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Mistake of Fact Criminal Law
Mistake of Fact Criminal Law
Mistake of Fact Criminal Law
Penal Code reported by Mr. Ma Lang for wrongful confinement and wrongful restraint.
Mistake of fact is not defined in the Penal Code. A mistake of fact is an error as to the
existence of any state of thing. It may arise from an inadequate or wrong information,
forgetfulness, negligence or superstition. Obvious examples are where A mistakes his son to
There are few elements that need to be established for the defence of mistake of fact.
The defence of mistake of fact under Section 76 and 79 of Penal Code require the accused
to prove on a balance of probabilities. The elements are whether he or she had been induced
by a mistake to commit the criminal act in question, the mistake was one of fact and not of
law, the accused mistakenly believed that he or she was bound or justified by law in doing the
criminal act and whether the mistake was believed by him or her in good faith.
The first element is that he or she had been induced by a mistake to commit the
criminal act in question. In this case, the facts are that Muda is a rookie police officer and
was patrolling at Jalan Sibuk when he suddenly heard a woman screaming for help. The
screams came from an old lady which had been robbed. Muda saw a suspicious looking man
and he started to pursue him. He then tackles the man. The man then fought back and kept on
screaming that he was not the thief. Muda then bring the man to the police station. The old
lady denied that the man was the thief. The man, Mr. Ma Lang is actually pursuing the thief.
11
Tolson, 1889
The first elements need the act done by the defendant to be a mistake. Based on the
fact of this case, Muda act by tackling and apprehend Mr. Ma Lang is actually a mistake.
Malaysia, the court only enquired whether a person’s ignorance or mistake had been made in
good faith or not. The case to support is in the case of Sulong bin Nain v PP2. In this case,
the accused was apprehended with two hand grade in his possession. The accused then claim
the defence of mistake since he believed in good faith that he was bound or justified by law to
surrender the hand grenade to the police. The court rejected his appeal because the court took
into consideration that the act is mistake of law and not mistake of fact.
In the case of Muda, the question arises is that whether Muda action of apprehending
Mr. Ma Lang was done in mistake or not. Considering the fact of this case, Muda action is
considered done in mistake since he truly believed that the man he was apprehending was the
thief because the man was running away from the crime scene when he arrived there. The
fact that he was rookie police officer also has to be taken into consideration. This is because,
if he had more experience, he would have known better to handle the situation.
The second element is that the mistake was one of fact and not of law. Section 76
and 79 require the accused’s mistake to pertain to a factual matter as opposed to a legal one.
Glanville Williams explain about the definition of a mistake of a law where he stated that
“Generally speaking a fact is something perceptible by the senses, while law is an idea in the
mind of individuals. The definition of a fact as something perceptible by the senses needs
qualification in one respect. A state of mind is also a fact, though not directly perceptible by
the senses.3
2
[1947] 13 MLJ 138
3
Criminal law: The General Part (Steven & Sons, 2nd Ed, 1961) page 287
A mistake of fact and law will most likely be treated by our courts as a mistake of fact
for the purpose of ss 76 and 79. A local case where this may have occurred is Arumugum &
Anor v R.4 The two appellants and a third person were members of the police force who were
convicted of an offence under the Foodstuffs Movement Restriction Order for moving rice
without permit. The appellants claimed that they were acting under the orders of the third
person who was their superior. The appellate court quashed their convictions on the ground
that they mistakenly believed that the third person was acting bona fide. Although the court
did not discuss the matter, the mistake appears to have been one of mixed fact and law.
There are Indian case authorities clearly holding that a mistake of mixed fact and law
will be treated as a mistake of fact so as fall within ss 76 and 79. In the Indian Supreme Court
in State of Bombay v Jaswantlal Manilal Akhaney5, the accused was the managing director
of a bank who was charged with criminal breach of trust for transferring the securities of a
pledger bank. He invoked that s 79 defence on the ground that his act of transfer was based
on a mistake of fact that the pledger bank was indebted to his bank, as well as a mistake of
law that his bank had the right to effect such a transfer. The Supreme Court was prepared to
apply the s 79 defence provided the accuse was able to prove not only that he believed the
law entitled him to deal with the securities as the property of his bank, but also that he
believed in good faith that the pledger bank was indebted to his bank.
Another Indian case example where the proposition has been adopted is the Kerala
High Court decision in Kochu Muhammad Kunju Ismail v Mohammad Kadeja Umma6.
The accused, who was charged with the offence of bigamy, pleaded the s 79 defence on the
ground that he had married a second time only because he had mistakenly believed in good
faith that the law of divorce had dissolved his first marriage. The court accepted the defence
4
(1947) MLJ 45
5
AIR 1956 SC 575
6
AIR v 1958 Ker 151
reasoning that, had the facts has been as the accused reasonably believed, he would have been
justified in remarrying.
