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The legal issue is whether Muda can raise the defence of mistake under section 76 of Penal Code reported

by Mr. Ma Lang for wrongful confinement and wrongful restraint. Mistake of fact is not defined in the Penal Code. A mistake of fact is an error as to the existence of any state of thing. It may arise from an inadequate or wrong information, forgetfulness, negligence or superstition. Obvious examples are where A mistakes his son to be a tiger, or where B believes her husband is dead and remarries1. There are few elements that need to be established for the defence of mistake of fact. The defence of mistake of fact under Section 76 and 79 of Penal Code require the accused to prove on a balance of probabilities. The elements are whether he or she had been induced by a mistake to commit the criminal act in question, the mistake was one of fact and not of law, the accused mistakenly believed that he or she was bound or justified by law in doing the criminal act and whether the mistake was believed by him or her in good faith. The first element is that he or she had been induced by a mistake to commit the criminal act in question. In this case, the facts are that Muda is a rookie police officer and was patrolling at Jalan Sibuk when he suddenly heard a woman screaming for help. The screams came from an old lady which had been robbed. Muda saw a suspicious looking man and he started to pursue him. He then tackles the man. The man then fought back and kept on screaming that he was not the thief. Muda then bring the man to the police station. The old lady denied that the man was the thief. The man, Mr. Ma Lang is actually pursuing the thief.

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Tolson, 1889

The first elements need the act done by the defendant to be a mistake. Based on the fact of this case, Muda act by tackling and apprehend Mr. Ma Lang is actually a mistake. Mistake of fact consists in an unconsciousness, ignorance, or forgetfulness of a fact. In Malaysia, the court only enquired whether a persons ignorance or mistake had been made in good faith or not. The case to support is in the case of Sulong bin Nain v PP2. In this case, the accused was apprehended with two hand grade in his possession. The accused then claim the defence of mistake since he believed in good faith that he was bound or justified by law to surrender the hand grenade to the police. The court rejected his appeal because the court took into consideration that the act is mistake of law and not mistake of fact. In the case of Muda, the question arises is that whether Muda action of apprehending Mr. Ma Lang was done in mistake or not. Considering the fact of this case, Muda action is considered done in mistake since he truly believed that the man he was apprehending was the thief because the man was running away from the crime scene when he arrived there. The fact that he was rookie police officer also has to be taken into consideration. This is because, if he had more experience, he would have known better to handle the situation. The second element is that the mistake was one of fact and not of law. Section 76 and 79 require the accuseds mistake to pertain to a factual matter as opposed to a legal one. Glanville Williams explain about the definition of a mistake of a law where he stated that Generally speaking a fact is something perceptible by the senses, while law is an idea in the mind of individuals. The definition of a fact as something perceptible by the senses needs qualification in one respect. A state of mind is also a fact, though not directly perceptible by the senses.3

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[1947] 13 MLJ 138 Criminal law: The General Part (Steven & Sons, 2nd Ed, 1961) page 287

A mistake of fact and law will most likely be treated by our courts as a mistake of fact for the purpose of ss 76 and 79. A local case where this may have occurred is Arumugum & Anor v R.4 The two appellants and a third person were members of the police force who were convicted of an offence under the Foodstuffs Movement Restriction Order for moving rice without permit. The appellants claimed that they were acting under the orders of the third person who was their superior. The appellate court quashed their convictions on the ground that they mistakenly believed that the third person was acting bona fide. Although the court did not discuss the matter, the mistake appears to have been one of mixed fact and law. There are Indian case authorities clearly holding that a mistake of mixed fact and law will be treated as a mistake of fact so as fall within ss 76 and 79. In the Indian Supreme Court in State of Bombay v Jaswantlal Manilal Akhaney5, the accused was the managing director of a bank who was charged with criminal breach of trust for transferring the securities of a pledger bank. He invoked that s 79 defence on the ground that his act of transfer was based on a mistake of fact that the pledger bank was indebted to his bank, as well as a mistake of law that his bank had the right to effect such a transfer. The Supreme Court was prepared to apply the s 79 defence provided the accuse was able to prove not only that he believed the law entitled him to deal with the securities as the property of his bank, but also that he believed in good faith that the pledger bank was indebted to his bank. Another Indian case example where the proposition has been adopted is the Kerala High Court decision in Kochu Muhammad Kunju Ismail v Mohammad Kadeja Umma6. The accused, who was charged with the offence of bigamy, pleaded the s 79 defence on the ground that he had married a second time only because he had mistakenly believed in good faith that the law of divorce had dissolved his first marriage. The court accepted the defence
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(1947) MLJ 45 AIR 1956 SC 575 6 AIR v 1958 Ker 151

