Criminal Law in Malaysia and Singapore

590 Pages·2012·155.293 MB·English

by  Stanley Yeo, Neil Morgan, Chan Win Cheong

Criminal Law in
Malaysia and Singapore
Second Edition
Stanley Yeo
LLB (Singapore), LLM (Wellington), LLM, PhD, LLD (Sydney)
Barrister (New South Wales), Advocate and Solicitor (Singapore)
Professor
National University of Singapore
Neil Morgan
BA (Oxon), MA (Sheffield), PhD (UWA)
Inspector of Custodial Services, Western Australia
Professor
University of Western Australia
Chan Wing Cheong
MA (Oxen), LLM (Cornell)
Barrister (Cray's Inn), Advocate and Solicitor (Singapore)
Attorney and Counsellor (New York State)
Associate Professor
National University of Singapore
lexisNexis
Singapore • Malaysia • Hong Kong • India.
2012
The Members of the LexisNexis Group worldwide Foreword to the Second Edition
Singapore LexisNexis, Singapore
3 Killiney Road #08-08 Winsland House I
Singapore 239519
Malaysia LexisNexis Malays\a Sdn Bhd
Tl-6, Jaya 33
3, Jalan Semangut, Seksyen 13
46100 Petaling Jaya It is with great pleasure that I write this foreword to the second edition of this
Selangor Darul Ehsan textbook-on the criminal law in Malaysia and Singapore. In my foreword
Hong Kong LexisNexis, HONG KONG to the first edition, l had expressed the hope that the reception accorded
39/F, Hopewell Centre, to the work would give the authors a gratified sense of achievement in
183 Queen's Road, East
having produced it, and my confidence that the book would stand out as
India Butterworths Wadhwa Nagpur
the most authoritative work on the criminal law in Malaysia and Singapore
14"' Floor, Building No 10, DLF Cyber City,
Phase-11, Gurgaon, Haryana, for many years to come.
India 122002
In the Preface. to this edition, the authors have expressed their gratification
Argentina LexisNexis Argentina, BUENOS AIRES
that it is because the first edition has been so well received by the courts,
Australia LexisNexis Butterworths, Chatswood, New Soui·tt WALES
Austria LexisNexis Verlag ARD Orac GmbH & Co KG. VIENNA the criminal bar, scholars and law students that a second edition is called
. Canada LexisNexis Butterworths, Markham, ONTARIO for. to take into account the development in criminal law jurisprudence and
Chile LexisNexis Chile Ltda, SANTIAGO DE CHILE legislation in the last four years in Malaysia and Singapore.
Czech Republic Nakladatelstvl Orac sro, P.RAGUE
France Editions du Juris-Classeur SA, PARIS What is commendable and useful about this work is that, as l have said
lrelang Butterworths (lreland) Ltd, DUBLIN in my first foreword, the authors have explained the und~rlying concepts
Italy Giuffre Editore, MILAN . and principles of criminal liability clearly in the offence·s discussed, and
New Zealand Butterworths of New Zealand, WELLINGTON have urged criminal law practitioners to 'use the ... arguments made in
PRC LexisNexis Beijing Representative Office, BEu1NG
Poland Wydawnictwo Prawnicze LexisNexis, WARSAW the book to articulate legal principles and to develop and improve up~m
the current law'. As the authors have pointed out in the Preface, they
South Africa Butterworihs SA, DuR.BAN
Switzerland Stlimpfii Verlag AG, BERNE have achieved partial success in persuading the courts to their points of
United Kingdom LexisNexis Butterworths Tolley, LONDON and EDINBURGH view, and where they have not they continue to defend their ground. A
USA LexisNexis, Dayton, 01t10 good example i$ the decision of the Court of Appeal in Daniel Vl)ay slo
Katherasan v Public Prosecutor (20 I O] 4 SLR 1119 which has narrowed
the scope of application of the concept of common intention in section 34
~ LexisNexis 2012
of the Penal Code (Cap 224) which another Court of Appeal had decided
All rights reserved. No part oft his publication may be reproduced, or transmitted in any form in Lee Chez Kee v.Public Prosecutor (2008] 3 SLR(R) 447, in line with
or by any means, including photocopying and recording, without the written permission the position espoused by the authors in the first edition.
