Criminal notes

1) Non-fatal offenses

A) Wrongful restraint

Wrongful restraint is defined as keeping a person out of place where

he wishes and has right to go. Wrongful restraint is governed under s.399
of Penal Code. According to this section, wrongful restraint is one who
prevents/obstruct another whereby the latter is prevented from going in
the direction that he wishes to go. S.341 of Penal Code lays out the
punishment for wrongful restraint. Elements of wrong restraint are:
I) The accused obstruct a person
II) The obstruction prevented the person from proceeding in a
direction where the person has right to proceed
III) The accused voluntarily caused the obstruction

The first case to be looked upon is the case of Fateh Muhammad.

In this case, it was established that a person must be conscious of the
restriction imposed on him in order to constitute as wrongful restraint. It
is not valid if he was deprived while he was asleep. The next case is Haji
Gulam Mohamed Azam v Emperor. In this case, the accused who is the
landlord prevented his tenant from entering the room which the tenant
had rented from the accused. The accused was held guilty for wrongful
restraint. In the case of Madhab Chandra v Nalini, voluntary
obstruction of a vehicle in which a person is travelling in would amount
to the offence of wrongful restraint of the person in the vehicle. The last
case to be looked upon is the case of Emperor v Ram Lala. In this case,
the complainant was riding a bullock cart and was obstructed from taking
his cart through a passage but there were no obstruction for the
complainant to pass through the passage alone without the cart. It was
held that there was no wrongful restraint as he was not obstructed and
s.399 deals with offence affecting the human body and it expressly makes
it punishable wrongful restraint of any person and not of any
vehicle/anything of that sort.

B) Wrongful Confinement

Wrongful confinement requires total suspension and restraint. The

offence is concerned on the restriction of a person’s movement within an
enclosed space or building. The period of restriction is immaterial when it
comes to the wrongful confinement. S.340 of Penal Code governs
wrongful confinement where accused wrongfully confined another within
certain boundaries. S.342 of Penal Code provides the punishment for
wrongful confinement. The elements of wrongful confinement are;
I) The accused wrongfully restrained a person
II) The effect of such act prevented the person from proceeding
beyond certain circumscribed limits
III) The act was done voluntarily

Other related sections of wrongful confinement are s.343 till s.s.347.

The first case to be looked upon is the case of PP v Isa Bin Johnit. In
this case, it was established that wrongful confinement ends when the
victim chose not to escape despite having the opportunity to do so and
follow the wrongdoer instead. The next case is Lilabati Kanjilal and ors
v The State. In this case, it was established that there must be a voluntary
obstruction to a person so as to prevent him for proceeding in any
direction he so desire. The next case is Shamlal Jairam v Emperor. In
this case, a head constable detained some persons as suspects for several
days. They were not fettered but they were made to stay in circumscribed
limit. It was held that the head constable was guilty under s.340 of Penal
Code. It was established in this case that prof of actual physical
obstruction is not essential and it must be proved that there is an
impression on the person confined that he reasonably believe he was not
free to depart and that he would be forthwith restrained if he attempted to
do so. The next case is PP v Shatisruben Ithayakumar & Ors. In this
case it was established that in order to constitute wrongful confinement, it
must be proven that the victim could not proceed in any direction or
proceed beyond certain limits.

C) Kidnapping

S.359 of Penal Code recognize two forms of kidnapping which are

kidnapping from Malaysia and kidnapping from lawful guardianship.
S.360 of Penal Code deals with kidnapping from Malaysia and focus
upon kidnapping of adult. S.361 of Penal Code on the other hand deals
with kidnapping from lawful guardianship and establishes that
kidnapping can be committed on a child. S.363 of Penal Code laid out the
punishment for kidnapping. Elements of kidnapping a minor are:
I) The victim is a minor below 14 years old (male) or 16 years old
(female)
II) The minor was at that time lawfully entrusted to the keeping of a
guardian (refer explanation under s.361)
III) The accused took or enticed such minor out of such keeping
 IV) He took or enticed such minor without the consent of the
guardian

The first case to be looked upon is Syed Abu Tahir A/L Mohamed
Esmail v PP. In this case, the girl was a 13 years old and a minor. The
appellant brought her to a house where they stayed for 2 weeks. After
staying for one week, the appellant took her to his place of work and
raped her. After two weeks, the appellant brought her to a Chinese’s
house and raped her again. The court held that the appellant was guilty
under s.361 of Penal Code. This is due to the fact that the girl was a
minor and the appellant took her without the consent of her lawful
guardians which is her parents. It was established in this case that the girl
might have consented to go with the appellant but her consent was
immaterial for the commission of the offence under s.361 of Penal Code.
The next case is Neelakandan v PP. In this case, the comlainant was a 15
year old girl. One day she told her mother to send her off to the bus stop
because she wanted to go to school. After dropping her off in the bus
stop, she went to meet the accused instead of going to school where they
went to an old lady house and had sex. The accused was convicted for
kidnapping. It was established in this case that it is not necessary to show
the taking or enticement was done by means of fraud or force. Persuasion
by accused which creates willingness on the part of the minor to be taken
out of his lawful guardian is sufficient. Apart from that, this case also
established that the consent of the minor is irrelevant under s.361 of Penal
Code and the consent of the guardian is the one that is material in this
section. Last case to be looked upon is the case of Noraini Mat Zainal v
PP. In this case, the appellant was a nurse and she kidnapped an infant
from the hospital she worked and the infant was recovered from the
appellant house. The appellant was initially convicted under s.363 of
Penal Code but she successfully raised the defence of Insanity under s.84
of Penal Code because she was unsound mind at the time of the incident
thus she is incapable of knowing the nature of her act as an offence.

