CHAPTER 9:

GENERAL DEFENCES
 MEANINGS AND CONCEPT OF
“DEFENCES”
The right of private defense, also known as the right to self-defence, is a legal concept in
Malaysia that allows a person to use force against another person to protect their body or
property.

When it applies: The right of private defence applies when someone's personal safety or
the safety of another person is threatened, or when someone's property is threatened by
theft, robbery, mischief, or criminal trespass.

Limitations: The right of private defence is not absolute and has several restrictions. For
example, there is no right of private defence if there is time to seek help from public
authorities. The right of private defence also does not extend to inflicting more harm than is
necessary for defence.
Types of Defences

Private Defen Consent Necessity

ce
(ss. 87-92) (s. 81)
(ss. 96–106)

Superior Ord Mistake Accident

ers
(ss. 76 & 79) (s. 80)
(s. 76)

Duress Unsoundness Intoxication

of Mind
(s. 94) (ss. 85-86)
(s. 84)
PRIVATE DEFENCE

SECTIONS 96 – 106
OF THE PENAL CODE
Extend of the Private Defence

 Persons & property – ownself;

and
 Persons & property – other persons.
Situations of the Private Defence

 Reasonable force – not exceed the limit.

 Pre-emptive attacks – not necessarily the person being
attacked first. No rule that he has to retreat.
 Mistake as to self-defence – mistake of facts.
 Intoxication & self-defence – self intoxication ~ no defence.
 SECTION 96
OF THE PENAL CODE

Scope: everything done in the

exercise of the right of private
defence is not considered as
an offence.
 SECTION 97
OF THE PENAL CODE

 Every person has the right to

defend:
1. Himself or any other person;
against any offence affecting the
human body / property.
 SECTION 98
OF THE PENAL CODE

 The right to defence himself from

the prohibited actions taken:
1. by the person who is under the
unsoundness of mind.
2. Under the misconception of the
facts.
 ILLUSTRATION
‘A’,under the influence of madness,
attempts to kill ‘B’. ‘A’ is not considered
as committing any offence. ‘B’ in the
material time, has the same right of
private defence which he would have if
‘A’ were sane.
 SECTION 99
OF THE PENAL CODE

 No right of private defence if;

1. There is an ample time to recourse
protection of the public authorities.
 A person has a right of private defence in
doing his tasks as a public servant.
 The defence can only be exercise for the
purpose of defence and nothing beyond
that.
 SECTION 100
OF THE PENAL CODE
 The right to defend the body can extend to
cause death if:
1. The consequence of the assault can lead to
death,
2. The consequence of the assault can lead to
grievous hurt,
3. An assault has the intention to commit rape,
4. An assault has the intention to gratify unnatural
lust,
5. An assault has the intention to commit
kidnapping or abducting,
6. An assault has the intention of wrongfully
confining a person and that person has no time
to recourse the public authorities.
 SECTION 101
OF THE PENAL CODE

Cannot cause death if not

prescribed under section 100
of the Penal Code.
 SECTION 102
OF THE PENAL CODE

 Theright of private defence

continues as long as such
apprehension of danger to the
body continue.
 SECTION 103
OF THE PENAL CODE

 The right of private defence on property

may lead to cause death when there is a
prohibited act of:
1. Robbery
2. House-breaking by night,
3. Mischief by fire ,
4. Theft, mischief or house-trespass if there is
a potential to lead to death or grievous hurt.
 SECTION 104
OF THE PENAL CODE

Cannot cause death if the

offence committed is not
under section 103 of the Penal
Code.
 SECTION 105
OF THE PENAL CODE

 Can exercise the right of private defence (for

property) as long as there is still:
1. Apprehension of danger to property,
2. Cannot obtain any help from the public
authorities or the property still cannot
recover or the act of theft has been effected.
3. There is still a danger to body or life,
4. The act of trespass or mischief is still
continuing,
5. The act of house-breaking is still continuing.
 SECTION 106
OF THE PENAL CODE

