.
** MH: the negligence should be assessed reasonable man test
**PP v Mahfar Sairan (rash v negligent)

1. The accused was charged with the murder under section 302 of his wife.
2. He was reversing his car. The deceased chased after his car and held on to the
right wing of the mirror of the accused’s car while he was reversing and shortly
after that the wife was knocked down and run over by the car. The accused left
with his car afterwards.
3. The accused defended that he was not aware that the deceased had chased
after his car and grabbed the right wing mirror of his car after he had reversed
his car out to the road. He couldn’t hear her scream. The air-con (full blast) and
radio (medium volume) were on automatically. And he do not usually use the
side mirror of the car when reversing, he used to look directly to the back.
4. Whether the alternative charge for offence under s304A was properly framed
taking into account that it contained the words ‘rash and/or negligent’
Held:
1. The prosecution must prove that the act of the accused in causing his car to
have come into contact with the person of the deceased was rash and or
negligent.
2. Rash or negligent act – A rash act is primarily an overhasty act, and thus is
opposed to a deliberate act, but it also includes an act which, although it may
be said to be deliberate, is yet done without due care and caution. Illegal
omission is an ‘act’, ay constitute an offence if it is negligent.
3. Criminal rashness is hazarding a dangerous or wanton act, with the
knowledge that it is so, and that it may cause injury, but without intention to
cause injury or knowledge that it will probably be caused. The criminality lies in
running the risk of doing such an act with recklessness of indifference as to the
consequence.
4. It is acting with the consciousness that the mischievous and illegal
consequence may follow, but with the hope that they will not, and often with
the belief that the actor has taken sufficient precautions to prevent their
happening. (acting despite consciousness)
5. Criminal negligence is the gross and culpable neglect or failure to exercise
that reasonable and proper care and precaution to guard against injury either
44
to the public generally or to an individual in particular, which having regard to

all the circumstances out of which he charge had arisen, it was the imperative
duty of the accused to have adopted. Negligence is the omission to do
something which a reasonable man, guided upon those consideration which
ordinarily regulate the conduct of human affairs, would do, or doing something
which a prudent and reasonable man would not do.
6. It is acting without the consciousness that the illegal and mischievous effect
will follow, but in circumstances which show that the actor has not exercised
the caution incumbent upon him, and that if he had he would have had the
consciousness. (neglect of civic duty)
7. Adnan Khamis v PP (FC)
Held:
1. The test to be applied to determine rash/negligence: reasonable man
test
8. From the time she held on to the mirror, the accused must be taken to have
assumed the responsibility not to do anything rash or negligent that may
cause any injury to the deceased.
9. By driving off at the point of time the accused had exhibited a conduct
indicative that he had not taken any adequate and proper precaution to avoid
causing her the injuries and was therefore rash and negligent.
10. Prima facie case was established and what had to be decided was his claim
of not being aware that he had knocked down the deceased and therefore
could not have been rash or negligent.
11. It can be accepted that the accused may not have realized in the initial
stage while reversing his car that the deceased had chased after him after he
had signaled her to stop.
12. It cannot be accepted that he was not aware or conscious that his wife had
held on the right wing mirror, as she had just run out of the house and was
just inches away from him when she was holding on to the wing mirror.
13. He was expected under the circumstances to have taken proper
precautions to avoid causing the injuries to the deceased which he had failed
to do so.
45
14. The evidence showing that he car was well sprung and insulated from
outside noise was rejected as the body of a human being is an object of
substantial bulk that no reasonable driver who had run over it would be
unaware of.
15. Furthermore, the deceased held on to the wing mirror, the resistance
caused by her action had to be considerable to have led to its detachment
that no reasonable man similarly circumstanced would have failed to notice
or been unaware of her presence.
Whether the act of accused was rash or negligent, or both?

16. The accused might be said that he had acted without due consideration or
regard for the consequence(rash); he could also have been negligent as he
had been careless and had not exercised proper care when he drove off
despite the presence of the deceased by the side of his car (negligent)
17. By reason of the closeness of the meaning of the two words, it would have
been more precise if the charge states that he was reckless and negligent.
18. Even if assuming the charge had been incorrectly framed to describe the
accused’s conduct as ‘rash or negligent’ when it should have only described it
as either rash or being negligent, the error relates would not prejudice the
accused. It was then saved under s156 of CPC
Lai Tin v PP (1939)(negligent) (degree of negligence)

1. Appellant was charged under s304A and convicted.
2. Whether the degree of negligence required to support a conviction under
section 304A is the same as that required to support a conviction for
manslaughter under English law.
Held: (HC)
1. English position: It is perfectly possible that a man may drive at a speed or in
a manner dangerous to the public and cause death yet not be guilty of
manslaughter. It has a double standard of negligence in criminal law.
2. s304A does not give any basis for the suggestion that such a double standard
should be applied in Malaysia.
46
3. As long as the facts of the case disclose a substantial and serious degree of
negligence, whether or not it would be sufficient for a conviction for
manslaughter, it is sufficient for a conviction under 304A.
Cheow Keok v PP (1940) (negligent)(degree of negligent)

Held: (CoA)
1. Overrule Lai Tin
2. The same high degree of negligence must be proved before a person could
properly be convicted of an offence against section 304A as would be required
to prove the degree of negligence in a case of manslaughter by negligence.
3. S304A is a codification of the English Common Law offence of manslaughter by
negligence.
Woo Sing and Sim ah Kow v R (1954)(negligent)(degree of negligent)

Held: (HC Singapore)(not follow cheow keok)(same judge as LaiTin)
1. It is dangerous to introduce English cases into the consideration of the Penal
Code.
2. Not necessary to lay down different standard of negligence in civil and criminal
cases. Different degrees of gravity can be treated by a suitable variation in
the penalty.
3. However, higher standard of proof is required in the criminal case.
PP v Mills (1971)(degree of negligent)

Held: (CoA)
1. Standard of negligence required for a conviction under s304A cannot be
equated with that required for a conviction for manslaughter although the 2
crimes may overlap.
2. Degree of negligence in an act causing death required to support a conviction
under section 304A(1) is the same as that in any other act carried out so rashly
or negligently as to endanger human life or the safety of others where that act
was the immediate cause of death and not the remote cause.
**Anthonysamy v PP (1956)(negligent - test)