From the present case, there is a mistake of fact that occurred. His mistake is when he
saw a suspicious looking man running with all his might away from the scene of the robbery
and started to pursue him because Muda thought that the man was the thief. He had
mistakenly thought the fact that Mr. Ma Lang was the thief which he is not. Due to this fact,
the second element is established because there is a mistaken of the fact of the case.
The third element of mistake of fact is bound or justified by law. According to the
section 76 in Penal Code, in order to success in the defence of mistake of law, the accused
must have mistakenly believed that he or she was bound by law to do the criminal act. Being
‘bound by law’ means having a legal duty or obligation to perform the conduct complained
of. In section 43 in Penal Code, stated that, a person is said to be ‘legally bound to do’
whatever it is illegal for him to omit. It means that, a person such as police constable or a
soldier who are bound by law, or mistakenly believes themselves to be so bound. For
examples, in the case of Emperor v Gopalia Kallaiya7, the case is about the accused was a
police officer who had a warrant to arrest a particular person. He arrested the complainant
mentioned in the warrant. The charge against the accused of wrongful confinement was
believed that he or she was justified by law to do the criminal act. For example in the
A, in the exercise, to the best of his judgement exerted in good faith of the power which the
7
(1924) 26 BOMBLR 138
law gives to all persons of apprehending murderers in the act, seizes Z, in order to bring Z
before the proper authorities. A has committed no offence, though it may turn out that Z was
acting in self-defence.
In the current case, Muda, who is a rookie cop have mistakenly believed that Mr. Ma
Lang was a theft, despite making a reasonable inquiries, Muda put him in handcuff, drag him
to the police station and locked him up. Referring to the case of Emperor v Gopalia Kallaiya,
Muda had heard a woman screaming for help who had been robbed. Then, he saw the
suspicious man and arrests him since it was his duty and obligation to perform the conduct
because he was in patrol that area. Since Muda was a rookie cop, then he is said to be bound
by law because it was Muda’s duty and obligation to do that. So, in this element of mistake of
fact, Muda is said to be bound by law because he is a rookie cop and thus third element is
satisfied.
The fourth element is that the mistake done must be in good faith. Sections 76 and
79 of the Penal Code require the accused to have ‘in good faith’ believed him to be bound or
justified by law in doing a criminal act. In this both section, in good faith relates to the
accused perception of the factual circumstances rather than his performance of the criminal
act. The perception must have be lead to the accused believing that he was bound or justified
Section 52 of the Penal Code defines ‘in good faith’ in terms of ‘due care and
attention’. Yong Pung How CJ in the Singaporean High Court case of Tan Khee Wan Iris v
PP held that the test is determine whether a mistake was made in good faith and not whether
the mistake was an easy one to make nor whether a reasonable person could make the
mistake. The mistake may be a natural one to make and it may be one which reasonable
8
Stanley Yeo, Neil Morgan, Chan Wing Cheong, Criminal Law in Malaysia and Singapore, Lexis Nexis
person often make. Nevertheless, the defence is not made out unless it is shown on a balance
of probabilities that the appellant exercised due care and attention.9 This may be added
another judicial observation that ‘in good faith’ does not require ‘logical infallibility’.10
It should be emphasised that the element of ‘in good faith’ under ss 76 and 79 relates
to the accused’s perception of the factual circumstances rather than his or her performance of
the criminal act. Furthermore, that perception must have led to the accused believing that he
or she was bound attaching ‘in good faith’ to the accused’s belief as opposed to his or her
conduct is illustrated in the Orissa High Court decision in State v Ram Bahadur Thapa11.
The accused had attacked what he, in good faith, believed to be a ghost and not a
human being and that he was therefore justified by law in defending himself against it. The
court held that he could successfully rely on the s 79 defence even though it was shown that,
he could exercise extra care and attention, the incident may have been averted. Certainly, an
accused’s careful performance of conduct would often support his or her belief that he or she
was bound or justified by law in doing it. But a court must ensure that the inquiry into ‘in
good faith’ under ss 76 and 79 does not stop at the accused’s conduct but proceed from there
In State v Ram Bahadur Thappa, the accused had attacked in good faith that he
believed to be a ghost and not a human and therefore he was justified by law. The court held
that he can relied on section 79 as a defence even though it was shown that had he exercise
extra care and attention, the incident may have been averted. In the case of Muda, the act of
Muda can be considered as act done in good faith. This is because when Muda tackle Mr. Ma
Lang he was acting in good faith that Mr. Ma Lang was the thief. Furthermore, Muda
9
(1995) 2 SLR 63 at 67
10
PP v Mohd Amin bin Mohd Razali & Ors (2002) 5 MLJ 406 at 483
11
1960 Cri LJ 1349
believed that he was justified by the law when apprehending Mr. Ma Lang because he was a
police officer and it is his duty to apprehend a criminal. Therefore, the fourth element for the
In the conclusion, since the element of mistake are fulfilled, then Muda can raised a
defence of mistake of fact if he is charged with those offences reported against him by Mr.
Ma Lang.