Table of Contents

Scenario 2
First Main Issue 3
Sub-Issue 1 3
Sub-Issue 2 6
Second Main Issue 8
Sub-Issue 1 8
Sub-Issue 2 11
References 13

1
Scenario

Upon Eidul Fitri celebration, Farhan who was living in Johor with his small family,
journeyed to his wife's hometown in Kelantan. They experience a long and terrible traffic jam that
inevitably makes people depressed. Following a dreadful seventeen hours of driving, a pink Hello
Kitty Myvi appeared out of nowhere and began driving so recklessly that it nearly struck Farhan's
car. This forced Farhan to apply an emergency brake in order to prevent a collision with the
vehicle. Sadly, the driver's action resulted in a slight bump on the baby’s head, who was being
carried by his wife, after being struck on the dashboard. The driver simply carried on with her
journey without even uttering apologies. Since he was an overprotective father and hot-tempered
man, Farhan cursed and was resentful of the anonymous driver the entire way back to his
hometown.

After arriving in his wife's hometown, Farhan discovered that the "Hello Kitty Car" driver
was actually the neighbour's grandchild. Thereafter, he told Dylan, his wife's nephew, about what
happened on their trip, and Dylan became enraged as well. Farhan later asks Dylan to buy some
firecrackers to warn the woman. Unknown to anyone, Dylan has unsettled matters with Bahiyah
too, the reckless driver. This leads Dylan to think it is a good chance to get revenge on his behalf
by using Farhan as a person to do the offence. Therefore, he agreed to help Farhan by intentionally
buying “mercun bola”, which is among the most dangerous firecrackers.

As night fell, Farhan and Dylan carried out their plan, which began with Dylan ringing a
bell in front of Bahiyah's door to trick her into believing someone was coming. When he heard the
sound like Bahiyah approaching, he ran, and Farhan took his turn, quickly throwing the "mercun
bola" into the house fence. Unintentionally, it landed right on the person standing in front of the
door. It turns out that she is not the woman they're resentful of, but rather a five-year-old little girl,
one of Bahiyah's nieces, who excitedly approaches the door.

The unfortunate little girl was rushed to the hospital and found to have been in a coma for
twelve days. It was getting worse when her index and ring fingers of her right hand almost severed
plus, her face partially burned due to the proximity distance with the firecrackers that had
exploded. Discuss the liabilities of the parties involved.

2
First Main Issue

● Whether Farhan can be liable for causing grievous hurt by dangerous weapons or means
under section 326 of Penal Code?

Sub-Issue 1

● Whether Farhan had done acts towards the commission of causing grievous hurt by
dangerous weapons or means?

Grievous hurt is particularly defined under section 322 of Penal Code as whoever
voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause
is grievous hurt, and if the hurt which he causes is grievous hurt, is said “voluntarily to cause
grievous hurt”. This was categorised under result crime which the prohibited result is a must.
Whereby, the medical evidence is a must to be presented before the court to show that the injuries
inflicted are grievous hurt which are not merely temporary, but rather it is permanent. The actus
reus of grievous bodily harm also has been re-examined by the courts in recent years. In DPP v
Smith (1961)1 grievous bodily harm was described as “really serious harm”.

The accused's actus reus is determined by proving two things. The first is that the accused's
action caused grievous hurt, and that the hurt caused was any kind of grievous hurt as defined in
section 320 of the PC. There were several limbs to discuss in relation to the above scenario.
Section 320, limb (e), defines grievous hurt as destruction or permanent impairment of the powers
of any member or joint, and limb (f), which includes permanent disfigurement of the head or face,
also falls under grievous hurt. The remaining limb is limb (h) of section 320, which also defines
grievous harm as any harm that endangers life or causes the sufferer to be in severe bodily pain for
ten days or more or unable to carry on his ordinary pursuits.