of the copyright holder, application for which should be addressed to the publisher. Such
Another example is the·continuing critique on the unduly restrictive scope
written permission must also be obtained before any part of this publication is stored in a
of duress as a defence in requiring that, inter alia, the threat must be one of
retrieval system of any nature.
instant death, a defence that can only be of very limited utility. The High
ISBN 978-981-236-927-7 Court's decision in Public Prosecutor v Nagaenthran all K Dharmalingam
Printed by C.O.S Printers Ptl! Ltd, Singapore (2011] 2 SLR 830 (which the authors see as a notable decision) on the
applicability of duress as a defence in a drug trafficking situation (which
Publisher's Note was affirmed on aP.peal in Nagaenthran al/. K Dharmalingam v Public
The publisher, authors, contributors and endorsers of this publication each excludes Prosecutor (2011) SGCA 49) arguably provides a public policy perspective
liability for loss suffered by any person resulting in any way from the use ot: or reliance as to why relaxing the elements of duress as a defence may create problems
011, this publication. in other areas of the law. More pertinent, and more crucial, to the fate of
defendants facing drug trafficking charges are the comments of the Court
vi Foreword to the Second Edition
of Appeal on the role of actual knowledge and wilful blindness in the
Foreword to the First Edition
context of section 18(2) of the Misuse of Drugs Act (Cap 185), following
some uncertainty arising_f rom an earlier judgment of the Court in Tan
Kiam Peng v Public Pro'Secut<~r (2008) I SLR(R) I. .
Nevertheless, in spite of such differences, the authors' considered and
detaiied analysis and evaluation of the law as enacted by Parliament or
laid down by the courts undoubtedly continues to enrich the marketplace
lt is my pleasure to provide a foreword for this new textbook on the
of ideas on criminal Jurisprudence, and to encourage more lawyers to
criminal law of Malaysia and Singapore and to congratulate the authors
specialise in criminal law practice. ·
for their comprehensive and impressive work.
Once again, I congratulate the authors for provi.ding students, legal
This book is more than timely. It should be ~agerly awaited as it is close to
practitioners, scholar.s· and jupges with _an updated and authoritative
two decades since the last truly local and~.niajor criminal law textbook was
reference point on the'principles of substantive crlnfinal law in Malaysia
written, viz., Criminal Law in Singapore and Malaysia: Text and Materials
and Singapore.
(Malayan Law Journal, 1989). This prolonged vacuum has only been
partially filled by the recent publication consisting of a collection of cases
and materials on selected aspects of the criminal law, viz., Fundamental
CHAN SEK KEONG
Principles ofC riminal Law: Cases and Mq.terials (LexisNexis, 2005).
ChiefJustice
Singapore Since 1990, there has been an exponential increase in the number ofw ritten
decisions in the area of criminal law in Singapore. A cursory search of the
23 November 2011 database in Lawnet 2 reveals a staggering statistic. Between 1965 and
2007, there were a total number of 1,282 written judgments reported in
the Singapore Law Reports on the subjects of Criminal Law and Criminal
Procedure & Sentencing.' Out of this number, 1,088 judginents were
delivered between 1990 and 2007. This represents more than a five-fold
increase in the number of such judgments in the time between the last
major criminal law textbook published locally and the present time. In
Malaysia, while the experience is not the same, the increase in the number
of written judgments during this period is equally significant for criminal
law jurisprudence in that jurisdiction, quantitatively and qualitatively.
Whilst such a crude numerical count does not and cannot adequately
capture the qualitative improvement in Si't1gapore's criminal case law,
there is no doubt that Singapore now has a massive corpus of case law
on practically all asP,ects and all areas of criminal jurisprudence. This is
due to the work of the former Chief Justice Yong Pung How in writing
the judgments giving detailed reasons for his dpcisions, not only to clarify
and explain, but also-to consolidate the basic principles of the law. This
corpus of case law is of great benefit and importance to the public and,
in particular, to the criminal bar, the public prosecutors and the law
enforcement agencies.
