Duress PDF

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ESSAY – DURESSSection 94 of the Penal code, stated that it is not an offence if a person is compelled to do a crime by threat, which, at the time of the doing it, reasonably cause the apprehension that instant death to that person. However, the defences does not apply to any offence of murder, offen...

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ESSAY – DURESS Section 94 of the Penal code, stated that it is not an offence if a person is compelled to do a crime by threat, which, at the time of the doing it, reasonably cause the apprehension that instant death to that person. However, the defences does not apply to any offence of murder, offences against the state included in Chapter VI, which punishable by death and offence under Chapter VIA. (1) Further stated in the proviso, the person doing the act, did not act on his own accord or from a reasonable apprehension of instant death, place himself in the situation by which he become the subject to such constraint. Expl.1 – not available for those who commits crime as a consequence of threats from members of violent gangs which they voluntarily joined with the knowledge of its nature.  PP v Lynch, when a person has chosen to be a member of an organisation that he knows resort violence, he could not invoke the defence of duress, even he was compelled to commits an offence. This is because he self-induced himself to be in such dangerous situation. There are also a few other elements that need to be satisfied in order to bring the defence of duress, which are the threat must be of death, instant, present and continuing, and directed to the accused himself. (2) On the ground of first element, where the threat must be of death.  Tan hoi Hung v PP, it was held that the threat must be of death. Any kind of threat that include extreme torture or serious injury will not be sufficient.  Latif Khan Nair, it was held that the threat must be nothing, but only the fear of instant death. (3) The second element is that the threat must be instant. There must be a reasonable apprehension of death, at the time of the doing. The threat must be imminent, extreme and persistent.    

Mohamad Yusof b. Hj Ahmad v PP – threat not persistent Tan Seng Ann v PP Subramanian v PP – have reasonable apprehension of death PP v Mohd Amin b Mohd Razali

(4) The third element is that the threat must be present and continuing. There must be physical presence of the coercer and the pressure is continuance. However, if the victim had the chance to seek for help, he has the duty to escape from the coercer.    

Chu Tak Fai v PP – future threat will not be taken into consideration PP v Tanha Ghassemm Mohamkaram – physical appearance Patrick Chau Fook Henn v PP Natcha Dabkew v PP – duty to escape

(5) Lastly, the threat must be directed to accused himself, not to other person related to him.

CASES SUMMARY MOHAMAD YUSOF B. HJ AHMAD V PP Facts: Appellant guilty for drug trafficking. he claimed that he has been forced by a Thai man, who threatened him with a pistol and told him to carry the drug across the border of MY. If he obeyed he will be paid, but if he refused, he will be shot. Judgement: The judge has stated that there must be a reasonable fear, at the very time of the threat of instant death. If the offences completed under circumstance where the fear or instant death had been removed, the person committing the offence is not protected by the defence of duress. Appllnt had complied with the request and carry the drug with him for a long time without any attempt to seek for help. The Thai man was far away from him and there are people and officers at the public places where he can seek for help – no reasonable apprehension of death. Duress was no longer instant, imminent, extreme and persistent. The action was competed under no duress. Conviction confirmed. SUBRAMANIAN V PP Facts: Appellant was found guilty for being in possession of ammunition. He raised the defence of duress that he had been captured by terrorist and given ammunition. He pleaded duress, claiming that he had no choice as the terrorists had threatened to kll him. Judgement: It was held that the appellant had showed that he had a reasonable apprehension of instant death. PP V TANHA GHASSEMM MOHAMKARAM Facts: Accused worked at a company in Iran. The accused stated that he was forced by a few mobsters to swallow some foreign packages and brought it to MY. Two mobster followed him to the airport. Fortunately, the accused managed to inform the authorities about the mobsters and also about the packages he swallowed. However, the authorities in Dubai still allowed him to transit. Later, after arriving at KLIA, he did not seek any help from the authorities as he claimed that he was followed by the other member of the mobster. Judgement: Accused was found guilty for drug trafficking. It was held that the other mobster was nowhere to be seen. There were also a number of police officers at the scene. Court finds there was no basis for thinking that the accused was obsessed with such thoughts at the material time to the extent that he was deterred from seeking police protection. Defence of duress failed....