Criminal Law Dec 2016

Ques 1 a – Discuss ben’s criminal liability toward Puan Sri

Ben as ex convict was applied job to take care Puan Sri daughter through Tan Sri with forged
document and certificate. Despite being a good worker, he also face his own personal and addiction
problem which is have sexual desire toward child pornography. He then was ambused by Puan Sri
and killed her by strangulated her neck and slammed her head to wall few time. Later Puan Sri was
died due to the injury she sustained

From this fact, ben can be charge with few thing.

Section 464 (a)of Penal code

- Who was making false document or forge document by his dishonest was executes a
document with intention of causing believed that such document was genuine.

Section 465 of Penal Code

- Punishable for imprison extend to 2 years or fine or both
Section 300 (a) of Penal code
- Doing act with intention to caused death to victim
Section 302 of Penal Code
- Whoever commits murder, shall be punishable by death
Tan Buck Tee v PP
- Killed with axe, assault was done over heart and liver
Ghazali Mat Ghani v PP
- Shoot the victim with rifle in short range over heart

In fact was shown actually Ben was ex-convict who barely get job because who he is but he
intentionally make a forge document to applied work with Tan Sri. When he presents those
document to Tan Sri, he was thought those documents was genuine and take Ben as his worker to
be a driver and taking care his daughter without know the fact who Ben is. For this, was clearly state
that Ben was making a false document under section 464(a)

Subsequent and getting caught by Puan Sri while watching pornography video , and have been
cursed. He was making a move to strangle Puan Sri and slammed her head to wall for few times. The
intention to murder Puan Sri can be seen from few aspects.

First, when he was strangled neck and slammed the head toward wall shown the method he doing
was extremely dangerous and amount to danger the life. Second, both head and neck were vital part
of body that Ben attacked and last not least, from the fact state, Puan Sri was sustained severe
bodily injury over head which fracture her skull and lead her death after few hours later. This was
also can be seen in case Tan Buck Tee v PP where the victim was assaulted over vital organ (heart
and liver) for few time and death later due to severe injury.

I held that Ben was guilty under section 464(a) for making a false document to get a work for Puan
Sri through Tan Sri which he can be punish under section 465. Ben also was guilty under section
300(a) for murder Puan Sri with intention and causing her death and punishable by death under
section 302
Ques 1 a – Evaluate whether Ben can claim any defence in the above situation.

From the fact mention above, Ben was one of dedicated worker who was very committed to his job
also, but he has only his personal psychiatric problem that he like to watch child pornography. When
Ben have been caught by Puan Sri, watching that such pornography during work in his own phone,
he was surprised and shock. Then later Puan Sri was scolded Ben by saying ‘you scumbag worthless
paedophile. Child molester and child rapist like you should rot in hell.’ The she also fired his by
saying ‘Ben, you’re are fired! Get the hell out of here now!’ and then threw a stash of money over
Ben’s face. Sub sequent that Ben was murder Puan Sri.

Section 300 – exception 1 provocation

Deprived of the power of self-control by grade and sudden provocation cause the death who was
provoked or cause death by mistake or accident.

It’s must be fulfilled all those elements; grave and sudden, linked between provocation and killing,
no cooling period, proportionality of retaliation and reasonable man test.

PP v Chian Swee Ong

- He was trying to propose to prostitute who he fall in love to but have been rejected by
curse and humiliate by her.

PP v Lasakke

- Killed his wife scandal wife scandal who come confront him and provoked him to divorce
his wife and challenged his in public.

PP v Lim Eng Kiat

- Killed his wife after his wife comparing his penis size with other her scandal.

Chong Teng v PP

- who killed the victim who was take away his wife 7 months before the murder.

While Ben engrossed watching the porn in his phone, he was not aware the presence of Datin Sri
and he was really shocked at the time. He was not having any thought in his mind will be found by
anybody and after that he was be curved with those word and lost his only job. This situation can be
seen in PP v Chian Swee Ong who was trying to propose but has been rejected, its was said to
deprive power of self-control. The was Ben have been approached was unexpected and can be said
it was grave and sudden.

Puan Sri was horrified and also not expected her dedicated worker like Ben can be found in that
position. Without further investigate, she was scold Ben’s with such word and thrown stash of
money over Ben’s face. That was make Ben lost-control and done some move with result the death
of Datin Sri. This can be see the link between the those provocation and the killing as also can be
seen in case PP v Lasakke. The guy just came for having a tea but bump with another guy who was
his wife boyfriend. Without any reason and sudden, he was been provoke to divorce his wife and
make him lost-control and killed the guy.

No cooling period, a moment after Ben’s have been scolded, humiliate and last get fired, he
immediate react to those thing by strangle Datin Sri neck and slammed her head to wall. The
immediate reaction and move can be seen in just a moment without any further preparation or plan.
Its was not like the fact in case on Chong Teng v PP who killed the victim who was take away his wife
7 months before the murder.