D) Abduction

When it comes to abduction, it must involve the use of fraud or force

upon the victim. The object of compulsion or deceit must be to cause a
person to go from one place to another. S.362 of Penal Code governs
abduction. It doesn’t create substantive offence thus it should be read
with s.364,365, 366 or 367 of Penal Code. S.364 of Penal Code deals
with abduction with the intention to murder. S.365 of Penal Code deals
with intent to cause the person to be secretly and wrongfully confined.
The elements needed to be fulfilled for this section are:
 I) Accused by force/deceitful means induces the victim to go from
any place
II) Accused intended that the victim should be kept in wrongful
confinement

S.366 of Penal Code on the other hand deals with abducting a women to
compel her to marry against her will, for prostitution and etc. S.367 of
Penal Code deals with abduct of a person to cause grievous hurt or
slavery.
The first case to be looked upon is PP V Wahab Bin Osman. In this
case, the appellant was charged with an offence under s.366 of PC for
abducting a women to compel her for marriage. The appellant during the
time of kidnapping had threatened the women that he will kill her unless
she married him. In the case of Pritam Singh v PP, the complainant was
a 17 years old girl and when she was on her way to cinema, the accused
invited her to get into a taxi and was brought to Penang for 1 month
where she was forced to have illicit intercourse with the accused and the
accused also induced her into prostitution. After one month, they went
back to Kl and the complainant continued her prostitution activities.
Initially the accused was convicted under s.366 of Penal Code. Accused
appealed and the appealed was allowed as the complainant was no longer
a minor. Apart from that it was also established in this case that if there is
any deceitful means then one will be liable for abduction. Last case to be
looked upon is PP v Shatisruben Ithayakumar & Ors. In this case, it
was established that the elements of abduction are the accused by force
and deceitful means induces the victim to go from any place and secondly
the accused intended that the victim should be kept in wrongful
confinement.

E) Extortion

If the question says the person is abducted and there is an element of

asking ransom then extortion will be one of the issue. Extortion is dealt
under s.383 - 389 of PC. If no money is taken or if someone called you
and threaten but it doesn’t instigate the fear in you then just use s.385 of
PC. The elements of extortion are:
I) Accused put complainant in fear
II) It was done dishonestly
III) Accused asked for something like money, land, title
IV) Accused must have intention
2) Sexual Offence

A) Rape

Rape is an act by which a man forcibly/fraudulently/by any other

acts defined by the law commits a sexual intercourse against a women.
Rape is penalized under s.375 of PC. The offence can only be committed
by male and the victim can only be a female. It must have been done
against her and without her consent. Other elements can be found in s.375
of PC. S.376 of PC deals with the punishment for rape. S.375B deals with
gang rape where a woman is raped by one/more in of group of persons
acting in furtherance to their common intention, each of the persons
should be deemed to have committed a gang rape within the meaning of
this section.
According to s.375 of PC, penetration is sufficient to constitute
sexual intercourse which is necessary to offence of rape. Penetration
happens when a man places his penis into a private part of a woman,
although only slightly and it is not necessary that there should be
complete penetration of penis with emission of semen and rupture of
hymen. Another important element needed to be looked upon in rape is
consent. S.90 of PC defines consent and among the things which is
deemed as not a consent under this section are a) consent given under
fear/misconception of fact b) consent given under intoxication/unsound
mind c) consent given by person under 12 years of age. S.90 of PC is
invoked when there is a fact in the question which shows that the consent
has been obtained where the victim has submitted to the sexual
intercourse. To rely on the defence of consent, accused must prove the
consent was obtained before the sexual intercourse. If the consent was
given, rape charge could be invalidated provided that it falls within s.90
of PC.
When it comes to mens rea for rape, s.375 of PC makes no reference
to any mens rea. So what if the accused invoke the defence of mistake,
like for instance assuming her consent or she is above 16 years old?
There are two approach to this. The first approach is the “Chapter IV
approach” where without mens rea, there can be no criminal liability. The
second approach is “presumption of mens rea approach” where in the
absence of any express statutory provisions, there is a clear presumption
that mens rea is implied.
The first case to be looked upon is PP v Mohamed Malek
Ridzhuan bin Che Hassan( for sexual intercourse definition). In this
case, the court established that the absence of semen inside the victim’s
vagina did not mean that there did not occur insertion of the respondent’s
genital into victim’s vagina. The presence of semen was not a
requirement by law in order to prove the offence of rape. For the offence
of rape, what was required is the penentration and not ejaculation. The
next case is Queen Empress v Gopala (for against the will v consent).
It was established in this case that “every act done against the will of a
person is done without her consent…an act done without the consent of
the person is not necessary against his will”. The next case is Augustine
Foong Boo Jang v PP (for consent). In this case, the accused is the
master of the complainant who is a maid. He established dominance over
the complainant as she dependant on him financially. The victim was
afraid of doing anything which might prejudice her position and her
employment when the accused raped her. The court held that it was not
too difficult to see why she did not resist perhaps as strenuously as had
been suggested she should have done. The next case is PP v Abdul
Rahman Mohamad (for consent). In this case, the accused was alleged
to have raped the complainant several times over a period of 3 months on
the pretext of employing spiritual medical treatment to cure the
complainant of some persistent ailments. The complainant consented to
repeated sexual intercourse because she believed that such act was will of
god thus if she didn’t submit to it then she would become insane or die.
The accused was convicted in this case. The next case is Tai Hwee
Hiong v PP (for consent). In this case, the victim believed in appellant’s
words and insistence that if the victim did not have sexual intercourse
with him then the victim would die. The appellant contended that the
victim had consented but the court didn’t allow the appeal and held the
victim did not give her consent. The next case is PP v Zainal Abidin Bin
Ismail (case for mens rea). In this case, it was established that offence
could not be committed if the essential intention was absent. The next
case is Sidek bin Ludan v PP. In this case, it was established that even
slightest penetration is enough to constitute the crime of rape. The next
case is Tasman Baharuddin v PP. In this case, the accused offered the
victim who is a 9 years old girl to ride on his motorcycle and he told her
that he was going to pick up victim’s mother at Jetty. The accused
eventually raped her and was sentenced to punsihment under s.367 of PC.