Equally significant during this period is the perceptible shift of the judicial
attitude towards the role of the criminal law ·in combating crime, from one
The count was compiled from the total number of cases listed under the 'Browse by
Subject' function in relation to these two subjects.
viii Foreword to the First Edition
of according excessive due process to defendants to that of giving greater
Preface
leeway to crime control processes. Similarly, criminal legislation has also
moved in this direction. More than any other area of law, it is the criminal
law that needs to be explained in clear terms to the public, particularly its
underlying concepts, principles aod rules, including its evidentiary and
procedural branches. This will instil the confidence tQ.at the people must
have in the efficacy and fairness of the criminal justice system.
This book aims to meet the interests of several groups - legal practitioners
Although I am confident that our courts will always strive to render the
and judges, scholars and students. Criminal law has always been a
best decision in each case, their task will undoubtedly be made easier with
mainstay of a law school curriculum. It provides an opportunity to develop
the assistance of counsel with access to this textbook, whose stated aim is
the fundamental legal skills of statutory interpretation, case law analysis
to meet the interests of legal practitioners, judges, scholars and students.
and problem solving. It also prov.iges students with the forum to explore
Having browsed through the pages of this textbook and perused its table
such fascinating issues as the relationship between morality and the law,
of contents, I have no doubt that the authors accomplished their aim.
the factors that influence the determination of criminal responsibility
In closing, I can only hope that, as David Marshall did in writing the and of punishment, and the interplay between statute and judge~made
foreword to The Penal Codes of Singapore and States of Malaya: Cases, law. Often, criminal law is taught in the first year of a law program.me
Materia/s·and Comments (Law Book Company of Singapore & Malaysia, and for good reason since its subject matter is bound to engage students'
1974), the reception accorded to this work will give the auttlors a gratified interest. However, without a book that analyses the detail, intricacies and
sense of achievement in producing it. I have no doubt that, when published, complexities oft he law, students may have difficulty coping.Unfortunately,
this book will stand out as the most authoritative work on the criminal law there have been all too few such books on Malaysian and Singaporean
of Malaysia and Singapore for many years to come. criminal law, which was the main reason for writing the first edition of this
book. The very positive reception of that edition by judges, academics and
students has led to this new edition.
CHAN SEK KEONG
This book seeks to bring together in one volume an analysis of the major
ChiefJ ustice
cases, academic commentary and law reform perspectives on the criminal
Singapore
law of Malaysia ~nd Singapore. In the preface to the first edition, we
expressed the hope that other academics and members of the local criminal
law fraternity,- judges, legal practitioners and legal services personnel -
would use the information and arguments made in the book to articulate
legal principles and to develop and improve upon the current law. That
hope has been fulfilled many times over by frequent references to the book
in legal proceedings, judgments and scholarly journals.
Looking beyond local needs and usage, we believe that this work will
provide a useful sourc;e of comparative law for lawmakers and scholars in
other jurisdictions. Foremost among these would be those from countries
where the Indian Penal Code forms part of the Jaw, who should find helpful
the discussion of how Malaysian and Singaporean judges have interpreted
and applied the Code provisions. Lawmakers and scholars from elsewhere
should also find the discussion of interest. With over 150 years of service,
the Indian Penal Code is the oldest criminal code in operation. That fact
alone provides strong evidence that its provisions contain much that is
good and effective. And where the Code has been found to be deficient,
readers of this work will discover that there have been many occasions
ix
x Preface
where the Malaysian and Singaporean courts have found innovative just
Acknowledgements
and workable solutions. Where appropriate, we have also sought to' map
the issues that arise with respect to law reform.
Over the ~ast four years since the-first edition, there has been a steady
stream of JUdgments from Malaysia and Singapore. These have clarified
uncertain aspects of the law highlighted in this work. Jn several cases,
the courts have considered our views, adopting them in some instances
Extracts from the Singapore legislation herein are reproduced by
and rejecting them in others. Notable among these are Lee Chez Kee v
permission of the Attorney-General's Chambers of Sing~pore. Readers
PP [2008] 3 SLR(R) 447 (on joint liability); Tan Chor Jin v PP (2008) 4
are to consult http://statutes.agc.gov.sg or http://www.lawnet.com.sg for
SLR(R) 306 (on accident, intoxication and private defence); PP v fryan bin
the latest version of the legislation.
