CRIMINAL LAW

1. Group A
ASMAH BINTI CHE WAN 226388
MISHANY YOGARAJAN 226415
DYSHALINY K PERBAKARAN 226559
WAN NUR FATIHAH BINTI MUKHTAR 226713
NUR AKMAL BINTI ADNAN 225543

2. 

3. 
INTRODUCTION

7. POSITION OF DURESS IN MALAYSIA
(Sec.94 of Penal Code)

8.  The threat must be directed at
the defendant and not some
other person.
• There is the need to extend
this aspect of section 94
• This is by recommending that
the defense be available to
cases where the threats were
directed at ‘any near relative
of the defendant who was
present when the threats were
made’, with the term ‘near
relative’ defined to mean
parents, spouse, son or
daughter.
 The need for the threat to be an
instant death.
• Pursuant to section 94 of the Code and
the case of Public Prosecutor v Mohd
Amin bin Mohd Razali& 28 Ors
[2002] 1 AMR 969, Zulkefli b Ahmad
Makinudin J stated that threat or
compulsion from the accused, is not a
defense to the charge faced by the
accused persons.
• If an accused is to succeed in putting
up such a defense, evidence must be
produced to show that there was a
reasonable fear at that very time, of
instant death.

9.  The physical presence of coercer is
also needed even though it is not
precisely stated under section 94 of
the Penal Code.
• Under the law of duress, the
threatener had to be present to
execute the threat of instant death if
the accused failed to commit the
offence.
• In Public Prosecutor v Tanha
Ghassem Mohamadkaram [2013]
MLJU 52, the 6th mobster was
nowhere to be seen. There were
also a number of police officers at
the scene attending to the accused
at KLIA. Consequently, the court
finds there was no basis for
thinking that the accused was
obsessed with such thoughts at the
material time to the extent that he
was deterred from seeking police
protection in Malaysia.
 The phrase ‘reasonably cause the
apprehension’ appearing in
section 94.
• Gour's Penal Law of India- “the
right of private defense continues
only so long as a reasonable
apprehension of the danger
persists …”
• In the case of Patrick Chau Fook
Henn v Public Prosecutor[2014] 3
MLJ 825, has to be determined as
to whether in the circumstances in
which the accused person was
placed, the apprehension had
persisted in his mind when he
inflicted a particular injury or
injuries that his life was in danger
and whether, under the
circumstances in which he was
placed, that apprehension was a
reasonable ones.

10.  For the element of duty to escape
from the coercer by the defendant
does not appear in the section 94
of the Penal Code unless a
reasonable opportunity is present.
• It may be thought that the
requirement of instant death
dispenses with the issue of escape
because the extremely brief time
connoted by the word ‘instant’
inevitably renders absent any
opportunity to escape.
• In addition, when duress is
pleaded merely involves a
considerably longer time period
between the threats was made and
the crime was to be committed.
This situation is explained in the
case of Natcha Dabkaew (Thai) v
Public Prosecutor [2014] AMEJ
0576
 The harm threatened must be
death.
• Before being amended, the Penal
Code referred the English
Common Law position that
recognizes threats of serious
bodily harm as a threat of death.
Referring to Latif Khan
AIR(1995) 20 Bom 394, nothing
short of fear of death will suffice
for the defense to be applied.
• Section 94 and 320 of the Penal
Code which provides the
definition of grievous hurt.
• Section 94 only applies
specifically to short of death but
section 320 provides a better
option in the provision of duress
which specifies that the harm
threatened must be death or
serious harm.

11.  The final element is that the accused must not have any
voluntary association with criminal group.
• The defense of duress is not available to person who
commits crimes as a consequence of threats from
members of violent gangs which they have voluntarily
joined.
• A defendant who joins a criminal association which
could force him to commit crimes can be blamed for his
actions.
• It depends on the nature of the organization and the
defendant's knowledge of it. If he was unaware of any
propensity to violence, the defense may be available.