The way Datin Sri was scolded Ben’s from what she found he been too concentrate and enjoyed
watch that such of porn by labelled him as paedophile, child molester and child rapist was make him
in shocked and quiet. He just froze in his seat but after Datin Sri inclined to fired him and thrown
that stash of money over his face, its can been that was proportionate by comparing the nature of
provocation, even though it was not threatened Ben’s life, but he lost his only job and ego as a man
and the act retaliation was done.

In the case PP v Lim Eng Kiat, learned judge held that he was passed reasonable man test but looked
into certain circumstances and based on those culture, social aspect and emotional background of
the society. In Ben’s case, he was ex-convict who trying hard to get the job but after getting fired by
the such of labelling by Datin Sri and been thrown of money over his face, this thing makes any other
man will react almost same as him if they in his position. In my opinion, Ben’s passed the reasonable
man test.

As conclusion, in my opinion after examine all the case fact, Ben’s can raised the provocation as
defence of murder. If confidence with this because he was been provoked by Datin Sri with any
further investigation and he had no any chance to been apologize or give any explanation. The was
Ben react was resulting for Datin Sri death but its still there for him to make a defence and get a
second chance as Datin Sri also was over react for whatever happen.
Quest 4(a)

Discuss wheter Kiki has committed any offence for having sexual relations with Comel.

Kiki was superior and couch for Comel, who was national athlete, and she was commited for what
she was doing and anger for further achievement. While undergone intensive programme, she was
embedded for false though by her couch, Kiki, for having secret ingredient for success. With whole
innocent and good of mind, Comel was put all her trust on Kiki and with obey for whatever he asked
for and belief all the thing they have been done was genuine for her sport purpose. What she have
belief from what she have doing is to produce such a ointment to massage her knee but not a sexual.
Whenever she have any though of rejected the Kiki request, she was really scared because whatever
their relationship and Kiki as her superior and also her couch and she also don’t want to lost his
blessing.

Section 375 – when a man having sexual intercourse with woman with or without her consent under
certain circumstances will fall under rape.

Section 375 (c) – get her consented for sexual intercourse but with misconception of her good of
mind.

Section 375 (f) – she was give a consent for sexual intercourse because of she fear of the accused
position of authority and their having professional relationship.

Section 375 (g) – statutory rape, when at the time sexual intercourse have done, the girl was below
16 years old.

Section 376 (2d) – whoever was commit rape without her consent and she was below under sixteen
years old, he was punishable for imprisonment for ten to thirty years and with whipping.

Public Prosecutor v Abdul Rahman Mohamad [2005]

- A bomoh or Shaman, who have attened a girl who come for treatment and done sexual
intercourse for what she was belief that was for her good and avoid any bad luck for her.

From the definition of sexual intercourse, there must have penetration of erect penis over the vulva.
Whether there is no tear of hymen or no ejaculation have been done at that time, it still amounts to
considered as penetration. While in those fact above, the sexual intercourse have strongly proved
when Kiki was brought Comel to the changing room and Comel was aware there penetration of kiki
penis over her genitalia. That sexual intercourse was last long till Kiki having ejaculation, even
though if what spread her semen over Comel knee and continue massage her knee with those
semen.

One of the secret to being success, comel belief that she must been massage with specific oitments.
That what have been told by Kiki and that was concept that have been embeded over Comel head.
She was agreed to been massage and follow Kiki to changing room, because she have thought that
was only to get the ‘massage’ as have been tolded, she didn’t have any idea that to get that such of
oitments they much to have sexual intercourse. She still belief and proceed to do the intercourse
with Kiki just to get that ‘massage’ as a secret and only way to being success. From this fact, I
presumed that the consent that been obtained from Comel was from what she have misconception
and Kiki can be charged under section 375 (C).

Comel was have belief with all her heart that she must obey for whatever requested by Kiki to get
his blessing. She also aware that Kiki was in position for her career and successful in her sport.
Because she was too scared to him, the time sexual intercourse happen, even she had a second
thought to reject the thing but she opted for submission. There are not sign of strungle of fight
between them but the submission with those reason of fear was not calculated as a consent from
her. Kiki was been able to be charged under section 375 (f) as been describe above.

Kiki is national level couch and supervisor for Comel as her athlete under his care. From this fact and
relationship between them, I presumed that they was known each other for quiet sometimes. Kiki
must have all the background data for those under supervisor, know their ability either in sport or
personal achievement, and he must know the detail of sport and categories for whatever sport that
Comel was involved. On the day of crimes or rape was committed, Comel was still under sixteen
years old, and Kiki was supposed not try to ignore this fact. Wheter Comel was consented sexual
intercourse and not give her consent for any reason, I belief that Kiki still allegeable to been charge
as statutory rape on Comel under section 375(g)

From all the fact and proved that have been state above, I held my position that Comel have been
rape by Kiki, whe Comel was have misconception from what she thought she only need to massage
and the way they done just to obtain ‘oitments’, she also have fear and need to obey Kiki who act as
her supervisor and couch, and when the time it was committed, Comel was still under sixteen years
old. The punishment for Kiki can be under section 376 (d), that he was punishable with
imprisonment for at least ten years till thirty years and punish with whipping.
Quest 4(b)

Advise Cantek whether she has committed any offence.