1. The appellant was charged with causing the death of the victim by doing rash
act not amounting to culpable homicide, namely by driving a motor lorry at an
47
excessive speed and close to the right hand side of the road. Hence he
committed an offence punishable under s304A
Held:
1. Interpretation of s304A in Woo Sing was correct.
2. Degree of negligence was same in all offences (eg: negligence udner s304A and
negligent driving).
3. The test to determine whether an act is rash or negligent for the purposes of
section 304A is the objective test rather than the subjective one.
4. To determine negligence and rashness, the test is whether a reasonable man
in the same circumstances would have realized the prospect of harm and
would have stopped or changed his course so as to avoid it. (criminal
Intention/wicked mind is immaterial)
5. High degree of negligence required in English law for the felony of
manslaughter is more akin to the mens rea in section 299. That is ‘knowledge
that he is likely by such act to cause death’.
6. S32: ‘act’ includes omission.
7. S43: ‘illegal’ is applicable to everything which is an offence or which furnishes
ground for a civil action.
Example:
8. If a person drives a motor car at a high speed in a crowded street, it is possible
to infer that the offender acted with such knowledge (inferred from
surrounding circumstance) and if death results, the proper charge would be
culpable homicide not amounting to murder; If death does not occur or only
hurt is caused, offender could be charged under section 308; In the case of a
cyclist who rides a bicycle in a crowded street, such knowledge would not be
inferred and if death results it would be a case of an offence under 304A.
9. If a doctor causes the death of a person by omitting to do something which the
proper skill of his profession required him to do and that omission was such as
to furnish ground for a civil action, then the inference is irresistible that there
is negligence within 304A
48
**Adnan bin Khamis v PP (1972)(negligent - test)

Held: (FC)
1. The test to be applied for determining the guilt or innocence of an accused
person charged with rash or negligent conduct is to consider whether or not a
reasonable man in the same circumstances would have been aware of the
likelihood of damages of injury to others resulting from such conduct and
taken adequate and proper precautions to avoid causing such damage or
injury.
2. Cheow Keok v PP was overruled.
3. Essential ingredient of penal offence is mens rea. MR of culpable rashness or
negligent should be construed as connoting fault or blameworthiness of
conduct(1). Such fault or blameworthiness must be proven beyond reasonable
doubt(2). Then consider whether a reasonable man under same circumstances
would be aware of the likelihood of the damage or injury to others resulting
from such conduct and taken adequate and proper precautions to avoid
causing such damage or injury(3)(PP v Mahfar Sairan).
49
Section 41(1) Road Transport Act (reckless or dangerous driving)

Seah Siak How v PP (reckless)
1. The appellant was charged with causing death of victim by driving motor car
recklessly, by failing to exercise due care and attention under section 26(1)of
the Road Traffic Ordinance 1961.
Held:
1. It was judicially accepted that ‘reckless’ means, in respect of action conduct or
things characterized or distinguished by heedless rashness.
2. To bring home a charge under s26 in respect of driving recklessly, it must be
shown that the driving is such as to amount to rash driving and the driver of
the vehicle in question must be heedless of the state of affairs on the road at
the time in question.
3. The conviction was altered to one under s304A. (evidence not sufficient to
found a conviction for reckless driving under s26)
Yen Chee Wei v PP (Reckless)

1. Whether the accused had driven the motorcar recklessly.
2. The defence put forward by the accused is ‘silau’
Held:
1. The accused and the victim are travelling in opposite direction.
2. The road is fairly wide.
3. The evidence shows that the accident could only happen if the accused was
travelling on wrong side of the road, then only he would be dazzled and
blinded by the lights of the deceased car, leading to a head-on collision.
4. There was no evidence showing that the victim had moved away from his path
of travel and encroached on to the accused’s path.
5. The inference is that the accused was driving on the wrong side of the road, on
a fairly wide highway, and showed complete disregard for the safety of other
traffic travelling from the opposite direction at a dangerous bend. It is
impossible for the driver travelling from opposite direction, to take any evasive
action to avoid the accident.
6. The accused would have completed the bent and travelled on his wrong side
of the road, directly in the path of the oncoming vehicle.
50
7. The accused created a dangerous situation and his reckless driving has caused
deaths and injuries.
** Supposedly this apply ‘reckless’. Different from limb 3, there is no need to prove
particular element. However, all the elements can be discussed as the merit of the
case.
Lim Chin Poh v PP (Dangerous to public)(At Speed)

1. The accused was charged with causing death of the victim by driving bus at a
speed and in a manner which was dangerous to the public, having regard to all
the circumstances of the case, including nature, condition, and use of road,
and the amount of traffic etc
Held:
1. Under s26, there are 3 distinct offences because of the word ‘or’
2. The accused was charged with element 2 and 3. By framing a charge as such, 2
separate and distinct elements have to be proven. If the prosecution failed to
prove either the dangerous speed or the danger to the public, the appellant
would be entitled to be acquitted.
3. There was no evidence whether the only witness was capable of estimating
speed in terms of miles per hour. Even if his estimate of the speed was correct,
the speed 40-50 miles/hr was not considered as dangerous.
4. The accident occurred at a road with one way traffic, there was no other traffic
on the road, the accident occurred at 12 noon in broad day light. There is no
wrong in a bus travelling at 40m.p.h in broad day light, on an empty road, and
the amount of traffic which was actually at the time or which might reasonably
be expected to be on the road.
5. For 2nd element, the dangerous driving manner, there was no evidence to
show that the appellant lost control of the bus or of not being able to exercise
proper control of his bus.
6. The bus hitting the lorry does not mean the bus driver have lost control or not
exercised proper control.
7. ‘Driving in a manner which is dangerous to the public’, indicates some
dangerous act or manoeuvre on the part of the driver of a vehicle, eg:
overtaking a vehicle on the wrong side of it, or overtaking in the face of
51
oncoming traffic or overtaking when unable to see oncoming traffic, or

crossing a junction against traffic light, and so on.
8. There must be some positive act on part of the driver.
9. Question: whether the act of accused, involved danger to other road users in
the prevailing circumstances, objectively.
10.There is a prima facie case of negligent driving.

