Straits Settlements.

The acts and ordinances of the Legislative council of the Straits Settlements, from the 1st April 1867 to the 7th March 1898 .. online

. (page 12 of 98)
Online LibraryStraits SettlementsThe acts and ordinances of the Legislative council of the Straits Settlements, from the 1st April 1867 to the 7th March 1898 .. → online text (page 12 of 98)
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harm to be prevented or avoided was of such a nature and so
imminent as to justify or excuse the risk of doing the act with the
knowledge that it was likely to cause liariu.



Act of a child
uudiT 7 } cjirs
of age.

Act of a child
ahove 7 and
under 12 years
of age, who has
not sufficient
matnritj of
understanding.

Act of a person
of nnaoand
nfind.



Act of a person
incapahle of
judgment h j
reason of
intoxication
caused against
hif wUl.



Offence re-
quiring a par-
ticular intent
or knowledge,
committed hy
one who is
intoxicated.



Act not
intended and
ndt known to
be likely to
eanse death
or grieyons
hurt, done by
eon8«nU



Illustrations.

(a.) A, the Captain of a Steam Vessel, suddenly and without any fault or
negligence on his part, finds himself in such a position that, before he can
stop nis yessel, he must inevitably run down a boat B, with 20 or 30 pas-
sengers on board, xmless he changes the course of his yessel ; and that, by
changing his course, he musfc incur risk of running down a boat 0, with onl^
2 passengers on board, which he may possibly clear. Here, if A alters his
course without any intention to run down the boat C, and in good faith for
the purpose of avoiding ihe danger to the passengers in the boat B, he is not
guilty of an ofFence, though he may run down the boat C, by doing an act
which he knew was likely to cause that effect, if it be Ibund as a matter of
fact that the danger which he intended to avoid was such as to excuse him in
incurring the risk of running down the boat 0.

(b.) A in a great fire pulls down houses in order to prevent the conflagra-
tion from spreading. He does this with the intention, in good faith, of
saving human life or property. Here, if it be found that the harm to be
prevented was of such a nature and so imminent as to excuse A*s act, A is
not guilty of the o£Pence.

82. Nothing is an offence which is done by a child under seven
years of age.

83. Nothing is an offence which is done by a child above seven
years of age and under twelve, who has not attained sufficient
maturity of understanding to judge of the nature and consequence
of his conduct on that occasion.

84. Nothing is an offence which is done by a person who, at the
time of doing it, by reason of unsoundness of mind, is incapable of
knowing the nature of the act, or that he is doing what is eithet
wrong or contrary to law.

85. Nothing is an offence which is done by a person who, at
the time of doing it, is, by reason of intoxication, incapable of
knowing the nature of the act, or that he is doing what is either
wrong or contrary to law : provided that tJie thing which intoxi-
cated him was administered to him without his knowledge or
against his will.

86. In cases where an act done is not an offence unless done
with a particular knowledge or mtent, a person who does the act in
a state of intoxication shall be liable to be dealt with as if he had
the same knowledge as he would have had if he had not been
intoxicated, unless the thing which intoxicated him was administered
to him without his knowledge or against his will.

87. Nothing, which is not intended to cause death or grievous
hurt, and whicB is not known by the doer to be likely to cause
death or grievous hurt, is an offence by reason of any harm whidi
it may cause, or be intended by the doer to cause, to any person
above eighteen years of age, who has given consent, whether express
or impli^ to suffer that harm ; or by reason of any harm whieh it



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faith for the
benefit of a



PENAL CODE. \IV. OF 1871.] 93

may be known by the doer to be likely to cause to any such person
who has consented to take the risk of that hamu

Illustration.

A and Z agree to fence with each other for amusement. This agreement
implies the consent of each*to suffer any harm which, in the course of such
fencings may be caused without foul play ; and if A., while playing fairly,
hurts Z, A conunits no offence.

88. Nothing, which is not intended to cause death, is an offence Act not
by reason of any harm which it may cause, or be intended by the "'^^'^^f^
doer to cause, or be known by the doer to be likely to cause, to SonT by con
any person for whose benefit it is done in good faith, and who has sent in good
given a consent, whether express or implied, to suffer that harm, or ''*"*'
to take the risk of that harm. ^^n.

Illustration.

