CRIMINAL LAW I

LAWS 2310

LECTURER'S NAME: ASSISTANT PROFESSOR DR MD. ZAHIDUL ISLAM

SECTION 1

GROUP 1

NO. NAME MATRIC NUMBER

1. YUVERAAJ PILLAI 2117387

2. AHMAD ZAIM SUHAIL BIN AHMAD MUJAHID 2128329

3. AMIR HAFIZ BIN AZIZAN BAQI 2122945

QUESTION
Ah Chong, a 48-year-old man is a licensed hunter. On the school holiday, he brought his 20-
year-old son, Abang and 16 years old daughter Kim to Kampung Sg Ujong as it is one of the
famous places to visit due to its beautiful river. The place also provided a specific spot for
the hunters to hunt wild boars. When they arrived, Pak Tam, the head of the village
welcomed them and brought them to their cabin. He alerted Ah Chong and his children to
not go to the river at night because there was a rumour saying that there was a ‘Pontianak’
taking a bath there.

The next morning, Ah Chong prepared himself to go to the hunting ground with his rifle and
some traps. However, he forgot to bring his glasses as he suffered from short-sightedness.
He only realised it after arriving at the hunting ground which is 5KM from their
accommodation. He believes it was okay for him to hunt without his glasses as he did not
see anyone except him on the hunting ground. He quickly set up the trap and waited for the
wild boar to come near it. After a few hours, the trap caught Abam, a villager who was trying
to find several herbs to make medicine. Ah Chong heard the sound of the trap and quickly
released a shot believing that it was a wild boar. He walked towards the trap and was
shocked when he saw Abam bleeding. He quickly took Abam to the nearest hospital for
treatment.

At night, Abang and Kim felt bored because their father was still not at home. Abang filled his
time with playing video games in his room. Kim, on the other hand, went to the river to take a
bath. She ignored Pak Tam’s words as she did not believe such superstition. Nearby the
river, there was Mak Ngah, a so-called famous exorcist in the village. She saw a girl with
long hair until her waist taking a bath at the river. She believed it was the ‘Pontianak’ but in
fact, it was Kim. She used her crossbow and shot the figure causing death to the figure.
Later, she found out it was not ‘Pontianak’ but a normal human being.

In another event, the police officers form Police Station of Kampung Sg Ujong received an
order from the court to arrest a murderer named Abang Todak hiding in the village. The
police officers were provided with his picture and they were instructed to check all the house
and buildings in the village. When the police knocked on Ah Chong cabin's door , Abang
opened it and felt uneasy seeing the police officers in front of their cabin. The police officer
asked some reasonable questions to him and Abang answered them nervously. Judging by
the way Abang replied, the police officers suspected him for hiding something and they
found out that Abang has the same name and facial features as the murderer Abang Todak.

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They later arrested Abang and brought him to the police station. Unfortunately, it was found
out after the investigation that Abang is not the murderer.
Because of these:
1. Abam wanted to take action against Ah Chong for grievous hurt under Section 320
of the Penal Code.
2. Ah Chong wanted to take action against Mak Ngah for murder under Section 300 of
the Penal Code
3. Abang wanted to bring an action against the police officers for wrongful confinement
under Section 340 of the Penal Code.

Advise whether the defense of mistake under Section 76 or Section 79 of the Penal Code
can be raised by the offenders.

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ANSWERS:

ISSUE 1
Whether Ah Chong can raise the defence of mistake of fact under Section 79 of the Penal
Code.

RULES & APPLICATION

‘Mistake’ was not defined in the Penal Code. Thus, we may refer to the case of Weerakon v
Ranhamy which suggested that a mistake of fact is a misconception as to existence of
something which in reality does not exist. Section 79 of the Penal Code provided that
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 of law in good faith believes himself to be
justified by law in doing it. From this provision, it can be understood that defence of mistake
under Section 79 of Penal Code can be raised when the accused believed that the act done
by him is a mistake of fact and not of law and he believed the act was done by him was done
in a good faith and justified by law. There being no Code definition of what ‘justified by law’
means in relation to Section 79, the courts have held that an act which is not prohibited by
law is justified by law based on the case of Abdullah v R [1954] MLJ 195.