11.Conviction is altered to one under section 304A
Goh Kheng Seong v PP(1993) (Dangerous /reckless Driving)

1. The appellant was driving motor lorry when he knocked into the back of the
deceased’s bicycle while trying to overtake the latter who was traveling in the
same direction. The deceased fell and died.
Held:
1. R v Guilfoyle: there are two broad categories of ‘causing death by dangerous or
reckless driving’: [tan than seng approved]
A) Accident has arisen through momentary inattention or misjudgement.
B) Accident in which the accused has driven in a manner which has shown a
selfish disregard for the safety of other road users or of his passengers, or with
a degree of recklessness.
2. A driver should not be severely sentenced unless the court is satisfied that the
accused had shown in the manner of his driving, a high degree of culpability
amounting to a willful and callous disregard for the safety of other road users
or accords with the 2nd definition.
Ramiah v PP (1972) (Dangerous driving)

1. The appellant did not stop at the junction when he intended to turn right. The
bus then collided into a scooter coming from the opposite direction.
2. The pillion rider died.
Held:
1. It is not the law under s34A that merely because an accident had happened
and a person had been killed, danger had arisen and therefore the appellant
was driving in a dangerous manner.
2. 2 things must be established:
52
a. A situation created by the accused is dangerous when viewed

objectively. Definition of dangerous driving is to be inferred from the
facts of the case. [Eg: overtake a cyclist who is far from steady at the
moment a heavy lorry is approaching from the opposite direction.]
b. When creating such a situation the appellant must be at fault. Fault
involves a failure; a failing below the care and skill of a competent and
experienced driver, in relation to the manner of driving and to the
relevant circumstance. Court may take into consideration any failure to
observe the provisions of the Highway Code. [s59(4) of the Road Traffic
Ordinance]
3. A competent driver would have stopped at the junction before turning into the
side road. [s18 Highway Code: when turning left or right, drivers must always
give way to through traffic, including pedestrians ]
Tan Thang Sang v PP (& Choong Jse Poong v PP ) (1975)

Held:
1. Different from Ramiah, in the present appeals, the appellant had an
unblemished driving record of 25 years, he was driving along a 20 feet wide
road, following another vehicle, about 3 cars’ length. The admitted speed of 25
t o30 m.p.h. was not excessive.
2. The cyclist suddenly strayed from the extreme edge of the road and got into
the path of the appellant’s car and eventually struck the bicycle.
3. The appellant did nothing wrong in following the path of the car ahead at a
speed which is perfectly reasonable. He did not move into the path of the
cyclist.
4. There is no evidence pointed to the appellant being at fault.
PP v Zulkifli Omar (1998) (reckless, dangerous to public)

1. D was driving a trailer-lorry along a road when it collided into a group of
oncoming motorcyclist, killing 5 injuring 4.
2. D was charged under section 41 of Road Transport Act.
Held:
1. Driving recklessly is not equal to driving dangerously.
2. One can only be rendered driving recklessly if it is made sure that:
53
a. He was in fact driving in such a manner as to create a serious risk of

causing physical injury to some other person who might happen to be
using the road or doing substantial damage to property
b. Either
i. He recognized that there was some risk of that kind involved but
nevertheless went on to take it
ii. Despite the fact that he was driving in such manner, he did not even
address his mind to the possibility of there being any such risk, and
the risk was in fact obvious.
3. Excessive speed was not the sole decider of reckless driving but there must
also be a finding of the manner and other aspects of driving which constituted
recklessness, behaving regard to the prevailing circumstances at the material
time of the accident, including 1,2,3,4.
4. The risk created must be obvious and serious to constitute reckless.
54
Murder/Culpable Homicide
Culpable Homicide
Section 304:
Punishment
Section 299, limb:
1. (equals to limb 1 of murder)
AR: Act directly + purposely to cause death
MR: Intention to cause death
Harm: Death (likely)
2. AR: Act to cause bodily injury likely to cause death

MR: Intention to cause bodily injury likely to cause death (‘Bodily injuries likely
to cause death, not ‘as would in normal course…’)
Harm: But eventually cause death
3. AR: Do an act which causes death

MR: Knowledge that his act is likely to cause death. (‘Act’ likely to cause death
but not the ‘bodily injury)
Harm: Death
Murder
Section 302:
Punishment
Culpable homicide = murder if
Section 300, limb:
1. AR: act
MR: intention
Harm: certain death
2. (3 elements to prove)
AR: act which cause bodily injury
MR: intention to cause bodily injury
+ know to be likely to cause death of the person to whom the harm is
caused.
55
[Subjective test: Knowledge towards victim: specific eg disease,

allergy/general (subject to the victim eg: age?)]
Harm: but eventually cause death
**illustration (b)
AR: act which causes bodily injury
MR: intention to cause bodily injury
+ knows the bodily injury inflicted, in the ordinary course of nature
sufficient to cause death
[objective test]
Harm: certain death
AR: dangerous act
MR: knows that the act is so imminently dangerous [objective test for
imminently dangerous] that it must probably cause death or bodily injury as
likely to cause death.
+ commits it without any excuse for incurring the risk of causing
death/such injury
S299 – genus, S300 – species

The difference between 2 sections: certainty of death
Culpable homicide = of bodily injury intended is likely to cause death/ death is a likely
result.
Murder = death is certain.
4 stages to determine whether can fall under 299/300/none:

1. Whether there is kecederaan(or mati) on victim [harm]
2. Nature of the harm to the victim [AR]
Harmdeathact which causes the harm?harm caused(where,how,who)
3. Whether the act was done with intention/knowledge[MR]
4. Death = likely/certain
[objectively, determined by the medical practitioner in the postmortem, or
ordinary knowledge]
56
(a) S300(a): Intention to cause death
Intention is the purpose which the act was done. The accused must have known the
consequences and must have wanted that consequence or result to happen.
Tan Buck Tee v PP

1. Deceased had 5 injuries caused by an axe.
2. Two of the stabs penetrated the heart and one went into the liver and others
went into the lungs.
Held:
1. Intention is something the existence and the nature of which are to be
deduced from the evidence [surrounding circumstances].
2. There were 5 appalling wounds on the body, and inflicted by a violent, heavy
and sharp weapon – an axe. In the absence of anything else, the person who
does that must have intended to kill the victim.
Ismail bin Hussin v PP

1. Appellant saw the deceased and immediately fired a shot at him thinking that
he was a terrorist.
Held:
1. Firing a shot from close range constitutes intention.
2. Intention, although formed suddenly, was an intention to kill.
PP v Mohd Hamadi b Yusof

