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Question 1

A sentence is a punishment which the Court Orders after a person is found guilty or
is convicted of an offence. A sentence or a punishment refers to the process in a trial after
a person is found guilty or it is convicted of an offence and has entered his plea of mitigation.
In the case of Safian bin Abdullah & Anor [1983] 1 CLJ 324, Wan Yahya J stated that:

sentencing offender is a complex process, which depends not on the use of a common
mathematical yardstick but on various consideration of facts and circumstances relating to
the offence, the offender and the public interest.

Thus sentencing involves a consideration of pre-sentence report, mitigating and aggravating


circumstances and consideration of other matters pertaining to deciding an appropriate
punishment. Sentencing or punishment is important because it determine the future of the
offender raises the spirit and moral of the law enforcer and respects from the offender and
society in general.

Our courts over time recognised that there at least four aims of punishment namely
retribution, deterrence, rehabilitation and prevention. The retribution aims of punishment
designed to retaliate against the wrongdoer for what he has committed. It is likened to the
biblical eye for an eye and tooth for a tooth. For every hurt received, a hurt is given. It is an
expression of the societys natural feelings of revulsion towards and disapproval of criminal
acts or conducts of the offender. In the classic case of R v Sargeant [1975] 60 Cr App R 74,
Lawton LJ observed that:

. there is another aspect of retribution which is frequently overlooked; it is that society,


through the courts, must show its abhorrence of particular types of crime, and the way in
which the courts can show this is the sentence they pass. The courts do not have to reflect
public opinion. On the other hand, courts must not disregard it. Perhaps the main duty of the
court is to lead the public opinion.

In Malaysia, retribution takes the form of punishments in penal statutes. Best example is the
punishment laid down for murder, that is, death. Section 302 of the Penal Code provides
only one punishment for murder which is death.

The second aims of punishment are deterrence. The idea of imposing a deterrence
sentence is that the experience, treat or example of punishments discourages crime. There
are two types of deterrence sentence namely specific deterrence and general deterrence.
Specific deterrence emphasizes on the offender himself, that he is punished so that he will
not repeat the offence or commit any other offences. On the other hand, general deterrence
emphasizes on the public that they will not commit a similar offence as the offender or other
offence lest they be similar punished. In the case of Rex v Kenneth John Ball Cr. App
R.164, it was stated that:

a proper sentence, passed in public serves the public interest in two ways. Firstly, it may
deter others who might be tempted to try crimes and secondly, it deters the particular
criminal from committing a crime again or to induce him to turn from a criminal to honest
life.

Most of the punishments in Malaysia carry the aims of deterrence. All these punishments
from fine to death sentence serves similar aims which is to deter the public and the offenders
from committing the same crime.

The principle of rehabilitation means restoring to effectiveness by training, restore to


privileges, reputation or proper condition. The aim is to encourage the offender to be a law
abiding citizen. In Abu Bakar v Reg [1953] MLJ 19, the court in considering imposing
rehabilitative approach held the importance to call for evidence or information regarding the
background, character before passing sentence. However, the rehabilitative approach has its
limitations. Since a rehabilitative approach is necessarily on individual approach, the
individual treatment will result in unequal treatment for offenders who commits similar
offences hence, disparity in sentence.

The preventive or incapacitative aim of sentencing seeks to deal with offenders in


such a way as to prevent them or make them incapable of offending for substantial periods
of time. Lawton LJ in R v Sergeant noted that Unfortunately, it is one of the facts of life
that there are some offenders for whom neither deterrence nor rehabilitation works. They
will go on committing crimes as long as they are able to do so. In these cases, the only
protection which the public has is that such persons should be locked up.

In conclusion, the punishments in Malaysia carry many aims, but most of the aims are
designed to serve one purpose that is to ensure the harmony and prosperity of Malaysia and
its citizens
Question 2

In criminal law, the intention is defined as the deliberate objective that leads a person
to commit a crime, forbidden by the law, or that may result in an unlawful outcome. The use
of specific means that resulted in the commission of a crime expresses the intention of the
suspect. In finer terms, intention describes the will or plan of an individual. So, when an
action is performed intentionally, it implies the willingness or aim of a person to do so and not
an accident or mistake, where he or she is completely known about the consequences, of
the act. That is why intention is the primary element to affix the culpability. No matter whether
the act is committed with a good intent or a bad one. If a person does something
purposefully and consciously, which is prohibited by the law, it will amount to criminal liability.