Firstly, the mistake must be one of fact and not of law as has been required by Section 79 of
Penal Code. In the Supreme Court of India case of State of Bombay v Jaswantrai Manilal
Akhaney AIR 1956 SC 575, the accused was charged with criminal breach of trust for
transferring the securities of a pledger bank. The defence under Section 79 was applied
provided that the accused 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 he believed in good faith that the
pledger bank was indebted to his bank. Next in the case of Kochu Muhmmad Kunju Ismail
v Mohammmad Kadeja Umma AIR 1959 Ker 151, the accused was charged with the
offence of bigamy invoked the defence of Section 79 on the ground that he mistakenly
believed in good faith the law of divorce had dissolved his first marriage. The court accepted
the defence, reasoning that, had the facts as the accused reasonably believed, he would
have been justified in remarrying.

Applying the rules into the current situation, the mistake made by Ah Chong was a mistake
of fact as he mistakenly believed that the one he shot was a wild boar. He made a mistake
believing that the one he shot was a wild boar that had been caught in a trap set by him but
actually it was Abam. This is because the trap that was set by him was on the hunting
ground and he did not see anyone except him when he started to go hunting.

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Secondly, for the defence under Section 79 to be applied, the accused must have mistakenly
believed that he was justified by law to do the criminal act. In the case Abdullah v R [1954]
MLJ 195, the courts have held that Section 79 justified by law means an act which is not
prohibited by law is justified by law. In the case of Bonda Kui v. Emperor AIR 1943, the
conviction was set aside as she was protected by section 79 that she thought that she was,
by a mistake of fact, justified in killing the deceased who she did not consider to be a human
being but a thing which devoured human beings.

Applying the case of Abdullah v R, Ah Chong action can be said justified by law since he is
a licensed hunter and doing his hunting on the specific area of hunting. Thus, shows that it
was a permissible act and not prohibited by law. Applying the Bonda Kui case, Ah Chong
action by a mistake of fact, justified in killing the deceased who he did not consider to be a
human being but a wild boar that has been caught in his trap.

The last element is that the accused had acted in good faith. In understanding the meaning
of good faith, Section 52 of Penal Code provides that nothing is said to be done or believed
in good faith which is done or believed without due care and attention. For example, in the
case of Chirangi v State of Nagpur [1952] Nagpur 282 where the accused was charged
for killing his son while hunting. In determining whether the accused had exercised due care
and attention in making a fatal mistake, the court took into account his physical disabilities
and due to his disabilities, he mistook his son for a tiger. The court held that the evidence
sufficient to prove that the appellant state of mind on that time he committed the offence was
in a good faith thought that the object was a tiger and was not his son. He thought that by
mistake of fact he was justified to kill the thing which he thought was the tiger but turned out
it was his son.

Applying the case of Chirangi into the current issue, it shows that Ah Chong has acted in
good faith as he really believes that when he heard the sound of a trap that was set up, he
quickly released a shot believing that it was a wild boar. It also must be noted that Ah
Chong, who was a licensed hunter, did his hunting activities in the hunting area which are
specifically for the hunters to hunt wild boar and not just some random forest. Ah Chong also
had already checked the surroundings when he wanted to set up traps. In relations with the
Chirangi case, the physical disabilities of Ah Chong that suffered from short-sightedness
vision must also be taken into account which the court in Chirangi case look at the state of
mind at the time of he commits the offence was in good faith thought that the object was a
tiger and not his son. The similar principle can be applied here when Ah Chong had
mistakenly believed in good faith that the one he shot was a wild boar and not the villagers.

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Another application that can be argued here is that Ah Chong did not act in a good faith
because despite being well aware that he forgot his glasses as he suffered short
sightedness, he decided to continue his hunting activity. Reasonably, he should go back to
take his glasses as it is only just 5 KM from their accomodation, since without his glasses he
knows that it affects his vision in hunting and that can lead to unfortunate incidents just like
what happened to Abam. In the case of PP v Mohd Amin bin Mohd Razali, the court
rejected their argument on the grounds that they are well educated and sufficiently mature to
understand what their religious militant leader was getting them to do. Here, Ah Chong is a
48 years old licensed hunter and surely with experience should have known better that it is
not safe for him to continue his hunting without considering the safety measures the
surrounding and consequences of his actions that go the hunting without wearing glasses.
Thus , it shows that Ah Chong did not act with due care and attention.