A, a surgeon, knowing that a particular operation is likely to cause the
death of Z, who suffers under a painful complaint, but not intending to cause
Z's death, and intending, in good faith, Z's benefit, performs that operation
on Z, with Z's consent. A has committed no offence.

89. Nothing, which is done in good faith for the benefit of a Act done in
person under twelve years of age, or of unsound mind, by or by f^P^ ^^}^ ^^^

J^ , .^, "^ • T J u XL J' lL thehenefitof

consent, either express or impbed, of the guardian or other person ^ child or
having lawful charge of that person, is an ofience by reason of person of
any harm which it may cause, or be intended by the doer to cause, "°so"^<i ^'^^^*
or be known by the doer to be likely to cause, to that person : consent^of

Provided — guardian.

First. — That this exception shall not extend to the intentional Proyisoei.
causing of death, or to the attempting to cause death ;

Secondly. — That this exception shall not extend to the doing of
anything which the person doing it knows to be likely to cause
death for any purpose other than the preventing of death or
grievous hurt, or the curing of any grievous disease or infirmity;

Thirdly. — That this exception shall not extend to the voluntary
causing of grievous hurt, or to the attempting to cause grievous
hurt, unless it be for the purpose of preventing death or grievous
hurt, or the curing of any grievous disease or infirmity ;

Fourthly. — That this exception shall not extend to the abet-
ment of any offence, to the committing of which offence it would
not extend.

Illustration.

A, in good faith, for his child's benefit, without his child's consent, has
his child cut for the stone hy a surgeon, knowing it to be likely that the
operation will caose the child's death, but not intending to cause the child's
death. A b within the exception, inasmuch as his object was the cure of
the child.

90. A consent is not such a consent as is intended by any Consent
Section of this Code, if the consent is given by a person under fear ^^^^ *^^
of injury, or under a misconception of fact, and if the person doing ^ or^it^
the act knows, or has reason to believe, that the consent was conceptioo.
given in consequence of such fear or misconception — or



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94 [IV. OF 1871.] PENAL CODE.

'^M**^* ^^ * ^^ *^® consent is given by a person who, from unsoundness of
of unwanT*^*^ mind or intoxication, is unable to understand the nature and oon-
mind. sequence of that to which he gives his consent ; or, unless the

contrary appears from the context, if the consent is given by a

person who is under twelve years of age.

Aets which 91. The exceptions in Sections 87, 88, and 89, do not extend to

rnde^^entiy ^^ which are offences independently of any harm which they may
of harm caused cause, or be intended to cause, or be known to be likely to cause,
to the person to the person giving the consent, or on whose behalf the consent

exceptions in Illustration.

Sections 37,

88, and 89. Oansine miscarriage (unlesn caused in good fait.li for the purpose of saving

the life of the woman) is an offence independently of any h|krm which it may
cause or be intended to cause to the woman* Therefore it is not an offence
'* by reason of such harm ; " and the consent of the woman, or of her
guardian, to the causing of such miscarriage does not justify the act.

Act done in 92. Nothing is an offence by reason of any harm which it may

A°h^? ^^f ^^^® *^ * person for whose benefit it is done in good faith, even
person^withou? without that person's consent, if the circumstances are such that it
consent, is impossible for that person to signify consent, or if that person

is incapable of giving consent, and has no guardian or other person
in lawful charge of him from whom it is possible to obtain consent
Provisoes. in time for the thing to be done with benefit. Provided —

First — That this exception shall not extend to the intentional
causing of death, or the attempting to cause death ;

Secondly. — ^That this exception shall not extend to the doing of
anything which the person doing it knows to be likely to cause
death, for any purpose other than the preventing of death or
grievous hurt, or the curing of any grievous disease or infirmity ;

Thirdly. — That this exception shall not extend to the voluntary
causing of hurt, or to the attempting to cause hurt, for any purpose
other than the preventing of death or hurt ;

Fourthly. — ^That this exception shall not extend to the abetment
of any ofience, to the committing of which oflfence it would not
extend.

Illustrations.

(a.) Z is thrown from his horse, and is insensible. A, a surgeon, finds that
Z requires to be trepanned. A, not intending Z's death, but in good faith,
for Z's benefit, performs the trepan before Z recovers his power of judging
for himself. A has committed no offence.

(b.) Z is carried off by a tiger. A fires at the tiger, knowing it to be
likely that the shot may kill Z, but not intending to kill Z, and in good faith
intending Z's benefit. A's ball gives Z a mortal wound. A hjfts committed
no offence.