1. The accused knocked the deceased’s head with a brick from behind.
2. The brick broke into pieces and the deceased die dur tosevere head injury.
3. The accused was charged under s302.
Held:
1. There is intention on the part of accused under s300(a).
2. Severe injury inflicted on/sustained by the deceased was on his head which is
the most important part on human body.
57
3. Brick is a hard object, apparently the accused had asserted great force to hit
him with the brick given the fact that the brick broke into pieces and the
deceased totally collapsed after the hit.
4. Apart from that, in view of the long standing feud/dispute between the
deceased and the accused in which the deceased had deliberately injured the
accused, it clearly showed that the accused’s true intent was to kill him.
5. The case is proven as well under s300(c) and (d).
6. The accused caused bodily injury onto the deceased which the bodily injury is
so severe that the deceased cannot be revived.
7. The accused who hit the deceased with the brick on his head must have known
that his act was so dangerous that will lead to injury which will cause death to
the deceased.
8. The accused hit the deceased without any excuse.
58
(b) s300(b): Intention-bodily injury-offender knew-cause death
R v Govinda
1. The prisoner, kicked his wife, 15 years old, and struck her several times with
his fist on the back. These blows seemed to have caused her no serious injury
2. She feel on the ground, the prisoner put one knee on her chest and struck her
2 or 3 times on the face.
3. One or 2 blows effect on the girl’s left eye, producing contusion and
discoloration.
Held:
1. For s300(a), the offence is murder, if the offender knows that the particular
person injured is likely, wither from peculiarity of constitution, or immature
age, or other special circumstances, to be killed by an injury which would not
ordinarily cause death.
2. A violent blow in the eye from a man’s fist, while the person struck is lying with
his or head on the ground, is certainly likely to cause death.
59
(c) S300(c): intention-injury-in the ordinary course of nature-cause death
Virsa Singh v State of Punjab (1958)

1. The deceased suffered one injury and there was no dispute that it was caused
by a spear thrust by the appellant.
2. He died 21 hours after the injury after peritonitis intervened.
3. Appellant was convicted under s300(c)
Held:
1. To prove a case under s300(c), must
i. Establish a bodily injury is present, objectively
ii. Nature of the injury must be proved, objectively (什么样的伤)
iii. Intention to inflict the particular type of injury, this is to say that it was not
accident or unintentional, or that some other kind of injury was intended.
(Under which topic no need particular injury?><)
iv. Prove the injury of the type just described made up of the 3 elements
above is sufficient to cause death in ordinary course of nature. [purely
objective and inferential, has nothing to do with the intention of the
offender]
2. If does not matter there is no intention to cause death/injury of a kind that is
sufficient in ordinary course of nature; no knowledge that act of that kind will
be likely to cause death.
3. As long as there is intention (subjective) to cause the bodily injury, the rest is
purely objective.
4. It is not whether he intended to inflict an injury of a particular degree of
seriousness, but whether he intended to inflict the injury in question.
5. No one can run around inflicting injuries that are sufficient to cause death in
the ordinary course of nature and claim they are not guilty of murder, unless
they show the injury was accidental/unintentional
Tutorial:
1. Bodily injury is present
2. Lacks of nature of injury (post mortem)
3. There was ‘such force’ inflicted to cause the injury. Medical Evidence: the
injury must be caused by a big force
60
4. Whether sufficient in ordinary nature to cause death, determined by the

doctor who has a qualification to ascertain whether injury was ordinarily
caused by the offence.
Mohammed Yassin bin Hussin v PP

1. Appellant went to victim’s hut at night intending to burgle it. The accused
grabbed the victim and threw her to the ground. The appellant sat on her
chest. He raped her and she was dead when he finished.
2. She received few superficial injuries but not sufficient in the ordinary course of
nature to cause death. Her death was caused by cardiac arrest which was the
result of congestion of lungs due to fractured ribs. They were very likely to
have been caused by someone sitting with force on her chest when she was
lying on floor on her back.
3. Trial judges found that the injuries resulted in the death of the victim was
caused by the appellant’s sitting forcibly on the victim’s chest in the course of a
violent struggle when she was resisting his attempt to rape her.
Held:
1. The trial judge failed in giving effect to s299 and s300. In cases where the
accused did not deliberately to kill, between the act by which death is caused
and the bodily injury resulting from that act.
2. The prosecution must prove:
i. Act of appellant which caused the death. (He sat forcibly on the chest of the
victim voluntarily and intentionally)
ii. Accused intended, by doing the act, to cause some bodily injury to the
victim of a kind which is sufficient in the ordinary course of nature to cause
death.
3. It must be shown that when the accused forcibly sat on the victim’ chest to
subdue her struggles, he intended to inflict upon her the kind of bodily injury
which, as a matter of scientific fact, was sufficiently grave to cause the death of
a normal human being of the victim’s age (58yrs old) EVEN THOUGH he himself
may not have sufficient medical knowledge to be aware that its gravity was
such as to make it likely to prove fatal.
61
4. No evidence adduced to prove this intention. It is unusual that falling/sitting on

someone’s chest, even forcibly (eg: Rugby football), will result in internal
injuries, let alone fatal injury.
5. Not necessary to prove he intended the precise injury which in fact resulted or
sufficient knowledge of anatomy to know that internal injury which resulted
would take the form of fracture of ribs, followed by cardiac arrest.
6. Virsa Singh: It is broad based, simple, and based on common sense.
7. However, it still has to be proved that the appellant did, when sitting on her
chest, intend to inflict upon her some internal injury, as distinct from mere
superficial injuries or temporary pain.
8. Appeal allowed.
Tutorial:
1. Should charge under s304A not 300(c).
2. The internal injury would be known by the accused only if he has medical
knowledge.
PP v Visuvanathan
Held:
1. Applied Virsa Singh
2. There is clear distinction between the intention to cause the bodily injury
found to be present and the intention to cause ‘some bodily injury of a kind
which is sufficient in the ordinary course of nature to cause death” The latter
intention needs not to be proved. The latter would take clause (c) otiose in
view of clause (a)
3. Lord Diplock in Yassin’s case did not mean that ‘sufficiency to cause death’ was
also subjective. His judgement has to be read in whole.
4. The act of the accused in stabbing the deceased in the chest (a very vulnerable
part of his body) was an act fell squarely within s300(c). The fatal injury was
intended injury and was not caused unintentionally (he used so much force
that the wound was 8cm deep and the blade of knife had cut through the third
and 4th ribs. The anterior surface of the heart was cut too). It was sufficient in
the ordinary course of nature to cause death.
62
5. The doctor who performed autopsy stated that the direction of the wound was
such that the blow with the knife must have been a violent one to produce
such a stab wound.
Tham Kai Yau & ors v PP

1. Evidence shows that the appellants attacked the deceased and did intend to
cause bodily harm to the deceased.
Held:
1. The appellants were charged with murder under section 302, read with section
34.
2. The pathologists testified that in his opinion the probable cause of death was
multiple injuries leading to shock and haemorrhage.
3. On the question whether the appellants intended to cause such bodily injuries
as they knew to be likely to cause death, the medical witness should have been
asked to give his opinion on the nature of the injuries and its likely natural
effect, but his evidence was silent
Distinction between s299 and s300. Degree of Mens Rea

