377A of the Penal Code

In light of the Federal Court decision in the case of Sodomy 2.0, I thought that I should take a closer look at this rarely used piece of statute. Apparently, it has only been used seven times in our history and twice on the same bloke. Lucky bastard!

Unfortunately for him, Anwar was found guilty of committing sodomy. The 54 page press summary of the full judgement has already been released to the public. That was awfully efficient of them.

According to various reports, he was charged under S.377A of the Penal Code, which says that:

Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.

Carnal intercourse against the order of nature is conveniently defined in S.377 of the Penal Code, which says that:

Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.

Now, for my 2 sen on this whole issue, from a purely legal perspective devoid of political bias.

Firstly, is the dearth of Law in the summary. If you search through the PDF, you will find reference to merely five precedents. For such a high-profile case, I would have expected the judges to support their judgements with tons of Law – statutes and precedents. That is the kind of high quality judgement that I expected from our nation’s apex court chaired by the CJ, no less.

Unfortunately, we were treated to lots of trivialities, and evidential and scientific minutae instead. There was certainly a lot of commentary and opinion but not much Law. I certainly hope that the full judgement is a lot more padat than the press summary in terms of Law.

Secondly, it is my inderstanding that the Law mandates whipping for S.377A offences. I’m not sure but reports seem to indicate that Anwar will not be whipped. Judges are often given discretion when meting out pecuniary punishments but I’m not sure if they are allowed to simply ignore the clear letter of the Law in this manner.

Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.

If they are allowed to do so, then what happens to the rest of the Penal Code where whipping is also mandated? If you search through the Penal Code, you will find that whipping is a pretty standard punishment meted out for all sorts of crimes. Does this mean that a shall means something other than what I learned in Law school?

Thirdly, I am particularly concerned with the principle that corroborative evidence is not necessary for sexual crimes. While this may be settled Law for rape, it is far from settled for sodomy particularly in Malaysia since we’ve only had so few charged in the past.

Proving rape is difficult enough as it is even with physical evidence. It often boils down to a he-said-she-said case as the critical component that separates rape from regular sex is the element of consent, which must be adduced through evidence. Otherwise, any woman can cry rape and not have to prove it in any way, which is a dangerous precedent.

However, the crime of sodomy is a strict-liability crime and is a different creature from rape simply because the act of sodomy itself is a crime, regardless of consent. Therefore, I would say that the need for corroborative evidence is even more crucial for sodomy. We cannot allow someone to simply accuse another of sodomy without any sort of evidence.

According to the summary PDF:

There was therefore no reason for him to level a false accusation against the appellant as the stigma will remain for his lifetime.

Personally, I can think of a million reasons for someone to level a false accusation against Anwar. That man has painted a bright red target on his back. Therefore, it is definitely reasonable to expect Anwar to have a lot of enemies. Hence, I think that it would be necessary to have solid and unimpeachable evidence that he committed the act of sodomy.

But I guess this principle was not considered much since there have only been so few sodomy charges in the past. Maybe, one day in the future, another sodomy case will reverse this precedent by requiring evidence of sodomy.


Ocean's 11 (1960 film)
Ocean’s 11 (1960 film) (Photo credit: Wikipedia)

Today, we covered a number of similar topics in Criminal Law – the ways in which a crime can be extended to other people, kinda like Ocean’s 11.

Criminal Conspiracy
Criminal conspiracy is covered under S.120A of our PC. The essential elements here are that there must be more than one person involved – it’s not quite possible to have a conspiracy with only one person; and there has to be an act or first step taken in the conspiracy.

Therefore, conspiracy is not a result crime but a conduct crime. Nothing bad actually needs to happen but all that is required is that there are several people plotting together and that any one of them takes a first step towards advancing the plot.

The whole idea of this provision is to prevent the commission of a crime committed by a number of people.

Abetment is covered under S.107 of our PC. Unlike conspiracy, abetment is used on an individual that is linked to the crime. However, there are only four forms of abetment as specified under the section: one can instigate, command, engage or aid in the commission of the crime.

What is dangerous about this section is that the crime itself does not need to have been carried out. The abetment of another abetment is also a crime, which can invariable pull in anyone higher up along the chain. This section can be read quite widely as the cases show.

This section, can be confused with conspiracy particularly S.107(b) that makes one guilty of abetment in a conspiracy. The key point here is to remember that the abettor does not himself need to be part of the conspiracy e.g. the mastermind.