3) Inchoate offence/participation

A) Conspiracy

Conspiracy is an agreement between two or more person to do an

unlawful act or to do a lawful act by unlawful means. Criminal
conspiracy is dealt under s.120A and s.120B of PC. S.120A provides the
substantive offence of criminal conspiracy meanwhile s.120B of PC
provide punishment for the offence. In conspiracy, there should be an
agreement. Even if the offence or actual act didn’t happen, the agreement
is enough for the person to be liable. Unlike s.107B of PC, act is not
required to be committed and mere agreement is enough to constitute an
offence. It is not necessary for the conspirator to have been the party of
the wrongful agreement from the start, provided that at some stage before
the commission of the unlawful act he joins in the agreement of its
commission. It is also unnecessary for each conspirator to communicate
with each other as long as there is a design common to them. The
elements of s.120A of PC are;
I) Two or more persons
II) Agreed to enter criminal conspiracy
III) Intention to carry out the agreement

When it comes to the third element which is the intention to carry

out the agreement, the conspirators must have intended the offence does
not mean that each conspirators must do those acts that would constitute
to complete offence. What is necessary is that at the time of the
agreement, each conspirators should intend the crime to be committed
and that he will fulfill his role in the agreement.
The case to be looked upon is the case of NMMY Momin v State of
Maharashtra. In this case it was established that ‘the agreement to
commit crime, regardless of whether it was carried out or not, causes
criminal conspiracy to be attached to it thus making it an offence”. The
next case is PP v Khoo Bon Hock. In this case, it was established that
the essence of conspiracy was that a number of persons join toghether to
carry out their illegal purpose. The court further stated that s.120A is a
special provision dealing with group criminality and it permits the
imposition of criminal liability and punishment even tough the ultimate
planned harm has not been committed. In the case of Kannan s/o
Kunjiraman & Anor v PP, it was established in this case that in order
constitute to criminal conspiracy under s.120A, there must be an intention
to agree and also intention to carry out the common object of the
agreement.In the case of Yash Pal Mittal v State of Punjab, it was
established in this case that it is not necessary for all the conspirators to
know each and every detail of the conspiracy. The court further stated the
conspirators must act with one object to achieve the real end of which
every collaborator must be aware and in which each one of them must be
interested. In the case of Abdul Rahman & Ors v Emperor, it was
established that criminal conspiracy may come into existence and persist
so long as the persons constituting the conspiracy remain in agreement
and are acting in furtherance if the object for which they had entered the
agreement. The last case is Salem-ud-Din v State of Delhi. It was
established in this case that criminal conspiracy is like a running stream
where some persons join it in the beginning and others join it later. But
they are all parties to the general conspiracy.

B) Abetment

Abetment involves the participation of an abettor in the commission

of a crime but it is not essential that the abettor must actually involve in
the commission. Principle offender are the one who actually did the
crime. The rest who took part in the crime (e.g bought gun for the
principal offender/hold hands of the victim) is an abettor. S.107 of PC
govern abetment. S.107(a) of PC talks about instigation. S.107(b) talks
about conspiracy where actual act is needed unlike s.120A of PC. Apart
from that, s.107B doesn’t create an offence unlike s.102A and it should
be read with other sections such as s.302 of PC. S.107(c) of PC talks
about aiding. S.108 of PC illustrate who will be deemed as abettor.