Abdul Karim (2010) 2 SLR 15 (on consent); and PP V. Nagaenthran all K
Dharmalingam [2011] ~ SLR 830 (on duress.). Jn this-pew edition, we have Extracts froth the cases reported in the Singapore Law Reports (SLR)
responded to the judicial criticisms of our views, and also·i ncorporated all and Singapore Law Reports (Reissue) (SLR(R)) and extracts from the
the significant Malaysian and Singaporean cases which have dealt with unreported Supreme Court and Subordinate Court cases founq on LawNet
issues covered in this work. Additionally, we have, wherever possible, are reproduced with permission from the Singapore Academy of Law.
drawn ideas from Chan. Wright and Yeo (eds) Codification, Macaulay All rights reserved. No portion of the cases may be used or reproduced
and the Indian Penal Code (Ashgate, 2011) comprising edited papers of a without the prior written consent of the Singapore Academy of Law.
symposium on modernising the Indian Penal Code which was hosted by
Extracts from the Appeals Cases, Chancery (and Family) Division, King's
the National University of Singapore in June 2010.
Bench, Queen's Bench and Weekly Law Reports are reproduced with
While all three authors share joint responsibility for the whole work, the permission from the Incorporated Council of Law Reporting for England
principal author for each chapter was as follows: Stanley for chapters 3 to and Wales.
6, 16 to 33, and 38; Neil for chapters I, 2, 8 to 15; and Wing Cheong for
Extracts from the article 'Intoxication and Mental Disorder Defences'
chapters 7 and 34 to 3 7.
(2004) 16 SAcLJ 488 are reproduced with p.ermission from the author,
We would like to thank Nuraziah Aziz for her excellent editing of this Stanley Yeo and the Singapore Academy of Law © 2004 Contributor and
book. Singapore Academy of Law.
We have sought to state the law as at 30 June 2011. Extracts from the article 'Improving the Determination of Diminished
Responsibility Cases' [I 999] SJLS 27 are reproduced with permission
from the contributor, Stanley Yeo and the Singapore Joumar of Legal
Studies.
Stanley Yeo Extracts from the article 'Common Intention and the Enterprise of
Neil Morgan Constructing CrimiQal Liability' [ 1999] SJLS 494 are reproduced with
Chan Wing Cheong permission from the author. Michael Hor and the Singapore Journal of
Legal Studies. ·
Singapore
Extracts from the article 'Revitalising the Penal Code with a General Part'
30 September 2011
(2004] SJLS l are reproduced with permission from the author, Stanley
Yeo and the Singapore Journal of Legal Studies.
Extracts from the article 'Causing Deat!'i under the Indian Penal Code: A
Comparative Analysis' (1992) 14 Delhi Law Review 68 are reproduced
with permiss'ion from the author, Stanley Yeo and the Delhi Law Review.
"'
xii Acknowledgements
Extracts from the article, 'A Feminist Critique of Domestic Violence Contents
Laws in Singapore and Malaysia" (Asian Research Institute, National
University of Singapore, 2003) are reproduced with permission from
auth9r, Kumaralingam Amirthalingam and the Asian Research Institute.
Extracts from the article, •Automatism in the Penal Codes of Malaysia
and Singapore' (2003/2004) LAWASIA Journal 103 are reproduced with
Foreword to the Second Edition ................................................................ v
permission from the author, Stanley Yeo and the publisher.
Foreword to t h e F1. rst Ed1't·1 on ................................................................ . vii
Extracts from 'Chapter 16: Infanticide' in Fairall and Yeo, Criminal
Preface ............................................................................... · .. :. . · .. ·····. ... ···· ix_
Defences in Australia (Sydney: LexisNexis, 2005) are reproduced· with
Acknowledgements ................................................................................... xr
permission of the authors and the publisher.
Table ofC ases .................................................................................... xxxiii
..
