1 Malayan Law Journal Reports/1982/Volume 2/PUBLIC PROSECUTOR v ALI BIN UMAR & ORS - [1982]

2 MLJ 51 - 17 November 1981

[1982] 2 MLJ 51

PUBLIC PROSECUTOR v ALI BIN UMAR & ORS

ACJ JOHORE BAHRU

YUSOFF MOHAMED J
CRIMINAL APPEAL NO 37 OF 1981
17 November 1981

Criminal Law and Procedure -- Charge of carrying tin ore on local craft without permission of Director-
General of Customs -- Defence of necessity -- Mens Rea -- Customs Act, 1967, s 49(1)

Customs and Excise -- Scope of s 49(1) Customs Act, 1967 -- Whether one of strict liability

In this case the respondents had been charged under section 49(1) of the Customs Act, 1967, for carrying
tin ore in a local craft without the permission of the Director-General of Customs. The defence of the
respondents was that their boat had a broken rudder and it had drifted in distress into Malaysian waters.
The defence raised was one of necessity. The learned Magistrate accepted the evidence of the
respondents that the rudder of the boat was broken while the boat was in international waters and that
the boat drifted into Malaysian waters but he held that in those circumstances the boat was in transit and
therefore the offence under section 49(1) of the Customs Act was not committed. The Public Prosecutor
appealed and it was submitted that the offence under section 49(1) of the Customs Act is one of strict
liability and that no mental element or knowledge need be proved by the prosecution.

Held:
(1) the respondents were justified out of necessity to enter Malaysian waters on specific reasons that the
boat in which they were travelling was in distress due to the fact that the rudder of the boat was broken
in international waters;
(2) it would appear that in strict liability cases it is still open to the accused to prove absence of knowledge
and the application of the rule that mens rea is an essential ingredient of every of-fence has not been
ousted depending on the subject-matter of the statute though the onus of proof required of the accused
is on the balance of probabilities that he could not have reasonably known the existence of the law;
(3) even assuming a charge under section 49(1) of the Customs Act is one of strict liability, it may be
construed that mens rea or guilty mind by the respondents was not present when the offence was alleged
to have been committed.
R v Dudley and Stephens (1884) 14 QBD 273
The availability to the defence of necessity for murder.

Facts
The two defendants and a boy between the ages of seventeen and eighteen were cast away
in an open boat at sea following a storm. The boat drifted in the ocean and was considered
to be more than one thousand miles from land. After seven days without food and five
without water, S suggested that lots should be drawn with the loser being put to death to
provide food for the remaining two. Subsequently however, D and S colluded to the extent
that the boy should be killed so that they could survive. On the twentieth day, with the
agreement of S, D killed the boy and both the defendants ate him for the following four days
until rescue. It was argued that the defendants believed that in the circumstances they would
die unless the boy was killed.

Issue
The issue in this context was whether there was any justification in killing the boy in order
for the defendants to survive. In other words, whether the defendants could plead that the
killing was necessary and thereby give rise to a defence to murder.

Held
The defence of necessity was not available as a defence to murder on these facts. It is not
possible to justify the killing of one individual in order to save the life of another on the basis
that the killing is necessary to do so. Although the judgment is generally accepted and
followed (see Buckole v Greater London Council [1971] Ch 655), the judgment implies that
the jury’s finding that there was no greater justification for killing the boy than for any of the
castaways, suggests that the unavailability of the defence may have resulted from the
collusion between the defendants.

Teacher, Law. (November 2013). R v Dudley and Stephens - 1884.

Retrieved from https://www.lawteacher.net/cases/r-v-dudley-and-stephens.php?vref=1
1 Malayan Law Journal Reports/1982/Volume 2/PUBLIC PROSECUTOR v ALI BIN UMAR & ORS - [1982] 2
MLJ 51 - 17 November 1981

[1982] 2 MLJ 51

PUBLIC PROSECUTOR v ALI BIN UMAR & ORS

ACJ JOHORE BAHRU

YUSOFF MOHAMED J
CRIMINAL APPEAL NO 37 OF 1981
17 November 1981

Criminal Law and Procedure -- Charge of carrying tin ore on local craft without permission of Director-
General of Customs -- Defence of necessity -- Mens Rea -- Customs Act, 1967, s 49(1)

Customs and Excise -- Scope of s 49(1) Customs Act, 1967 -- Whether one of strict liability

In this case the respondents had been charged under section 49(1) of the Customs Act, 1967, for
carrying tin ore in a local craft without the permission of the Director-General of Customs. The defence
of the respondents was that their boat had a broken rudder and it had drifted in distress into Malaysian
waters. The defence raised was one of necessity. The learned Magistrate accepted the evidence of the
respondents that the rudder of the boat was broken while the boat was in international waters and that
the boat drifted into Malaysian waters but he held that in those circumstances the boat was in transit
and therefore the offence under section 49(1) of the Customs Act was not committed. The Public
Prosecutor appealed and it was submitted that the offence under section 49(1) of the Customs Act is
one of strict liability and that no mental element or knowledge need be proved by the prosecution.

Held:
(1) the respondents were justified out of necessity to enter Malaysian waters on specific reasons that
the boat in which they were travelling was in distress due to the fact that the rudder of the boat was
broken in international waters;
(2) it would appear that in strict liability cases it is still open to the accused to prove absence of
knowledge and the application of the rule that mens rea is an essential ingredient of every of-fence has
not been ousted depending on the subject-matter of the statute though the onus of proof required of
the accused is on the balance of probabilities that he could not have reasonably known the existence of
the law;
(3) even assuming a charge under section 49(1) of the Customs Act is one of strict liability, it may be
construed that
mens rea or guilty mind by the respondents was not present when the offence was alleged to have been
committed.

https://www.scribd.com/document/247057124/Public-Prosecutor-v-Ali-Bin-Umar-Ors-19