what is meant by mens rea

LAW OF CRIMES-I PROJECT REPORT

RELEVANCE OF MENS REA IN CRIMINAL

LIABILITY

SUBMITTD BY:

1

TUSHAR MATHUR

BBA.LLB{H}

3RD SEMESTER

A3221512003

ACKNOWLEDGEMENT

I would like to thank the faculty of Law of crimes-I, Mr. Ashwani Pant for assigning me

such an interesting topic for research and for his valuable guidance.

I would also like to thank my friends and family without whom I would not have been able

to complete this project.

They aided me with their moral support, understanding, help and cooperation.

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Contents

WHAT IS MEANT BY MENS REA............................................................................................................4

MENS REA TERMS – IN SPECIFIC...........................................................................................................5

INTENTION.........................................................................................................................................5

From Statutory Offences...................................................................................................................5

Intention in Mens Rea.......................................................................................................................5

KNOWGELED.........................................................................................................................................8

From Statutory Offences...................................................................................................................8

Knowledge in Mens Rea....................................................................................................................9

NEGLIGENTLY......................................................................................................................................10

From Statutory Offence...................................................................................................................10

Negligently in Mens Rea..................................................................................................................11

REASON TO BELIEVE............................................................................................................................13

From Statutory Offences.................................................................................................................13

Reason to Believe in Mens Rea........................................................................................................13

FRAUDULENTLY...................................................................................................................................14


Fraudulently in Mens Rea................................................................................................................15

DISHONESTLY......................................................................................................................................16


Fraudulently in Mens Rea................................................................................................................16

MALIGNANTLY....................................................................................................................................18


Malignantly in Mens Rea.................................................................................................................19

RASHNESS...........................................................................................................................................20

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Rashness in Mens Rea.....................................................................................................................20

WATONLY.........................................................................................................................................21


Watonly in Mens Rea.......................................................................................................................21

WHAT IS MEANT BY MENS REA

Mens Rea derived from a maxim quoted by Coke in his Institute; actus non facit reum, nisi

mens sit rea, i.e an act does not make a person guilty unless the mind is guilty. The meaning

of mens rea on this maxim explains the mental element of varying standards that is held by

the perpetrator. Here, in criminal law to purport a person has a guilty mind varies from the

precedent cases and the mens rea can be connotes as a guilty mind. This mental element had

been stated by Lord Goddard in the case of Brend v Wood1, “…the court should not find a

man guilty of an offence against the criminal law unless he has a guilty mind”. In the case of

DPP v Majewski2, Lord Simon also said that „mens rea is… the state of mind stigmatized as

wrongful by the criminal law which, when compounded with the relevant prohibited conduct,

constitutes a particular offence‟. S.H Kadish3 also stated: „Mens rea refers only to the mental

state which is required by the definition of thee offence to accompany the act which produces

or threatens the harm‟.

These definitions in fact can be criticised and not all crimes held the same mens rea as it

varies in other crimes. However, like any other crime, there are other degree depends on the

state of mind of perpetrator. In Commissioner of Sales Tax v. Rama and Sons, General

Merchant, Ballia, the court observed mens rea as "The principle of mens rea comes from

English Criminal Law from times when the law was not codified. It was said that actus non

facit reum nisi mens sit rea (the intent and act must both concur to constitute the crime). But

this principle has lost much of its significance owing to greater precision of modern statutes.

1 (1946) 175 LT 3062 [1977] AC 443 3 [1968] CLJ 273,274

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The nature of intent or the ingredients of offences are now clearly stated in the statutes and

nothing further is required to establish as offence then what the statute specified. We have

words like 'voluntarily', 'intentionally', 'negligently', 'knowingly', fraudulently', 'dishonestly',

'rashly', 'omits', 'without lawful authority' etc., 'omits', 'without lawful authority' etc., used in

various sections of the Indian Penal Code defining various offence. Proof of the State of mind

or of the conduct of the person as indicated by the aforesaid word establishes the offence and

no further guilty intent or mens rea need be proved. In fact there are many acts which are

offences and do not require proof any mens rea or guilty intention, for example possession of

illicit fire arm."

MENS REA TERMS – IN SPECIFIC

INTENTIONFrom Statutory Offences

Under the common law, the offence of murder as defined in section 300 of Penal Code

requires intention. The mens rea required in this section specifically on intention on limb (a),

(b), (c) and (d). Likewise, in attempt of commit murder and culpable homicide not amount to

death also require mens rea where intention is required by definition include the offence of

using criminal force : s. 350, assault : s. 351, extortion : s. 383, cheating : s. 415, criminal

trespass : s. 441, criminal defamation : s. 499, criminal intimidation : s. 503, causing a breach

of peace : s 504, outraging a woman‟s modesty : s. 509, generally offences against the State

under Chapter VI of Penal Code one offences of giving false evidence and offences against

public justice under Chapter XI of Penal Code)

Intention in Mens Rea

According to Molly Cheang, intention is the purpose or design with which an act is done. It is

the fore-knowledge of the act, coupled with the desire of it; such fore-knowledge and desire

being the cause of act, in as much as they fulfil themselves through the operation of the will.

