APRIL 2009 PART B QUESTION 1

The first issue in this case is, whether Dr Dee can raise defense under duress when he
carried out the abortion procedure for Mary after Andy threatened to kill him when he refused to
do so.

Section 94 of the Penal Code provides for the defense of duress. Section 94 states that
except for murder and offences against the state punishable with death, 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.

Duress is best viewed as an excuse in that the accused has done wrong but is exempted
from blame on the basis his conduct is excused given the overwhelming evil with which he was
threatened. It is not necessary for the duress to induce such a status of fear that mens rea is
negated. The crucial point is that the accused is not blameworthy and therefore liability is
inappropriate.

There are six aspects that need to be considered in order to raise the defense of duress.
The first aspect is the restrictions on defense. As stated in section 94, the defense of duress is not
available in relation to offences of murder and offences punishable with death under Chapter VI
of the penal code. The offences under Chapter VI which are punishable with death concerned
about the waging of war and against the person of Yang Dipertuan Agong and Yang Dipertua
Negeri. In this problem, the offence which committed by Dr Dee is outside the scope of Chapter
VI. The second restriction is the defense is not available to those who voluntarily placed
themselves in situations where they become subject of the threats. In Mohamed Yusof bin Haji
Ahmad1, it was observed:

If the accused of his own accord place himself in 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.

1
(1983) 2 MLJ 289
Applying Mohamed Yusof bin Haji Ahmad in this problem, Dr Dee did not voluntarily put
himself in which he became the subject to Andy’s threat but it was Andy who came to his clinic
and threat to kill him if he refused to carry out the abortion. So, it can be said that Dr Dee passed
the first aspect.

The second aspect that needs to be considered in duress is the threat must be of death. In
the case of Tan Hoi Hung v PP2, the court held that, the threat must be of death. Any threat of
extreme torture or serious injury short of death will not suffice. Apply this case in Dr Dee’s
situation; Andy threatened to kill him if he refused to carry out the abortion. Thus, Dr Dee
passed the second aspect in duress.

The third aspect that needs to be looked is the threat of death must be instant. In Tan
Seng Ann v PP3, appellant and four Chinese were detained while travelling in a car. As a result of
a key found on his person, the appellant led the police to his house, unlocked the door with the
key found and pointed to the police inspector a revolver lying concealed in a cupboard. At the
trial, in a statement from the dock, he stated that two 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 the house, took him in the car when they were stopped and arrested by the
police. In supporting his conviction, the Court of Appeal concluded that there was nothing on
record to suggest that duress was present or continuing when the appellant went out in the car
with the other Chinese. Applying this case in this problem, the threat of death by Andy towards
Dr Dee’s was not instant as Andy was unarmed at that time and he told Dr Dee that he hidden his
gun nearby. That’s mean, in order for Andy to kill Dr Dee, he must be first get his gun in which
he has hidden. So, Dr Dee will have enough time to run or to seek for help. Thus, Dr Dee may
not pass the third aspect.

The fourth aspect that need to be considered is threat must present and continuing at the
time of committing the offence. In the case of Mohamed Yusof bin Haji Ahmad v PP4, the
appellant was convicted of trafficking in dangerous drug. He claimed that he had been forced to
do so by a Thai man who had threatened him with a pistol and told him to carry two bags of
cannabis across the border into Malaysia. If he obeyed, he would be paid RM400; if he
2
(1966) 1 MLJ 288
3
(1949) 15 MLJ 89
4
(1983) 3 MLJ 167
disobeyed he would be shot. In the present case, apart from being threatened by the Thai of being
shot, he also followed him on foot by keeping a distance of 20 feet or so away. The court held
that, although according to the appellant the Thai was about 20 feet away from him when he last
saw him, the presence of some people there, not to mention the four police personnel (then not
known to the appellant), considered with the facts, rendered the duress no longer imminent,
extreme or persistent. Applying this case in Dr Dee’s situation, it can be argue that the threat by
Andy towards Dr Dee actually was not present and continuing as Andy did not have the gun with
him. So, Dr Dee may not pass the fourth aspect that need to be considered in duress.

The fifth aspect that needs to be considered is threats must be directed at the accused
himself. Threats to kill one’s wife, children, parents and so on will not suffice. In this case, the
threat by Andy was directed to Dr Dee himself. So, he may pass the fifth aspect.

The last aspect that needs to be considered is threat is objective in character. The accused
must reasonably apprehend instant death. The fear must be well-founded by the sort of threat that
would also make the reasonable man apprehend death. Again, in the case of Mohamed Yusof bin
Haji Ahmad v PP5, there was no express threat of death but rather to ‘shoot at’ the accused. It
was held that ‘a pistol shot at or near the vital part of the body normally results in instant death’.
The accused in this case had reasonably apprehended death. Apply this case in this problem, we
can assume that Dr Dee had reasonably apprehended death when Andy threat to kill him if he
refused to carry out the abortion. Hence, Dr Dee may pass the last aspect that need to be
considered in order to raise defense under duress.

In conclusion, Dr Dee may not raise defense under duress as he did not pass all the aspect
that need to be considered in order to raise defense under duress.

The second issue in this problem is whether Mary can raise defense under necessity when
she went to Dr Lee to undergo abortion because of fearing that her father would kill her.