4. Intention is a matter of inference. Eg: deliberate use of dangerous weapon by
some men to another leads to the irresistible inference that their intention is
to cause death.
5. In present case, the weapons used by the appellants were deadly weapons and
the person killed was struck more than one blow.
6. S299:
a) With intention to cause death
b) With intention of causing bodily injury as is likely to cause death
c) With the knowledge that … the act is likely to cause death
7. S300:
1) With the intention of causing death
2) With intention of causing bodily injury as the offender knows to be likely to
cause the death…
3) With the intention of causing bodily injury to any person … is sufficient in
the ordinary course of nature to cause death.
63
4) With the knowledge … imminently dangerous that it must in all probability

cause death …
8. (a) and (1), the offence is always murder, when there is intention
9. When there is no intention to cause death or bodily injury, (c) and (4) apply.
10. Whether the offence is culpable homicide or murder depends upon the
degree of risk to human life. If death is a likely result, it is culpable homicide;
if it is the most probable result, it is murder. (illustration (d))
11. Where the offender knows that particular person injured is likely to be killed
by an injury would not ordinarily caused death, It is murder. Illustration (b)
12. (b) and (3). A question of degree of probability.
13. Culpable homicide may not amount to murder where

a. The exceptions apply.
b. Special degree of mens rea in s300 was absence.
14. All cases falling within 299 does not necessarily fall within 300.
15. In present appeal, nature of injuries sustained by the deceased showed that
there was an intention on the part of the appellants to cause bodily injury to
the deceased. None of the exception was established. It either falls under part
2 of 299 or 3 of 300.
16. The case was brought within the lesser offence of culpable homicide not
amounting to murder. 1st part of section 304.
64
(d) S300(d)
William Tan Cheng Eng v PP [subjective knowledge] (1970)

1. The appellant was charged with the offence of murder under section 302.
2. The offence of murder Is defined in s300 read with section 299.
3. The appellant committed murder under 4th clause of the definition in s300.
4. The accused was chasing another man’s car (Morris car). The cars touched and
the appellant’s car zig-zagged across the road into a motorcyclist coming in the
other direction.
5. The prosecution said that the appellant by driving his car in an extremely
reckless and dangerous manner, disregarding other road users had committed
murder within 300(d)
Held:
1. The prosecution must prove that the appellant ‘KNEW’ the consequence of his
act.
2. It is insufficient that the act is imminently dangerous. The act becomes murder
only when the person who commits the act and death results, knew, when
committing the act, it was imminently dangerous.
3. The accused was overtaking the other car in a dangerous manner but there
was no other traffic at the material time. (He did not assume the presence of
the motorcyclist.)
4. The most adverse inference was that he intended to cause harm to the
passengers in the Morris car.
5. There was not sufficient evidence to show that the appellant was guilty of
murder under s300(d).
Emperor v Dhirajia [objective knowledge] (1940)

1. The accused jumped into the well with her baby and caused death of her baby
because she was trying to avoid her abusive husband.
Held:
1. The degree of knowledge which any particular person can be assumed to
possess must vary.
65
2. Eg: cannot attribute same degree of knowledge to an uneducated as to an

educated person.
3. But to some extent of knowledge must be extended to everyone who is sane.
4. However primitive a man or a women may be and however frightened he or
she may be, the knowledge of the likely consequence of imminently dangerous
act must be supposed to have remained with him or her.
5. ** Appeal allowed on the basis that she had an excuse for jumping into the
well under last clause of s300(d).
Kenneth Fook Mun Lee v PP

1. The accused had some alcoholic drinks before he went back.
2. On the way back, he parked his car, and stopped a car using his gun and fired
at the driver.
Held:
1. In an appropriate case, a finding on intoxication may be made at the close of
the case for prosecution, especially where s86(2) is relevant.
2. This was not such a case.
3. The court relied on s300(d) of the code (the ‘knowledge’ limb) for the MR of
murder.
4. S86(2) only affects offences which require intention. It excludes other types of
Mens Rea.
5. Since 300(d) involves merely knowledge and not intention, it is not within the
ambit of s86(2).
6. Intoxication is thus irrelevant in securing a conviction for murder if knowledge
as per 300(d) is proved beyond reasonable doubt by prosecution.
[MH dumb dumb: Hence even though there is defence of intoxication raised
(was rebutted anyway), they can choose not to consider it in deciding the
case.]
66
Culpable homicide is not murder if it falls under any of the 5 exceptions stated in
section 300.
Exception 1: grave and sudden provocation
1. The provocation must be flowed from the victim.

- It must be directed at the accused
**Proviso:
a. the provocation is not sought by the offender as an excuse for killing
b. provocation not given by anything done according to law
c. provocation not done in lawful exercise of private defence
2. Grave provocation
- Reasonable man test
- Either: one incident/ series of action(special relationship, family)
- Either: provocation via action/ words
 Provocationwords/action(words)subject matter is the core/fundamental

element to work it out
 Provocation by mere words of anger(verbal insult) is insufficient
 However, if the subject matter of provocation by words is of a certain degree
of ‘intimacy’ [special relationship] (eg: confession of adultery with some
degree of force had been used against the accused or he personally witnessed
some provocative act)
 If the intimate subject matter is regarding relationship of spouses, can accept
words as provocative, as in our culture, we do not practice open relationship.
This subject matter can be exclusive.
3. Sudden and unexpected
4. Loss of self-control
- Losing of self-control causes the death of the victim
- Objective + subjective test
- [Subjective test]: group of people the accused belongs to. Whether a
reasonable man from the group will lose self-control.
67
- The time difference between the provocation and death must be short.
- There must be no ‘cooling period’ in between the provocation and killing, to
render the sanity is lost.
- If there is ‘cooling period’ it will be pre-planned and sanity is deemed to be re-
obtained.
5. Proportionality
- The retaliation should not be out of proportion to the degree of provocation.
Explanation:
Whether the provocation was grave and sudden enough to prevent the offence from
amounting to murder, is a question of fact.
68
Chong Teng v PP (Link between provocation and killing)

1. The accused went to Central market to fight with the deceased who had ‘taken
away’ his wife
2. The deceased challenged the accused to fight the next day
3. He later stabbed the deceased during the fight
4. He was convicted of murder
Held:
1. ‘Sudden’ means unexpected.
2. Appellant on his own admission had gone to the market with the intention of
fighting with the deceased. Any violence offered to him by the deceased
cannot be described as unexpected.
Mat Sawi b Bahodin v PP (cumulative provocation)