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In Jurisprudence (1957), Salmond defined „intention‟ an act is intentional if, and in so far as

it exists in idea before it exist s in fact, the idea realising itself in the fact because the desire

by which is accompanied.

In KD Kaur‟s book of Criminal Law, he defines intention in the common parlance, means

purpose or desire to bring about a contemplated result or foresight that certain consequences

will be follow from the conduct of a person. A man is presumed to intend the necessary or the

natural and probable consequences of his act; and this presumption will prevail, unless from

the consideration of all the evidence, the Court entertains a reasonable doubt whether such

intention existed or not. In short, a man is said to have intended the desired act.

Based on the author‟s approached, intention is a desire of a person before the action will be

taken and man‟s intention will result in consequence, either directly or indirect. There are

types or degree of intention wrote down by authors and applied from the cases. According to

Cross & Jones, there are two types of intention, direct intention and oblique intention. The

distinction of intention was drawn by Jeremy Bentham which has two types of intention with

regards to prohibited consequences; direct intention and oblique intention.

‘A consequences, where it is intentional, may be either directly so, or only obliquely. It may

be so to be directly or lineally intentional, when the prospect of producing it constituted one

of the links in the chain of cause which the person was determined to do the act. It may be

said to be obliquely or collaterally intentional, when, although the consequence was in

contemplation, and appeared likely to ensue on case of the act’s being performed, yet the

prospect of producing such consequences did not constitute a link in the aforesaid chain’

In direct intention, the Court of Appeal had defined intention in the case of Mohan5 as „a

decision to bring about, insofar as it lies within the accused power, a particular consequence,

no matter whether the accused desired that consequence of his act or not‟. By adopting the

definition in the case of Mohan4, the accused acts intentionally with reference to a particular

consequence in the following cases:

a) If he aimed at achieving a particular consequence and believed he was likely to succeed, he

act intentionally with reference to it.

b) If he aimed at achieving a particular consequence although he did not expect that his act

would do so, he acts intentionally with reference to it.

4 [1976] QB 1

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c) If he aimed at achieving a particular consequence (although he did not desire it in itself) in

order to achieve an objective which he desired, he act intentionally with reference to the

particular consequence.

These examples showed that a man can be said to intend and decide a consequence insofar as

it lies within his power to achieve of his desired objective. For oblique intention, there are

two cases that a consequence is said to have been intended obliquely, first case is when the

act was not aimed at but the accused foreseen as certain to result. Second, where a person

foresees that a consequence will probably result from his act, although he does not aim to

produce it.

However, it is not clearly stated the nature of intention as intention can be close to motive and

knowledge. Here, we distinguish the different of intention with motive where intention is the

volition or active desire to do an act which is an operation of the will directing an overt act

while motive is the reason or ground of action which prompts the operation of the will by the

feeling of a person. The intention is the state of mind which direct the act which cause such

crime for instance by murdering a person and the motive gained by eliciting the purpose of

that act of murder whether it was done by revenge , hatred, vengeance etc. There is also a

good motive where a person done a crime which motivated by good conscious however the

act will not render lawful what is in fact a crime. Likewise, a bad motive certainly will not

make unlawful which is lawful. In criminal law takes into account only in a man‟s intention

but not motive as it is not a basic of criminal liability. The reason for not allowing motive as a

general defence to an offence is obvious. At presents, it is difficult to prove one‟s intention

that the law had to evolve the maxim that a person is presumed to intend an actual

consequence of his act. Motive, being ulterior intent, will be even difficult to prove.

Furthermore, the whole fabric of criminal law will be destroyed if good motive is allowed for

breaking the law and thus go unpunished. However, the motive can be evidently relevant

where it question the intention of a man and gives clue to a crime although in prosecution is

not bound to prove motive in a crime, absence of motive can be a factor in consideration of

the guilt of the accused.

Meanwhile, to distinguish intention and knowledge is when intention to commit an act may

be inferred from knowledge though it can come together, for knowledge is an awareness of

the consequence of an act. A man may be aware of the consequence of his act, though he may

not intend to bring them about. Knowledge can be distinguish from „reason to believe‟ where

a person is supposed to know a thing where there is a direct appeal to his senses, whereas

„reason to believe‟ means sufficient cause to believe a thing but not otherwise.