(c.) A, a surgeon, sees a child suffer an accident which is likely to prove
fatal unless an operation be immediately performed. There is not time to
apply to the child's guardian. A performs the operation in spite of the
entreaties of the child, intending, in good faith, the child's benent. A has
committed no offence.

(d.) A is in a house which is on fire, with Z, a child. People below hold
out a blanket. A drops the cbild from the house«top, knowing it to be likely



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PENAL CODE. [IV, OF 1871,] 95

tbiUi the fall, mar JkiU the child, but not intendipg to kill the child, and
intending, in good faith, the child's benefit. Here, even if the child is killed
bj the fall, A nas committed no offence.

Explanation. Mere pecuniary benefit is not benefit within the
meaning of Sections 88, 89, and 92.

93. No communication made in good faith is an offence by reason ComnuxDica.
of any harm to the person to whom it is made, if it is made for the ^^^'J*?^"*
benefit of that person. * ^

Illustration.

A, a snrgeon, in good faith, commnnicates to a patient his opinion that he
cannot live. The patient dies in consequence of the shock. A has committed
no offence, though he knew ib to be likely that the communication might
cause the patient's death.

94. Except murder and offences against the State punishable with Act to which
death, nothing is an offence which is done by a person who' is com- • P^"?{ii%
pelled to do it by threats, which, at the time of doing it, reasonably ^J^. ^
cause the apprehension that instant death to that person "will other-
wise be the consequence : provided the person doing the act did

not of his own accord, or from a reasonable apprehension of harm
to himself short of instant death, place himself in the situation by
which he became subject to such constraint.

Elxplanation 1. A person who, of his own accord, or by reason
of a threat of being beaten, joins gang-robbers knowing their
character, is not entitled to the benefit of this exception on the
ground of his having been corapelled by his associates to do
anything that is an offence by law.

Explanation 2. A person seized by gang-robbers, and forced by
threat of instant death to do a thing which is an offence by law, —
for example, a smith compelled to take his tools and to force the
door of a house for the gang-robbers to enter and plunder it, — is
entitled to the benefit of this exception.

95. Nothing is an offence by reason that it causes, or that it is Act causing
intended to cause, or that it is known to be likely to cause, any ^'^^* *^*^-
harm, if that harm is so slight that no person of ordinary sense and
temper would complain of such harm.

Of the Right of Private Defence.

96. Nothing is an offence which is done in the exercise of the in^privfte^"^
right of private defence. defcDceis an

offence.

97. Every person has a right, subject to the restrictions contained Bight of

in Section 99, to defend — private defence

of the body

First — His own body, and the body of any other person, against and of
any offence affecting the human body ; property.

Secondly. — The property, whether moveable or immoveable, of
himself or of any other person, against any act which is an offence
falling under the definition of theft, robbery, mischief, or crimmal



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96



[IV. OF 1871.]



i^ENAL CODE.



trespass, or which is an attempt to commit theft, robbery, mischief,
or criminal trespass.

Right of 98, When an act, which would otherwise be a certain otfence,

a"^in«t the^acT ^ ^^^ ^^^ offence, by reason of the youth, the want of maturity of
ofa person of Understanding, the unsoundness of mind, or the intoxication of the
unsound mind, person doing that act, or by reason of any misconception on the
^*' part of that person, every person has the same right of private

defence against that act which he would have if the Act were that

oflfence.

Illustrationa

(a.) Z, finder the influence of madness, attempts to kill A. Z is gailty of
no offenoe. Bat A has the same right of private defence which he woald naye
if Z were sane.

(b.) A enters, b^ night, a house which he is legally entitled to enter. Z,
in good f^ith, taking A for a house-breaker, attacks A. Here Z, by attacking
A under this misconception, commits no oflence. But A has the same right
of private defence against Z, which he would have if Z were not acting onder
that misconception.



Acts against
which there is
no right of
private
defence.



Extent to
which the
right may be
exercised.



When the
right of private
ddPenee of the
body extends
to causing
Oeatii.



99. First. — There is no right of private defence against an act
wLich does not reasonably cause the apprehension of death or of
grievous hurt, if done, or attempted to be done, by a public servant
acting in good faith under colour of his office, though that act may
not be strictly justifiable by law.