1
DPP v Smith [1961] AC 290

3
 Section 326 of the PC must be reviewed when it comes to the accused person's act of
inflicting harm by using a dangerous weapons or methods. It states that whoever, except in the
case provided by section 335, voluntarily causing grievous hurt by means of any instrument for
shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to
cause death, or any scheduled weapon as specified under the Corrosive and Explosive Substances
and Offensive Weapons Act 1958, or by means of fire or any heated substance, or by means of
any poison or any corrosive substance, or by means of any explosive substance, or by means of
any substance which it is deleterious to the human body to inhale, to swallow, or to receive into
the blood, or by means of any animal, shall be punished with imprisonment for a term which may
extend to twenty years, and shall also be liable to fine or to whipping. Furthermore, Corrosive and
Explosive Substances and Offensive Weapons Act 1958 further define "explosive substance" shall
be deemed to include any materials for making any explosive substance and any bomb, grenade,
apparatus, machine, implement or material used or intended to be used or adapted for causing or
aiding in causing any explosion in or with any explosive substance and any part of such bomb,
grenade, apparatus, machine or implement. Thus, section 42 of this act stated any person who
unlawfully and maliciously uses or attempts to use any corrosive substance or offensive weapon
for the purpose of causing hurt, or causes or attempts to cause by any explosive substance an
explosion of a nature likely to cause hurt, shall, whether any hurt has actually been caused or not,
be guilty of an offence and shall on conviction be liable to imprisonment for a term not exceeding
seven years, and to whipping.

It is also relevant to see which part of the body is inflicted by the injury as illustrated in the
case of Vasu Dev3, where the injury was inflicted by the accused person with a sharp object on the
victim’s abdomen and later, he was charged for causing grievous hurt. The court held that whether
the injury endangers life depends on the place where the injury was inflicted. Since the abdomen
is a vital part of a human being thus, it endangers life.

2
Section 4 of Corrosive and Explosive Substances and Offensive Weapons Act 1958
3
Vasu Dev (1982) 21 Delhi Law Times 312

4
 The victim's duration of detention, during which he or she was unable to perform ordinary
duties, can also be considered. As in the case of Sahat v Hj Berahim4, the complainant was kept
in the hospital for 20 days, which the court interpreted as proof that he was unable to carry out his
ordinary pursuits. However, in subsequent cases, confinement in a hospital does not imply that the
victim was unable to pursue his normal activities. Whereas public prosecutors must prove it not
only for those who are easily capable of carrying out their normal activities but choose to remain
in hospital.

In the case of R. Yoganathan v. PP5 as well, in which the appellant faced charges pursuant
to section 326 of PC. In this instance, the court determined that the victim was unable to perform
his money-lending duties for the first six weeks after suffering a finger injury. Given that the
victim's employment was one of his regular activities, the fact that his finger injury kept him from
working as a moneylender for 20 days was enough to qualify the injury as "grievous hurt" for the
purposes of Penal Code section 320(h).

By applying all the rules to the scenario, it can be seen Farhan had causes grievous hurt as
he know and intended that his act was likely to cause grievous hurt as stated in section 322 of PC,
towards the little girl where the ‘mercun bola’ that inflicted to the girl was causing her suffer a
permanent injuries throughout her life where both of her finger lost plus a bigger harm is about a
disfigurement of her face as mentioned in section 320 of limb (e) and (f). In addition, the Farhan
act that results in the twelve-days coma also prevents the little girl from doing her ordinary pursuit
such as routine such as eating, drinks, urinating and playing as an ordinary little girl like others
that illustrate in limb (h) of the same section. It is undeniably that the means uses by Farhan,
“mercun bola” was specifically mentioned under Corrosive and Explosive Substances and
Offensive Weapons Act 1958 as a dangerous weapon that the wrongful usage of it can be charge
punish under section 326 of Penal Code or under the section 4 of the specific act itself.