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On case Hyam v Director of Public Prosecutions5, the defendant, in order to frighten Mrs

Booth, her rival for the affections of Mr X, put burning newspaper through the letterbox of

Booth's house and caused the death of two of her children. She claimed that she had not

meant to kill but had foreseen death or grievous bodily harm as a highly probable result of

her actions. Ackner J directed the jury that the defendant was guilty if she knew that it was

highly probable that her act would cause at least serious bodily harm. Although Lord

Hailsham LC stated that he did not think that foresight of a high degree of probability is at all

the same thing as intention, and it is not foresight but intention which constitutes the mental

element in murder, the House of Lords (by a 3-2 majority), held that foresight on the part of

the defendant that his actions were likely, or highly likely, to cause death or grievous bodily

harm was sufficient mens rea for murder.

In the case of R v Nedrick 6 , on the fact of the case, a child had burned to death in a house

where the defendant had, without warning, put a petrol bomb through the letter box. He

admitted to starting the fire but stated that he only wanted to frighten the owner of the house.

The Court of Appeal overturned the murder conviction and substituted a verdict of

manslaughter as the judge had misdirected the jury. Lord Lane CJ provided a model direction

for a jury about intent in a murder case where the defendant did a manifestly dangerous act

and someone died as a result. Lord Lane CJ suggested that when determining whether the

defendant had the necessary intent, it might be helpful for a jury to ask themselves two

questions: (1) How probable was the consequence which resulted from the defendant's

voluntary act? (2) Did he foresee that consequence? If he did not appreciate that death or

serious bodily harm was likely to result from his act, he cannot have intended to bring it

about. If he did, but thought that the risk to which he was exposing the person killed was only

slight, then it might be easy for the jury to conclude that he did not intend to bring about the

result. On the other hand, if the jury were satisfied that at the material time the defendant

recognised that death or serious bodily harm would be virtually certain (barring some

unforeseen intervention) to result from his voluntary act, then that is a fact from which they

may find it easy to infer that he intended to kill or do serious bodily harm, even though he

may not have had any desire to achieve that result.

KNOWGELED

5 [1975] AC 55 6 (1986) 83 Cr App 267

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From Statutory Offences

In Malaysia, there are few Sections in which the word knowledge is used as mens rea. For an

example, Section 299 states : “...or with the intention of causing such bodily injury as is

likely to cause death, or with the knowledge that he is likely by such act to cause death,

commits the offence of culpable homicide. Besides this section, the word knowledge is also

used in Section 300(d) “....knows that it is....”, Section 166 “...knowingly disobeys the

discretion of the law....”. With such many Sections using the word knowledge, however, the

Penal Code does not provide the meaning of either knowledge or knowingly. To establish

that a person can be convicted of crime based on knowledge, we must first proof that the

accused had the knowledge at the time he committed the crime. It is an important thing for us

to firstly understan what is meant by knowledge.

Knowledge in Mens Rea

Nigam has defined “knowledge” as to know a thing means to have mental cognition of it. To

believe a thing is to assent to a proposition or affirmation or to accept a fact as real or certain

without immediate personal knowledge. Thus knowledge and “reason to believe” are to be

clearly distinguished…Thus belief is somewhat weaker than knowledge but a well-grounded

belief that certain consequences will follow a certain act is ordinarily as good as knowledge.

Knowledge of the circumstances by virtue of which an act or omission is criminal is

expressly required in the case of many statutory offences. What is said here is of equal

application to those offences where a mere event is required.

Knowledge of the circumstances by virtue of which an act or omission is criminal is

expressly required in the case of many statutory offences on account of the inclusion of sme

such word as “knowingly” is not the only word which will have this effect, since it merely

says expressly what is normally implied. Even when no appropriate word appears in the

definition,a requirement of guilty knowledge is frequently implied by the courts. In Sleep7,

for example, the accused was charged with being in possesion of naval stores marked with

the broad arrow, an offence under a statute of William III which has since been repealed. It

was held that he must be acquitted as there was no proof that he knew that thestores in

question were marked with the broad arrow as was in fact the case. In the opinion of the

Court for Crown Cases Reserved, the fact that the accused ought, as reasonable man, to have 7 (1861) Le &Ca 44

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known of the marking was immaterial. Similarly in Sweet v Parsley8, after a different opinion

had prevailed in the lower courts, the House Of Lords held that a person could not be guilty

of “being concerned in the management of premises used for the purpose of smoking

canabis‟ an offence which has subsequently been modified) in the absence of proof of

knowledge of such use.