C) I) Abetment by instigation (107(a))

Instigation means incitement, urging, giving incentive, stimulus or

spur. Mere suggestion, idea or create temptation is not a form of
instigation. The instigator must have active role in committing the crime.
When it comes to the actus reus for s.107(a) of PC, abetment by
instigation is complete soon as the abettor has instigate the person abetted
to commit the crime regardless whether the later consented to it or not
and whether he commits the crime or not. The offence of abetment by
instigation is complete when the offender by instigation is complete when
the offender communicate the offence even if the communication is done
through the 3rd party. One cannot be instigated if he was silent.
When it comes to the mens rea for s.107(a) of PC, the required mens
rea is intention or knowledge but it depends on the mens rea of the
instigator only and not dependable on the intention or knowledge of the
person abetted. It is not necessary that the person abetted need to have the
same guilty mind as the abettor and it is irrelevant the person abetted
should be legally capable of committing an offence. Refer s.108,
explanation 3 of PC for this.
The first case to be looked upon is the case of Parimal Chatterji v
Emperor. It was established in this case that the term “instigation’ is
defined as to provoke, incite, urge or encourage to do an act. Next is the
case of Haji Abdul Ghani Bin Ishak v PP. In this case it was
established that “instigation doesn’t mean placing temptation to do a
forbidden thing but actually stimulating a person to do it”. The next case
is PP v Datuk Haji Harun Idris & Anor. In this case, it was established
that advice can also become instigation if that advice was meant to
actively suggest or stimulate the commission of the offence. The next
case is Issac Paul Ratnam v The Law Society of Singapore. In this
case, a Singapore lawyer was charged with abetment by instigating
dishonest or fraudulent removal or concealment of property. He sent
letter to the general manager of company’s branch office in KL to
dishonestly remove cars and other movable property of the company. The
court held that the offence was committed when the accused handed the
letter to the general manager in KL. Accused will still be liable for
abetment even if the abetted person didn’t receive the letter. The next
case is Rajkumar v State of Punjab. In this case, it was established that
the defendant cannot instigate if he was silent. The next case is
Pratimma v Dutta. In this case, the mother in law and the husband
treated the victim cruelly and told her she is not worth living and better
she dies. The victim eventually committed suicide. The accused was held
liable in this case. The next case is PP v Datuk Tan Cheng Swee & Ors.
It was established in this case that in proving mens rea for the abetment, it
is said that there must be intention on the part of the abettor to aid and he
must be shown to have known the circumstances constituting the crime at
the time when he voluntarily did the positive act of abetment. Then in the
case of PP v Tee Tee Siong, it was established that silent role cannot be
deemed as instigation. In the case of Balakrishnan S v PP, the
commanding authority ommit his duty by being silent thus abetment is
proved.

B) II) Abetment by conspiracy (s.107(b))

Abetment by conspiracy is confined to conspiracies to commit an

offence where some further act required to be done pursuant to the
conspiracy. Unlike s.120A of Penal Code which deals with criminal
conspiracy, s.107(b) of Penal Code require an actual act to be committed
and mere agreement is not sufficient enough for the person to be liable
under this section. When it comes to s.107(b) of Penal Code, it doesn’t
create an offence and it should be read with other sections such as s.362
of Penal Code. The case of NMMY Momin v State of Maharshtra
underlines the elements of abetment by conspiracy which are the abettor
must engage with one/more other persons in conspiracy, the conspiracy
must be for doing of a thing abetted and an act or illegal ommission must
take place in pursuance to the conspiracy.
The first element under s.107(b) of Penal Code is the person abetting
must engage with one or more other persons in a conspiracy. According
to the case of NMMY Momin v State of Maharashtra, the Supreme
Court of India held that “Criminal conspiracy postulates an agreement
between two or more persons to do, or cause to be done, an illegal act or
an act which is not illegal,by illegal means”.Meanwhile in the case of Er
Joo Nguang and another v Public Prosecutor, both the appellants were
convicted for abetment to conspiracy to commit criminal breach of trust
where they deceived the victim into delivering goods valued at about
US$301,673.In this case, the trial judge established that as long as two
accused persons agree that they want to effect a substantive and as long
as one of them act in pursuance of that conspiracy, there is no reason why
they cannot both be charged for abetting each other by conspiracy to
commit that substantive offence. In the case of Lee Yuen Hong v PP,it
was established in this case that the essence of conspiracy is agreement
The second element under s.107(b) of Penal Code is the conspiracy
must be for doing of the thing abetted. The abetted act must be something
which is illegal or act which is legal but done in illegal means. In the case
of Chua Kian Kok v Public Prosecutor, the appellant was convicted for
abetting another person named Allen, who is the supervisor in victim’s
company, to cheat the victim into paying to the appellant partner’s
company under the mistaken notion that the payment was for the goods
order by the victim itself. The conspiracy in this case was to do the illegal
act which is to cheat the victim and that is what the appellant have abetted
Allen to commit.
The third element to be looked upon is an act or illegal omission
must have taken place in pursuance of the conspiracy. This was
ascertained in the case of Chua Kian Kok v Public Prosecutor where
abetment by conspiracy requires an act is done in consequence of the
abetment. Apart from that, it was also mentioned in the case of Loo
Weng Fatt v PP that one of the requirement to support a charge for
abetment by conspiracy is there must be some further act was done
pursuant to the agreement to do the criminal act. In the case of Sim
Cheng Hui and another v Public Prosecutor,the judge mentioned that
the Prosecution must show that there was “the existence of conspiracy to
do an illegal act, with the result that the illegal act which was the object
of the conspiracy was actually carried out”. When it comes to s.107(b) of
Penal Code, it is irrelevant that the principal offender who have been
abetted by the accused to be convicted for different offence from that of
which the accused was charged with abetting as long as an act is done in
consequence to the abetment. In the case of Ang Ser Kuang v Public
Prosecutor, the appellant suggested to one of the abettee to rob the
victim because he had a lot of gold and the appellant supplied all the
information on the victim to enable the abettee to commit the robbery
with several others. The robbery took place and the victim’s fingers were
cut during the incident thus the appellant was charged with conspiracy to
commit armed robbery with hurt despite there was no initial agreement
on using deadly weapon when the conspiracy was hatched.
The fourth element to be looked upon under s.107(b) of Penal Code
is there must be intention commit the illegal act in pursuance of the
conspiracy. According to the case of Gan Bee Hua v PP, it was
established in this case that the when it comes to mens rea of the abettor,
they have to be aware of the general purposes of the plot and it is
unlawful. Another case to be looked upon is the case of Maharashtra v
Abdul Aziz. This case established that mens rea is needed and the
prosecution must prove that the abettor had provided the assistant
intentionally or with knowledge.