CONCLUSION

In conclusion, Ah Chong may raise the defence under Section 79 of Penal Code because he
mistakenly believed in good faith that the one he shot was a wild boar. However, if we are
going to apply the second application on the ground of good faith, he may not succeed in his
defence as he does not acted in good faith.

ISSUE 2

Whether Mak Ngah can raise the defence of mistake of fact under Section 79 of the Penal
Code?

RULES AND APPLICATIONS

A person who has committed an offence is still liable for such offence even if he is ignorant
of the law. As decided in the case of Mohd Ibrahim v. PP [1963] 29 MLJ 289, his physical
act shows that he had a guilty mind by putting the books under the counter. Consequently,
his defence on this ground was dismissed.
Both sections 76 and 79 of the Code address mistakes of fact and not law. Section 76 is
limited to situations in which a person is legally compelled to perform an act wherelse
Section 79 applied to members of the general public.

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Section 79 of the Penal Code states ‘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
of law in good faith believes himself to be justified by law in doing it.’ In the case of PP v.
Khoo Cheh Yew & Anor (1980) 2 MLJ 235 at the High Court, based on the facts of the
case the accused had no guilty mind thus quashed the convictions. The judge of the Federal
Court was of the opinion that a mistake as to law with regards to importation of goods
originating from South Africa is a mistake of law and not of fact.

Applying Section 79 of the Malaysian Penal Code to the above situation, it can be presumed
that Mak Ngah may have acted due to mistake of fact, because she thought Kim is the
"pontianak" that the rumour was all about.

Thus, the act of shooting Ki with a crossbow was justified by law where she was under the
mistaken belief that it was a pontianak. Contrasting the case of Khoo Cheh, in this situation
mistake of fact can be derived as it is not an offence to strike upon a ghost/ pontianak under
penal code, thus it is not mistake of law, hence Mak Ngah should not be held guilty if all
three conditions of mistake of fact are fulfilled.

There are some elements that need to be fulfilled in order to raise defence mistakes of fact
under Section 79. The following conditions must be satisfied;

a) The state of things believed to exist would if true, have justified the acts done; b) The
mistake must be reasonable c) The mistake must relate to fact and not to law. In the case of
Bonda Kui v. King Emperor 43 CLJ 787 There are some elements that need to be fulfilled
in order to raise defence mistakes of fact under Section 79. The court held that the accused
was not guilty as it was done due to a mistake of fact.

The first condition when applied is fulfilled as Mak Ngah's action would be justified because
she assumed there was a possibility of being attacked if she did not do so first. The second
condition is also fulfilled as it is reasonable to believe that a girl with long hair until her waist
taking a bath at the river is the "pontianak" in the point of view of Mak Ngah who has been
made to believe so after hearing countless stories about a "pontianak" in the village. The
final condition is also fulfilled as we can see here there is a mistake of fact according to the
facts of the case, fearing the pontianak , Mak Ngah shot Kim with a crossbow thinking that it
was a pontianak since it is not an offence to harm or hurt a ghost.

The other condition to be fulfilled is that the act must be done in good faith. Section 52
mentions that “Nothing is said to be done or believed in good faith which is done or believed
without due care and attention” while Section 26 states that “a person is said to have

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“reason to believe” a thing, if he has sufficient cause to believe that thing, but not otherwise”.
In the case of State v Ram Bahadur Thapa [1960] Cri LJ 1349 it was decided that good
faith requires due care and attention as mentioned in the section 52 of IPC but there can be
no general standard of care and attention applicable to all persons and under all
circumstances.applying this to the current case,Section 5 2 : It can be inferred that Mak
Ngah shot Kimi in a good faith by believing it was an evil spirit. Section 26: It could be said
that Mak Ngah has a strong reason to believe that it was an evil spirit despite a human as a
reasonable person won't be bathing in the river in the middle of the night.

The final condition is that bound by law, it has to be believed to be bound or justified by law.
Section 76 deals where persons are bound or believe themselves to be bound by law. Under
both of the sections, there must be a bona fide intention. In the case of Chiranji v. The
State (1952) AIR Nag 348 the defence of mistake of fact was applied and therefore the
accused was not held responsible for the offence of killing his own son ashe was into a belief
that there was a tiger that was approaching towards him.

Applying to the current case, Mak nagh acted under bona fide intention as she actually
wanted to attack the pontianak that she assumed was bathing in the river in the middle of the
night.