We acknowledge the partial funding of research for this work by the Table ofS tatutes ............................................................................ ·· ... · .. ~~
Singaporean Ministry of Education's Academic Research Fund Tier l
(WBS No R-241-000-084-·l 12).
CONTEXT, HISTORY AND GENERAL PRINCIPLES
The painti~g reproduced on the cover of this book was created by an
inmate in Changi Prison for the Yellow Ribbon Art Competition 2011.
Chapter 1 The Criminal Law: Context,
The painting is entitled 'Thumbs Up'and is accompanied by the following Sources and History 1
explanation: 'The "thumbs up" sign was a positive symbol that the artist
held close when he first stepped into prison. It meant a lot to him, as a first Context and Scope of this Book 1
timer in prison. The graphics in the background represent the challenges What is a crime? 2
of life and the Tree of Life. The padlock on the skull's eye is meant to say Harm and blame 3
that we need to unlock our stereotypical view of life so that we nj'ay find The contours of the criminal law 5
the positive in the negative, because a life without problems is not a life Historical Background 5
at all.' · The Straits Settlements, Malaysia and Singapore 5
The Straits Settlements Penal Code and its successors 9
The Penal Code: Values and Structure 12
Codification ~nd common law 12
14
Codification: core values
Structure of the Penal Code 15
Interpretation and Precedent 16
Role of explanati9ns and illustrations 16
Other principles 18
Purposive interpretati.on and the principle of strict construction 20
Caselaw precedents 21
Chapter 2 The Criminal Process, Harm and Punishment 25
Introduction 25
26
Pre-Trial Decision Making
26
Investigation
Prosecution 28
Compounding 31
Sununary 33
xiii
xiv Contents Contents xv
Proof and the Presumption of Innocence 34 Chapter 4 Fault Elements of Crimes 85
Offence elements 34 Introduction 85
Defences 35
Historical and theoretical perspectives 85
Drug law presumptions 37
The Primary Fault Terms 87
Harm and Blame 39
Intention 88
Harmful behaviour: the physical element 40
Knowledge 94
Designating blame; the fault element 44 Wilful blindness 95
The role of the defences 44 Reason to believe 96
Threatened Harms and Preventive lnterventit>ns 46
Voluntarily 97
The criminal law 46 Rashness 99
The Internal Security Acts ...... 48 Recklessi:i~ss ,, .... 101
The Malaysian Dangerous Drugs
Negligence 104
(Special Preventive Measures) Act 50
Reforming the Law 107
The Singaporean Criminal Law (Temporary Provisions) Act 51
The Singaporean Misuse of Drugs Act 52
Chapter S Causation 109
Theories of Punishment 52
Retribution and desert 53 Introduction 109
Deterrence 54 Historical developments 109
Incapacitation 56 Theoretical perspectives 111
Rehabilitation 56 The Tests for Causation 116
Reparation and compensation 57 The test for factual causation 116
Theories of Punishment and Sentencing Options 58 The test for imputable causation 117
Singapore: 'community sentences' and 'home detention' 61 The substantial cause test 119
Malaysia: parole 64 The foreseeability test 122
Punishment and corrections 65 Handling cases of intervening causes 124
Where the Victim Contributed to His or Her own Death 125
V's ignorance in causing his or her own death 126
PRrNCIP:LES OF CULPABILITY V under pressure to take action causing his or her own death 128
V's voluntary contribution to his or her own death 131
Chapter 3 Physical Elements of Crimes 67 V having unusual sensitivity which contributes to his
Introduction 67 or her own death 136
Crimes Involving Conduct 68 Where a Third Party or Event Contributed to the Victim's Death 139
Acts 69 Where a third party contributes to V's death 140.