Second. — There is no right of private defence against an act which
does not reasonably cause the apprehension of death or of grievous
hurt, if done, or attempted to be done, by the direction of a public
servant acting in good faith under colour of bis office, though that
dii ection may not be strictly justifiable by law.

Third. — There is no right of private defence in cases in which
there is time to have recourse to the protection of the public
authorities.

Fourth. — The right of private defence in no case extends to the
inflictiug of more harm than it is necessary to inflict for the purpose
of defence.

Explanation 1. A person is not deprived of the right of private
defence against an act done, or attempted to be done, by a public
servant, as such, unless he knows, or has reason to believe, that the
person doing the act is such public servant.

Explanation 2. A person is not deprived of the right of private
defence against an act done, or attempted to be done, by the direc-
tion of a public servant, unless he knows, or has reason to believe,
that the person doing the act is acting by such direction; or
unless such peraon states the authority under which he acts, or, if
he has authority in writing, unless he produces such authority, if
demanded.

100. The right of private defence of the body extends, under the
restrictions mentioned in the last preceding Section, to the volun-
tary causing of death or of any otiier harm to the assailant, if the



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.PENAL CODE. [IV. CF 1871.] ^7

offence which occasions the exercise of the riglit be of any of the
descriptions hereinafter enumerated, namely —

First. — Such an assault as may reasonably cause the apprehension
that death will otherwise be the consequence of such assault —

Secondly. — Such an assault as may reasonably cause the appre-
hension that grievous hurt will otherwise be the consequence of
fiuch assault —

Thirdly. — ^An assault with the intention of committing rape —
Fourthly. — ^An assault with the intention of gratifying unnatural
iust —

Fifthly. — An assault with the intention of kidnapping or
abducting —

Sixthly. — An assault with the intention of wrongfully confining
a person, under circumstances which may reasonably cause him to
apprehend that he will be unable to have recourse to the public
authorities for his release.

101. If the offence be not of any of the descriptions enumerated When such
in the last preceding Section, the right of private defence of the f*^^^^°^
body does not extend to the vohintary causing of death to the i^mTtber
assailant, but does extend, under the restrictions mentioned in than death.
Section 99, to the voluntary causing to the assailant of any harm

other than death.

102. The riglit of private defence of the body commences as Commence-
soon as a reasonable apprehension of danger to the body arises "?*^* ^^^ J^Jk"
from an attempt or threat to commit the offence, though the offence righu)Tprivate
may not have been committed ; and it continues as long as such defence of the
apprehension of danger to the body continues. ^*^J*

108. The right of private defence of property extends, under when the
the restrictions mentioned in Section 99, to the voluntary causing %*** ®' private
of death or of any other harm to the wrong-doer, if the offence, pei^^xtends^
the committing of which, or the attempting to commit whicl), occa- to causing
sions the exercise of the right, be an offence of any of the descriptions ^«**^'
hereinafter enumerated, namely —

First. — Robbery.

Secondly. — House-breaking by night.

Thirdly. — Mischief by fire committed on any building, tent or
vessel, which building, tent, or vessel is used as a human dwelling,
or as a place for the custody of property.

Fourthly. — ^Thef t, mischief, or house-trespaas, under such circum-
stances aSiinay reasonably cause apprehension that death or grievous
hurt will be the consequence, if such right of private defence is not
exercised.

104. If the offence, the committing of which, or the attempting When rach
to commit which, occasions the exercise of the right of private ^S^^ extend*
defence, be theft, mischief, or criminal trespass, not of any of the ^^"1^^*"^
descriptions enumerated in the last preceding Section, that right than death,
does not extend to the voluntary causing of death, but does extend

U p. 0781. O



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'9d



[IV. OF 1871.]



PENAL CODS.



subject to the restriction mentioned in Section 9^, to the volimtaty
causing to the wrong-^ioer of any harm other than death.

Commence- 105. First. — The right of private defence of property commences

Snuance^<rfthe ^^^^ ^ reasonable apprehension of danger to the property

ri^t of private Commences.

^perty?^ Second.— The right of private defence of property against theft

continues till the oflTender has effected his retreat with the property,
or till the assistance of the public authorities is obtained, or till the
property has been recovered.

Third. — ^The right of private defence of property against robbery
continues as long as the offender causes or attempts to cause to
nny person death, or hurt, or wrongful restraint, or as long as the
fear of instant death, or of instant hurt, or of instant personal
restraint continues.