C) III) Abetment by intentional aid (s.107(c))

Refer s.107 explanation 2 of PC which provides for this type of

abetment. The actus reus is assisting in commission of an offence by
either doing an act or illegal omission. Use back PP v Datuk Tan Cheng
Swee & Ors. It was established in this case that in proving mens rea for
the abetment, it is said that there must be intention on the part of the
abettor to aid and he must be shown to have known the circumstances
constituting the crime at the time when he voluntarily did the positive act
of abetment. The next case is Ram Nath v Emperor. In this case, it was
established that mere giving of aid will not make the act of abetment an
offence if the person who gave the aid did not know that an offence was
being committed or contemplated. The next case is Chua Kian Kok v
PP. It was established in this case that a person who abets by intentional
aid may be liable even tough the principal offence is not committed. The
last case is Abdul Rahim Hassan v PP. In this case, the second appellant
was held to be abetted by intentionally aiding the first appellant to
commit the offence by delivering 3 letters to the Jabatan Pengangkutan
Jalan which led to their deception and commission of the offence

D) Participation

S.108 of PC concerns with the definition of abettor. S.109 of Pc

concerns with punishment of abetment. S.110 of PC states although the
person abetted commits the principal offence with different intention or
knowledge from that of abettor, the abettor will still be liable for the
offence he had abetted which is commensurate with his intention. This
section should be read with s.111 of PC. There are 3 elements laid down
in s.111 of PC which are I) the accused abetted the commission of
offence, II) Act committed was under influence of such abetment and III)
Act done was the probable consequence of such abetment. Basically
s.111 of PC is doing of an act which is different from abetted. S.113 of
PC deals with the liability where the act done was the same as abetted but
the consequence or end result is different from what was expected. This
section should be read with s.111 of PC as well.
When it comes to joint liability, s.34 of PC should be referred. S.34
of PC is in effect a rule of evidence where whenever there is no direct
evidence available to prove the actual perpetrator, the common intention
is to be inferred from the fact and circumstances of the case. For instance,
If C wants to kill A and B could have stop it but he also wish A will die
thus even tough B didn’t do anything to kill A, he will still be liable
under s.34 of PC. Regardless of who gave the final blow, if everyone had
the same intention then everyone will be liable as if it was done by one
person alone. If one use s.34 for rape then it should be read with s.375B
and punishable under s.376(2) of PC. The elements of s.34 of PC are:
I) There must be a criminal act
II) Common intention between the parties
III) Participation in doing of the act
IV) Act done in furtherance of the common intention of the parties

The first case to be looked upon is the case of Mimi Wong v PP. In this
case, wife is the principle offender who stabbed the victim and the
husband merely hold the victim. The husband was still liable under s.34
of PC. The second case is Bashir v State. In this case, it was established
that if the conditions mentioned in s.34 of PC are fulfilled then each of
the persons or conspirators us responsible for the whole criminal act done
by all of them. In the case of Chota bin Abdul Razak v PP, the court
defined the joint liability as a regulation of evidence to conclude joint
responsibility for an act of criminal committed by amounts of people.
Besides, in the case of Shaiful Edham bin Adam and Another v PP,
the court had imposed liability on the people those who contributed or
participated to the criminal act even though their actus reus was not
proven. Furthermore, in the case of TehThiam Huat v PP, the court
explained that joint liability did not create a substantive offence as if one
of the several persons is acquitted, the rests may still be convicted.
In the case of Om Prakash v State (case for the 1 st element), the
court defines criminal act as an act that covers any conduct, deed, gesture
or word of any type on the part of an individual, no matter it is active or
passive, as long as it tends to give the support for the common design.
Thus, as mentioned in the case of Mimi Wong and Anor v PP case for
the 1st element), criminal act should be referred to all the acts done by
numbers of persons which cause the result in the subject matter of the
offence cumulatively. The activity done by different participants may be
not similar, but all of them must be acted in one way or the rests of the
participants must participate as well as engage in the crime.
In the case of Mahbub Shah v King Emperor (case for 2 nd
element), the court stated that there must be a prearranged plan and the
criminal act done must be in pursuant to the plan. Besides, the court went
on further and said that the common intention is inferred from the
circumstances and facts of the case as well as the conducts or the deeds of
the participants. Furthermore, in the case of Namasiyiam & Ors v PP
(case for 2nd element), although the court mentioned that common
intention needed a prior meeting of the minds as well as necessitates
several prior agreements, direct proof of a prearranged plan for the
commission of a crime is not necessary in every situation or case as
common intention may be developed on the spot and it needs not any
long interval of time between it to be required. As long as the commission
of the offence is commonly intended, the common intention of the
participants is proven because what is required to be established is the
meeting of the minds. Similarly, in the case of Bashir v State (case for
2nd element), the court held that prearranged plan is not necessary to be
proven, this is because it may be developed at any time before the actual
commission of the crime or on the spot.
In the case of PP v Tan Joo Cheng & Ors(case for 3rd element),
the court stated that Section 34 of PC requires real participation and
physical presence. While in the case of PP v Gerardine Andrew (case
for 3rd element), the court held that it is insufficient to prove mere
planning as the active or passive participation must be proven. Besides
that, in the case of Ibrahim bin Masod & Anor v PP (case for 3 rd
element), the court mentioned that accused may still be liable for his
participation passively in certain circumstances though he was absent.

