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UNIVERSITI TEKNOLOGI MARA

FAKULTI UNDANG-UNDANG
LAW555 CRIMINAL LAW 2
ASSIGNMENT







KELAS : 4M
PENSYARAH : SIR ASHRAN BIN HAJI IDRIS


NAMA PELAJAR NO PELAJAR
1 MUHAMAD ARIF BIN SHAHARUDIN 2012447126
2 MOHD AMIN ASYRAF BIN AZIZ 2012400698



QUESTION 1
Gagah went to a gay club where he always frequented. When there, Gagah looked for Jambu,
his gay partner. To his anger, Gagah caught Jambu engaged in a sexual act with another guy
in the gents cubicle. Expletives were exchanged followed by a fight between Gagah and
Jambu. An expert in martial art, Gagah used his skill against Jambu. Gagahs side kick landed
on Jambus head causing his neck to fracture. Gagah then immersed Jambus head in the toilet
bowl causing Jambu to drown.

Discuss the criminal liability of Gagah.
Answer :

The issue in this situation is whether Gagah can be held liable for culpable homicide
amounting to murder under Section 300 of Penal Code.
The particular offence that will be committed when a human being is killed depends
on the mens rea accompanying the act. It will be an offence of murder if then special degree
of mens rea defined in Section 300(a) of Penal Code accompanies the act of killing.
Where there is insufficient evidence of that special degree of mens rea accompanying
the act to establish murder, the offence that may be committed, depending on the mens rea,
may be offences of culpable homicide not amounting to murder or causing death by rash or
negligent act.
It will also be an offence of culpable homicide not amounting to murder even there is
sufficient evidence to establish the offence of murder but the accused is able to bring his act
within one of the five exceptions to Section 300 of Penal Code.
In Tham Kai Yau v PP, the offence of culpable homicide not amounting to murder,
punishable under Section 304, is thus committed when :
a) the special degree of mens rea under Section 300 sufficient to constitute
murder is not established
b) there is sufficient evidence to establish murder under Section 300 but one or
more of the exceptions to Section 300 apply
In the Section 300 (b), culpable homicide is amounting to murder when 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) stated that culpable homicide
is murder when 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
Based on Section 300(d), culpable homicide is murder when 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.
In the application to the situation. based on Section 300(b), Gagah would know that
his act of sick kicking Jambus head and causing his neck to fracture will cause the death of
the person inflicted with the injury. Gagah also would know that the act of immersed Jambus
head in the toilet bowl will causing death to Jambu by drowning. The act of immerse Jambus
head in the toilet bowl also sufficient in the ordinary course of nature to cause death to Jambu
by drowning him based on the Section 300(c). Besides that, the act of side kicking and
immersed Jambus head in the toilet bowl by Gagah is so imminently dangerous that it will
cause death to Jambu based on the Section 300(d).
As a conclusion, Gagah can be held liable for murder under Section 300 of Penal Code.








QUESTION 2
Sayor and Labu are employed by Mandur to work at his factory. One day, Mandur was
shocked to discover that his products had gone missing. Sayor, who was in charge of the
property, was called to give an explanation. Sayor claimed that when he left the factory on the
day in question, everything was in order and that Labu was the last person to leave the
building. Suspecting Labu to be responsible for the loss, Mandur lunged towards Labu in a
threatening manner saying, if I cannot get back the property I am going to teach you a lesson
that you will never forget for the rest of your life. Labu managed to avoid the blow from
Mandur and escape.
Discuss the criminal liability of Mandur.
Answer :

The is issue is whether Mandur is liable for the offence of non-fatal offences under
S351 of the Penal Code.
Section 351 of the Penal Code defined assault which stated :
Whoever makes any gesture or any preparation, intending or knowing it to be likely
that such gesture or preparation will cause any person present to apprehend that he
who makes that gesture or preparation is about to use criminal force to that person,
is said to commit an assault.
It is the gesture or preparation conveying the threat of violence that causes the
apprehension that thus constitutes the offence. No criminal force need be used.
In Mohamed Abdul Kader v PP, it was said that assault requires no contact with the
body. It is the gesture or preparation that causes the other person to apprehend that he who
makes the gesture or preparation is about to use criminal force.
In S Swam Pillay v PP, the accused was charged for an offence of assault in respect of
his action in pointing a revolver at the complainant in a coffee shop.
It is clear from the explanation to Section 351 that mere words cannot amount to an
assault. However, words may colour gestures so as to indicate their meaning.
In Tuberville v Savage, the accused place his hand on the hilt of his sword saying if it
was no assize time, I would not take such language from you. Although placing his hand on
the heat was a sufficient gesture, the accompanying words indicated that force would not be
use. There was therefore no present threat.
A literal reading of Section 351 also suggest that the actus reus requirement is that
there should be a physical gesture or preparation. The offender must intend or know lt likely
by way of his gesture or preparation that he will cause apprehension of immediate physical
force. This is subjective and as long as the offender intend the apprehension, it is irrelevant
whether the victim apprehend immediate physical force.
The threat must be of immediate force. This is evident from the definition that they
must be apprehension that the offender is about to use physical force. Threat of future
violence are not covered.
In Smith v Chief Superintendent, Waking Police Station, a woman was held to be
assaulted when she saw the accused lurking through her closed bedroom window at about 11
pm. Although he was outside and had to break the window to climb in before he could inflict
violence on her, it was held the threat of force was sufficiently immediate.
A threat to inflict force may be conditional upon the victim doing or restraining from
doing something. The threat to use force is not immediate but on a certain contingency
dependent upon the volition of the victim.
HS Gour in The Penal Code of India, express the view in such circumstances , there
can be no assault. Gour also cited Birbal Khalifa, where the accused, objecting to having his
thumb print taken by the policemen, produce a lathi and said he would break the head of
anyone who asked for his thumb print. It was held that because this threat was conditional, it
did not amount to assault.
In the application to the situation, The threat by Mandur was accompanied by gesture
as he lunged towards Labu in a threatening manner. So there was an assault as mere words
cannot amount to assault as illustrated in the case of Tuberville v Savage. In addition, the
threat also is an immediate force as Mandur can commits the violence to Labu as he was with
Mandur at that time. The threat was not a threat of future violence as illustrated in the case of
Smith v Chief Superintendent, Waking Police Station.
However, the threat by Mandur was accompanied by his words saying thatif I cannot
get back the property I am going to teach you a lesson that you will never forget for the rest of
your life can be regards as a conditional threat as illustrated in the case of Birbal Khalifa.
This is because Mandur only threat Labu to use violence on him if he does not get back the
property from Labu and not otherwise. So, the threat does not amount to assault as it was
conditional.
As a conclusion, Mandur will not be liable for assault under Section 351 of the Penal
Code.