1. The accused was having stomachache.
2. The accused suspected his wife did not love him anymore as she did not
answer any of his questions.
3. He then talked to his mother in law regarding her wife’s attitude.
4. He blamed his mother in law for allowing his wife to go to work.
5. Previously he disagreed his wife to go out and work because he was of the
opinion that it could conduce her forming unsatisfactory relationship with
other men.
6. Mother in law then scolded the accused for treating her daughter in rough
way.
7. He then stabbed his mother in law.
Held:
1. In order to set up the defence of grave and sudden provocation, it has to be
shown that the provocation was grave, sudden and would cause a reasonable
man to lose self- control.
2. The fact that ‘the deceased is responsible for the wife’s unfaithfulness which
he suspected’ is not provocation.
3. Provocation: the deceased whom he regarded as partly responsible for his
domestic trouble came towards him scolding him at a time when he was in
69
pain and his wife’s coldness in dealing with his pain had revived all his long
standing suspicion.
PP v Lasakke (verbal insult + physical provocation, series of provocation)

1. The accused killed the deceased with a parang.
2. The deceased met accused and asked him why didn’t he feel ashamed as all his
friends knew that the deceased have interfered with the accused’s wife.
3. The accused did nothing but tears of shame came into his eyes.
4. The accused tried to leave.
5. The deceased held and struck the accused on his forehead.
6. There was a commotion as a result of which the deceased was killed.
Held:
1. Series of grave provocation = provoking him regarding his wife(verbal insult) +
sudden strike(physical provocation)
2. He was deprived of the power of self-control.
** Mental background created by the deceased’s previous act has to be taken into
account to determine the strength of the provocation.
Chan Tong v R
1. The appellant had occasion to chastise his daughter for having stolen part of
his day’s takings from his occupation as an ice seller.
2. The deceased and her family took side of the appellant’s daughter. According
to the appellant, it was an interference in his internal affair.
3. Words were exchanged and resentment remained after the parties had
separated.
4. The next evening, while he was eating his evening meal, the deceased and
several members of her family congregated outside his door and scolded him
in respect of the of the previous evening’s episode.
5. The deceased, challenged him to come outside to meet her husband, he was
physically assaulted too.
6. Trial judge: There is no provocation at all. Mere words cannot amount to
provocation. The accused’s case is that he was set about and beaten up and in
order to save himself from the position he was in he lashed out with his hand.
70
Held:
1. Mere words cannot in law ever amount to provocation.
2. However, when there is element of abuse or scolding, it must be taken into
account to amount to provocation.
Othman Mat v PP (Provocation moving from victim)

1. There was a dispute between the deceased’s wife and the appellant regarding
common bathroom
2. The counsel contended that the provocation coming from the deceased
includes the provocation coming from someone who is identified and closely
associated to the deceased. (Hong Kong)
3. So as to render the provocation by the wife of deceased counts, that the
appellant react upon the cumulative provocation and 300299
Held:
1. Appellant admitted that he was not angry at the wife when she called him
swine and said when her husband (deceased) comes back he would teach the
appellant.
2. And there was a long lapse of time between bathroom incident and start of
deceased’s incident with the appellant.
3. Our Penal Law is codified. Hence the provocation must be limited to the acts of
the deceased only.
AG for Ceylon v Don John Perera (grave and sudden + retaliation)

1. Ill feeling has long existed between the respondent and the family of the
deceased.
2. On the day in question he shot and killed the woman.
3. It was sought to reduce the crime from 300299, there are provocation: stone
throwing by the woman’s family, threats uttered by them, he was suddenly
provoked.
Held:
1. When determining whether the kind of provocation actually given was the kind
of provocation which they are reasonable men would regard as sufficiently
grave and sudden to mitigate the actual killing of the woman.
71
2. ‘Grave’ and ‘sudden’ must to a great extent be decided by comparing the

nature of the provocation with that of the retaliatory act, to avoid some minor
or trivial provocation to be used to excuse the use of a deadly weapon.
3. A blow with a fist is provocation which will cause sufferer to lose a degree of
control, but will not excuse the use of deadly weapon.
Ghulam Mustapha Ghano v Emperor (Reasonable man)

1. The appellant is a Baluchis.
2. His wife showed him a booja , made a gesture of attempt.
3. It was claimed tht Baluchis are excited people and a boja shown to them will
enrage them as to deprive them of self-control.
Held:
1. ‘Reasonable man’ is the normal man of the same class or community as that to
which the accused belongs.
2. It was not intended that the law should take into account the peculiar
idiosyncracies of the offending individual, but it should be taken into account
the habits, manners, and feelings of the class or community to which the
accused belonged.
3. The mere fact that booja excites Baluchis is insufficient. It must be shown that
a booja is to Baluchis so grave and sudden a provocation as would deprive
normal Baluchis of power of self-control.
Nanavati v State of Maharashtra (mere words + time lag)

1. The defendant, a naval officer, was frequently away from his wife.
2. Illicit intimacy developed between the wife and a family friend.
3. Whether words or gestures unaccompanied by acts can amount to
provocation.
4. What is the effect of the time lag between the act of provocation and the
commission of the offence
Held:
1. The test of ‘grave and sudden’ provocation is whether a reasonable man,
belonging to the same class of society (upon the custom, manners, way of life,
72
traditional values) as the accused, placed in the situation the accused was
placed would be so provoked as to lose his self-control.
2. The mental background created by the previous act of the victim may be taken
into consideration in ascertaining whether the subsequent act caused grave
and sudden provocation for committing the offence.
3. The fatal blow should be traced to the influence of passion arising from that
provocation and not after the passion had cooled down by lapse of time or
otherwise giving room and scope for premeditation and calculation.
Vijayan v PP (grave and sudden + retaliation)

1. Appellant was the Malaysian living in Singapore. His friend was in a dispute
with the deceased’s friend.
2. The deceased agreed to meet the appellant. N that night, the deceased refer
to the sensitive subject by asking ‘Who has given the house to Malaysian?’
3. The deceased challenged the accused for a fight whereupon the appellant lost
control and killed him.
Held:
1. Whether an act which caused death was done in the heat of passion caused by
grave and sudden provocation depends on whether the provocative act was
such as likely to cause a reasonable man to lose his self-control and to do the
act in question.
2. If the act of retaliation is out of proportion to the provocation offered, the plea
of grave and sudden provocation fails.
N Govindasamay v PP (retaliation)
Held:
1. There are 7 fatal wounds found on the head of the deceased which shows that
the appellant acted with gross and savage violence on an unarmed man.
2. Retaliation on his part was not commensurate with the degree of provocation
given by the deceased.
73
Exception 2: Exceeding private defence
 Private defence: section 100, 103

