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Published: Fri, 02 Feb 2018
Murder is the crime of killing someone deliberately
There are several issues that we can discuss from the question. The first issue is murder that done by A. Therefore the prosecution can invoke Section 300 of the Penal Code against A. According to Oxford Dictionary, murder is the crime of killing someone deliberately.
The second issue is B and C had the committed grievous hurt. A had suffered a compound fracture which can be regard as grievous hurt under Section 320 of the Penal Code and the prosecution can invoke Section 322 of the Penal Code against B and C. According to Oxford Dictionary, grievous hurt is defined as to cause very serious physical pain to somebody and to seriously injure somebody.
The third issue is B and C both had criminal conspiracy as defined under Section 120A of the Penal Code .Criminal conspiracy is defined as an agreement between two or more persons to do an illegal act or doing a lawful act by unlawful means.
In order for the prosecution to obtain a successful conviction, the prosecution must prove that accused parties had committed the actus reus and the mens rea beyond reasonable doubt. The actus reus is the guilty act and mens rea is the guilty mind of the accused at the time the offence was carried. This was clearly established in a famous case, which is Woolmington v Director of Public Prosecutor  .
There are several defences that applicable in this question. The possible defence that A could raise is the defence of provocation. However, based on the egg-shell skull rule, A may not rely on the fact that B had a thin skull which contributed to his own death, A is still liable for B’s death. The egg-shell skull rule is a legal doctrine that says the wrongdoer takes the victim in the condition he or she finds him  . The possible defence that C could raise is the defence of accident under Section 80 of the Penal Code.If A succeeds in the defence of provocation, he could be punished under Section 304 of the Penal Code for culpable homicide and if he failed to invoke this defence, he could be punished under Section 302 for murder. As for C, if there is no defence available for him, he could be punished under Section 325 of the Penal Code.
Criminal conspiracy was defined as an agreement between two or more person to do an illegal act or a lawful act by unlawful mean. Based in the case of Boots v Grundy  , it stated that “A conspiracy exists when two or more combine to do an unlawful act or to do a lawful act by unlawful means. No conspiracy is … known to the law which has not for its object the accomplishment of an unlawful act (not necessarily a criminal act) or which does not involve the use of unlawful means”. In Malaysia, the criminal conspiracy is governed under section 120 A and 120B of the Penal Code.
Based on the facts, we have to look on whether the action by B and C is consider criminal conspiracy as both of them agreed to throw A in the air in the blanket. In proving a criminal offences, we have to prove two most important elements of the case, mens rea and actus reus. Mens rea is defined as the guilty mind and actus reus as the wrongful act.
Firstly, to prove the B and C action considers criminal conspiracy we will have to prove the actus reus. For actus reus, we have to prove an agreement to commit the offence and in addition one of the party in the agreement had committed an overt act. From the facts, A had been a bully victim for B and C in the school and later B and C had agreed to throw A in the air in a blanket. Then, they force A into the blanket although A protested. This had enough to prove the actues reus.
In mens rea, we need to prove the meeting of mind and the accused person must be beyond stage of negotiation and they must have intended that their agreement be carried out have the similar intention. We can refers to the case of Ang Ser Kuang  as it is sufficient if the parties have reached an meeting of mind although they do not know all the details involved in the plan. B and C had agreed to do the act and later they carried out the act, therefore it is enough to prove that they had come to the meeting of mind and they having same intention to carried out the agreement.
From above, both actus reus and mens rea had been proven. Now we have to look on whether the act by B and C is consider illegal in the s.120A. As A had protested when B and C forced A into the blanket and tossed him to the air. Therefore the act by B and C will be considered as illegal act.
However, there is still an issue whether C is still liable for the criminal conspiracy as B had dead. In the DPP v Shannon  , the case stated that it is sufficient for the prosecution to prove that there are two or more persons guilty of conspiracy even though the other person involved may be dead. Therefore, C will be still liable no matter B had dead.