Cantek and Ustaz was having an affair. Ustaz is a celebrity after successful in his field and that were
attract Cantek to fall in love with him. While being together, Ustaz was asking for few luxury thing
such a BMW car and sum of money from Cantek for fed his ego and celebrity status. On the same
time, Ustaz unfaithful in relationship and having an affair with other women, this was being discover
by Cantek. Cantek was asking to be paid for RM500,000 that she thought she was entitled for it and
whatever she have loss from their relationship, she also threatened Ustaz by upload their intimate
video in social media (You-tube). Because of fear to loss his reputation, Ustaz was make a payment
to Cantek.

Section 383 – whoever intentionally threaten of injury to any other person, that was induce their
fear for dishonestly delivered anything valuable to any other person was said have been commits
extortion.

Section 44 of the Penal Code defines injury as any harm whatever illegally caused to any in body,
mind, reputation or property

Section 39 of the Penal Code provide the definition of voluntarily as a person is said to cause an
effect ‘voluntarily’ when he causes it by means whereby he intended to cause it, or by means which
at the time of employing those means, he knew or had reason to believe to be likely cause it.

Section 24 - ‘dishonestly’ as whoever does anything with the intention of causing wrongful gain to
one person, or wrongful loss to another person.

Section 384 – punishment for extortion, shall be punish with imprisonment which can extend to ten
years, or with fine, or with whipping, or with any two such punishments.

Beh Tuck Seng v PP (1947) - – implied threat to destroy the stall of hawker to collect protection
money

Meer Abbas Ali v Omad Ali – complainer make a payment, 2 Rupes per month, to main his position
as he know the accused have a pollical power and influence.

Mahadoe (1950)

PP v Isa Johnit (1994) – after loss in investment and thought he have been framed by those people,
he was wrongfully confining a person for the purposed to extorting sum of money that he believed
that his money from victim father.

After winning the contest, Ustaz become the celebrity and well known by public as religious person
and might been a idol for some people in society. As in Islam, he can be such a good example and
should be follow. By being in that such position, he was raised his position and may make a good
income from that position. Once those video intimate between him and Cantek will ruin his position
and popularity, he also at risk to lost public trust and faith toward him, at same time he can lost his
income and being cursed. He known that video if be in public will give a very big impact to him and
he was so scared to face the thing. So, once Cantek treat to upload the video in you-tube, it was
make Ustaz in fear as describe in section 44, injury or harm also describe as mind, and reputation,
The threat from Cantek is to upload the their intimate video in You-tube, by doing that such thing,
she will exposed to public for what Ustaz and her being doing. To have sexual intercourse without a
marriage if one of the big sin in religious and this can be tarnished Ustaz reputation. Ustaz also
understand this result when the video upload to public. This implied threat also can be seen in case
Beh Tuck Seng v PP (1947) where the implied threat to destroy the stall of hawker to collect
protection money.

From the fact provide above, Cantek was intentionally tried to threat Ustaz to get RM500,000. She
was doing that without any force or order from any other party, she was doing with her will as
provided in Section 39, she was voluntarily make a threat. She knows in her good of mind, she
means for it and aware regarding the consequent for what she has doing. She by those way of
threatened, will put Ustaz in fear and will deliver for whatever she demands for. As we can see in
case Meer Abbas Ali v Omad Ali, where the complainer need make a payment, 2 Rupes per month,
to main his position as he know the accused have a pollical power and influence.

By those threat that Cantek make toward Ustaz, was put Ustaz in fear to loss everything and induce
him to paid Cantek with exact amount of money that she ask for, RM 500,000. The payment have
done directly to Cantek as per request. Despite for previous demand from Ustaz from Cantek for a
car and RM200,000 was gain based on willfu of Cantek and their relationship or love between them.

The threat that Cantek make, and with some of money she was receive from Ustaz as payment to
prevent her upload their video onto You-tube was result as wrongful gain for her and wrongful loss
for Ustaz. This inducement was clearly defined as dishonestly as describe in Section 24 of Penal Code
even she thought those money she was ask for is as her money that previously she give to Ustaz as a
car and sum of money to maintain his lifestyle as celebrity.

From those way of threatened that Cantek make is seem tobe voluntarily by herself, Ustaz was in
position in fear of injury and loss his reputation and position, this was led Ustaz to make a payment
as delivery sum of money to Cantek and all those things happen is based of dishonestly. I presumed
that cantek have committed a Extortion toward Ustard and she can be punish under section 384
where she are punishable for imprisonment which can extend to ten years, or with fine, or with
whipping, or with any two such punishments.