As Lord Devlin has indicated, there are three degrees of knowledge known to the criminal

law. The first is actual knowledge which maybe inferred from the conduct of the accused.

Where a person has actual knowledge of the circumstances in which he is acting he is said to

act intentionally in relation to them. Knowledge of the second degree consists of wilful

blindness, where a person realise the risk that a surrounding circumstance may exist and

deliberately refrains from making enquiries, the results of which he may not care to have; this

is actual knowledge in the eyes of the law. Wilful blindness is a species of subjective

recklessness with reference to the surrounding circumstances, and it is often called

connivance. The Model Penal Code Section 2.02 (7) states that when knowledge of the

existence of a particular fact is an element of an offense (circumstance element) such

knowledge is established if a person is aware of a high probability of its existence (moral

equivalent of subjective knowledge), unless he actually believes that it does not exist. The

third degree of knowledge is described as constructive knowledge. Thus, a person who has

knowledge of third degree, if he fails to make the enquiries which a reasonable and prudent

person would make. It is distinguishable from willful blindness that the failure to inquire is

not deliberate; and unlike willful blindness it is only a sufficient basis in exceptional cases,

being necessarily irrelevant where words such as “knowingly” are used. Constructive

knowledge is a species of negligence.

For the avoidance of doubt, it should be mentioned that guilty knowledge extends only to

circumstances as prescribed in the definition of the offence in question. Thus, a person is

guilty of the offence of knowingly selling intoxicating liquor to such a person, it being

irrelevant, for instance, that he thinks the person is 16 when he is in fact 17 years old.

It sometimes happens that the accused has had the necessary knowledge of circumstances but

has forgotten them at the time of the conduct in question. In such a case he is treated as

having knowledge at the time if he then had the capacity to restore the circumstances to his

mind.

8 [19790] AC 132,[1969] 1 All ER 347; C.& J. Cases.

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The standard test of knowledge as stated in Cross & Jones is that “did the person whose

conduct is in issue either know of the relevant circumstances or have no substantial doubt of

their existence?

NEGLIGENTLY

From Statutory Offence

In Penal Code Malaysia, Section 279, 280, 284, 285, 286, 287 and 304A are the sections that

use negligence as mens rea which alternative to the word rash while in sections 282, 288 and

289, the word negligence is used as an alternative to the word knowledge. Section 269 also

uses the word negligence or unlawful as mens rea.

In India Penal Code, Section 304A state about causing death by negligence “Whoever causes

the death of any person by doing any rash or negligent act not amounting to culpable

homicide shall be punished with imprisonment of either description for a term which may

extend to two years, or with fine, or with both.” There are other sections that include the word

negligence which are Section 286 and 287.

In Singapore Penal Code, section 336 state that “Whoever does any act so rashly or

negligently as to endanger human life...” and in Section 337 “Whoever causes hurt to any

person by doing any act so rashly or negligently as to endanger human life or the…” and

section 338 “Whoever causes grievous hurt to any person by doing any act so rashly or

negligently as to endanger …”.

Negligently in Mens Rea

In Criminal Law in Singapore and Malaysia, KL Koh, CMV Clarkson and NA Morgan define

that negligence is inadvertence to the possibility of the consequence occurring. It should be

noted that the above definition of negligence requires that if the accused had stopped to think

about the consequences of his actions “ he would have had the consciousness”. Applying this

to the fact of Elliot v C (A Minor)(1983), if the girl had stopped to consider the consequence

of her actions she would still not, because of her retardation , have had the necessary

“consciousness”. She would thus not be negligent under this test.

Molly Cheang in Criminal Law of Malaysia & Singapore state in his book that the word

negligent refers to the mental state of negligence defendant who commits an act without

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realizing what the consequences of that act. Accused did not have this awareness, but a

reasonable person would perceive.

If anything is done without any advertence to the consequent event or result, the mental state

in such situation signifies negligence. The event may be harmless or harmful, if harmful the

question arises whether there is legal liability for it. In civil law (common law) it is decided

by considering whether or not a reasonable man in the same circumstances would have

realized the prospect of harm and would have stopped or changed his course so as to avoid it.

If a reasonable man would not, then there is no liability and the harm must lie where it falls.

The word „negligence‟, therefore, is used to denote blameworthy inadvertence. It should be

recognized that at common law there is no criminal liability for harm thus caused by

inadvertence. Strictly speaking, negligence may not be a form of mens rea. It is more in the

nature of a legal fault. However, it is made punishable for a utilitarian purpose of hoping to

improve people‟s standards of behaviour.