The whole idea of this provision is to capture anyone else who might have played a role, possibly indirectly unlike in a conspiracy where it’s only the members of the conspiracy who are caught.

Common Intention
Common intention is covered under S.34 of our PC. Unlike the previous two, this section is not a substantive section and can only be used alongside any other substantive section. The elements are that the criminal act is done by several persons to further a common intention.

The key here is that each person must have contributed to the criminal act, with a common intention. Again, the cases show a wide interpretation of this section. The persons involved do not even need to be physically present. Anyone who contributed to the crime is considered to have committed the said crime.

This can often be confused with S.107(c) of abetment – aid – as each person involved must have contributed to the crime. The key difference between the two is the common intention. Any person who aided a crime may have done so unwittingly or unknowingly, and will not be caught by this section.

The whole idea of this provision is to capture everyone involved in a group crime, e.g. gang crime, particularly when it may be difficult to determine whom actually pulled the trigger, whom was the lookout, whom was the getaway driver, etc.

Unlawful Assembly
Unlawful assembly is under S.149 of our PC. This provision is the widest ranging one of them all. While it is necessary to show that every member of the gang contributed in some way under S.34, it is totally unnecessary to do so under S.149.

All that is required is that there must be an unlawful assembly as defined under S.141 of our PC and those present have assembled for a common object (not intention). Then, someone in the group committed a crime then all those present are deemed to be guilty of the same offence.

This is often confused with S.34 but one is of a common intent while the other is a common object. The S.149 common object element is much wider as everyone may have different intentions while having the same object. However, another catch is that there must be at least five people physically present first.

While this provision seems terribly wide and dangerous, the whole idea is to rope everyone present at the scene into the crime. It does not mean that everyone is guilty of the crime though, unlike S.34.

Homicide, Culpable or Not

I started my Law classes for the year today, and boy did it start with a bang!

First, let me talk about our lecturer. We had Norbani for Criminal Law and my personal opinion of her is that she’s a little mental. But that’s great! She’ll be able to make the study of Criminal Law absolutely fun.

As for what we learned today – we covered the basics of Criminal Law – all crimes generally require two elements:

And we started of with the most gory of all crimes – murder (S.300) and culpable homicide not amounting to murder (S.299). As you can imagine, the cases were all pretty gory but the lecturer managed to make it downright fun at times.

Murder, has the actus reus of causing death. In the case of murder, the main issue is the chain of causation. It must be shown that the death of the victim was caused by the act of the defendant. In this, the medical report i.e. cause of death (COD) is critical.

There are a number of illustrations in the act that show what it means by causing death, supported by a number of classic cases. The key take away is that the injury must be operating and is the major factor in causing the death of the victim. Otherwise, there is no actus reus for homicide, culpable or otherwise.

actus non facit reum nisi mens sit rea

The next element is that of mens rea or the criminal intent. This is the most critical element and there are varying levels of intent ranging from straightforward assassination to acts of pure stupidity (my own words). The key difference between culpable homicide (S.299) and murder (S.300) is generally the magnitude of the criminal intent.

However, there are also varying levels of intent that have a direct consequence on the maximum sentence meted out. For murder, there are:

  • intent to cause death – straightforward assassination.
  • intent to cause bodily harm, with special knowledge that it would result in the death of V.
  • intent to cause bodily harm, with the natural consequence of the act being death.
  • knowingly putting V in imminent danger, that can cause death, without any reasonable excuse.

For culpable homicide, they are similar to murder, except in the necessary level or magnitude of the intent:

  • intent to cause death – usually of a less violent nature.
  • intent to cause bodily harm, which is likely to cause death.
  • knowingly committing the act, that may normally cause death.

There are a number of tests that can be applied for some of the subjective elements. There are also a number of cases that serve as illustrations on the various elements.

The key take away is that the criminal intent must be proven and cannot be presumed merely from the act or its result. This usually involves the use of a lot of circumstantial evidence or evidence surrounding the murder. Motive, while not proving intent on its own, will affect the state of mind element if absent.

Anyway, that’s my recollection of the key things covered in class today.

PS. I forgot to mention the Objectives of punishments meted out. There are about half a dozen of them. Maybe I’ll talk about those in another blog entry, once I read a bit more about them.