4
Sahat v Hj Berahim (1888) 4 Kyshe 337
5
R. Yoganathan v. PP [1999] 4 SLR 264

5
 By examining the affected area of the young girl's body, it was determined that it was also
a vital part, just like in the case of Vasu Dev, whereby her face was partially burned as a result of
the proximity explosion of firecrackers. As a result, Farhan can be charged with voluntarily
causing grievous hurt. Because the little girl was only a small five-year-old child who was hurt by
dangerous means, the injuries were undoubtedly more severe than those sustained by an older
person who had more strength and endurance or was less severely affected than her, a little girl,
which could result in a coma and other prolonged treatment. As previously mentioned, she must
suffer numerous losses in her right to pursue her regular activities as a student who attends
kindergarten every day, plays, and socializes with others due to her 12-day coma detention in the
hospital. Moreover, keeping in mind that the majority of kids are more perceptive and sensitive in
their social circles and enjoy comparing themselves with others. Perhaps she will become less
motivated to attend school in the future if she discovers that she has a disability. In contrast to her
other friend who has ten fingers and a good-looking face, but she lost both of her fingers plus burn
scars on the face. It may finally be the source of her mental illness. The period of twelve days of
comma is sufficient to show that the accused, Farhan was found liable for causing grievous to this
unfortunate girl for causing endangers in life and prevent her from ordinary pursuit as same what
had been held in the case of Sahat v Hj Berahim6, R. Yoganathan v. PP and section 320 limb (h)
of Penal Code.

In conclusion, Farhan undoubtedly had done acts of causing grievous hurt by dangerous
weapons or means to the five-year-old girl.

Sub-Issue 2

● Whether Farhan has a specific knowledge to cause grievous hurt by dangerous weapons or
means towards the victim?

6
Sahat v Hj Berahim (1888) 4 Kyshe 337

6
 The mens rea of the accused person while he commits the crime also need to be considered to
make the person liable to be charged to cause grievous hurt by dangerous weapons or means
towards the victim. As far as explanation of section 322 Penal Code is concerned, the intention
not the sole factors of mens rea, but rather knowledge also accountable. The mentioned section
explanation stated that a person is not said voluntarily to cause grievous hurt except when he both
causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is
said voluntarily to cause grievous hurt if, intending or knowing himself to be likely to cause
grievous hurt of one kind, he actually causes grievous hurt of another kind.

The essential of knowledge of the accused person is further illustrate in the case of Hyam
v DPP7 where the accused, Hyam, had a relationship with a man before it ended. Because she was
jealous of her ex-bf's new fiancée, she later poured petrol into the victim's box and lit it with a
rolled-up newspaper. The resulting fire killed two young children, and she claimed that her only
intention was to frighten the victim, not to kill anyone. Lord Hailsham, one of the judges in this
case, ruled that intention could also exist if the defendant "knew there was a serious risk that death
or serious bodily harm would result from his acts and commits".

By applying all of the rules to the scenario, it is clear that Farhan had the mens rea for the
offence of grievous hurt at the time he was aware that the “mercun bola' was the most dangerous
weapon or means that was used, but he continued to use it. These were found liable for the offence
of voluntarily causing grievous hurt, as illustrated in the explanation of section 322 which states
that knowledge is sufficient. The case of Hyam v DPP is applying to our scenario in which the
accused was held liable of grievous hurt even if she claimed she just wanted to give warning to the
victim. However, she is aware that pouring petrol will accelerate the spread of the fire and may
cause more harm. Similarly, Farhan claimed that his intention to throw the dangerous firecracker
was simply to serve as a warning to Bahiyah, who drove recklessly, causing minor bumps on his
baby's head. However, as an ordinary layman, the danger of “mercun bola” is foreseeable and
known, which can cause a large explosion and, to some extent, severe injuries or, most likely,
death. Instead of using the dangerous means, there were many ways to warn the resentful woman,

7
Hyam v DPP [1975] AC 55

7
Bahiyah, such as shouting in front of her house or talking face to face with her, yet he continued
to make terrible decisions. Farhan may thus be held liable for causing grievous hurt.

Nevertheless, there were several other factors to consider when determining a person's
mens rea. The accused person's prior knowledge of the offence is the first and most important
factor to consider. As previously stated, Farhan had knowledge and foreseen what could be caused
by the explosion of the 'mercun bola', but he decided to use it over other options to warn the
woman, and it is sufficient to charge him under section 322 of the PC, which states that he is
voluntarily causing grievous hurt when he both causes grievous hurt and intends or knows himself
to be likely to cause grievous hurt. Furthermore, the accused's motive can be investigated to
determine whether there was a reason for committing the crime. In terms of the scenario, the
objective is simply to warn Hello Kitty Car drivers who drive recklessly but without due care and
intention. The next factor to consider is the means used. Farhan illegally used a dangerous weapon
known as 'mercun bola', which was defined as explosive substances. under Corrosive and
Explosive Substances and Offensive Weapons Act 1958 and be punished by that act. Finally, the
factor of pre-arranged plan can be taken into account, as Farhan and Dylan had planned ahead of
time the way to carry out the offence when night falls. As a result, there was good planning,
motivation, knowledge, and it is foreseeable regarding the dangers of the weapons or means used
by. To summarize, Farhan has specific knowledge of how to cause grievous harm to the victim
using dangerous weapons or means.