 Theright of defence against

deadly assault may be exercise
when there is a risk of harm to an
innocent person.
 ILLUSTRATION
 ‘A’is attacked by a spear who attempt to
murder him. There are also children mingling
around that place. He is considered as
committed no offence, if in exercising his right
of private defence had caused harm to the
children mingled around the said place.
GFL Ewin v PP (1949) 15 MLJ 279 (CA, Malaya)
 The appellant was a police sergeant in an area near Ipoh which was
known for terrorist activity. He went, along with others, to a mine to
search for terrorists. He entered a hut into which he believed, according
to his evidence that six ‘bad men’ had just gone. In his own word: “I
entered the hut with my sten-gun at the ready fully expecting to see six
armed men. It was dark inside the hut. The bed seemed to take up most
of the room. I saw something move on the bed and fired …” He shot
dead a fiveyear-old boy.
 The court held that the failure of the trial Judge to direct the assessors
to consider whether or not the appellant was exercising the right of
private defence constituted a misdirection and therefore the conviction
must be set aside.
PP v Abdul Manap (1956) 22 MLJ 214
 The parties had a dispute about some rent payable by the complainant
for a padi field. Both parties had lost their tempers, and the accused, a
much smaller man, struck the complainant. It was not suggested that
the blow was a serious one. The complainant in retaliation throttled and
severely assaulted the accused and the latter had no opportunity to
escape. He stabbed the complainant.
 The court held that (1) notwithstanding that the accused struck the first
blow and therefore the complainant was entitled to exercise his right of
private defence, the complainant's retaliation was of such a violent
nature that it exceeded private defence;(2) the accused in his turn was
entitled to exercise his right of private defence, and, on the facts, his
exercise thereof was not excessive.
PP v Yeo Kim Bok [1971] 1 MLJ 204

 Sharma J held that (1) there was a reasonable

apprehension of danger to the life of the accused
when the deceased rushed at him with the knife in his
hand and at that stage he had the right of private
defence which extended even to the killing of the
deceased.
 PP v Dato’ Balwant Singh (No. 2)
[2003] 3 MLJ 395
 The accused was charged with an offence under s 302 of the Penal
Code. According to the facts, there was an argument between the
accused and the deceased while the former was in his car and the latter
was riding his motorcycle. The accused was pulled out of his car by the
deceased who had then attacked him with a stick as a result of which
the accused had sustained injuries. The accused then fired two shots,
the second of which killed the deceased.
 Held, acquitting the accused. The right of private defence commences
as soon as there is reasonable apprehension of danger to the body of a
person and this right continues for so long as such apprehension of
danger to his body or life exists.
Chun Tain Kong v PP [2010] 2 CLJ 308
 Per Abdull Hamid Embong JCA: Four cardinal justification must exist
before the killing of an assailant can be justified in a plea of self-
defence:
1. the accused must be free from fault in bringing about the encounter;
2. there must be present an impending peril to life or of great bodily harm
either real or so apparent;
3. there must be no safe or reasonable mode of escape by retreat, and
4. there must have been a necessity of taking life.
 These justifications must be read together with the provisions of s. 99
Penal Code in particular s. 99(4).
 OTHER CASES

 PP v Halim Din
 R V Cumming
 GFL Ewin V PP
CONSENT
SECTIONS 87 – 92
OF THE PENAL
CODE
THE CONCEPT OF CONSENT
 Consent is an act of reason and deliberation.
 A person who possesses and exercises sufficient mental capacity to make an
intelligent decision demonstrates consent by performing an act
recommended by another.
 Consent assumes a physical power to act and a reflective, determined, and
unencumbered exertion of these powers. It is an act unaffected by fraud,
duress, or sometimes even mistake when these factors are not the reason for
the consent.
 Consent is implied in every agreement.
Ref.: West's Encyclopedia of American Law, edition
2. Copyright 2008 The Gale Group, Inc. Also
available: [Link]
[Link]/consent.
SECTION 87 OF THE PENAL CODE

 Nothing is an offence if a
person has consented to
take the risk of that harm.
 ILLUSTRATION
 If two person agree to fence
with each, suddenly, one of
them, while playing fairly, hurts
the other person, so, the former
is not considered as committing
any offence towards the latter.
SECTION 88 OF THE PENAL CODE

 Not an offence if the risk act is

done, in good faith and the
person has given the consent
towards the act.
 ILLUSTRATION
 A surgeon, knowing that a
particular operation is likely to
cause death to his patient, but
not intending to cause death,
conduct the procedure.
Unluckily, his patient it leads to
his patient’s death. He commits
no offence.
SECTION 89 OF THE PENAL CODE
 Nothing is an offence if the risk act is
done to the child under 12 years-old or
a person under unsoundness of mind or
after consent has been obtained from
the guardian but it cannot extend to:
1. Intentionally/attempt to cause death;
2. He knows that it likely to cause death;
3. Voluntary/attempt to cause grievous
hurt;
4. The abetment of any offence.
 ILLUSTRATION
 A father gives a consent to a
doctor to conduct a surgery
towards his child for the sake
of his child’s health, is
committed no offence if his
child dies during the operation.
 SECTION 90 OF THE PENAL CODE

 Not considered as a consent, if it is

given;
1. Under a fear of injury/misconception of
fact;
2. Given by a person who is unable to
understand the nature & consequences
of his consent (unsoundness of
mind/intoxication).
3. By a person who is under 12 years old.
SECTION 91 OF THE PENAL CODE

 The acts which can cause harm to

the person consenting, are not
considered as a valid consent given
by such person (eg. Causing
miscarriage)
 SECTION 92 OF THE PENAL CODE