Grievous hurt is defines under section 320 while voluntarily causing grievous hurt is under section 322 of the Penal Code. Based on the facts, the compound fracture that suffered by A can be falls under section 320(g) where it stated “fracture or dislocation of a bone”. The example cases for grievous hurt are PP v Lee Hor Sai  and Gangaram v State of Rajasthan  .
To prove the offences of grievous hurt we will have to look on the actus reus and mens rea. For grievous hurt, the actus reus is the action of causing “grievous hurt”. From the facts, when B and C tossed A into the air and then due to misunderstanding, they failed to catch A and caused him hit the ground and A suffered the compound fracture. Therefore, it is obvious that A suffered compound fracture due to B and C’s action.
The second element that we need to prove is mens rea. In mens rea, we will need to prove the intention to cause grievous hurt or knowing that grievous hurt is likely to occur. Intention to cause grievous hurt is very important to be prove, because if a person who has caused grievous hurt but only intended hurt, and did not know that grievous hurt was likely, will not be guilty of voluntarily causing grievous hurt  . The correct conviction will be one of voluntarily causing hurt  . The fact shall be refers to find whether B and C had the intention to cause grievous hurt to A. B and C forced A into the blanket and tossed him into the air. As a layman, they should know that there is a danger to toss someone to the air while the blanket is covering the victim. They will have the common sense to know that what will happen if a victim falls directly from the air to the floor. The victim will not able to protect himself if anything happen as he is being covered by the blanket. So, we can see that B and C shall know that the grievous hurt will likely to occur from their action.
Since, both mens rea and actus reus had been proven, both B and C will be liable to the grievous hurt. However, as B had dead, he cannot be sued for causing grievous but C will still liable for it.
Murder is defined as the killing of a human being by a sane person, with intent, malice aforethought (prior intention to kill the particular victim or anyone who gets in the way) and with no legal excuse or authority  . Murder is governed by section 300 in the Penal Code. From the facts, it is clear that B had died. Therefore the section 300 will be raised up if beyond reasonable doubt able to be proved that A hits B with the intention or with the knowledge to cause death as in the case of Che Omar Mohd Akhir v PP  .
As usual, mens rea and actus reus have to be proven. As A hits B’s head with the cricket bat and caused B died from the blow, the actus reus is very obvious from the whole action.
In mens rea, we need to show that A had the intention or knowledge for causing death. From the facts, A hits B’s head after he was dropped to the floor. If A had intention to kill B from the beginning, he does not need to wait until he was forced into the blanket and dropped to the floor only hits B. Therefore, there is no intention and section 300(a),(b) and (c) can be excluded. In section 300(d), it required the knowledge from the accused to commit the crime. Section 300(d) stated the accused will be liable if he knows that his action may cause death or bodily injury that likely to cause death. Illustration (d) under section 300 explains the meaning of the subsection (d). For section 300(d), we can refers to the case of Tan Cheng Eng William v PP  . In this case, the accused chased his ex-girlfriend with another guy and caused a motorcyclist die instantly. Section 300(d) is applied if the public prosecutor has the evidence shows that the accused had knowledge on what will happen although he did not intent to cause death. When A is angry and scared, he picked up the cricket bats and hits on B’s head. He can hit any part of B’s body such as hand or leg but he did not. He aimed B’s head. As a normal person, everyone knows that it is very dangerous to hit someone on their head but A still continue with it although he had the knowledge regarding it. Therefore, mens rea is proven from the explanation above.
Since, the actus reus and mens rea is proven therefore A will be liable for the conviction of murder under section 300.
Defence is needed to reduce the sentences for the accused. Defence in under chapter IV in the Penal Code. There are two types of exception under Penal Code, general and special exceptions. While for defences there are also two types, complete and partial defences. If accused successful pleads on of these defences, he would be found not guilty of the offence in the question.
In the criminal conspiracy, there is totally no question about whether there is any defence for the offence. Both of the parties enter the agreement without any involuntarily. Therefore C will be liable for the offence.