Criminal liability for negligence is exceptional at common law; manslaughter appears to be

the only common law crime, which may result from negligence. Crimes of negligence may be

created by statute, and a statute may provide that it is a defence to charges brought under its

provisions for the accused to prove that he was not negligent. Conversely, negligence with

regard to some subsidiary element in the actus reus of a crime may deprive the accused of a

statutory defence which would otherwise have been available to him.

Advertent negligence is commonly termed as wilful negligence or recklessness. In other

words, inadvertent negligence may be distinguished as simple. In the former the harm done is

foreseen as possible or probable but it is not willed. In the latter it is neither foreseen nor

willed. In each case carelessness, to say indifference as to the consequences, is present but in

the former this indifference does not, while in the latter it does prevent these consequences

from being foreseen. The physician who treats a patient improperly through ignorance or

forgetfulness is guilty of simple or inadvertent negligence; but if he does the same in order to

save himself trouble, or by way of a scientific experiment with full recognition of the danger

so incurred, his negligence is wilful. It may be important to state here that the wilful wrong

doer is liable because he desires to do the harm; the negligent wrong doer is liable because he

does not sufficiently desire to avoid it. He who will excuse himself on the ground that he

meant no evil is still open to the reply: - perhaps you did not, but at all event you might have

avoided it if you had sufficiently desire to do so and you are held liable not because you

desired the mischief, but because you were careless and indifferent whether it ensured or not.

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It is on this ground that negligence is treated as a form of mens rea, standing side by side with

wrongful intention as a formal ground of responsibility.

Court in the case Anthonysamy9 ruled the word negligence in the Penal Code have the same

meaning as used in civil cases and not a higher degree of negligence or gross negligence. The

court in this case felt that the provision of sessions has issued section 304A of criminal

negligence should accept the principle that is used in England. Criminal act under section

304A does not make it as offence in killing with intent. Sentence of imprisonment imposed

by the section is not exceeding 2 years. The same position has been discussed in the case of

Adnan bin Khamis10. But there are also cases of the opinion that the negligence of the

criminal cases requires a higher standard than the standards set by the civil cases. Opinion is

presented as the court concerned injustice may occur when using the same standard in

criminal law.

Judge in the case of Re Nidamarti Nagabhushanam (1872) 7 Mad HCR 119 said that

“Culpable negligence is acting without the consciousness that the illegal and mischievous

effects will follow, but in circumstances which show that the actor has not exercised the

caution incumbent on him, and that, if he had, he would have consciousness. The imputability

arises from the neglect of the civic duty or circumspection….”

REASON TO BELIEVE


Section 26 of the Penal Code states, “A person is said to have “reason to believe” a thing, if

he has sufficient cause to believe that thing, but not otherwise.”

Reason to Believe in Mens Rea

In the case of Ahmad bin Ishak11, the court decided that “reason to believe, knowledge,

intention are things in a man‟s mind and therefore we cannot see or hear it. The most

9 (1956) 22 MLJ 247 10 [1972] 1 MLJ 274 FC 11 [1974] 2 MLJ 21

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important thing here is that we have to look into the circumstances and consider if the

circumstances are such that any reasonable man could see sufficient cause to believe that it

was stolen. As in the case of Tan Ser Juay12, the Honourable Chief Justice accepted the Indian

authorities on the interpretation of the phrase "reason to believe" in sections 411 and 414 of

the Penal Code, as requiring the prosecution to prove facts from which a reasonable person

would necessarily believe, not merely suspect, that the goods were stolen. The court also

believes appellant's evidence does not raise any doubt in the court's mind as to his guilt, in

finding that on all those facts he had reason to believe that the watches in question were

stolen property. The court held that the suspicions of the appellant must have been aroused,

but the law does not allow for a conviction based merely on suspicion.

In the case of Koh Hak Boon13, the court believes that 'Reason to believe' in s 414 does not

involve the necessity of showing that the circumstances were such that a reasonable man

must have felt convinced in his mind that the property he was dealing with was stolen

property. It involves a lesser degree of conviction than certainty and a higher one than

speculation. The matters which contribute towards a person having reason to believe

something are not those which a court would require as proof of that thing. Whether or not a

person had 'reason to believe' certain property was stolen property for the purposes of ss 411

and 414 is a test to be applied by the court, but from the perspective of the accused person. It

must relate to the standards of belief of a reasonable man and not to those of any particular

accused person. However, some element of subjectivity must be involved because what might

be apparent to a person with specialized knowledge of a certain field might not be apparent to

a layman of even very high intelligence. The court must assume the position of the actual

individual involved (ie including his knowledge and experience), but must reason (ie infer

from the facts known to such individual) from that position like an objective reasonable man.