 Not considered as an offence if the act done

without a consent but a person in conducting
such act, done in good faith for the benefit of
such person.
 EXCEPTIONS:
1. Intentionally/attempt to cause death;
2. A person knows that his act will lead to death;
3. Voluntary/attempt to cause grievous hurt;
4. The abetment of any offence.
 ILLUSTRATION
 A person was carried off by a
tiger and his friend saw this
situation. He tried to help his
friend, in good faith, by shooting
the tiger, but the bullets
wounded his friend. He
committed no offence.
 CASE

 R v Donovan; if an act is unlawful in

the sense of being in itself a criminal
act, it cannot be rendered lawful
merely because the person to whose
detriment it is done consents to it. No
person can license another to commit
a crime.
 CASE
 Munah bt Ali v Public Prosecutor; the defendant was
charged under section 312 of the Penal Code for
voluntary causing a female Chinese woman to
miscarry and such miscarriage was not caused in
good faith for the purpose of saving the life of the
woman. However, there was evidence to show that
although there was an insertion of an instrument
into the woman's vagina causing her to
hemorrhage, the woman was not pregnant at the
time the act was done. This means that the
requirements of section 312 have not been fulfilled.
 CASE

 PP v Dr Nadason Kanalingam; the

accused, an obstetrician and
gynaecologist, was charged under section
312 of the Penal Code for voluntarily
causing a woman with child to miscarry
and such miscarriage was not done in
good faith for the purpose of saving her
life. Held: guilty as charged.
 A-G's Reference (No 6 of 1980)
[1981]
 The Court of Appeal held that, subject to exceptions
mentioned below, a person's consent is irrelevant and
cannot prevent criminal liability for an offence if actual
bodily harm was intended and/or caused. This strict
rule was based on the view that it is not in the public
interest that people should try to cause, or should
cause, each other actual bodily harm for no good
reason. In some cases there may be a good reason, and
the Court of Appeal was at pains to emphasise that the
above rule did not affect the accepted legality of
certain situations, referred to below, in which the
consent of the victim is legally relevant and renders the
 NECESSITY

SECTION 81
OF THE PENAL CODE
 SECTION 81
OF THE PENAL CODE

 Act done without a criminal

intent and to prevent other
harm to person or property, is
not an offence.
 ILLUSTRATION
 A, in a great fire, pulls down houses in
order to prevent the fire from spreading
to the other houses. He does this in
good faith & the intention to save
human life or property, is considered to
prevent harm and he commits no
offence.
 PP v Ali Bin Umar & Ors [1982] 2 MLJ 51
 The respondents had been charged under section 49(1) of
the Customs Act, 1967, for carrying tin ore in a local craft
without the permission of the Director-General of
Customs. The defence of the respondents was that their
boat had a broken rudder and it had drifted in distress into
Malaysian waters. The defence raised was one of
necessity.
 The court held that the respondents were justified out of
necessity to enter Malaysian waters on specific reasons
that the boat in which they were traveling was in distress
due to the fact that the rudder of the boat was broken in
international waters.
 US v Holmes (1842)
 The accused along with 8 other seamen & 32
passengers were in an overcrowded boat. Fearing
that the boat would sink, he threw 16 passengers.
The next morning, they were rescued.
 Held: He cannot plead under necessity. He should
sacrifice himself first before throwing the
passengers into the sea.
 R v Dudley & Stephens (1884) 14 QBD
273

 The two accused persons killed a 17 year-old

boy after drifting in the boat for 20 days,
1,600 miles away from land. They ate his
flesh & drank his blood.
 Held: They were convicted for murder & later
commuted to 6 months’ imprisonment.
 Principle of the Defence
 Duress of circumstances, and
 The accused can be said to be acting
reasonably and proportionately in order
to avoid a threat of death or serious
injury
 Cases:
1. R v Willer
2. R v Conway
3. R v Martin
4. R v Pommell
5. R v Coles
SUPERIOR ORDERS

SECTION 76
OF THE PENAL CODE
 SECTION 76
OF THE PENAL CODE

The act done by mistake of fact, in

good faith believes himself to be
bound by law to do it, is not an
offence.
 ILLUSTRATION
A soldier fires, by the order of
his superior, towards a bush
and killed a farmer. He
commits no offence.
S TAT E O F W E S T B E N G A L V S H E W M A N G A L
SINGH (1981) 4 SCC (CRI) 782 (SC, INDIA)

 During the civil disturbance, attacks were made upon a police party.
The Deputy Commissioner of Police thereupon ordered the accused,
members of the police group, to open fire. In obeying these orders,
two persons were killed. The accused persons were convicted for
murder. On appeal to the High Court, they were acquitted. The State
of West Bengal appealed against the acquittal.
 Chandrachud CJ held that since the said situation justified the act
conducted by the Deputy Commissioner of Police, the special leave
petition dismissed.
 MISTAKE