 This exception encompasses what is prohibited in section 100, 103.
 Nature of exception: defensive, not aggressive
 The accused has gone beyond what was objectively necessary for purpose of
defence, but was unable in the heat of the moment to judge that he had done
enough by way of defence.
1. Accused was exercising right of private defence, cannot be the initiator
2. Accused must act in good faith

Section 52: should done with due care and attention
3. There must be no premeditation
4. Without intention to causing more harm than it is necessary for the purpose of
such defence.
74
Gransham Dass v Stat of Delhi

1. The appellant stabbed the victim to death when he came to his shop late at
night in order to dissuade him from building a wall about which the appellant
was in dispute with the victim’s friend.
Held:
1. The victim was not armed and he had no intention of causing any hurt to the
appellant.
2. The appellant far exceeded his right by using deadly weapon and causing 2
injuries which cut the heart and lung.
3. It is very likely the appellant caused the injuries when the deceased trespassed
into the shop.
4. However, there could have been no apprehension that death or grievous hurt
was likely to be caused to the accused.
5. The conclusion is the appellant exceeded his right of private defence of
property.
PP v Halim bin Din

1. The respondent, a former inspector of police, fatally shot while trying to
escape detection and possible apprehension from an anti-vice team, of which
the deceased was a member.
Held:
1. No evidence that the respondent intended to murder anyone. His sole
intention was to avoid detection and capture.
2. The accused did not intend merely to give a warning shot in the air because he
uttered: ‘siapa rapat saya tembak’
3. He intended to shoot anyone who approached him. In fact he did fired those
two men.
4. Defence of private defence cannot be accepted, and even if it is self defence,
he has exceeded his right of self defence.
Wong Teck Choy v PP

1. The appellant was said to have shot the deceased following an argument
because the deceased had parked his car blocking the appellant’s parked cr.
75
2. The appellant alleged that the deceased wielded a knife that led him to shoot
the deceased out of fear for his own life.
Held:
1. One of the cardinal principles governing the right of private defence is that the
exercise of that defence should not exceed what is reasonably necessary to
avert the assailant’s attack.
2. The appellant failed to prove that the deceased attacked him with a knife. Thus
the fence was not available to the appellant.
3. It constitutes culpable homicide not amounting to murder.
76
Exception 3: Exceeding public powers
1. Public servant/ aiding a public servant for advancement of public justice

Section 21: definition of public servant
2. Good faith
Section 52: due care and attention
3. Lawful and necessary for the discharge of the duty as public servant
4. Without ill-will towards the person whose death was caused.
Dakhi Singh v The State

1. The appellant was a policeman who gave chase to an alleged thief.
2. While the deceased was trying to reason with the appellant that the person
was not a thief, he was shot by the appellant.
Held:
1. There was no ill will between the appellant and the deceased.
2. The appellant was a public servant and his object was the advancement of
public justice.
3. He exceeded the power given to him by law, and he caused the death of the
foreman by doing an act which he in good faith, believed to be lawful and
necessary for the due discharge of his duty.
4. Sentence reduced to culpable homicide.
77
Exception 4: Sudden fight
1. Quarrel which has evolved into fight (physically fighting) in the heat of
passion
- Immaterial whether who started the fight
2. Sudden fight upon sudden quarrel

- Elements of design or planning must be absent
3. Cause the death when he was in the heat of passion

- Time difference between the fight and kill must be short
4. No undue advantage or cruel or unusual act.
**Comparison:
2 – Can be used by person who defended and waited
4 – Can be used by both initiator and defender
2 – Usually involves strangers

4 – Usually involves special relationship
Exception 5: with consent
78
Soh Cheow Hor v R

1. The deceased, started argument with the appellant which led to a fight
between them.
2. The appellant during the fight drew a knife and inflicted a fatal stab wound in
the abdomen of the deceased.
Held:
1. There are 4 elements to be considered:
1. The fight must be sudden
2. There must be an absence of premeditation. It will not do if the man has
time to think over what he should do and then kill the person with whom
he has been fighting. (no cooling period)
3. No undue advantage must be taken by the accused
4. The accused must not have acted in a cruel or unusual manner.
Mohd Kunjo v PP (undue advantage/cruel)

1. The accused and the deceased’s manager went to the store and instructed
them to load and deliver some timber.
2. When the accused met them, he realized they were highly intoxicated. He
made no request but asked them to go and sleep.
3. They began to argue and turned into wrestling. The appellant wan towards the
store and returned with the exhaust pipe and delivered one blow on the
deceased’s head.
Held:
1. There is an absence of any element of design or planning.
2. The appellant ran to get a weapon and returned to attack the defenceless
deceased with a truly murderous weapon.
3. The evidence of the assault shows that the deceased was taken by surprise and
attacked with a very unusual and unexpected weapon, a heavy blow on the
head from which could reasonably be expected to be lethal.
4. Appellant could not prove that he had not taken undue advantage or acted in a
cruel or unusual manner.
79
Hainie Hamid v PP (in the heat of passion)

1. The deceased attacked one man with a baton. A fight exploded.
2. The accused together with other 2 men intervened to stop the fight. While the
deceased and a man was struggling, the accused went to the burger stall and
returned with a knife and stabbed the deceased.
Held:
1. 4 elements under Soh Cheow Hor is applied.
2. It was a sudden fight with no premeditation.
3. The evidence revels that the acts of the appellant in the course of melee
(confused fight or scuffle) were done within very short intervals with no
opportunity for cooling off.
4. As usual in the fight, the blood already heated up was armed at every
subsequent stroke and the voice of reasons was not heard on either side in the
heat of passion.
5. It is settled law that when an accused person endeavours to bring himself
within one of the exceptions, it is sufficient for his purpose if a reasonable
doubt is raised in the mind of the trial judge as to whether or not the necessary
factors exist.
PP v Awang Raduan Awang Bol (FC)(refer Mohd Kunjo)