Fourth. — The right of private defence of property against
criminal trespass or mischief, continues as long as the offender
continues in the commission of criminal trespass or mischief.

Fifth. — The right of private defence of property against house-
breaking by night, continues as long as house-trespass which has
been begun by such house-breaking continues.



Bight of
private defence
against a
deadly assault
when there is
risk of harm
to an innocent
person.



106. If, in the exercise of the right of private defence against an
assault which reasonably causes the apprehension of death, the
defender be so situated that he cannot effectually exercise that
right without risk of harm to an innocent person, his right of
private defence extends to the running of that risk.

Illustration.

A ifl at'tacked by a mob who attempt to murder him. He cannot
effectnllj exercise nis right of priyate defence without firing on the mob,
and he oannot fire without rbk of harming young children who are mingled
with the mob. A commits no offence if by so firing he harma any of the
children^



CHAPTER V.
Of Abetment.



Abetment of 107. A person abets the doing of a thing who —
a thing. TiTst — Instigates any person to do that thing ; or,

Secondly. — Conspires with any other person to do that thing ;
or.

Thirdly. — Intentionally aids, by any act or illegHl omission, the
doing of that thing.

Explanation 1. A person who, by wilful misrepresentation, or
by wilfnl concealment of a material fact which he is bound to
disclose, voluntarily causes or procures, or attempts to cause or
procure, a thing to be done, is said to instigate the doing of that
thing.



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PKNAL CODE. [IV. OF 1871.] 99 ^

Illustration*

A, a public officer, is aathonzed bj a warrant from a Oourt of Justice to
apprehend Z. B, knowing that fact and also that is not Z, wilfullj repre-
sents to A that C it Z, and thereby intentionally causes A to apprehend C.
Hero B abets by instigation the apprehension of 0.

Explanation 2. Whoever, either prior to or at the time of the
commission of aa act, does anything in oider to facilitate the com-
mission of that act, and thereby facilitatos the commission thereof,
is said to aid the doing of that act •

108. A person abets an offence who abets either the commission Abettor,
of an offence, or the commission of an act which would be an offence,
if committed by a person capable by law of committing an offence
with the same intention or knowle(^e as that of the abettor.

Explanation 1. The abetment of the illegal omission of an act
may am(»unt to an offence although the abettor may not himself
be bound to do that act.

Explanation 2. To constitute the offence of abetment, it is not
necessary that the act abetted should be committed, or that the
effect requisite to constitute the offence should be caused.

Illustrations.

(a.) A instigates B to mnrder C. B ref\ises to do so. A is guilty of abetting
B to commit mnrder.

(b.) A instigates B to murder D. B, in pursuance of the instigation,
stabs D. D recovers from the wound. A is guilty of instigating B to commit
murder.

Explanation 3. It is not necessary that the person abetted should
be capable by law of committing an offence, or that he should have
the same guilty intention or knowledge as that of the abettor, or
any guilty intention or knowledge.

Illustrations.

(a.) A, with a guilty intention, abets a child or a lunatic to commit an act
which would be an offence if committed by a person capable by law of
committing an offence, and having the same mtention as A. Here A,
whether the act be committed or not, is guilty of abetting an offence.

(b.) A, with the intention of murdering Z, instigates B, a child under
seven years of age, to do an act which causes Z's death. B, in consequence
of the abetment, does the act, and thereby causes Z's death. Here, though
B was not capable by law of committing an offence, A is liable to be punished
in the same manner as if B had been capable by law of committing an offence
and had committed murder, and he is therefore subject to the punishment
of death.

(c.) A instigates B to set fire to a dwelling-house. B, in consequence of
the unsoundness of his mind, being incapable of knowing the nature of the
act, or that he is doinjo^ what is wrong or contrary to law, sets fire to the
house in consequence of A's instigation. B has committed no offence, but A
is guilty of abetting the offence of setting fire to a dwelling-house, and is
liable to the punishment provided for that offence.

(d.) A, intending to cause a theft to be committed, instigates B to take
property belonging to Z out of Z*s possession. A induces B to believe that



Online LibraryStraits SettlementsThe acts and ordinances of the Legislative council of the Straits Settlements, from the 1st April 1867 to the 7th March 1898 .. → online text (page 12 of 98)