SECTIONS 76 & 79
OF THE PENAL
CODE
 SECTION 76
OF THE PENAL CODE

 The offence done by reason

of a mistake of fact is not
considered as an offence.
 ILLUSTRATION
A police officer, who has a warrant of
arrest, arrested someone who he
believes that the accused person, but
he has arrested a wrong person
because of the mistake of identity. He
commits no offence.
 SECTION 79
OF THE PENAL CODE

 Anact done by a person

who is justified by law is not
an offence.
 ILLUSTRATION
 Jacksaw a man came out from a bush with
a blood stained on his shirt. He arrested
the man, in exercising his power given by
the law, in good faith, for the purpose of
bring the man to the public authority. Jack
has committed no offence, if it turned that
the man was not a murderer.
 Types of Mistake
 Mistake of Law  Mistake of
1. R v Reid Fact
2. R v Smith 1. Chirangi v State of
3. Rex v ALB Swaine Nagpur
4. Sulong Bin Nain v PP 2. DPP v Morgan
5. Tan Ah Tee & Anor v PP 3. R v Tolson
6. PP v Goh Ah Lim 4. R v Prince
5. R v Woods
6. R v Fortheringham
 R v Reid (Philip) [1973] 3 All ER 1020
 The defendant was arrested and charged with and
convicted of failing, without reasonable excuse, to
provide a specimen for a laboratory test, contrary to
s3(3) of the Road Safety Act 1967. He appealed
contending, inter alia, that he had a reasonable excuse
for failing to provide the specimen.
 The Court of Appeal held that the fact that the
defendant mistakenly believed that he was not legally
obliged to provide a specimen did not constitute a
“reasonable excuse” for refusing to do so.
 R v Smith [1974] QB 354
 The defendant was the tenant of a flat. With the landlord's consent
he installed some hi-fi equipment and soundproofing. When given
notice to quit the flat, the defendant tore down the soundproofing
to remove some wires that lay behind. Unknown to the defendant
the soundproofing had, as a matter of civil law, become a fixture of
the property and therefore property belonging to the landlord.
 The defendant's conviction for criminal damage was quashed by
the Court of Appeal. It was held that no offence is committed if a
person destroys or damages property belonging to another if he
does so in the honest though mistaken belief that the property is
his own.
 Sulong Bin Nain v PP [1947] 1 MLJ 138

 This was an appeal against the conviction of the appellant for the offence of
carrying arms, to wit two hand grenades, contrary to Section 3 (1) of the Public
Order and Safety Proclamation. The facts were that the appellant when
arrested, was carrying a bag, and in the bag, underneath a sarong, there were
two hand grenades not fitted with fuses, and also two fuses which would fit
exactly the two hand grenades. The appellant gave evidence at the trial and
stated that when he was arrested he was carrying these two hand grenades
with the intention of handing them over to the Police.
 The court held that (1) that Section 3 (1) of the Public Order and Safety
Proclamation prohibits absolutely the carrying of arms and that it is not
necessary to prove any ulterior intention to establish that offence; (2) that
therefore a person carrying arms with a view to handing them to the Police is
guilty of an offence against Section 3 (1) of the Public Order and Safety
Proclamation
 Tan Ah Tee & Anor v PP [1980] 1 MLJ 49

 The two appellants, T. and L. in this case were

charged jointly for trafficking in 459.3 gms of
diamorphine, an offence under section 3(a) of the
Misuse of Drugs Act, 1973.
 The court held that dismissing the appeals. Under
the Misuse of Drugs Act where a person is in
possession of a bag which contains in fact a
controlled drug it is presumed that he is in
possession of and knows the nature of the
controlled drug.
 Chirangi v State of Nagpur
A.I.R. (1952) Nagpur 282
 Chirangi killed his son, Ghudsai, by mistake, thinking that
he was a tiger. He was suffering from bilateral cataract.
There was also evidence that he had an abscess in his leg
which would have produced a temperature which might
have caused a temporary delirium. This might have created
a secondary delusion affecting his vision. He was charged
with murder under section 302 of the Indian Penal Code.
 The conviction was set aside as the court held that by
reason of mistake of fact, he was justified in destroying the
deceased whom he did not regard to be a human being but
who, as he thought, was a dangerous animal.
 DPP v Morgan [1975] 2 All ER 347
 A mistake of fact, rather than law, is a defence where it prevents
the defendant from forming the mens rea which the law requires
for the crime with which he is charged.
 The House of Lords, by a majority of three to two, held that a
defendant was to be judged on the facts as he honestly believed
them to be, and thus a mistake of fact would afford a defence no
matter how unreasonable it might be provided that it was
honestly made. However, the House of Lords applied the proviso
to s2(1) of the Criminal Appeals Act 1968 and dismissed the
appeals as the jury obviously considered that the defendants'
evidence as to the part played by Mrs Morgan was a pack of lies
(per Lord Cross).
 R v Tolson [1886-90] All ER 26
 The defendant's husband deserted her in 1881. She learned from
his elder brother and from general report that he had been lost on
a vessel bound for America, which went down with all hands. In
1887 the defendant, supposing herself to be a widow, remarried.
Tolson returned from America and the defendant was charged with
bigamy.
 In quashing the conviction, Stephen J stated: "It appears to me
that every argument which showed, in the opinion of the judges in
Prince, that the legislature meant seducers and abductors to act at
their peril, shows that the legislature did not mean to hamper
what is not only intended, but naturally and reasonably supposed
by the parties, to be a valid and honourable marriage, with a
liability to seven years' penal servitude."
 R v Prince (1875)
 The defendant took a girl under 16, believing on
reasonable grounds that she was 18, out of the
possession of her parents.
 The defendant was convicted and the conviction
affirmed.
 R v Woods (1981) 74 Cr App R 312