As an overall conclusion of the first main issue, Whether Farhan can be liable for causing
grievous hurt by dangerous weapons or means under section 326 of Penal Code.

Second Main Issue

● Whether Dylan could be charged under section 107(c) of Penal Code for abetment by
aiding to voluntarily cause grievous hurt by dangerous weapons or means committed by
Farhan under section 326 of the Penal Code.

8
Sub-Issue 1

● Whether Dylan performs the actus reus of being the abettor to Farhan in committing a
crime?

To begin with, abettor could be defined through section 108 of Penal Code “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.” It could be said that the abettor is the one who
facilitates, assists or helps the accessory in committing a crime with having the similar knowledge
or intention to commit such offences. Nevertheless, this provision shall be read together with
explanation 28 of the mentioned section where “to constitute the offence of abetment, it is not
necessary that the act abetted should be committed, or that the effect requisite to constitute the
offence should be caused”. In short, the abettor and the abetted person may be distinct in terms of
intention to commit such crime to make the abettor liable for abetment.

In addition, referring to section 107(c) of Penal Code where it stated that “a person abets
the doing of a thing who is intentionally aids, by any act or illegal omission, the doing of that
thing.” It must be read together with explanation 2 to section 107 of Penal Code states that “to
aid means to facilitate the commission of the act.” When a person purposefully assists or lends aid
by performing an act, that person is considered to have abetted in the commission of the offence,
the offender must engage in some active behaviour, and the act must be completed as a result.
Thus, a person who directly aiding the perpetrator in committing the planned crime and it includes
those who done any act that may facilitate the commission of a crime by another shall be
considered as an abettor and shall be punished with a similar punishment as to the principal
offender just like stated in section 326 of the Penal Code in which “whoever, except in the case
provided by section 335, voluntarily causing grievous hurt by means of any instrument for
shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to

8
explanation 2 of section 108 of Penal Code

9
cause death, or any scheduled weapon as specified under the Corrosive and Explosive Substances
and Offensive Weapons Act 1958, or by means of fire or any heated substance, or by means of
any poison or any corrosive substance, or by means of any explosive substance, or by means of
any substance which it is deleterious to the human body to inhale, to swallow, or to receive into
the blood, or by means of any animal, shall be punished with imprisonment for a term which may
extend to twenty years, and shall also be liable to fine or to whipping”. In short, a person who
facilitates the principal offender in committing a crime prescribed in the mentioned section shall
be considered as acting the same thing, thus, sharing the same punishment.

Moreover, according to the case of Chuan Keat Chan9, the principal set out facilitating the
commission of an act either prior to or during the commission of an act may also amount to aiding.
It shall be seen in this case that any assistance performed by a person before or at the time of the
commission of the crime shall be considered as aiding. Furthermore, in the case of Ong Ah Yeo
Yenna v PP10, it was decided that proof of the offender's guilt must be provided for the person
who assisted. The word "aid" was used to imply that the act it helped was carried out. In other
words, the abettor's liability is dependent upon the primary offender's liability. Since it depends on
the specific crime that the abettor intentionally assisted with, if the principal offender is found
guilty of it, the abettor may also be found guilty of abetment by purposeful aiding. Therefore, the
actual abetted crime shall be occurred to constitute abetment by aiding.