E) Attempt

According to the case of State of U v Ram Charan, attempt is an

intentional act which a person does towards the commission of an offence
but which fails in its object through circumstances independent of the
violation of that person. Attempt is governed under s.511 of PC. S.511 of
PC doesn’t define an attempt and it only states what attempts are
themselves offences. S.511 of PC must be read with other provisions of
PC and it cannot stand on its own. S.511 of PC is only applies to offences
which are not covered by express provision. It only applies to offences
that are punishable with imprisonment and fine. The elements under s.511
of PC are the accused intended to commit an offence or attempt to cause
such offence to be committed (mens rea) and the accused did some act
towards the commission of that offence (actus reus).
When it comes to the mens rea, a person can only be convicted for
an attempt to commit an offence if he has the intention to commit that
complete offence. Although s.511 does not clearly indicates the
requirement of mens rea, judicial precedent expressly set such element.
This can be seen in the case of R v Mohan. In this case, it was
established that intent is an essential ingredient of the offence of attempt.
Meanwhile in the case of State of Maharashtra v Mohd Yakub, the
court established that the mens rea required to render a person liable for
an attempt to commit a crime is the specific intention to commit the
complete offence.
When it comes to actus reus which is the accused did some act
towards the commission of the offence, it is not easy to prove as it is not
entirely clear when an act constitutes an essential ingredient of “attempt”.
It must be shown that the act was done at any stage of the commission,
proximate to the commission of the offence and the accused must have
proceed beyond the stage of preparation. Mere preparation for the
intended crime before the actual commencement of the offence itself does
not amount to an attempt. Attempt to commit an offence can be said to
begin when the preparations are complete and the offender commences to
do something with the intention of committing the offence or a step
towards the commission of the offence.
There are several test to determine the proximity of an act with the
commission of an offence (actus reus). The first test is proximity test. To
fulfill this test, the accused’s action must be proximate to the completed
offence and he must be beyond the stage of mere preparation. In the case
of R v Eagleton it was established that an accused is not liable for an
attempt unless he or she is in a position to complete th ecrime almost
immediately.Meanwhile in the case of Thiangiah v PP, the court
established that the mere forming of an intention to commit a crime and
making a preparation for its commission are not a crime.“There must be
some further overt act on the part of the offender which is directed
towards the actual commission of the crime and which is immediately
and not remotely connected with the crime”. The next case to be looked
upon is the case of PP v Zainal Abidin bin Ismail. In this case,the
accused was charged with attempted rape. He laid on top of the
complainant with the intention of penetrating her but abandoned his plan
when he was unable to obtain erection. The court held that the act relied
on as constituting an offence must be more than an act preparatory to the
offence. Laying on top of her with his expressed intention of having sex
are enough in law to constitute an attempt of rape. Lying on top of the girl
is preparatory and an expressed intention to have sexual intercourse is an
attempt. The second test is the equivocality test. To fulfill this test, the
action must reveal with certainty the intention of the accused to commit
the offence. The case to be looked upon is the case of PP v Kee Ah Bah.
In this case, There was an appeal against the acquittal of the accused on a
charge of having been knowingly concerned in an attempt of fraudulent
evasion of export duty on 21 bags of tin ore . He had hidden the tin ore in
his car. He left the immigration check point at Johore Bahru causeway
and approached the customs checkpoint. When the car was about 10
yards from the check point, a customs officer signalled the accused to
stop. The accused reversed and a made a U-turn and escaped back into
JB. The car was discovered shortly afterwards still containing the tin
ore.The appeal allowed due to the fact that he had shown an irrevocable
intention to leave the country by presenting his travel documents at the
immigration counter before he went to the custom for checking.His
actions were more than preparatory actions. The third test is the “last act’
test. In order to fulfill this test, all the acts necessary to commit the
substantive offence must be done.Although this test is said to be rejected
by precedents, the existing provisions under s.307 suggested the
applicability of the test. Illustration (b) and (c) under s.307 of PC are
some of the acts which can fall under the test of last act. The case to be
looked upon is Awadesh Mahto v State of Bihar. It was established in
this cases that in cases of attempted murder by using firearms, no attempt
is committed until firearm is actually fired and the bullet missed the target
or the target didn’t die. Until then, pointing a loaded gun at someone can
be termed as an attempt to discharge a loaded gun.
The are kinds of impossible attempts to be looked upon. The first is
physical impossibility where it is physically impossible for the accused to
commit the offence, regardless of the means he adopted. Can refer
illustration (a) and (b) of s.511 of PC. When it comes to this kind of
impossible attempt, there is criminal liability for the accused. The second
type of impossible attempts is legal impossibility where the accused had
done everything he meant to do but, unknown to him, what he done did
not amount to crime (e.g accidentally stealing their own stuff). The third
kind is impossible through inepitude where the offence is impossible to
be committed due to the accused inability, inefficiency or he adopted
insufficient means. The first case to be looked upon is R v Collins (for
factual impossibility). In this case, the accused was held not liable for
attempted theft when he put his hand in empty pocket. The next case is
Walters v Lunt(for legal impossibility). In this case, the parents of a
child cannot be held liable for attempted theft for keeping the stolen good
(a tricycle) as the child is doli incapax due to reason of infancy under the
law. The last case is PP v Zainal Abidin (for ineptitude). In this
case,the accused was charged with attempted rape. He laid on top of the
complainant with the intention of penetrating her but abandoned his plan
when he was unable to obtain erection. It was established by the court in
this case that accused could be liable for attempting something which is
possible but failed because of his impossibility through ineptitude.