Omissions 70 Where medical treatment contributes to V's death 143
Crimes Involving Conduct and Circumstances or Results 76 Where a natural event contributes to V's death 147
Crimes Involving a State of Affairs 77 Reforming the Law . 149
Voluntariness 78
Causation 79 Chapter 6 The Concurrence Principl~ 153
Crimes without a Subjective Fault Element 81 Introduction 153
Crimes of negligence 81
Competing Approaches f55
Crimes of strict liability 82
The same transaction approach 156
Reforming the Law 82 The causation approach 158
The moral congruence approach 160
xvi Contents Contents xv ii
Specific Matters Concerning the Concurrence Principle 163 Infanticide 207
No need for a preconceived plan 163 Abortion . 209
No need for the most culpable form of fault to be present 164 Causing the mother's death when intending to cause
Reforming the Law 166 a miscarriage 211
Assaulting a pregnant woman and causing the death of her child 212
Chapter 7 Strict Liability 167 Death 215
Time of death 215
Introduction 167
Causation and coincidence 217
Historical developments 168
Culpable Homicide and Murder: the Fault Element 218
Theoretical perspectives 169
Proving intention and knowledge 218
Presumption of Mens Rea Approach 171
Intention and knowledge distinguished from premeditation,
Criticisms 173
desire and motive · 222
Due Diligence Approach 175
Intention, knowledge and risk taking 223
Criticisms 176
Section 300 (a) and the first limb of s 299 225
Chapter IV Approach 178
Section 300(b) and s 299 225
Assimilation of due diligence and Chapter IV approaches? 179
Section 300(d) and the third limb of s 299: degrees
Comparison with Crimes of Negligence 179
of knowledge 226
Reforming the Law 180
Section 300(d): 'without excuse' . 231
Section 300(c) and the second limb of s 299: basic principles 233
OFFENCES AGAINST THE PERSON Section 299, 300(c) and 'egg shell skull' cases 234
Section 300(c): intention and the natUre of the injuries 236
Chapter 8 Homicide: Structure, Principles and Punishment 183 Section 300(c) and 'escape' cases 244
Interim Conclusions 245
Structure of Homicide Offences 183
Introduction 183
Chapter 10 Other Homicide Offences and Homicide
Historical developments 184
Law Reform 247
·Culpable homicide and. murder 187
Transferred intent or knowledge 191 Structure and General Principles 247
No felony murder rule 192 Structure of offences 247
Causing death by rash or negligent conduct 194 Rashness, negligence and 'direct' violence 250
Vehicular homicide 195 Causation 251
Illustrations 196 Rashness 253
Punishment 197 Definition: subjective 253
Structure of punishments 197 Risk of what? 255
The death penalty for murder 200 Ruling out or averting risk 256
Mandatory penalties and prosecutorial discretion 202 Relationship to culpabie homicide 258
Penalties for culpable homicide not amounting to murder 202 Negligence 258
Life imprisonment 205 Definition: objective 258
Section 304A and road traffic legislation 205 The 'reasonable person' 259
Standard of negligence 261
Chapter 9 Culpable Homicide and Murder 207 Distinguishing rashness and negligence 264
Road Traffic Legislation 265
'Life' and Offences at the Start of Life 207
Structure of offences 265
'Life' and homicide 207
Speeding, careless driv,ing and Penal Code negligence 267
xvi ii Contents Contents xix
Dangerous driving and s 304A negligence 270 Words and assaults 319
Reckless driving and s 304A rashness 270 Future and conditional threats 320
Summary 272 Criminal Intimidation 321
Homicide: Mapping out Law ~efonn 274 Definition and punishment 321
Structure and physical element 274 Elements of the offence 322
Culpable homicide not amounting to murder and murder 276 Aggravated Assault and Criminal Force 325
Rashness, negligence and related offences 279 Offences of Rashness and Negligence 327
Spreading Disease 329
Chapter 11 The Non-Fatal Offences: Structure, Principles Sexual offences 329
and Punishment 281 Non-fatal offences 330
Specially designed offences 331
Structure and General Principles 281
Wrongful Restraint and Wrongfiil Confinement 332
Introduction 281
Historical developments 282
Chapter 12 The Non-Fatal Offences:
Offences and penalties 284
Consent, Provocation, Family Vio.lence and