On the other hand, Motive can be described as the underlying objective behind the
commission of an act, that drives a persons intent. In short, it is the inducement, i.e. the
reason, which impels the accused to engage in criminal activity. The motive behind a
criminal offence is regarded as irrelevant, in ascertaining an individuals guilt, because it only
clarifies the accused reasons, for acting or refrained from acting in a specific manner.
However, it is required for police investigation and other stages of the case.

The general rule is that the motives, good or bad, are irrelevant to his criminal
liability. In Smith [1960] 1 All ER 256, the accused was charged with corruptly offering gift to
mayor of a borough. He handed an IOU to the mayor to induce him to sell piece of borough
land to him (the accused). The accused did not intent to go through the transaction, only
desired to expose corrupt habits by local administration. The court held that even though his
motive was not corrupt, he was guilty since he had offered the money with that intent.

Intention must be distinguished from motive. Motive is secondary intention. As


evidence, motive is always relevant. However, again, it is not considered as elements of
crime. For example, X may have a very strong motive to kill Y, but if actus reus and mens
rea cannot be proved against X, a conviction cannot be sustained.

Intention and motive are interconnected but distinct from one another. In criminal law,
the term intention is explained as the deliberate cause and known effort, to act in a particular
manner which is not permitted by law. As against, the motive is defined as the implicit cause,
which instigates a person to do or not to do something. The intention of a person can be
determined by the use of particular means and the circumstances, that resulted in the
criminal offence. Conversely, the motive is the reason, that drives a person to do an act or
refrain from acting in a specific manner.
While the intention is the expressly defined purpose of the crime, the motive is
hidden or implied purpose. When the intention of a person, is the element for affixing
criminal liability, it must be proven beyond reasonable doubt. On the contrary, the motive is
not the primary element for affixing culpability, so it need not be proven.

Question 3(a)

Vicarious liability is one of those liabilities that is imposed on one person for the
wrongful actions of another person. Such a liability arises usually because of some or the
other legal relationship between the two. The important point to be noted to impose such a
liability on some other person is that an act on which such a liability is imposed should have
happened in the course of employment.

There are some essential conditions which should be fulfilled to constitute vicarious
liability under torts or civil law. There should be some relationship between the wrongdoer
and the other party. The relationship can be of principal-agent, master-servant, employer-
employee, etc. Under service also there are two categories-

Contract of Service- Under this contract, one person is already under the contract
of the other, and the service is of particular nature. This is a kind of general
contract, and there is not many limitations on the controlling power over the other,
for instance, master-servant relationship.
Contract for Service- This is a contract for a particular reason, and there is a
limitation on the controlling power over the acts of the other, for instance,
employer-employee relation.

Under criminal law also one person can become liable for the act of the other if he is
a party to the offence. For instance, a driver of a car which goes and robs a bank will also be
liable even though the driver did not get out of the car. The principle which is followed in the
criminal law is that a person may be held liable as the principal offender, even though the
actus reus was committed by some other person. The person committing the act on the
instruction of the other will not be considered as innocent and will also be held liable. The
law focuses on the relationship between the two parties and attributes the act of the one to
the other. It should be noted that the concept of vicarious liability is a civil concept and in the
case of criminal law it is an exception rather than a rule.
Although the doctrine of vicarious liability is generally applicable to civil law, in some
exceptional cases it is applicable in criminal cases also. Section 149 of the Penal Code.
Under Section 149 of the Penal Code if any member of an unlawful assembly commits any
offense in furtherance of a common objective, every member of that unlawful assembly will
be held liable for that offense. Section 154 of the Penal Code relates to occupiers or owner
of a land. If such occupier or owner or any person who has some interest in the piece of land
does not inform the proper public authority about unlawful assembly on that land, or do not
take necessary steps taking place on the land, will also be held liable for such activities. The
liability has been fixed on the assumption that being the owner or the occupier of the land;
the person will be able to control the activities which is happening on their property.

Section 155 also makes a person vicariously liable on the owner or occupier of the
land for the omission of their agent or manager if any activity takes place on the land and the
agent or manager does not prevent illegal activities happening on their property. Section 156
imposes personal liability on the agent or the manager if some illegal activity takes place on
the particular property. Section 268 and Section 269 deals with public nuisance and makes
the master personally liable if the servant is creating any public nuisance. Section 499 of the
Penal Code also makes the master personally liable in case the servant defames somebody
(provided it falls under the definition of defamation given under this section).