4) Crimes against property

A) Common Elements

“Property is defined as the generic term for all that a person has
dominion over according to the case of Re Earnshaw-Wall. Refer
s.22,23 and 24 of PC.

B) Criminal mischief

Criminal mischief is dealt under s.425 of PC (refer explanation 1 &

2). The elements of criminal mischief are:

1) Actus reus: Causes to the public or any person(either):

i. Any destruction of any property
ii. Any such change in any property so as to destroys or diminishes its
value or utility or affects it injuriously

2) Mens rea:Intention to cause or knowledge that he is likely to

cause wrongful loss or damage

Those who cause damage or destruction to property or diminishes

the value of the said property with intent or with knowledge could be held
liable under s 425 of PC. Definition of Criminal Damage cannot be found
under the Penal Code, but UK’s Criminal Damage Act of 1971, s1(1)
states as follows: “A person who without lawful excuse destroys or
damages any property belonging to another intending to destroy or
damage any such property or being reckless as to whether any such
property would be destroyed or damaged shall be guilty of an offence.”
Punishments for mischief is laid down in s.426 of PC till s.440 of PC.
The case to be looked upon is the case of PP v Zainal Abidin
Maidin. In this case, the respondents were charged for committing
mischief under s.427 of Penal Code as they were alleged to damage
appellant’s vehicle but were acquitted as the prima facie was not made.
C) Theft

Theft involves appropriation of a movable property belonging to

another person who is deprived of such possession without his consent or
against his will, and such appropriation is done with dishonest intention.
Theft is dealt under s.378 of Penal Code. The punishment for theft is laid
out in s.379, 379A and 380 of PC. The elements of theft are:

1) Actus reus:
i) Taking of a movable property (Explanation 1, s. 22),
ii) It was taken out of another person’s possession,
iii) Without his consent, and
iv) There must be movement of that property

2) Mens Rea: Dishonest intention (s.23 & 24 of PC)

The first case to be looked upon is the case of Raja Mohamed v PP

(for taking of movable property). In this case, the appellant, who was a
chemist employed by the Singapore Glass Manufacturers Co. Ltd., was
charged with theft of property in the possession of his employer under
Section 381 of the Penal Code. The appellant was convicted because he
moved property in order to such taking, without the owner’s consent. The
second case is Ward v PP (for taken out of another person’s
possession). The appellants were convicted of theft of certain
articles.They admitted taking the articles but had no criminal intention
and will return them. They also claimed that the owner had only been
deprived of possession of the articles for a short time. The court held that
temporary deprivation of possession of property is sufficient to constitute
theft. According to the case of Mehra v State AIR (for consent), the
court established that theft is not committed when a person consented to
the taking. The next case is Raja Mohamed v R (for there must be
movement of that property).Appellant was charged with theft of property
in the possession of his employer. He claimed that the property were
removed but they had not been removed out of the possession of the
company. Appeal dismissed and the court held that it is sufficient if the
person who formed such dishonest intention moves that property in order
to such taking; and it is not necessary to move that property out of the
possession of the other person. The next case is Thiangiah v PP (for
there must be movement of that property). Appellant was charged for
attempted theft. He was caught by the management of the estate at the
time he was loading the property into the car. The court held that there
was no attempt to commit theft as the act was still premature and still at a
preparatory stage. The judge suggested that if the management had
waited perhaps, until the appellant was about to leave the compound of
the estate, there might be attempted theft or even theft. The next case is
Munandu v PP (for dishonest intention). The accused plead guilty to
theft and he claimed that he was drunk at that time he took the bicycle by
mistake, thinking it was his.The court held that the accused really in good
faith and believing that the bicycle to be his property, then he did not take
it dishonestly and therefore did not commit theft. The next case is PP v
Ramiah (for dishonest intention). In this case, the three accused were
charged for house breaking and theft for removing a trunk which was in
the possession of the complainant. They argued that the complainant
owed one of them money and the trunk was removed to make the
complainant pay the debt. The accused guilty of the charge as a taking of
property as security for a debt is considered theft. The next case is Talha
v PP (for dishonest intention), it was established by the court that in
case of bona fide beneficial owner of property who takes such property in
good faith believing the property to be his cannot be convicted of theft.