The slight harm defence 287
Sexual Offences 335
Voluntarily Causing Hurt 288
Offence elements 288 Introduction 335
Fault element 289 Consent 335
Relationship with criminal force 290 Criminal force and assault 336
Symmetry: aligning physical and fault elements 291 Other offences 337
Hurt: pivotal, serious but not arrestable/seizable 291 Hurt 338
Bodily pain, disease and infirmity 292 Grievous hurt 339
Aggravated hurt offences 295 Provocation 339
Public servants 297 Introduction 339
Domestic maids (Singapore) 297 Hurt and grievous hurt 340
Racial or religious aggravation (Singapore) 298 Assault and criminal force 342
Dangerous weapons or means 299 Summary and reform 343
Causing hurt to extort a confession 300 Reforming the Non-Fatal Offences 343
Voluntarily Causing Grievous Hurt 301 Structure and general principles 343
Offence elements 301 Hurt 344
Symmetry: aligning physical and fault elements 303 Grievous hurt 345
Grievous hurt involving perrnanent bann 303 Criminal force arid assault 346
Non-pennanent forms of grievous hurt 305 Aggravated offences 346
Aggravated grievous hurt offences 309 Criminal intimidation 347
of
Grievous hurt and hurt where the victim dies 310 Offences rashness and negligence 347
Assault and Criminal Force 311 Wrongful restraint'and wrongful confinement 347
Introduction 311 Consent 347
Criminal force: definition 312 Provocation 348
Criminal force: physical element 314 Stalking and Other Harassment 348
Criminal force: fault element 316 Context and c4rrent laws 348
Assault: definition : 317 Reform 352
Int~nding to cause apprehension 318 Family and Domestic Violence Laws 353
Context and principles 353
xx Contents Contents xxi
Protection orders in Singapore 356 Theft 4ll
411
Protection orders in Malaysia 359 Definition
Issues and reform 363 Physical and fault elements: Interpreting the Code 413
Sexual Offences: Introduction 364 Movement 416
Sexual Offences where Lack of Consent is not an Element 365 Movable property 417
Offences against animals 365 Consent 418
Incest 366 Possession 420
421
Carnal intercourse against the order of nature Theft or criminal breach of trust?
(now only Malaysia) . 367 Dishonesty and 'borrowing' 422
423
Outraging decency (gross indecency) 368 Punishment and aggravated offences
Sexual Offences against Children 370 Reforming the Law 425
Malaysia 370 .
Singapore 372 Chapter 14 Misappropriation, Breach of Trust
Sexual Offences Requiring Proof of Lack of Consent 374 and Cheating 427
Outrag~ng modesty 374 427
Introduction
Rape: definition and scope 376
Criminal Misappropriation 427
Rape: punishments 380
.Offence elements 427
Sexual connection by an object (Malaysia only) 382
Misappropriation and convet:sion 431
Sexual assault by penetration (Singapore only) 382
433
Dishonesty
Other 2007 amendments: Malaysia 384
Proving dishonesty 435
Other 2007 amendments: Singapore 384
Criminal Breach ofTrust 436
Review of the new laws and their impact on marital rape 385
Offence elements 436
Consent in the Context of Sexual Offences 386
439
Entrustment
Meaning of consent 386
Misappropriation of Lhe entrusted property 442
Mistake as to consent 388
Dominion 442
Consent and sexual activity involving people with a mental
Use or disposal in violation of law 443
impairment 390
Use or d_isposal in violation of contract 444
Partnership property 445
OFFENCES AGAINST PROPERTY Dishonesty 446
CBT by wilful suffering 448
Chapter 13 Property Offences: Structure, Principles Punishment and aggravated offences . 451
and Theft, 393 Reforming the law: criminal misappropriation and CBT 452
Cheating 454
Structure and Core Concepts 393 Introduction 454
Introduction 393 Offence Elements 455
Property: basic concepts and terminology 393 Deception 457
The Core Penal Code Property Offences 397 Deception by concealment 459
Relationship between the offences 400 The causal link 460
Dishonesty and the Defences: General Principles 403 Cheating by dishonest or fraudulent inducement 460
Definition and proof 403 Fraudulently 462
Intention to cause wrongful gain or loss 405 Cheating by intentional inducement 464
Concurrence 407 Dishonoured cheques 466
Slight harm 407
Mistake and claim of right 408