Held:
1. The accused went to the deceased after people left the deceased and started
the fight. He knew that the victim was not armed and smaller in size than him.
Struggle started after the accused hacked the victim with axe. There is no
sudden quarrel/fight. Undue advantage is present, the accused had acted in a
cruel and unusual manner.
80
Combination of all
PP v Mahfar Sairan
1. The facts are discussed under Death by Negligence
Held:
Harm:
1. The injuries had been proven to be caused by being run over by the car driven
by the accused when he accelerated away after having reversed out of his
porch. [harm + AR]
Murder:
2. The offence of murder under s302 is defined in the 2 complementary sections
of penal code – s299 and s300
3. Offence of murder is clear, required the intention to cause death or to cause
such bodily injury as the accused knew is likely or sufficient to cause death.
4. Given the fact that the deceased had chased after the accused’s ca and held to
its right wing when he was reversing it out of porch, common sense dictates
that the intention to cause death could not have been formed in the mind of
the accused at the time the deceased ran out of the house or when she held
on to the wing mirror within that split second in time.
5. Furthermore, once the accused stepped on the accelerator he would not be in
a position to control the seriousness of the injuries that would befall her. The
injuries were a manifestation of the consequence of his act rather than a
manifestation of his intent.
6. S300(a),(b),(c) cannot be proved as there is no intention formed.
7. To apply s300(d), the accused must know that the act he is committing was so
imminently dangerous and committed in utter disregard that death would
result from such an act. This provision contemplates the doing of an
imminently dangerous act to people in general and not the doing of any act to
any particular individual.
8. However, the accused would not reasonably be expected to know that driving
the car off in the manner he did was so imminently dangerous that it must in
all probability cause death, or such bodily injury as is likely to cause death.
81
9. The consideration would be different if the deceased was at the rear or in

front of the car and not by the side of it (such that she wasin his view), where
one may be able to find that the accused may have the required knowledge;
or if he had nevertheless driving off having known that the deceased had
been struck down by the car, where he must be taken to have known that it
was imminently dangerous to drive way in that situation.
10. He would be expected as a reasonable man to know in that situation that
some grievous hurt would be caused to the deceased but this is insufficient to
find a case within s300(d).
11. To find a case under s300(d) the knowledge required is no less than
knowledge that his act would in all probability cause death or such bodily
injury as is likely to cause death. Nothing less would suffice.
Culpable homicide not amounting to murder:

12. Alternately the accused was charged under s304(a) or (b)
13. S304(a) requires intention to cause death or such bodily injury as is likely to
cause death. There was no intention found.
14. S304(b) merely requires knowledge. The court could not find the accused to
have the knowledge that by accelerating away while the deceased was at the
right side of the car holding on to the wing mirror, that he had the knowledge
that this act was likely to cause the death of the deceased.
15. ** same as no.9
16. Death caused without intention or knowledge is not culpable homicide -
The offence of culpable homicide presupposes an intention, or knowledge of
likelihood, of causing death. The intention must be directed either
deliberately to putting an end to human life or to some act which to the
knowledge of the accused is likely to eventuate in putting an end to human
life. The knowledge must have reference to the particular circumstances in
which the accused is placed and the intention demanded by the section must
stand in some relation to a person who either is alive or who is believed by
the accused to be alive. In the absence of such intention or knowledge, the
offence committed may be offence of causing grievous hurt, or simple hurt.
Where injuries have been followed by death and the question is what offence
has been committed, it is not concluded by any backward reasoning as to
82
presumable intention from the mere fact that injuries caused did in fact result
in death. What has to be seen is what degree of injury the accused actually
intended and what he knew as to the consequences of such injury.
Causing death by a rash or negligent act

As discussed above.
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Criminal Cases

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LOWAU’ =) | MeiHui Low

2. It must be a physical gesture or preparation (not merely using words)

Explanation section 351:

3. Without willingness on part of the victim. (cause apprehension)

4. Causing REASONABLE apprehension of physical force to be inflicted on the

 Reasonable man test (cannot subject to the personal or individual personalities

Literal reading of section 351:

 As long as the accused makes appropriate gesture or preparation + the

 Under literal interpretation criminal liability would be imposed upon those

5. Threat of immediate force

Harm: the victim apprehends immediate physical force

1) Jashanmal Jhamatmal v Brahmanand Sarupanand

2) Ram Singh v Emperor

3) Datuk Seri Samy Vellu v S Nadarajah

4) Birbal Khalifa v Emperor (conditional threat)

** However, section 503 Criminal Intimidation could be used:

*** It is immaterial under section 503 the threat is purely verbal.

Section 358: on rave and sudden provocation given by victim

Aggravated criminal force/ assault offence

3. Without that person’s consent:

 Knowledge that force will illegally cause the offence to be committed or

1) Chandrika Sao and Hazari Lal v The State of Bihar

person without that person’s consent, in order to commit an offence or with

2) Bihari Lal v Emperor

3) John George Donovan

4) Rupun Deol Bajaj v KPS Gill

Voluntarily Causing Hurt

Aggravated hurt offence

**Since s321 requires proof of an intention to cause hurt or knowledge of the

1) Jashanmal Jhamatmal v Brahmanand Sarupanand (same case for assault)

2) Madhukar Danun Patil

3) Manzoor Ahmad v State

4) Anis Beg v Emperor (Hurt)

6) Muniandi v PP (Dangerous Weapon)

7) Sultan Mohamed v Regina (Dangerous Weapon)

8) Veeda Menezes v Yusuf Khan (s95)

MH: if want to apply s324,

Aggravated grievous hurt offence

** Must (causes grievous hurt) + (intends or knows himself to be likely to cause

** ‘knowledge’ wise: know the END RESULT (such damage)

1) PP v Dulamit bin Sulaiman (intention)

2) Rambaran Mahton v The State (intention etc)

3) PP v MD Rashid Harun (Permanent disfigurement)

2. Acid = dangerous weapon

4) Hori Lal v The State of U.P. (fracture or dislocation of bones)

4. It is sufficient that there is a break by cutting or splintering of the bone or

5) Ramla v State (endanger life)

7) Queen Emperors v Vasta Chela (1895) (Ordinary pursuits)

8) Yoganathan v PP (1999 SLR) (Ordinary pursuits)

9) Mahindar Singh v Emperor (ordinary pursuits, died before 20days)

Offence of kidnapping with intention

Section 368: wrongfully conceal or keep in confinement a kidnapped person

Section 360: Kidnapping from Malaysia:

** section 90: consent

Section 361: Kidnapping from lawful guardianship:

B) Abduction (no age limit)

 Abduction per se is not a crime/substantive offence.

Section 364: murder

Section 368: wrongfully conceal or keep in confinement an abducted person

1) Periasawmi Kangani v Emperor (Kidnap from Malaysia)

2) Chathu v Govindankhutty (Kidnap from lawful guardianship)

When is ‘taking’ complete:

11. An offence under s363 was committed by the appellant.

4) Sheik Davood Saheb v State (what is enticing, taking, sexual intercourse as