DIPLOMA OF INVESTIGATION AND ENFORCEMENT

GROUP ASSIGNMENT COVERSHEET

ISMAIL BIN HUSSIN V PP 1953 MLJ 48

PI100B

DPI 1213

INTRODUCTION TO CRIMINAL LAW

GROUP ASSIGNMENT

MISS EZYAN ERYANY BINTI ABU TALIB

14 DECEMBER 2020
 CONTENTS

INTRODUCTION

FACTS OF THE CASE

LEGAL ISSUES

JUDGEMENT OR DECISION BY THE COURT

RELATED PROVISION IN PENAL CODE

JOURNAL : MALAYSIAN JOURNAL OF LAW AND SOCIETY 2

CASE : ISMAIL BIN HUSSIN V PP 1953 MLJ 48

CITATION : [1953] 1 MLJ 48

JUDGE PANEL : FAZAL DIN V PUBLIC PROSECUTOR

JUDGEMENT DATE : 24 JANUARY 1953 (COURT OF APPEAL, CRIMINAL)

Intention is what is in a person’s mind and it is impossible to open his mind to find out what his
intention was. However, intention or mens rea can be inferred from the facts of the case. In deciding
whether the accused had the intention to kill, the obvious consideration of the facts are, the nature of the
injuries, the place of the injury and the number of injuries inflicted, the method of infliction, and the type
of weapon used. If the accused fired a gun at the victim’s heart or uses a dagger several times at the
heart, then it can be inferred that he had the intention to kill.
Ismail bin Hussin v PP the accused, q member of the Home Guard was convicted of the murder of
Omar, also a Home Guard and the attempted murder of Rifin. He claimed to have mistaken them for
terrorists. Omar died instantly from his wounds; Rifin was injured in the legs. The evidence was that the
accused saw a man shot him at close range. Obviously, he intended to kill. It may be that he did not
recognise Omar. It was highly unlikely that he had any premeditated design to kill anyone or even to fire.
The most probable explanations is that the accused saw a man and fired at once – on impulse – without
any conscious or reasoned thought. But however suddenly the intention was to kill. That amounts to
murder. As regards the shooting of Rifin, it is not unusual to fire a shot gun at a man’s legs to prevent
escape. Here there is definite intention not to kill. The conviction in respects of the injury to Rifin should
have been for causing grievous hurt and not attempted murder.
The case before prosecution-the appellant had shot Omar with malicious intention and on purpose. The
case before the defence - the appellant had not recognized Umar but instead mistaken him to be a
terrorist.
For HELD ; the accused argued that he did not fire on sight because he only shot after making the
challenge. since no one shouted so he released the shots. They gave instruction to the assessors based
on law ; if the accussed is satisfied that the recognized the deceased but still fired the shot, convict him
with murder. But if the accused thought that the victim whom he had shot was a terrorist, convict him with
CH and if the accused thought that the deceased was a terrorist and after making the challenge, shot and
killed him, then free the accused. Therefore, the accused was convicted for murder as he recognized the
deceased but still he shot the fire at him the accused later appealed.
At 1st Trial : The appellant had gone to the place with a friend & the victims were there too. Rifin also
fired 2 2 shots but with not effect. There was also evidence as to friction/ quarrel the appellant and the
victims several years ago but cannot be proven at that time. The appellant had challenged Omar but
received no answers. But his statement stated that he fired on sight and his statement prevailed.
Moreover, on appeal. The conviction was upheld but the court criticized the instructions given out by the
trial judge to the assessors : The distinction btw the life of the deceased as an ordinary person and the life
of terrorist is of lesser importance, very narrow instructions (if he knows the deceased then, liable for
murder, if he know he is a terrorist then liable for CH)
At 1st Trial : The appellant had gone to the place with a friend & the victims were there too. Rifin also fired 2
2 shots but with not effect. There was also evidence as to friction/ quarrel the appellant and the victims
several years ago but cannot be proven at that time. The appellant had challenged Omar but received no
answers. But his statement stated that he fired on sight and his statement prevailed. Moreover, on appeal.
The conviction was upheld but the court criticized the instructions given out by the trial judge to the
assessors : The distinction btw the life of the deceased as an ordinary person and the life of terrorist is of
lesser importance, very narrow instructions (if he knows the deceased then, liable for murder, if he know he is
a terrorist then liable for CH)
From Ismail bin Hussin that intention must be formed on the spur of the moment and that whilst
evidence of premeditation may support a conclusion that the accused intended to kill, it is not essential to the
conclusion. What then is the meaning of intention under the Penal code? Two main meanings may be
ascribed. First, the accused’s direct or primary aim or objective. Second, foresight that the prohibited result
is, for all practical purposes, inevitable.
Morgan is of the view that intention under the Penal Code should carry only the first meaning as s.
299(3) and s. 300 (d) already provide for cases where the mental state is one of knowledge. It is submitted
that there would be no merit in dealing with a case involving foresight of a virtual certainty as one of intention
rather than knowledge. Neither, would there be sense in attempting to draw a required by s. 300(d).
Furthermore, unless intention is given the first meaning it is hard to see what role is played by s. 300 (b)
S. 300 (b) combines the subjectives requirements of intention and knowledge in the second and third
limbs of s. 299. Consequently, murder under s.300 (b) is clearly narrower than the generic offence of
culpable homicide. Here the accused must not only intend a bodily injury but must also know that the
injury is likely to cause the victim’s death. An example, is illustration (b) to s. 300, where the accused
“knows that the particular person injured is likely, either from peculiarity of constitution, or immature
age, or other special circumstance, to be killed by an injury which would not ordinarily cause death” The
principle here is that one takes the victim as one finds him. In such a case there is no difficulty in
establishing causation and liability hinges on mens rea. Unless it can be inferred that the accused’s
direct objective was to cause death, he will not be liable under s.300 (a).
Court should have to comb the evidence or draw debateable inferences on such a point. It should have
appeared on the face of the deposition, in case the medical man was not available at the trial. If it was
overlooked then, it certainly should have been made good at the trial. The appeal is dismissed but the
minor conviction will be formally amended to one voluntarily causing grievous hurt by shooting and the

sentence therefore reduced to three years .