 The defendant was convicted of a collective rape of one

girl. He made admissions of his part in it to the police but at
his trial he went back on those admissions and said in
effect that he had so much to drink that he was not sure
what had happened. He did not know whether he had raped
her or not and did not realise that she was not consenting
to anything that went on.
 Griffiths LJ stated: "The law, as a matter of social policy, has
declared that self-induced intoxication is not a legally
relevant matter to be taken into account in deciding as to
whether or not a woman consents to intercourse."
 ACCIDENT

SECTION 80
OF THE PENAL CODE
 THE CONCEPT OF “ACCIDENT”

 The word accident is derived from the Latin verb accidere, signifying
"fall upon, befall, happen, chance."
 The word may be defined as meaning: some sudden and unexpected
event taking place without expectation, upon the instant, rather than
something that continues, progresses or develops; something
happening by chance; something unforeseen, unexpected, unusual,
extraordinary, or phenomenal, taking place not according to the usual
course of things or events, out of the range of ordinary calculations; that
which exists or occurs abnormally, or an uncommon occurrence.
 SECTION 80
OF THE PENAL CODE

Accident in doing the

lawful act is not an
offence.
 ILLUSTRATION
 ‘A’ is at work with a hatchet; the head flies
off and kills a man who is standing by.
Here, if there was no want of proper
caution on the part of ‘A’, his act is
excusable and not an offence.
 Rex v Ong Choon [1938] 1 MLJ 227

 There was a dispute between the appellant and

the deceased about the debt he owed to the
deceased. The deceased seized a chopper and
struck on his hand. He suffered a wound on his
right hand. In the course of the fight, the chopper
cut the deceased.
 Held: Accident was accepted as a defence in this
case.
 R v Tunda (1950) AIR 95

 The accused and the deceased, agreed to

wrestle. In the course of wrestling, the accused
lifted the deceased and threw him on the ground
and his head hit the rock.
 Held: The defence of accident upheld because
both of them agreed to involve in such sport and
they realized all the consequences.
 Jageshar (1923) 24 Cr LJ 789

 The accused was beating a person with his fists

when the latter’s wife, with the baby on her
shoulder, interfered. The accused accidentally
struck the baby who later died.
 Held: The defence of accident did not apply as
he was doing the unlawful act.
 Timmappa (1901) 3 Bom LR 678

 The victim and the accused was hunting

porcupines in the jungle. They took up different
position. At nightfall, the accused heard a rustle
and believing that was a porcupines, shot and
caused the death of the victim.
 Held: The appeal was allowed.
 H.W. Smith v Emperor
(1953) I.L.R. Cal 333
 The accused was driving a car and chatting. The accident took place
at night. According to the facts of the case, the road was close to
traffic at that time. It was also found that some of the workers tried to
stop him from using the road as the road was under repair. He did not
hear the warning. At that time there was a man sleeping on the road.
He hit the said man and was not aware of his action until he was
stopped by other workers.
 Held: since the accused was not doing an unlawful act, the accident
was in fact considered as ‘an accident’ according to the legal term.
 DURESS