D) Handling stolen goods

When it comes to handling of stolen goods, those who knowingly

deal, receive or handle goods that are stolen are punished. S.411 of Penal
Code deals with dishonestly receiving stolen property meanwhile s.410 of
Penal Code deals with stolen property. The expression "stolen property"
includes any property into or for which the same has been converted or
exchanged and anything acquired by such conversion or exchange
whether immediately or otherwise. The elements of handling stolen goods
are:
1) Actus reus (s 411 of PC)
I) the goods should first be construed as stolen – s410
II) the defendant must have either retained, received or accepted the
goods

2) Mens Rea: The defendant dishonestly kept the goods after

knowing or having a reason to believe that they were stolen.

E) Extortion

Extortion is dealt under s.383 till 389 of PC ( the main is 383, 384 &
385 of PC). s.383 of PC defines extortion. S.384 lays down punishment
for extortion. If no money is taken or if someone called you and threaten
but it doesn’t instigate the fear in you then just use s.385 of PC. There are
several elements need to be satisfied in order to constitute as extortion.
The first element is the accused put the complainant in fear of some
injury to the complainant or some other person. Injury is defined under
s.44 of PC which states injury means any harm illegally caused to any
person, in body, mind, reputation or property. It is important for the fear
of injury to be communicated through an act. This can be seen in the case
of Arjan Singh v PP where the court established tha the gist of the
offence of extortion was the putting of another person in fear of an injury
and to support the conviction, the intending extortioner must have done
some act with this intention. However in this case, the mere act or writing
and detaining letter which was undelivered does not amount to extortion.
Then in the case of Beh Tuck Seng v R, the accused implied threat via
words to destroy the stall of hawker to collect protection money was held
as extortion. The court stated that it is clear that the complainant was put
in fear and that he was induced thereby to hand over his money to the
accused. According to the case of PP v Kang Siew Chong, the threat to
exercise a legal power in an illegal manner is an “injury” within the
meaning of s.44 of PC. Another case to be looked upon is the case of
Meer Abbas Ali v Omed Ali. In this case, the plaintiff was guilty of
extortion as he had a very great influence that may affect the
complainant’s position in the Small Cause Court Judges.
The second element is the act must be done with intention. (no case).
The third element is the accused has induced that person to deliver to any
person any property or valuable security, or something signed or sealed
which may be converted into a valuable security. Valuable security is
defined under s.30 of PC. In the case of Tan Chin Keng v PP, the court
held that an offence is incomplete if there has been no delivery of
property. In the case of Chinniah v PP, the court held that the extortion
consist of two act which are one putting in the fear of injury and the other
of taking delivery of property.
The last element to be fulfilled is the accused did so dishonestly. It
must be proven that the accused had intended to cause wrongful gain and
wrongful loss under s.24 & 23 of PC irrespective whether it is actual or
otherwise.

F) Robbery

Robbery is dealt under s.390 of PC. In all robbery there is either

theft or extortion. S.392 of PC laid out the punishment for robbery. S.391
on the other hand lay out the definition of gang robbery. S.395 of PC lay
out the punishment for gang roberry. According to the case of Karali
Prasad Dutta v East Indian Railway Company, Robbery is described
as a felonious taking from the person of another or in his presence against
his will, by violence or by putting him in fear. The elements of robbery
are:
A) For by way of theft
1) The accused had committed theft
2) The accused voluntary cause or attempt to cause any person -
death,hurt, or wrongful restraint or instant death
3) The accused did so “for that end”
4) The accused did so voluntarily

B) By way of extortion
1) The accused had committed extortion
2) The extortion committed in the presence of the person put in fear
3) That person was put in in fear of instant death, of instant hurt, or of
instant wrongful restraint to that person or to some other person, and, by
so putting in fear, induces the person so put in fear then and there to
deliver up the thing extorted. ( The fear must have caused the delivery of
the property which may have been delivered to any other person besides
the person who applied the violence.)

The case to be looked upon is the case of Bishambhar Nath v

Emperor. In this case, the court held that the word “for that end” in s.390
of PC clearly mean that the hurt caused by the offender must be with the
express object of facilitating the committing of theft, or must be caused
while the offender is committing the theft or is carrying away or is
attempting to carry away the property obtained by theft. In the case of
Nga Po Thet v Emperor,the court held that the essence of robbery is that
the offender uses violence in his attempt to commit theft. The use of
violence to escape while abandoning the property is not a robbery. Such
violence would not be in the commission of the theft. Then in the case of
Kalio Kerio, the accused abandoned the property obtained by theft and
threw stones at his pursuer to deter him from continuing the pursuit, he
was found guilty of theft and not robbery. In the case of Karuppa
Goundan v Emperor,the court established that the hurt contemplated
must be a conscious and voluntary act for the purpose of overpowering
resistance on the part of the victim.
There are several cases to be looked upon when it comes to gang
robbery. In the case of Dambarudhar Injal v State AIR, it was
established that the word “conjointly” refers to united or concentrated
action of the persons participating.The mere presence of the accused
amongst the robbers is not sufficient. The accused must be shown to have
conjointly committed robbery or aided such commission.