Question 3(b)

In criminal law, corporate criminal liability determines the extent to which a


corporation as a legal person in law, can be liable for the acts and omissions of the natural
persons it employs. Before discussing the concept of corporate criminal liability in Malaysia,
it is best to define corporate crimes. Corporate crimes can be defined as criminal breaches
or offences that have been either orchestrated or created or committed by a company that
could either lead to financial losses or sometimes even the loss of live.

However, the problems that are associated with certain areas of the laws such as
criminal, contract and tort law have been designed on the premise that of individual
autonomy. Thus, when dealing with a company which has layers of individuals when
combined make a working company, when something does go wrong do we then lay blame
to the company totally or try to find the actual perpetrator within the organisation to be held
accountable and liable. This is made difficult with existing principles within company law,
namely, the separate legal personality principle.
In the United Kingdom, The approach has been first to deny corporate criminal
liability and then to base it on the identification of certain persons as the alter ego of the
company. in Tesco Supermarkets Ltd v Natrass , however, their Lordships have found a way
around this by now only drawing a clear line but the law as well has hitherto avoided liability
based on aggregation of individual faults into a concept of organisational liability or
responsibility.

Similar approach is used here in Malaysia. The court has to determine whether the
employee who committed the wrong action is a certain level employee that is considered as
an alter ego of the company. The doctrine attributes the actus reus and men rea not just on
any employee but of the controlling mind to the company. In the case of Yap Sing Hock &
Anor v Public Prosecutor [1992] 2 MLJ 714, the Supreme Court held that directly or
indirectly, a company can be held liable for offences personally where the officer or director
of the company can be regarded from evidence as the directing mind or the controlling will of
the company so as to become its embodiment.

Malaysian courts also adopt the respondeat superior doctrine. The doctrine is based
on agency in a corporation. It gives rise to vicarious liability where a companys liability for
crime indirect. Respondeat superior doctrine is accepted in Malaysia to assign vicarious
liability to the employer for wrong committed by a servant in the course of his employment as
emphasised in Mary Collette John v South East Asia Insurance Bhd [2010] 2 MLJ 222.
this doctrine differs from the identification doctrine as it seeks a master and servant or
agency relationship and statute imposed duty. Another doctrine adopted by Malaysian court
in establishing corporate criminal reasonability is the doctrine of strict liability. In Melan bin
Abdullah & Anor v Public Prosecutor [1971] 2 MLJ 280; strict liability is described as an
offence where proof of the actus reus alone suffices for a conviction, however morally free
from blame the defendant may be. In the case of Lim Chin Aik v R [1963] AC 160 (PC) it is
held that;

putting the defendant under strict liability will assist in the enforcement of the
regulations. That means that there must be something he can do, directly or
indirectly, by supervision or inspection, by improvement of his business methods or
by exhorting those whom he may be expected to influence or control, which will
promote the observance of the regulations. Unless this is so, there is no reason in
penalising him, and it cannot be inferred that the legislature imposed strict liability
merely in order to find a luckless victim.
The concepts relating to corporate manslaughter or let alone corporate criminal
liability is really underdeveloped in Malaysia. The Companies Act 2016 is silent on the
matter. In fact leading textbooks on Company Law in Malaysia have placed very little
importance or no importance at all on the matters pertaining to corporate manslaughter.

The limited case laws on the matter of corporate criminal liability in Malaysia have
been restricted to the decision of Tesco Supermarkets Ltd v Natrass . However, even the
English judges have long developed the area of corporate manslaughter since the case of
Tesco Supermarkets Ltd v Natrass , today the United Kingdom have legislation on the
matter, Corporate Manslaughter and Corporate Homicide Act 2007.

This goes to show the importance that have been placed on the area, which has
caused and moved British parliamentarians to legislate on the matter. Of course this had not
been easily done and would and did come with resistance, however, it is a necessity that
could have no longer be avoided.

Legislation on the matter of corporate manslaughter would have to be devised


carefully and has to be balanced between the various conflicting rights of various parties that
would involve as well as the basic fundamentals that had led to the creation of company law
that had evolved from the feudal system. The business world requires flexibility as it is ever
changing and is influenced by various fundamentals surrounding such as political,
economical and sociological environmental considerations.

However, legislations are also necessary especially when Malaysia has not gone
globalised in the business sector, thus allowing various multi and transnational companies to
set up business in various industries in Malaysia. In order to protect the citizens of Malaysia
from the potential threat of these companies from exploiting the existing loop holes in
legislations in Malaysia, newer legislations have to be introduced.