It is apparent from the cases that 'reason to believe' involves a lesser degree of conviction

than certainty and a higher one than speculation. The matters which contribute towards a

person having reason to believe something are not those which a court would require as proof

of that thing, since 'reason to believe' is not itself a standard proof, as opposed to that which

must be discharged by the prosecution in persuading the court of the existence of such reason.

FRAUDULENTLY

12 [1972] 1 MLJ 6 13 [1993] 3 SLR 427

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In Penal Code S.25 defines “Fraudulently”:-

“A person is said to do a thing fraudulently if he does that thing with intend to defraud but

not otherwise.”

There are many terms of “Fraudulently” on the sections in Penal Code such as Section 206,

207, 208, 210, 242, 247, 253, 261, 262, 263, 264, 265, and 463. There are also sections that

juxtaposition the term of “fraudulently” and “dishonestly” in section 209, 246, 247, 464, 471,

474, 477, 496 of Penal Code.

Fraudulently in Mens Rea

According to Glanville Williams, mental states may be required by implication, such that the

statutes creating an offence of false statement are sometimes held impliedly to require an

intent to deceive or defraud, even though there are no words to effect; but on other occasion

in the case of Heron, the court held that the offence is committed merely by knowingly doing

something that in fact violates the word of the statute.

There are differences between fraudulently and dishonestly as what had been stated in the

statute and in the case of Vilma, Dr v Delhi Administration14, Dr Vilma purchased a car in his

minor daughter‟s name and got the insurance policy transferred in her name. The car met an

accident the appellant filed two claims against the insurance company and his daughter sign it

and have the receipts acknowledging the payment and compensation. The appellant was

prosecuted under section 467 of Indian Penal Code on insurance company‟s complaint that

the appellant alleged in fraud. The court interprets within the definition of section 463 and

464 under false document and forgery; both descriptions had the same meaning of mens rea

i.e. “fraudulently” and “intention to commit fraud”. Secondly had been noticed two adverbs

„dishonestly‟ and „fraudulently‟ in section 464 are used alternatively indicating thereby that

one excludes the other. The Indian Penal Code defines them under section 24 and 25

respectively. The word „defraud‟ includes an element of deceit which is an important

ingredient of the definition of the word “fraudulent” but for the definition of “dishonestly”

illustrated as wrongful gain or wrongful loss. Only either one arises of the issue and not both.

If the expression “fraudulently” were to be held involved in this case, the element of injury to

14 A.I.R 1963 S.C 1572

15

the deceived party, it would be reasonable to assume the injury should be something more

than pecuniary or economic loss.

If we look at the case of Seet Soon Guan v PP15, in Buhagiar J‟s judgment, he interpreted that

the correct meaning of “fraudulently” used either by itself or in juxtaposition with the term

“dishonestly” or together in Sec. 209 of Penal Code. “Dishonestly” and “fraudulently” are

dealt in section 24 and 25 respectively. Buhagiar J support for the view made by the judges in

a Calcutta Full Bench Case, Abbas Ali (1897) that “fraudulently” does not imply deprivation

of property to be found in other sections of the Code. The Court held that the fraud does not

necessary indicate a deceit or injury. A person is said to act fraudulently if he intended to

deceive his victim and that deception will gain advantage to him or cause injury to the victim.

Also, in King Emperor v Tha By Aw16, the appellant was guilty of cheating under section 417

of the Indian Penal Code with false representation of his name (real name Tan Sein) and by

representing the place he resided in another town. His deception was to obtained more opium

and by law regulates in possession of only the weight of three tolas of opium obtained from

licensed vendor. On Hartnoll J‟s judgment the act of deceit is fraudulent within the meaning

of section 415 and in his opinion; it is suffice to adopt the definition of Sir James Stephen that

the first element is intention to deceit and secondly either actual or possible injury or an intent

to expose of injury or risk to possible injury by means of deceit or secrecy that there is no

doubt that there has been fraudulent conduct within the meaning of section 415 of Indian

Penal Code. However, in Ormond J‟s judgment, the deception was done dishonestly within

the meaning of section 23 and 24 because by means of deceit he gained opium which was not

his own, and which he would not gained but for deceit.

DISHONESTLY


In Penal Code S.24 defines “Dishonestly”:-

“Whoever does anything with the intention of causing wrongful gain to one person or

wrongful loss to another person is said to do that thing „dishonestly‟.

15 (1955) 21 MLJ 223 16 (1907) 4 BLR 315

16

There are many terms of “Dishonestly” on the sections in Penal Code such as Section 209,

415, 247, 378, 383, 403, 404, 405, 411, 420, 421,461, 464, 471, 474, 477 and 496.

