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11 Duress - Lecture notes 11

Criminal Law I (Universiti Malaya)

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DURESS
 S94
Nothing is an offence which is done by a person who is compelled to do it by threats,
which, at the time of doing it, reasonably causes the apprehension that instant death
to that person will otherwise be the consequence
 Except murder, offences in Chapter VI punishable with death (against the
state) & offences in Chapter VIA (relating to terrorism)
 Person forced to commit crimes through appalling threats has had no opportunity
for effective choice  actions are morally involuntary & thus deserves no blame

ELEMENTS
1. THREAT MUST BE OF DEATH
 Accused did not do what he did by reason of any evil mind but by reason of having
been under threat of death
 Any threat of extreme torture / serious injury short of death will not suffice

Mohamed Yusof bin Haji Ahmad v PP

 A was convicted of trafficking in dangerous drugs. He said he was forced to do so by
a Thai man who threatened him with pistol & told him to carry 2 bags of cannabis
across the border into Malaysia. If he obeyed he would be paid, if he disobeyed he
would be shot. The Thai also followed A on foot by keeping a distance of 20 feet / so
away.
 Threat of death  shot by pistol at vital part of body normally results in instant
death

2. THREAT MUST BE INSTANT

 Threat must be imminent, extreme & persistent

Queen-Empress v Maganlal
 Threats of future violence will not generate defence of duress

Tan Seng Ann v PP

 A stated that 2 men brought a small parcel requesting him to keep it for the night.
When told it was a revolver, he objected. In spite of his non-cooperation, they left
the parcel in his house, took him in the car where they were stopped & arrested by
police.
 Defence of duress must be imminent, extreme & persistent
 Duress was not present / continuing when A went out in the car with others

Mohamed Yusof bin Haji Ahmad v PP

 While there might have been an initial threat of instant death, but when A reached
railway station, the presence of some people & 4 policemen & the fact that A carried
the drugs for 1½ hours without having made any attempt to approach any member
of public for help rendered the threat no longer imminent, extreme & persistent

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Subramaniam v PP
 A was convicted of being in possession of 20 rounds of ammunition contrary to the
Emergency Regulations 1951. He claimed he had been captured by Chinese
Communist Terrorists & forced to go through a terrorist training programme during
which time he had been compelled to carry the ammunition.
 Threat of death was persistent throughout the period  no alternative to run away

3. THREAT IS DIRECTED AT THE PERSON OF ACCUSED HIMSELF

 Threat must be directed at the person of accused himself
 Threats to kill one’s wife, children, parents etc will not suffice

Mohamed Yusof bin Haji Ahmad v PP

 Threat was directed to A  If A disobeyed to carry drugs, he would be shot

4. MENACING EFFECT OF THREAT PERSISTS AT THE TIME OF ACT

 Threat of instant death must be present & continuing at time of committing of
offence
 Threat shall have menacing effect at the moment when crime is committed
 Threat must be present threat effective to neutralise evil of accused at that time
 Accused cannot plead duress if continues to participate after duress had lost effect &
his own will has had chance to rescue itself

Mohamed Yusof bin Haji Ahmad v PP

 If an offence is completed when all danger of instant death has been removed, the
person committing the offence is not protected under the section
 Duress was not present / continued to be present
 A had been carrying the drug for 1½ hours but made no attempt to approach
any member of the public / police authorities for help

Subramaniam v PP
 Although duress might have ceased when the communists left, but threats
previously made could have been a continuing menace at the moment A was
captured as the terrorists may have come back at any time

5. THREAT IS OBJECTIVE IN CHARACTER

 Accused must reasonably apprehend instant death
 Fear must be well-founded by sort of threat that would also make reasonable man
apprehend death

Mohamed Yusof bin Haji Ahmad v PP

 There must be reasonable fear of instant death, at the very time

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 A pistol shot at / near the vital part of the body normally results in instant
death
 Reasonable to have apprehension of being killed instantly

6. DUTY TO ESCAPE
Mohamed Yusof bin Haji Ahmad v PP
 A had been carrying the drug for 1½ hours but made no attempt to approach any
member of the public / police authorities for help

Subramaniam v PP
 There was no chance to escape as A was forced to live together with 100 terrorists

RESTRICTIONS
1. Offences of murder under S302 & punishable with death under Chapter VI & VIA
2. Voluntary exposure to threats
 Not available to those who voluntarily placed themselves in situations where
they become subject to threats
 Proviso S94
Person doing act should not of his own accord / from reasonable apprehension of
harm to himself short of instant death, place himself in situation subject to threats
 Explanation 1, S94
Person who of his own accord / by reason of threat of being beaten, joins gang-
robbers knowing their character, is not entitled to defence of duress

Director of Public Prosecutions for Northern Ireland v Lynch

 If one chooses to join an organisation known to use violence, one could not at a later
date shelter behind a defence of duress should members of the organisation compel
him to commit crimes

Mohamed Yusof bin Haji Ahmad v PP

 If accused of his own accord place himself in a situation by which he became subject
to threats of another person, whether threats may have been used towards him, the
provisions of this section do not apply

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