CONCLUSION

In conclusion, Mak Ngah may raise the defence of mistake of fact under Section 79 of the
Malaysian Penal Code for shooting Kim with a crossbow causing death and may be
pronounced not guilty as the three elements of Section 79, which are mistake of fact, Act
must be done in good faith and bound by law, justified by law or believing to be bound or
justified by law , may be fulfilled.

ISSUE 3

The third issue is whether the police officers can raise the defense of mistake of fact under
section 76 of the Penal Code?

RULES AND APPLICATION

Mistake of fact can be defined as a misconception as to the existence of something which is
really does not exist based on the case of Weerakon v Ranhamy. Section 76 of the Penal

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Code stated that nothing is an offence which is done by a person who is, or who, by reason
of a mistake of fact and not by reason of a mistake of law, in good faith believes himself to
be, bound by law to do it. It explains that a person can raise the defense of mistake of fact
when he believed the act that was done by him was done in a good faith and it was bound
by law. Bound by law means that person has a legal duty to do the criminal act. There are
three elements in raising the defense of mistake.

Firstly, there must be facts. The mistake must pertain to factual matters not a legal one as
what has been provided under section 76. This can be looked in the case of Arumugam v R
where the appellants and the third person (police force members) were convicted of an
offence for moving rice without a permit. It was held that the convictions were quashed on
the ground that the appellants mistakenly believe that the third person was acting in bona
fide. The mistake in this case appears to be mixed of fact and law.

Applying the rules, the mistake done by the police officers is a mistake of fact as they made
a mistake regarding Abang’s identity. Based on the case of Arumugam v R, the mistake
made by the police officers were mistake of fact because they arrested Abang believing that
he was Abang Todak who was the murderer in which they need to capture. This is because
Abang face is similar with Abang Todak’s face based on the picture given to the police.

Secondly, for section 76, the accused must believe that the act he committed was bound by
the law. The accused believed that he had the obligation to perform the conduct complained
of. For example, in the case of Emperor v Gopalia Kallaiya where the accused, a police
officer arrest a person mistakenly believed him to be the person mentioned in the warrant
even though reasonable inquiries were asked. The court decided to dismiss the charge
against him (wrongful confinement) based on section 76. Next, in the case of Niamat Khan
v Empress where the case is relating to a soldier who had been unlawfully order by his
superior to do criminal act. In this case, it was held that unless the actual circumstances are
of such character that he may have reasonably entertained the belief that the order was one
which he was bound to obey, he will be criminally responsible. It means that he will not be
responsible if he can prove that the actual circumstance of such character that he may
reasonably believe that the order was the one that he needs to obey.

Applying the case of Emperor v Gopalia Kallaiya, we can say that the police officers have
the reason to believe that their act in arresting Abang is bound by the law. This is because
they mistakenly believed him to be the murderer Abang Todak in the report given to them. In
addition, both Abang and Abang Todak have the same facial features and name based on

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the picture given to the police. Next applying, the case of Niamat Khan v Empress, the
police officers can prove saying that their act in arresting Abang is bound by the law as they
received a warrant from the court to arrest the murderer Abang Todak who is hiding in the
village. In this situation, the police officers are not criminally responsible for arresting Abang
because they were bound by law as they must obey to the court order.

The third element is the accused must act in good faith. The meaning of good faith can be
looked in section 52 which is done or believe with due care and attention. For example, in
the case of PP v Mohd Amin bin Mohd Razali where the court rejected their submission
claiming that they had in good faith, believe that they were engaging in lawful military training
with the Malaysian Armed Forces. This is because they are well educated to understand
what their religious militant leader was getting them to do.

Applying the case of PP v Mohd Amin bin Mohd Razali, we can say that the police officers
have acted in a good faith as they really believe that they arrested Abang Todak instead of
Abang. This is because Abang has the same features with Abang Todak in the picture given
to them. Reasonably, the police will really think that Abang was the murder. In addition, the
officer had arrested him with due care and attention provided under section 52 because
before arresting Abang, they asked him with some reasonable inquiries, but Abang
answered their questions nervously which make the police officers to suspect him as the
murderer.

CONCLUSION
In conclusion, the police officers can raise the defense of mistake under Section 76 of the
Penal Code because they had mistakenly believed that Abang is the murderer Abang Todak