Fraudulently in Mens Rea

According to Glanville Williams, the crime may require the absence of a particular kind of

intention, knowledge or belief. In a crime of dishonesty such as theft and obtaining by

deception require absence of honest intent. A person who has intentionally taken money from

another may defend himself against charged of theft by saying that he took it in order to

recoup a debt owed by him. His intention to obtain payment of the debt can be regarded as an

honest intention which removes the criminality of his intentional taking of the money.

In theft, dishonesty requires the intention to cause wrongful gain or wrongful loss. This

intention to make dishonest exist at the time of moving the property in Sec. 378 in illustration

(h) and (i). Another example is that there is no dishonesty when A pick up his friend‟s book

which was carelessly left at the restaurant, intending to return it after he has read it. On the

other hand, if A form an dishonest intention not to return it he may liable for criminal

misappropriation of property. It is wrongful to take property by knowing the property belongs

to another person or, if the property belongs to him, he knows the other person has a right to

retention. If a person took lost property, there may be criminal misappropriation but there is

no dishonesty intention.

In criminal misappropriation, mens rea by means of dishonesty, there are three general points

must be taken, firstly, even if the exclusion of the rightful owner form his property is

sufficient to constitute “misappropriation”, and is regard as causing “wrongful loss” to him

under terms of section 23, such conduct only be criminal if it can be proved that the accused

had intended to cause wrongful gain or wrongful loss. Secondly, it will be more difficult to

draw an inference of dishonesty where there has been misappropriation in the sense of

retention. Thirdly, the last point about dishonestly in the context of criminal misappropriation

concerns temporary appropriations.

Mens rea for dishonest appear in the cases of misappropriation, conversion and use of

disposal in violation of law or contract by the entrusted person himself. In context of

Criminal breach of Trust, a series of cases has shown that negligence or a failure to account

for entrusted property does not, without more, constituted dishonestly.

There are two case to look upon when a person taking another‟s property as security for debt.

In Kadirawail v Kader Meedin (1881), the accused took some jewellery from the person of

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the deceased woman who was his debtor. He made clear to those present there that he

intended to retain the jewellery only as security for the debt. The court held that that a

dishonest intention had not been proved and theft was not committed. Another case in PP v

Ramiah17, the three accused were prosecuted of house-breaking in order to commit theft in

contravention of section 454 of the Penal Code. The three of them broke into a house of

complainant and removed a trunk containing a large quantity of property. Some days later the

trunk was found in the possession of one of them and the properties are still intact. The

property was kept for a few days so that the complainant start paying off the debt and the

accused had no intention of stealing at all. In India case, a similar fact, Sri Churn Chungo

(1895) also took place when the creditor took property of debtor for a time by force or taking

goods of debtor against his will to put pressure on him to compel him to discharge his debt;

and it must follow that a person who does so is guilty of theft within the provision of Indian

Penal Code. All of three accused were found not guilty and discharged.

Also, there are cases of intention of a person to take property without consent under

dishonesty. In the case of Packer Ally v Savarimuttu18, the accused approached the

storekeeper of an estate and asked to join him taking away rubber suggesting they should

share the proceeds. The storekeeper report to Superintendent then authorized the storekeeper

to let the accused have the rubber and directed him to cause the accused to sell the rubber.

The point view is whether the fact that the consent of Superintendent the removal of rubber

the offence of theft as defined on section 366 had been committed. The consent mentioned in

this section as a condition which must be the mind of the accused when he intends dishonest

to remove the property. The act in this section had committed by the accused and the accused

convicted to theft. And in the case of Raja Mohamed v R30, the appellant remove two dozen

boxes of glasses from company‟s store room at ground floor. The boxes removed to first

floor but not had been removed from the premise. Ambrose J concedes that to constitute a

theft must be an intention to take dishonestly any movable property out of possession of

another person or without consent. The court held that it is sufficient if the accused, who has

formed an dishonest intention, move that property in order to such taking—it is not necessary

for him to move the property out of the possession of a person.

MALIGNANTLY

17 (1959) 25 MLJ 204 18 (1916) 2 CWR 216

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In Malaysia, Section 270 of Penal Code state that whoever malignantly does any act which is,

and which he knows or has reason to believe to be, likely to spread the infection of any

disease dangerous to life, shall be punished with imprisonment for a term which may extend

to two years or with fine or with both. India Penal Code also constitutes the same Act. The

next element of mens rea is malignant which has been constituted in Section 219 and 220 of

Penal Code. Penal Code has provided some sections which include the word rashly. Those

sections are 279, 280, 284, 285, 286, 287, 336 337, and 304. In India Penal Code, Section

304A provide that “Whoever causes the death of any person by doing any rash or negligent

act not amounting to culpable homicide shall be punished with imprisonment of either

description for a term which may extend to two years, or with fine, or with both.”