For the offence of grievous hurt, the accused can raise up the defence of accident. Accident is under section 80 of the Penal Code. If the accused able to show the wrongful acts is done with something that not foreseen and done without any criminal intention or knowledge and show that he had carried out whatever he was doing in a lawful manner and he has exercise care and caution. The example of case where the defence of accident is being raise up is R v Ong Choon  and Kong Poh Ing v PP  . In R v Ong Choon, the accused tried to stop an unlawful fight and accident took place. In Kong Poh Ing v PP, the accused tried to stop the victim from committing suicide but end up accident took place. From the situation described, B and C had the intention to catch A after A was tossed to the air. However, due to the misunderstanding of B and C, they failed to do so. Besides, as the youngster around the age of 13 and 14 they can be very playful. They just want to try something new with their friends but not with the intention to hurt them. Besides, when B and C were waiting to catch A and they put A into the blanket to reduce the injury that may occur, this show that they had exercise care and caution to prevent A to hurt. However the unfortunate happened. So, this defence can be raised up to reduce the sentences for C.
In murder, the accused can raise up the defence of provocation. Provocation is explains under the exception (1) in section 300. Provocation is under the special exception and it is applicable on murder, hurt and grievous hurt only. To raises defence of provocation, the defence council has to show the “balance of probability” that victim provoked him and this was grave. Later the court will decide whether the provocation act was grave or not. Besides, the defence council has to prove that the provocation causes the accused to lost-control and he acted suddenly. If there is evidence that his actions were premeditated, or that he had been able to compose himself between the provocation and the killing  , then the defence is not likely to be succeeded. The longer the period between the provocative act and the killing, the easier for the public prosecutor to prove the accused had cooled down and therefore he did not act suddenly. However, there is no strict requirement that the time interval must have been short  . This can be explained in the case of PP v Juminem  . In the case of R v Ibrams and Gregory  , it is established that there is the element of suddenness and a temporary loss of self-control which has been subjectively determined. The defendants had been repeatedly bullied by the victim. They planned within a week before that they attacked the victim in his sleep, to avoid further bullying. The victim died as a result of the attack that was intended to break the victim’s arms and legs. The judge stated that there is no provocation on the night when the murder is happened. Therefore, the accused is liable for murder. Back to the situation of A, it is a bit similar with the case of R v Ibrams and Gregory where the accused are the victim of the bully. However, A attack B immediately with the cricket bat when he was dropped on the floor and caused compound fracture. A was frightened and angry on the time of attack. The facts are clear enough for A to raises up the defence. The probability for A to succeed in this defence will be high.
The punishment for the offence of criminal conspiracy is under section 120B. In 120B(1), it stated that a party to a criminal conspiracy to commit an offence is punishable with death or imprisonment not less than two years. While in 120B(2) it stated that a party to an criminal conspiracy other than a criminal conspiracy will be punished not exceeding six months of imprisonment or with fine or both. Since C is liable for the offence, he will be punished under this section.
For the grievous hurt, the punishment is under section 325 in the Penal Code. Those who convicted the offence will be punished with imprisonment for a term which may extend to seven years and also liable for fine. If the defence was allowed for C, he will be liable for the conviction of causing hurt to A. For the punishment of voluntarily causing hurt, the accused can be punished with imprisonment for a term which may extend to one year or find that may extend to two thousand ringgits or both.
In murder, the punishment will be under section 302 and the accused will be punished for death. If A defence of provocation succeed, he will be liable for culpable homicide not murder. Then the punishment will have to refer to section 304. In section 304 (a) the accused can be punished for imprisonment extend to thirty years and liable to fine if there is intention when he committed the crime. While in section 304(b) the accused will be punished for imprisonment extend to ten years, or with fine , or with both if there is only knowledge when he committed the crime. Section 304(b) is more applicable to A’s situation if his defence succeed.
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