SECTION 94
OF THE PENAL CODE
 THE CONCEPT OF “DURESS”
 Duress is the use of force, false imprisonment or threats (and
possibly psychological torture or "brainwashing") to compel
someone to act contrary to his/her wishes or interests.
 It is an unlawful pressure exerted upon a person to coerce that
person to perform an act that he or she ordinarily would not
perform. Duress also encompasses the same harm, threats, or
restraint exercised upon the affected individual's spouse, child,
or parent.
 Duress also exists where a person is coerced by the wrongful
conduct or threat of another to enter into a contract under
circumstances that deprive the individual of his or her volition.
 MOHAMED YUSOF BIN HAJI AHMAD V PP
[1983] 2 MLJ 167
 The appellant was found guilty of trafficking on his own behalf of
dangerous drugs to wit 2,700 gms of cannabis, an offence under section
39B(1)(a) of the Dangerous Drugs Ordinance 1952 on December 27, 1977
at the Railway Station, Perlis. The appellant admitted that he carried the 2
bags containing cannabis but maintained that he did so under threat from
a male Thai whom he met by chance in a hotel. The man threatened him
with a pistol and told him to carry the two bags across the border to the
railway station, Padang Besar, and if he did so the Thai promised to pay
him MYR$ 400 but if he did not do so he would be shot.
 The Court dismissing the appeal. There was nothing to suggest that when
the appellant placed the bags on the platform and went to purchase the
ticket, duress was present or continued to be present
 SECTION 94
OF THE PENAL CODE
 The act done under duress, i.e. a
person is compelled to do such act, is
not an offence unless:
1. Murder (R v Howe)
- Attempted murder (R v Gotts)
2. Offences, included under Chapter IV of
the Penal Code, punishable with death.
 ELEMENTS OF DURESS
1. Threat must be one of death.
- R v Singh / DPP v Lynch / R v Hurley
2. Threat must be one of instant death. Therefore, future
violence will not generate a defence of duress.
- Subramaniam v PP / R v Hudson & Taylor
3. Threat is objective in character. The accused must
reasonably apprehend instant death.
- R v Graham
4. Threat must be direct at the accused himself. Thus
joining the criminal activities is not a defence.
- R v Sharp / R v Shepherd / R v Fitzpatrick / R v Ali
 1. THREAT MUST BE ONE OF DEATH.
 R v Singh [1973] 1 All ER 122 , the Court of Appeal held that a
threat to expose the defendant's adultery would not be
sufficient grounds to plead duress.
 DPP for N. Ireland v Lynch [1975] AC 653, Lord Simon stated
obiter, that the law would not regard threats to a person's
property as a sufficient basis for the defence.
 It is generally accepted that threats of violence to the
defendant's family would suffice, and in the Australian case of R
v Hurley [1967] VR 526, the Supreme Court of Victoria allowed
the defence when the threats had been made towards the
defendant's girlfriend with whom he was living at the time.
 2. THREAT MUST BE ONE OF INSTANT DEATH.
THEREFORE, FUTURE VIOLENCE WILL NOT
GENERATE A DEFENCE OF DURESS.

 Subramaniam v PP
 R v Hudson & Taylor
SUBRAMANIAM V PP [1956] 22 MLJ 220
 The appellant was convicted of being in possession of
20 rounds of ammunition contrary to Regulation 4(1)(b)
of the Emergency Regulations 1951. He claimed he
had been captured by Chinese communist terrorists
and forced to go through a terrorist training programme
during which time he was compelled to carry the
ammunition.
 The court held that the element of duress has been
established by the appellant. The appeal allowed.
R V HUDSON & TAYLOR [1971] 2 QB 202
 The appellants, two girls told lies in court in an unlawful
wounding case in which they were the principle
prosecution’s witnesses. When charged with perjury,
they claimed that they had been threatened that they
would be ‘cut up’ unless they committed perjury; they
were so frightened that they duly told lies in court.
They appealed against the conviction.
 The court held that the appeal allowed.
 3. THREAT IS OBJECTIVE IN CHARACTER. THE ACCUSED
MUST REASONABLY APPREHEND INSTANT DEATH.

 In R v Graham [1982] 1 WLR 294, the defendant (G) lived in a flat with his
wife and his homosexual lover, K. G was taking drugs for anxiety, which
made him more susceptible to bullying. K was a violent man and was
jealous of the wife. One night after G and K had been drinking heavily, K
put a flex round the wife's neck, pulled it tight and then told G to take hold
of the other end of the flex and pull on it. G did so for about a minute and
the wife was killed. Both were charged with murder. The defendant
pleaded not guilty and said that he had complied with K's demand to pull
on the flex only because of his fear of K. The judge directed the jury on the
defence of duress (too favourably) but the defendant was convicted. The
Court of Appeal, in confirming the conviction, laid down the model
direction to be given to a jury where the defence of duress was raised
 4. THREAT MUST BE DIRECT AT THE ACCUSED HIMSELF.
THUS JOINING THE CRIMINAL ACTIVITIES IS NOT A
DEFENCE.
 In R v Sharp [1987] 1 QB 353, the defendant was a party to a conspiracy to commit
robberies who said that he wanted to pull out when he saw his companions equipped with
guns, whereupon one of the robbers threatened to blow his head off if he did not carry on
with the plan. In the course of the robbery, the robber killed a person. The defendant was
convicted of manslaughter and appealed. In dismissing the appeal, the Court of Appeal
held that a man must not voluntarily put himself in a position where he is likely to be
subjected to such compulsion. Lord Lane CJ said:
“Where a person has voluntarily, and with knowledge of its nature, joined a criminal
organisation or gang which he knew might bring pressure on him to commit an offence and
was an active member when he was put under such pressure, he cannot avail himself of the
defence of duress”.
UNSOUNDNESS OF MIND