In Singapore Penal Code, Section 336, 337 and 338 include the word rash. Section 336

“Whoever does any act so rashly or negligently as to endanger human life …”

Malignantly in Mens Rea

The definition of malignant has not been defined clearly in Penal Code, therefore we shall

refer to the definition given in the case of Bromage v Prosser. The court held that malicious

element occurred in the situation where by the act conducted by the accused has been done

with an intention, and without any reasonable ground. The conducted act will cause harm

towards others. This also has been stated in the case The Moghul Steamship Company,

Limited v McGregor Gow & Co. What happens in this case is that the defendant is the owner

of the ship that trade between China and Europe. To enable them to gain a monopoly on the

trade routes, they form an association and offer services for the carriage of goods from China

to Europe by s owner of the ship and the competitive to defendant. Plaintiff was dismissed by

the association and it cause losses. Defendant will only be liable if the act proved his action

was made without justification. Only action made without justification is considered as

malignant. According to the court, wrong act or can‟t be justified is like using force or

coercion. In this case the court found that the defendant did not do the things that the

defendant's actions were not made with the malicious intention to cause damage or prejudice

to the plaintiff.

In R v Cunningham, Bryne J state that “ we have considered….the following principle which

was propounded by the late Professor CS Kenny… : „in any statutory definition of a crime,

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malice must be taken not in the old vague sense of wickedness in general, but as requiring

either; i) an actual intention to do the particular kind of harm that in fact was done, or ii)

recklessness as to whether such harm should occur or not ( i.e. the accused has foreseen that

the particular kind of harm might be done, and yet has gone on to take the risk of it). It is

neither limited to, nor does it indeed require, any ill-will towards the person injured.‟…We

think that this is an accurate statement of the law…In our opinion, the word maliciously in a

statutory crime postulates foresight of consequences….”

RASHNESS


In Undang-Undang Jenayah Di Malaysia, Siti Zaharah and Datin Noraini mention that the

word rash become mens rea in some sections of the Penal Code. This word can be seen in

sections 279, 280, 284,, 285, 286, 287, 336 337, and 304.

Rashness in Mens Rea

“Rashness” also not given its meaning by the Penal Code. The question of whether an

accused person has committed a rash act will be determined by looking to what precautions

to be taken by a reasonable person in that circumstance. In determining whether an act is an

act done with intent or in haste, judgments are made on the consequences of the act. If the

result is likely to occur is low, then the act is usually said to be done with intent.

In Criminal Law in Singapore and Malaysia, KL Koh, CMV Clarkson and NA Morgan state

that rashly and negligently has a separate meaning, the Penal Code generally uses them

jointly as in “causing death by a rash or negligent act” contrary to Section 304 of Penal Code.

Molly Cheang in Criminal Law of Malaysia & Singapore state that rashness occurs if the

accused is aware of the risks that will occur due to the actions, determined to continue the

action despite aware the risk and the absence of a reason to do the act. This rash act also

known as conscious negligence because even though the accused know the risk, he still

committed the act.

In case Nga Min Tat19, the court ruled that rashness is an act done in hurry, made without

consideration or care. In case Chamman Lal, the court ruled that rashness and negligent act 19 (1898)PLJB 426.

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are two different forms of action. Rashness under criminal law, the act must be done even

though the accused know that the consequences of the act would cause injury. Criminal

elements exist as he continues to commit the act without regard the consequences which

result from that act.

What is meant by rash under the section 304, is best explained in the case N Nagabushanam,

the court held that rash refers to act done by accused, which he is aware or conscious that it

may cause injury or damage but he insisted to take the risk. He believes that he has taken

sufficient precaution or care. The important factor to be considered is whether the accused

was aware. Judge in the case of Re Nidamarti Nagabhushanam (1872) 7 Mad HCR 119 said

that “Culpable rashness is acting with the consciousness that mischievous and illegal

consequences may follow, but with the hope they will not and often with the belief that the

actor has taken sufficient precautions to prevent their happening. The imputability arises from

acting despite the consciousness luxuria. Rashness is thus advertence to the possibility of the

consequence occurring.”

WATONLY


In our Penal Code, Section 153 has the word wantonly appearing.

Watonly in Mens Rea

Nigam has defined “wantonly”, “…means the doing of a thing recklessly or thoughtlessly,

without regard for consequences. It implies a disposition not evil, but reckless or

mischievous. A man may do anything “wantonly”, when he has no reason to do it; but he

does it because he takes pleasure in doing it, though he knows that its consequences to others

may be serious.

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what is meant by mens rea

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