The accused argued that he did not fire on sight because he only
shot after making the challenge. since no one shouted so he released
the shots. They gave instruction to the assessors based on law ; if
the accussed is satisfied that the recognized the deceased but still
fired the shot, convict him with murder. But if the accused thought that
the victim whom he had shot was a terrorist, convict him with CH. And
if the accused thought that the deceased was a terrorist and after
making the challenge, shot and killed him, then free the accused.
Therefore, the accused was convicted for murder as he recognized
the deceased but still he shot the fire at him.
 JUDGEMENT / DECISION BY THE COURT

Based on the facts given, the issue of duplicity of charges, the Court Of Appeal ruled that the offence
is sentenced death penalty by the court. This duplicity could be struck down by Section 299 is provided
for in Section 304 which stated whoever commits culpable homicide not amounting to murder shall be
punished with imprisonment for life, or imprisonment for a term which may extend to twenty years, and
shall also be liable to fine, if the act by which the death is caused is done with the intention of causing
death, or of causing such bodily injury as is likely to cause death; or with imprisonment for a term which
may extend to ten years, or with fine, or with both the act is done with the knowledge that it is likely to
cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause
death.
When any person is sentenced to death the sentence shall direct that he be hanged by the neck all he is
dead, but shall not state the place where nor the rime the sentence is to be carried out is provided in
Section 277 of the Criminal Procedure Code.
Section 275 of the Criminal Procedure Code provides that where a woman convicted of an
offence punishable with death is with child the sentence to be passed upon her shall be a sentence of
imprisonment of life instead of sentence of death. By Section 3 of Ordinance 14 of 1953 a sentence of
imprisonment for life shall be deemed to be a sentence of imprisonment for twenty years.
Although the Malaysian Penal Code was originally derived from the Indian Penal Code, the Indian Code has
since been amended to provide in s. 302 the alternative punishment of life imprisonment instead of death .
Section 354 (3) of the Criminal Procedure Code of India (1973) provides that when the conviction is for an
offence punishable with death or, in the alternative with imprisonment for life or imprisonment for a term of
years, the judgement shall state the reason for the sentence awarded and in the case of sentence of death,
the special reasons for such sentence.
Article 5(1) of the Federal constitution provides no person shall be deprived of his life or personal liberty
save in accordance with law In Public Prosecutor Lau Kee Hoo, where a challenge was made as to the
constitutionality of the mandatory death penalty under Section 57(1) of the Internal Security Act, 1960, the
Federal Court (in a quorum of five judges) held that it is clear from Article 5 (1) of the Federal Constitution
that the Constitution itself envisages the possibility of Parliament providing for the death penalty so that it is
not necessarily unconstitutional. It further held that capital punishment is not unconstitutional. In their judicial
capacities, judges are in no way concerned with arguments for or against capital punishment. Capital
punishment is a matter for Parliament.
It is not for judges to adjudicate upon its wisdom, appropriateness or necessity if the law prescribing it is
validly made. Indeed in Lim Hang Seohy v Puclic Prosecutor, the Federal Court held that the trial Court
had no alternative but to pass the mandatory sentence of death although the offender was a boy of 14
years found in possession of a pistol and ammunition under Section 57 of the Internal Security Act,
1960 read with regulation 3 of the Essential (Security Cases) Regulations, 1957, as there was only one
sentence authorised by law for each of the offences and that is the sentence of death.
Thus, the court was in opinion that the punishment must not only deter the criminal from committing a
similar offence in the future but it must also deter others from committing such an offence this upheld the
conviction made by the court. The reason is the punishment inflicted for grave offences including the
crime of rape and murder should adequately reflect the revulsion felt by the great majority of society.
Punishment has to be sufficiently harsh and proportionate to the harm done, otherwise society will feel
that the punishment is manifestly inadequate. It must also reflect public disapproval of the care committed
by the appellant.
Thus, by looking at the facts before the learned Appeals Judge and his conclusions in his judgement,
the court can find no errors of law or facts, or that a wrong principle has been appealed or omitted or that
the sentence was manifestly excessive in respect of the facts of the case.
The appeal against sentence is dismissed.
 RELATED PROVISION IN PENAL CODE

Penal code section 300 - Except in the cases hereinafter excepted, culpable homicide is murder :
Section 300 (a) if the act by which the death is caused is done with the intention of causing death.
Section 300 (b) if it is done with the intention of causing such bodily injury as the offender knows to be
likely to cause the death of the person to whom the harm is caused.
Section 300 (c) if it is done with the intention of causing bodily injury to any person, and the bodily injury
intended to be inflicted is sufficient in the ordinary course of nature to cause death.
Section 299 (d) if the person committing the act knows that it is so imminently dangerous that it must in
all probability cause death, or such bodily injury as is likely to cause death, and commits such act without
any excuse for incurring the risk of causing death, or such injury as aforesaid.
Penal code Section 299 - culpable homicide . Whoever causes death by doing an act with the intention
of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.