MARCH 2018

PART C Q1

The issue in this case is whether Mak Mah can successfully plead the defence of
mistake for causing harm to David.

To begin, crime can be defined as an unlawful act or default which is an offence against
the public and renders the person guilty of the act or default liable to legal punishment. This
definition is being stated in Halsbury’s Law of England. Firstly, the element of criminal liability
that must be proven against akif is actus reus which means that a person has committed a
guilty act. In addition, actus reus does not only refer to an act but also includes an omission.
This is in line with Section 32 of the Penal Code where it states ‘words which refer to acts done
extend also to illegal omissions’. In this context, an omission means that a failure of a person to
perform a duty imposed by law on him. Thus, if he leaves out the duty, it will be considered
illegal for him as being explained in Section 43 of the Penal Code. The case that is related to
actus reus is the case of Rahanny Rojela v. Public Prosecutor whereby the accused was
charged under Section 302 of the Penal Code for stabbing Teto Chang at the deceased,
Reubes Mirontos until death. The court of Appeal agreed with the finding of the trial court that
the accused was guilty of murder as the element of offences were proven. Specifically, in terms
of actus reus, it had been proven based on the evidence given by the Prosecution Witness
(PW6) that he had witnessed the accused come and sit on top of the deceased then stabbing
him a few times at his chest. Furthermore, this was supported by the post mortem report
prepared by Dr Jessie (PW2) that the cause of death was because of the stab wounds to the
chest.

Secondly, an element of criminal liability that must be proven against akif is mens rea
which can be defined as a guilty mind or blameworthy mind. It can also be classified as the
mental element necessary for a crime. Offences which consist of these following words
“intention”, “knowledge”, “recklessness”, and “maliciousness” indicate the requirement of mens
rea. An example of mens rea is murder with intention which is in line with Section 302 of the
Penal Code, voluntarily causing hurt which is in line with Section 323 of the Penal Code and
causing death by recklessness or dangeruos drving according to Section 41(1) of the Road
Transport Act 1987. The case that is related to mens rea is the case of Norol Rojik Jun v Public
Prosecutor where the accused was charged under Section 302 of the Penal Code for
committing the murder of his neighbour. The deceased had rented a room on the second floor of
the Hup Seng building. The accused and his in-laws were staying as chief tenants and were
collecting rent on behalf of the landlord.

Thirdly, the defence of mistake can be seen in Section 79 of the Penal Code which
reads an act done by a person justified, or by mistake of fact believing himself justified by law.
Nothing is an offence which is done by any person who is justified by law, or who by reason of a
mistake of fact and not by reason of a mistake by law in good faith believes himself to be
justified by law in doing it. For a successful plea of this defence, there are several conditions
that need to be met. Firstly, a person must be induced by a mistake in committing a criminal act.
Next, the mistake must be of fact and not of law. Thirdly, the mistake is made in good faith.
Fourthly, the accused must mistakenly believe that he is justified by law in committing the
criminal act. The term good faith has been defined under Section 52 of the Penal Code to
mean “with due care and attention”. The case that is related to this issue is the case of
Chirangi v State of Nagpur AIR where the defence was successfully pleaded. In this case, the
accused had killed his son by mistake thinking that he was a tiger. The accused actually had
suffered from physical disabilities including bilateral cataract which impared his vision. The court
held that all that happened was that the appellant in a moment of delusion had considered that
his target was a tiger and he accordingly assailed it with his axe. He thought by reason of a
mistake of fact he was justified in destroying the deceased whom he did not regard to be a
human but who as he thought was a dangerous animal.

The application that is related to this situation is the element of actus reus is shown
when Mak Mah attacked David with a baseball bat which is in contradiction with Section 323 of
the Penal Code. Meanwhile, the mens rea cannot be proven in this situation as Mak Mah does
not have the intention or the mental element of crime against David. Moreover, when Mak Mah
thought that David was a burglar, she straight away attacked him with a baseball bat showing
that Mak Mah’s act was justified which is in line with Section 79 of the Penal Code. In addition,
her mistake was made in good faith and she believed that she was justified by law which
satisfies the condition to prove her defence. Relating with the case stated above, Mak Mah had
misinterpreted that David was a burglar, so this is considered as a mistake of fact that she was
justified to hit him. Hence, Mak Mah can prove her defence by stating that it was a mistake of
fact.

In conclusion, Mak Mah can argue under the defence of mistake as she has
complemented the conditions and in line with the provisions given.
(20 Marks)