12. • Singapore’s Penal Code is virtually identical to the Indian Penal
Code 1860.
• The duress under Singapore’s Penal Code also falls under section 94
as Malaysian Penal Code. Therefore, all the elements involved in
duress in Malaysia are also applied in duress in Singapore.
• In the case of Public Prosecutor v Nagaenthran a/l K. Dharmalingam
[2011] SGHC 15, the Prosecution submitted that the accused was
guilty of the offence charged because he knew that he was importing
the controlled drug heroin into Singapore at the material time. In
particular, the Prosecution argued that the accused already had
either actual knowledge or imputed knowledge (in the form of
willful blindness) of the actual contents found in the Bundle when he
was stopped at Woodlands Checkpoint on 22 April 2009. The court
held that set out the principles governing the defense of duress since
the accused could not prove he was under duress in the balance of
probabilities

13.  Apart from that, Stanley Yeo stated that in spite of the clear
invocation under section 94, coercer must have threatened to kill
the accused instantly if he or she refused to break the law.
• The term ‘imminent’ has crept into the judicial authorities on the
subject. The difference between the words ‘instant’ and
‘imminent’ is not a mere matter of semantics.
• The former requires the threatened harm to be carried out within
a very short time and is synonymous with the word ‘immediate’.
In contrast, the term ‘imminent’ is synonymous with
‘impending’ and it permits a longer time interval to occur
between the accused’s refusal to break the law and the coercer’s
carrying out of the threat.

14. Elements
1) degree of harm threatened
-threat must be of death or threats of serious bodily
injury and must be sufficiently serious to overwhelm
the powers of resistance of an ordinary
-Threats to reveal sensitive information alone are
insufficient but may be taken into account
In Valderrama-Vega ,
• The appellant had been convicted for importing drugs. He had done
so because he had received threats of serious violence against him
and his family if he did not comply. There were also threats to reveal
his homosexual activities .he also received financial rewards for his
action. The trial judge refused to allow the defence of duress
• The appeal was allowed. Threats to reveal his homosexuality alone
would be insufficient to find the defence but could be taken into
account when coupled with threats of serious personal violence.

15. 2)who may be subjected to the threat
-the person himself, the member of the accused’s
immediate family or the people who the accused
reasonably considered him as responsible towards their
safety
R v Shayler
• Shayler had breached a declaration under the Official
Secrets Act in which he had signed. He contended
that the disclosure was necessary to safeguard
members of the public.
• It was held that there is nothing confirms that the
action will create imminent threats to life. He also
failed to recognized the potential victims or prove
that he had responsibility for them.

16. 3) immediate threat
• The strict definition of immediacy in terms of time taken for
an incident to happen could hardly be fulfilled. Thus, the
court usually included the surrounding circumstances into
account in determining if there are needs for the defence of
duress is to arise.
• The Attorney General v Whelan case suggests that duress is
a situation where the accused is put under a very great
threat of immediate death or serious personal injury that it is
unbearable for a human to endure
In Abdul Hussein case,
• he hijacked a plane to escape persecution in Iraq, the Court
recognised that knowing exactly when the threat might be
carried out would still have an effect on a person's actions and
held that the threat must be 'imminent' and operating on the
defendant's mind at the time of the offence.

17. 4) reasonable apprehension that the threat will be carried out
• Stuart Smith LJ mentioned that the elements of age, sex,
pregnancy, serious physical disability, a recognised mental
illness or psychiatric condition as the characteristics that
could be taken into account. Such personal characteristic are
not within the accused’s control and it could affect their
belief on the nature of threat
• R v Bowen
the appellant received electrical goods total up to
£20,0000 by deception. He alleged that he was threaten that he
and his family will be harmed. The appellant had a low IQ of
68. He was convicted and appealed. The court held that the
appeal was dismissed and conviction upheld. A low IQ is not
counted as being a mental impairment.

18. 1) duty to escape
- Lord Lane CJ when he said that there is no doubt that someone
who was put under the duress should use any reasonable way to
escape the duress
- threat that is effective when the crime take place
R v Hudson and Taylor
Where two teenage girls were scared into perjuring and pleaded
the defense of duress by threats. They alleged that they had been
threatened with serious violence. The trial judge ruled out the
defense on the basis that the threats were not sufficiently present
and immediate. However, they were not convicted, considering
their age was relevant and police protection not always seen to
be safe.