SECTION 84
OF THE PENAL CODE
 Unso
u
seve ndness
r o
indis al statu f mind
c te h
luna riminat s, and s as been

T OF
cy, w ely u ome adop

OF M ESS
also hich sed t i

”
a pe t o mes ted
disti is peri s ig in
rma nify,

IN D
ngui nent odic not
s a a l m
T he h ed fr dven adne only
om i titio
NDN term ss, b
C EP
been unso diocy. u s insa ut
sens used in und min nity
e as thos as
d se
to im insa e sta ems
n t t
state port tha e; but t utes in o have
CON
SOU

a s t the hey t he
idioc was p a h av sam
y an cont r ty w e b e e
mad d ra as in e n sa
e him from lu disting som id
com n u e
miss a prop acy, an ished fr such
“ UN

er su d o
THE

luna ion t
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of id a
iocy
and
 SECTION 84
OF THE PENAL CODE

“Whoever commits an offence,

at the time of committing such
offence, he is in the state of
unsoundness of mind, is not
considered as an offence.”
 T OF
1. Disease of Mind

OF m NESS
“Legal interpretation –
malfunction of mind.”
C

IND
2. Defect of Reason
I
D
vERD
OUN
“The accused did not know the
nature & quality of his act; and
did not know his act was wrong.”
uNS
tHE

3. Insane Delusions
“Consequence of insane
delusions.”
  Fac
ts
Mini : Daniel
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 SECTION 85
0F THE PENAL CODE
 MEANING & CONCEPT OF
INTOXICATION
 Intoxication is a state in which a person's normal capacity to act or
reason is inhibited by alcohol or drugs.
 Generally, an intoxicated person is incapable of acting as an ordinary
prudent and cautious person would act under similar conditions.
 In recognition of this factor, the law may allow intoxication to be used
as a defense to certain crimes.
 In many jurisdictions, intoxication is a defense to specific-intent crimes.
 The underlying rationale is that the intoxicated individual cannot
possess the requisite mental state necessary to establish the offence.
 SECTION 85
0F THE PENAL CODE
 Intoxication can be a defence if a person:
1. Did not know what he was doing; or
2. Did not know that his act was wrong; and
3. The intoxication was caused without his consent; or
4. At the time of doing such act, a person is intoxication
insane, temporarily or otherwise.
 SECTION 86
0F THE PENAL CODE
 If the category of intoxication falls under s
85(1) of the Code, it can be a defence.
 Intoxication includes a state produced by drugs
or narcotics.
 If the person done the act without the intention,
he would not be guilty of the offence.
FORCE INTOXICATION
 When a person is forced to consume an
intoxicant against his or her will, the person is
involuntarily intoxicated.

 For example, an intoxicated person who cannot

distinguish right from wrong at the time of
committing the wrongful act would have a valid
defence.
CIRCUMSTANCES OF INTOXICATION
 A drunken man may commit acts whilst under
the influence of drink or drugs that he would
never commit whilst sober, but he will not be
able to raise the defence of intoxication if he is
nevertheless, still capable of forming the
necessary mens rea for the crime with which he
is charged.
 It was stressed in R v Sheehan and Moore
[1975] 1 WLR 739, that "a drunken intent is
CIRCUMSTANCES OF INTOXICATION
 Intoxication covers the effect of drugs and solvents as well as
alcohol. In some instances, it will provide a defence because it
would mean that the accused person did not have the
necessary mens rea for the crime.
 If a person consciously and deliberately takes drugs not on
medical prescription, but in order to escape from reality, to "go
on a trip" or to become hallucinated, he cannot plead his self-
induced disability as a defence to a basic intent crime.
 Case: R v Lipman [1970] 1 QB 152.
INTOXICATION BY DRUGS
 If a person consciously and deliberately takes
drugs not on medical prescription, but in order
to escape from reality, to "go on a trip" or to
become hallucinated, he cannot plead his self-
induced disability as a defence to a basic intent
crime.
 People who voluntarily take alcohol or drugs
should realise the possible consequences in
terms of violent behaviour and uncontrollable
actions.
 However, when the drug normally taken has a
soporific (sleepy) effect, the usual rules
regarding intoxication as a defence do not
apply. The jury will be directed to consider
whether the defendant was reckless in
R v Lipman [1970] 1 QB 152
 Widgery LJ said:

"For the purposes of criminal responsibility we

see no reason to distinguish between the effect
of drugs voluntarily taken and drunkenness
voluntarily induced."
 PP v Teo Heng Chye
[1989] 3 MLJ 205
 The accused was charged with murdering two persons in a fight. The evidence
showed that he was intoxicated at the time of the killings and he was armed with a
bearing scraper.
 The court ruled that the accused guilty of culpable homicide not amounting to
murder: (1) Although the accused was under the influence of alcohol, his level of
intoxication was not sufficient to constitute a defence to the charges. However, the
level was sufficient to warrant it being taken into account for the purpose of
determining whether the accused had formed any intention, specific or otherwise. (2)
The degree of intoxication was such that the accused could not have formed any of
the intentions required for murder. However, his actions were done with the
knowledge that they are likely to cause death and, giving him the benefit of the
doubt, without any intention to cause death or such bodily injury as is likely to cause
death. He was thus only guilty of culpable homicide and not murder. (3) The fatal
injuries were inflicted on the backs of the dead men. One of the dead was also
stabbed several times by the accused. In addition, he had agreed to hide the
involvement of an accomplice. (4) The accused's intoxication was self-induced.
Although the accused had surrendered himself, this factor should be given little
 To succeed under section 85(2) of the Penal
Code, an accused must prove that his state of
intoxication was caused without his consent by
the malicious or negligent act of a person, and
that he did not know the act or omission was
wrong, or did not know what he was doing.
 There must be the element of third person in
order to establish this defence.
DUTCH COURAGE
 Where a person deliberately gets himself
intoxicated to give himself "Dutch Courage" to
commit a crime, his intoxication will not be a
defence even to crimes that can only be
committed with a specific intention. He is to be
"blamed" to the same extent as the person who
intentionally commits a crime.
 DPP V BEARD
[1920] AC 479 (HL, England)
 Beard was indicted for murder having ravished a 13-year-old girl and in
furtherance of the act of rape, placed his hand upon her mouth and his
thumb upon her throat, thereby causing death by suffocation. The defence
was drunkenness.
 The court held that: “But drunkenness is one thing and the diseases to
which drunkenness leads are different think; and if a man by drunkenness
brings an a state of disease which causes such a degree of madness, even if
for a time, which would have relieved him from responsibility if it has been
caused in any other way, then he would not be criminally responsible. In my
opinion, in such a case the man is a madman, and is to be treated as such,
although his madness is temporary … If you think there was a distinct
disease caused by drinking, but differing from drunkenness, and that by
reason thereof he did not know that the act was wrong, you will find a
verdict of not guilty on the ground of insanity”.
Attorney-General for N. Ireland
v Gallagher [1963] AC 349
 The defendant decided to kill his wife. He bought a knife and a
bottle of whisky which he drank to give himself "Dutch
Courage". Then he killed her with the knife. He subsequently
claimed that he was so drunk that he did not know what he was
doing, or possibly even that the drink had brought on a latent
psychopathic state so that he was insane at the time of the
killing.
 House of Lords held that intoxication could not be a defence in
either case as the intent had been clearly formed, albeit before
the killing took place.
 In Baines (1886), Day J held that it was
immaterial whether the insanity was permanent
or temporary. The question was whether there
was insanity or not; and the learned judge ruled
that if a man were in such a state of
intoxication that he did not know the nature of
his act or that his act was wrongful, his act
would be excusable on the ground of insanity.
 Gallagher (1963)
 Lord Denning stated that;
“If a man, whilst sane and sober, forms an
intention to kill … and then get himself drunk so
as to give himself ‘Dutch courage’ to do the
killing … he cannot rely on this selfinduced
drunkenness as a defence to a charge of murder,
not even as reducing it to manslaughter … the
wickedness of his mind before he got drunk is
enough to condemn him, coupled with the act
 Suba Singh v PP
[1962] 1 MLJ 122
 IThomson CJ:
"It is no defence for the accused to say that he has no
recollection of what happened because he was drunk.
Where an accused person gets into a state of
drunkenness of his own free will, the Court will not
attach any importance to the fact that he was drunk and
will draw the natural inferences from his acts. So if you
are satisfied and sure in your minds that the accused did
in fact stab the deceased, the fact that he was drunk is
no defence".
Involuntary Intoxication
 Involuntary intoxication is narrowly defined. A
person who knew he was drinking alcohol could
not claim that the resulting intoxication was
involuntary because he underestimated the
amount of alcohol he was consuming or the
effect it would have on him.
 Involuntary intoxication is confined to cases
where the defendant did not know he was
taking alcohol or an intoxicating drug at all, as
R v Allen [1988] Crim LR 698
 The defendant had drunk wine not knowing that
it was extremely strong home-made wine. He
then committed sexual offences, but claimed
that he was so drunk that he did not know what
he was doing.
 The Court of Appeal held that this did not
amount to involuntary intoxication. He was thus
treated as if he were voluntarily intoxicated.
 OTHER CASES
 Kenneth Fook Mun Lee v PP [2007] 2 MLJ 130.
 Francis Anthonysamy v. PP [2003] 1 CLJ 831.
 Lee Wong Tiang v PP [1970] 1 LNS 58.
 PP v Awang Raduan Bin Awang Bol [1998] 5 MLJ
460.