Section 81 of the Penal Code defines the defense of necessity. This section provides that
nothing is an offense merely by the reason its being done with the knowledge that it is likely to
cause harm, if it be done without any criminal intention to cause harm, and in good faith for the
purpose of preventing or avoiding other harm to person or property. Section 81 can be separated
5
(1983) 3 MLJ 167
to three elements and in order to succeed under the defense of necessity, all these elements must
be fulfilled.

The first element that needs to be fulfilled is nothing is an offense merely by reason that
it is likely to cause harm. Applying it in this problem, Mary knew that seeking abortion means
that she will harm the foetus as it will cause the foetus to die. However, just by knowing that it
would kill the foetus does not rendered her liable for the offense committed. So, Mary has passed
the first element. The second element is nothing is an offense if it is done without any criminal
intention to cause harm. However, in this problem, Mary has intention to cause harm to the
foetus when she seek abortion after she was pregnant out of wed lock. She intended to kill the
foetus to cover the pregnancy. Thus, it can be said that she did not passed the second element of
section 81. The third element in section 81 is, nothing is an offense that is done in good faith for
the purpose of preventing or avoiding other harm to person or property. In this problem, if we
applying the third element literally towards Mary, she may passed the element as she was
seeking for abortion because based on his father characteristics, she was sure that he will kill her
if he know about the pregnancy. So, it can be concluded that Mary passed only two out of the
three elements in section 81. Thus, basically she cannot succeed under the defense of necessity.

However, the following aspects also must be considered in necessity. Firstly, that there
was a situation of necessity in that there was a threatened harm to person or property. Secondly,
that it was of such a nature. Thirdly, it was so imminent as to justify the accused’s action. This
was explained in Stephens; Digest of Criminal Law (9th edition) as follows:

An act which would otherwise be a crime may in some cases be excused if the person can
show that it was done only in order to avoid consequences which could not otherwise be
avoided, and which if they followed would have inflicted upon him and upon others
whom he was bound to protect inevitable and irreparable evil, that no more harm than
was reasonably necessary was inflicted for that purpose, and that the evil inflicted by it
was not disproportionate to the evil avoided.

Applying these aspects and the explanation by Stephens in Mary situation, the consequences of
situation in which she try to avoid that is to prevent herself from being killed by her father,
actually can be avoided if she did not engaged in pregnancy out of wed-lock in the first place.
But, whatever happened cannot be reversed. However, still, she still can avoid herself from being
killed by her father. In this problem, although her father is a fierce person, it was also stated that
he was a religious person. So, being a religious person, he should know that he should not kill
her own daughter. Mary, together with her boyfriend Andy can ask for forgiveness from her
father instead of killing the foetus. So, the three aspects and the explanation by Stephen further
supported that Mary cannot apply the defense of necessity.

In the case of United States v Holmes6, the accused with 8 other seaman and 32
passengers were in overcrowded lifeboat. Fearing that the boat would sink, he threw 16
passengers overboard. The crew was directed ‘not to part man and wife, and not to throw over
any woman. There were no other principles of selection.’ The next morning, the survivors in the
boat were all rescued. The jury found the accused guilty on the judge’s following directions:

We are asked, not to extenuate but to justify the act. The case does not become ‘a case of
necessity’ unless all ordinary means of self-preservation have been exhausted. The peril
must be instant, over-whelming, having no alternative but to lose our own life, or to take
the life of another person. Whether or not ‘a case of necessity’ has arisen, or whether the
law under which death has been inflicted has been exercised as to hold the executioner
harmless, cannot depend on his opinion, for no man pass upon his own conduct when it
concern the right and especially, when it affects the lives of others.

Gour; Penal code of India, Vol 1 (7th ed) 1961 pointed out that the principles that can be
derived from these cases are:

a) Self-preservation is not a defence of necessity;

b) No man has right to take another’s life to preserve his own;
c) There is no necessity that can justify homicide.

So, apply the case of United States v Holmes in this problem, Mary cannot raise the defense of
necessity as she want to abort the foetus for her self-preservation which in this situation is to
avoid her father from killing her. Thus, Mary most probably will fail under the defense of
necessity.

6
26 Fed Cas 36
 The last issue in this problem is whether Andy can raise defense that he only abetted Dr
Dee to carry out the abortion as he is not the one who carry out the procedure and kill the foetus.

Section 107 of the Penal Code stated that a person who abets the doing of a thing include
person who instigates any person to do a thing. In this issue, Andy instigates Dr Dee to carry out
the abortion when he threatened to kill Dr Dee if Dr Dee disobeyed his order.

Section 108 of the Penal Code stated that a person abets an offence who abets either the
commission of an offence, or the commission of an act which would be an offence, if committed
by a person capable by law of committing an offence with the same intention or knowledge as
that of the abettor. Illustration (b) of Section 108 stated the following:

A instigates B to murder D. B in pursuance of this instigation stabs D. D recover from the

wound. A is guilty of instigating B to commit murder.

Applying illustration (b) in this issue, because of the instigation by Andy, Dr Dee carried out the
abortion and as the consequence killed the foetus. It is clearly stated in illustration (b) that Andy
is guilty of instigating Dr Dee to kill the foetus. Hence, it can be said the Andy cannot raised
defense under abetment as abetment is clearly a crime by itself.

All in all, Dr Dee, Mary and Andy cannot raise defense for their offence and they may be
liable for the charge imposed to them.