19. -duress cannot be raised by the
persons who did the crimes because of
threats from members of violent
gangs which they have, without being
pressured, joined
- depends on the nature of the
organization and the defendant's
knowledge of it. If he was unaware of
any probability to get involve in
violence, the defense may be
available.

20. R v Hasan
• the appellant worked as a driver for woman who
works in the prostitution area. She then became
involved with another man, Frank Sullivan, who was
a violent drug dealer whom the appellant aware was
a dangerous man. Sullivan told him to ransacked a
house. He threats him to do that with he and his
family’s safety on the line. The appellant did so and
was convicted of aggravated burglary. His plead for
the defence of duress .
• House of Lords held that if a person gets involved by
voluntary with people, known to him or he is capable
of knowing that the person is engaged in criminal
activity and thus he may be the subject of compulsion
by them or their associates, he cannot rely on the
defence of duress, in case anything happen

21. 3) Murder related crimes
- the law put great appreciation for life. Thus, it is irrelevant for
someone to put other’s life at risk in order to save his life and the
life of the people he cherished.
- an attempted murder may be more intent upon taking a life than a
murder. Thus, those who commit attempted murder should hold
the same result as a murder and deserve no defense of duress.
R v Howe & Bannister
• Howe & Bailey were acting under orders of Murray. The charges
related to two murders and one conspiracy to murder.
• it was held that the defence of duress is not available for murder
whether it is a principal in the first or second degree.

22. ANALYSIS OF THE ISSUE
• Duress is an established principle of criminal law
that a person cannot be criminally liable just for
doing any wrongs or crimes.
• criminal law provides duress as an exception to the
general principle of criminal law. The rationale is
that it is unfair for those who choose to break the law
are held responsible for the crimes that they commit
is that the choice is not wholly voluntary.
• Even the duress under Penal Code remained
unchanged since Indian Penal Code 1860, but
applications of duress are different in each
Commonwealth country.

23. The Harmed Threatened
Must Be Death

24. The threat must be directed at the
accused himself

25. Cont…The threat must be
directed at the accused himself

26. The need for the threat to be of
instant death
• The need for the threat to be of instant death is required in
laws from all States. So, we can say that this point plays a
vital part in determining the use of duress as a defense.
• Malaysian Law emphasizes on the term of instant and
imminent. In the local case of Tan Seng Ann v PP [1949] MLJ
87, Malaysian Court of Criminal Appeal, the learned judge
said ‘only fear of intermediate death’ would be a sufficient
excuse.
• M’Growther‘s case, Willan CJ stated that duress to be
pleaded successfully must be imminent, extreme and
persistent. Thereafter series of local case have described
threat under section 94 of the penal code as having to be
imminent,extreme and persistent. E.gPP v Ng Pen Tin
(a Singaporean case).

27. Cont…The need for the threat
to be of instant death
In United Kingdom Law (Common Law), most
of the case the court held that the term
imminent is more proper to be used. In A-G v
Whelan [1993] IEHC, the accused was told to
commit an offence and was subject to: “Threats
of immediate death or serious personal
violence so great as to overbear the ordinary
powers of human resistance”.

28. The need to escape for an
accused from his or her coercer.

29. Accused must not have any voluntary
association with criminal group
• This condition is a restriction under the criminal law in Malaysia,
United Kingdom and Singapore.
• A defendant who joins a criminal association which could force him
to commit crimes can be blamed for his actions.
• However, the successful of the defense depends on the nature of the
organization and the defendant's knowledge of it. If he was
unaware of any propensity to violence, the defense may be
available.
• In our point of view, the law is correct in assisting this matter as the
act of joining such an organization itself can be described as
blameworthy, where a person has voluntarily and with knowledge
of its nature, joined a criminal organization or gang which he knew
might bring pressure on him to commit an offence.

30. CONCLUSION
• In a nutshell, duress is a type of criminal defense that seem
to be fair for accused. This is in order to exclude
themselves from liability or any crime committed by them
where he or she at that time is lacked free choice.
• There are indeed similarities and differences on the
application of the defense among the Criminal Law in
Malaysia, United Kingdom and Singapore.
• We acknowledged the few matters that maybe can be put
into consideration in Malaysian Law for improvement or
law reform especially in regards to the person who may be
subjected to threat in duress defense as discussed before.