reasoning that, had the facts has been as the accused reasonably believed, he would have been justified in remarrying. From the present case, there is a mistake of fact that occurred. His mistake is when he saw a suspicious looking man running with all his might away from the scene of the robbery and started to pursue him because Muda thought that the man was the thief. He had mistakenly thought the fact that Mr. Ma Lang was the thief which he is not. Due to this fact, the second element is established because there is a mistaken of the fact of the case. The third element of mistake of fact is bound or justified by law. According to the section 76 in Penal Code, in order to success in the defence of mistake of law, the accused must have mistakenly believed that he or she was bound by law to do the criminal act. Being bound by law means having a legal duty or obligation to perform the conduct complained of. In section 43 in Penal Code, stated that, a person is said to be legally bound to do whatever it is illegal for him to omit. It means that, a person such as police constable or a soldier who are bound by law, or mistakenly believes themselves to be so bound. For examples, in the case of Emperor v Gopalia Kallaiya7, the case is about the accused was a police officer who had a warrant to arrest a particular person. He arrested the complainant whom he is mistakenly believed, despite making reasonable inquiries, to be the person mentioned in the warrant. The charge against the accused of wrongful confinement was dismissed on the basis of section 76. Besides, in order section 79 to be succeeded, the accused must have mistakenly believed that he or she was justified by law to do the criminal act. For example in the Illustration of Section 79 in Penal Code, A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his judgement exerted in good faith of the power which the

(1924) 26 BOMBLR 138

law gives to all persons of apprehending murderers in the act, seizes Z, in order to bring Z before the proper authorities. A has committed no offence, though it may turn out that Z was acting in self-defence. In the current case, Muda, who is a rookie cop have mistakenly believed that Mr. Ma Lang was a theft, despite making a reasonable inquiries, Muda put him in handcuff, drag him to the police station and locked him up. Referring to the case of Emperor v Gopalia Kallaiya, Muda had heard a woman screaming for help who had been robbed. Then, he saw the suspicious man and arrests him since it was his duty and obligation to perform the conduct because he was in patrol that area. Since Muda was a rookie cop, then he is said to be bound by law because it was Mudas duty and obligation to do that. So, in this element of mistake of fact, Muda is said to be bound by law because he is a rookie cop and thus third element is satisfied. The fourth element is that the mistake done must be in good faith. Sections 76 and 79 of the Penal Code require the accused to have in good faith believed him to be bound or justified by law in doing a criminal act. In this both section, in good faith relates to the accused perception of the factual circumstances rather than his performance of the criminal act. The perception must have be lead to the accused believing that he was bound or justified by law in doing the thing complained of. 8 Section 52 of the Penal Code defines in good faith in terms of due care and attention. Yong Pung How CJ in the Singaporean High Court case of Tan Khee Wan Iris v PP held that the test is determine whether a mistake was made in good faith and not whether the mistake was an easy one to make nor whether a reasonable person could make the mistake. The mistake may be a natural one to make and it may be one which reasonable

Stanley Yeo, Neil Morgan, Chan Wing Cheong, Criminal Law in Malaysia and Singapore, Lexis Nexis

person often make. Nevertheless, the defence is not made out unless it is shown on a balance of probabilities that the appellant exercised due care and attention.9 This may be added another judicial observation that in good faith does not require logical infallibility.10 It should be emphasised that the element of in good faith under ss 76 and 79 relates to the accuseds perception of the factual circumstances rather than his or her performance of the criminal act. Furthermore, that perception must have led to the accused believing that he or she was bound attaching in good faith to the accuseds belief as opposed to his or her conduct is illustrated in the Orissa High Court decision in State v Ram Bahadur Thapa11. The accused had attacked what he, in good faith, believed to be a ghost and not a human being and that he was therefore justified by law in defending himself against it. The court held that he could successfully rely on the s 79 defence even though it was shown that, he could exercise extra care and attention, the incident may have been averted. Certainly, an accuseds careful performance of conduct would often support his or her belief that he or she was bound or justified by law in doing it. But a court must ensure that the inquiry into in good faith under ss 76 and 79 does not stop at the accuseds conduct but proceed from there to consider his or her belief In State v Ram Bahadur Thappa, the accused had attacked in good faith that he believed to be a ghost and not a human and therefore he was justified by law. The court held that he can relied on section 79 as a defence even though it was shown that had he exercise extra care and attention, the incident may have been averted. In the case of Muda, the act of Muda can be considered as act done in good faith. This is because when Muda tackle Mr. Ma Lang he was acting in good faith that Mr. Ma Lang was the thief. Furthermore, Muda

(1995) 2 SLR 63 at 67 PP v Mohd Amin bin Mohd Razali & Ors (2002) 5 MLJ 406 at 483 11 1960 Cri LJ 1349
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believed that he was justified by the law when apprehending Mr. Ma Lang because he was a police officer and it is his duty to apprehend a criminal. Therefore, the fourth element for the defence of mistake is established. In the conclusion, since the element of mistake are fulfilled, then Muda can raised a defence of mistake of fact if he is charged with those offences reported against him by Mr. Ma Lang.