KembaraXtra-Malaysian Criminal Law- Introduction- Concept of Crime

KembaraXtra-Malaysian Criminal Law- Introduction- Concept of Crime

1. Concept of Crime

Any violation of these interests, whether by act or omission, is considered unacceptable.
People must be able to live peacefully and without fear of harm or injury.
Protection of these interests is necessary in every society.

2. Role of Penal Law

One effective way to guarantee safety is to:
- identify unacceptable conduct, and
- make such conduct known to members of society.
This helps define the boundary between acceptable and unacceptable behaviour.
When a person commits conduct declared unacceptable by law, a crime is said to have been committed.
Sovereign States enact penal laws which:
- define crimes (acts or omissions), and
- prescribe appropriate punishments.
Penal law:
- prohibits harmful or undesired conduct, and
- punishes offenders.
Purpose of penal law:
- protect the general public, and
- maintain law and order.

3. Crime vs Immoral Conduct

Crime and immoral conduct are often confused but are not identical.
Moral conduct is subjective, depending on:
- society,
- culture,
- time period, and
- jurisdiction.
What is moral in one society may be immoral in another.
Moral standards may also change over time.
Violation of moral principles may lead to social sanctions, not legal punishment.

4. Relationship Between Crime and Immorality

5. Immoral but Not Criminal Conduct

Example: Passive euthanasia
- Withdrawal of life support due to futility of treatment.
Although morally controversial:
- it is not a criminal offence under the Penal Code.
Not an offence under:
- section 299 (culpable homicide),
- section 300 (murder), or
- section 306 (abetment of suicide).
Death results from illness, not suicide.

6. Penal Law Is Not a Moral Code

A person is not punishable merely for immoral traits such as:
- lack of compassion,
- lack of empathy,
- ingratitude,
- greed, or
- pride.
The drafters of the Indian Penal Code clarified:
- Penal law is not a body of ethics.
- Legislature should not punish acts solely because they are immoral.
Some morally worse acts are not punishable, while less immoral acts are criminalised.

7. Criminalisation of Morality

Key questions arise:
- Should all immoral conduct be criminalised?
- Whose moral standards should be adopted?

Difficult to answer in heterogeneous societies with diverse moral views.
W. Friedman’s three key questions:
- What conduct should be forbidden?
- What form of social condemnation is appropriate?
- What sanctions best prevent prohibited conduct?

8. Debate on Criminalising Immoral Conduct

Criminalisation of immorality is highly controversial.
Example: Decriminalisation of consensual homosexual conduct in the UK.
Wolfenden Report (1957):
- recommended decriminalisation of private consensual homosexual acts.
- law should not regulate private morality.

9. Lord Devlin’s View

Three key questions posed:
1. Can society judge matters of morality?
2. Can law be used to enforce morality?
3. Should law enforce morality in all cases or only some?
Answers:
1. Yes to the first two questions.
For the third:
1. balance must exist between individual liberty and societal interest.
Criminalisation justified only when:
1. society collectively disapproves the conduct.
Public opinion is crucial (e.g. suicide laws in Britain).

10. Mala in Se and Mala Prohibita

11. Alternative View of Criminal Law

Criminal law should:
- not regulate morals,
- not punish sins.
Categories of acts:
- Criminal & immoral (e.g. theft)
- Immoral but not criminal (e.g. ingratitude)
- Criminal but not sinful (e.g. traffic offences)
Penal law should focus on:
- acts disturbing peace, stability, and security, and
- acts harming life, body, mind, property, or reputation.

Over-criminalisation threatens:
- personal liberty,
- public well-being, especially in victimless crimes.

12. Principle of Legality

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