By applying section 108 of Penal Code by cross refer to the explanation 2 into the
scenario, it could be said that Dylan had fulfilled the qualification of being the abettor by aiding
Farhan in committing such offence even though he had a different intention in helping Farhan to
execute their plan. Essentially, illustrating section 107(c) of Penal Code read together with
explanation 2 to section 107 of Penal Code into the scenario, it could be seen how Dylan bought
the firecrackers pursuant to the request of Farhan in order to give warning to the neighbour proves
some active conduct that was required in abetment by aiding. Not only that, there is no doubt in
saying that Dylan had actively in charge in facilitate the commission when he was the one who
ring the bell of the neighbour and right after he heard the sound of a person coming, he ran and

9
Chuan Keat Chan Ltd v PP [1972]
10
Ong Ah Yeo Yenna v PP [1993]

10
then Farhan threw the firecrackers right on the fence that somehow close enough to cause grievous
hurt to someone near them which turns out to be five-year-old little girl, one of Bahiyah's nieces,
who excitedly approaches the door. Therefore, such continuation of assistance made by Dylan
proves how it was considered as a vital conduct that produce the prohibited result which is an
element in fulfilling the abetment by aiding offences since a mere intention to facilitate, even
coupled with an act calculated to facilitate, is not sufficient to constitute abetment, unless the act
which is intended to facilitate actually takes place and is facilitated thereby.

Along with it, demonstrating the case of Chuan Keat Chan Ltd v PP [1972], Dylan
specifically bought the "mercun bola" and gave it to Farhan in this scenario, which takes place
before the crime was committed. The worst case scenario is that he was there to help him trick
Bahiyyah into leaving the house at the time of the injuries. It proves how he was there since
beginning in ensuring the success of the plan. In addition, pertaining to the case of Ong Ah Yeo
Yenna v PP [1993] it was seen that the assistance performed by Dylan producing the act or offence
committed by Farhan had perfected the requirement of abetment by intentional aiding when the
actual crime must be committed. Therefore, once Farhan threw the ‘mercun bola’ towards the
fence, the help of Dylan in ringing the bell of the house will make him liable for abetment.

In conclusion, Dylan had performed the actus reus of being the abettor to Farhan in
committing a crime by buying firecrackers and assisting him in ringing a bell of the victim to
deceive her.

Sub-Issue 2

● Whether Dylan possesses a mens rea of an abetment by aiding Farhan in committing such
offence?

11
 Referring to the case of Emperor v Faiyaz Hossein, a landlord lent a house to a Police
Officer who was investigating a case, knowing that the house would be used for torturing a
suspected thief. Thus, he was guilty of abetment as if he was facilitating the policeman in
committing a crime.11 This case shows how by allowing the furtherance of the crime despite having
the knowledge of it may result in that person being the abettor of the crime. In addition, referring
to the case of PP v Datuk Tan Cheng Swee where the principle set out was when an abettor
voluntarily performs an act of help, the prosecution must demonstrate both the abettor's desire to
aid and his knowledge of the conditions that constitute the crime.12 Thus, a person cannot be
prosecuted for abetment, that is, for purposefully assisting or facilitating the commission of an
offence if he provided assistance without knowing that an offence was being committed or
planned. Furthermore, it could be illustrated in the case of PP v Dato Hj Harun Bin Hj Idris where
the rules set out were combining and agreeing to commit an illegal conduct in order to achieve an
illegal goal through an illegal means is known as aiding and abetting by conspiracy.13 Thus, it
shows when a person had conspired in committing a prohibited conduct to achieve a prohibited
result may lead a person as having the intention of aiding the principal offender to execute the
actual crime. In short, the abetment by conspiracy may somehow show the evidence of a person
having an intention or knowledge to aid the abetted person.

By applying Emperor v Faiyaz Hossein into the scenario, it could be said that Dylan firstly
had intention to abet Farhan by aiding since he had a prior motive when agreeing to buy the
‘mercun bola’ as he believed it could satisfy his past revenge towards Bahiyyah through Farhan.
Apart from it, there is no doubt in saying that he had a knowledge that his act of assisting Farhan
in buying the explosive substance to ring the bell of the house may have caused injuries to the
supposed victim which is Bahiyyah since that is what was intended by Farhan in the first place.
This makes him to fulfil the part of mens rea of committing a crime. In addition, referring to the
case of PP v Datuk Tan Cheng Swee, into the scenario where Dylan had a desire to help Farhan
in executing the offences where he had the prior unsettle matters with Bahiyyah that led to a
different motive or intention to caused injuries to her and he surely aware of the possible

11
Emperor v Faiyaz Hossein
12
PP v Datuk Tan Cheng Swee
13
PP v Dato Hj Harun Bin Hj Idris

12