CHAPTER 7 – CRIMINAL LAW
The term criminal law, sometimes called penal law, refers to various rules whose common characteristic is the imposition of punishment if one fails to comply with the rules.
In criminal law, a crime is considered as a wrong against the State. A crime may be defined as an unlawful act or an omission which is unacceptable that causes public condemnation in a form of sanction. Therefore, a crime is a wrong which affects the public welfare, a wrong for which the State has prescribed a punishment. It is an act or omission prohibited by law because it is injurious to the public. Examples of crimes are assault, rape, theft, causing hurt, cheating and robbery.
A person who commits a crime will be prosecuted by the State, usually through the Public Prosecutor in a court of law. The main aim of criminal law is to punish the offender and does not, as a general rule, provide compensation to the victim. The victim may recover his losses through a civil litigation.
In Malaysia, definite description of acts constituting a crime and the corresponding penalty are contained in the Penal Code. The Penal Code has provided about 400 types of offences that may subject one to punishment if the crimes are committed.
7.2 Objective of Criminal Law
Criminal punishment, depending on the offence and jurisdiction, may include death penalty, imprisonment, whipping and fine. The punishment for some crimes such as murder is very severe and the penalty is death sentence. In order to understand how courts invoke punishment, we have, in the first place, to understand the objective of criminal law.
The courts have over time recognized that there are at least three aims or purposes of sentencing an offender, namely:
This is most widely accepted goal of punishing an offender i.e. the criminals ought to suffer for his act. Retribution means punishing the offender to reflect society’s disapproval of the crime committed. It may also show a society’s hatred or a desire for vengeance on the person who has committed the crime. Since the offenders have taken improper advantage upon others and consequently the criminal law will put the offenders at some unpleasant disadvantage to “balance the scales”. Thus, one who murders may be murdered himself.
________________________________________________________________________________________________ Ir. Lai Sze Ching © 2012
Lawton LJ in R v Sargeant (1975) 60 Cr App R 74 said:
“The Old Testament concept of ‘an eye for an eye and a tooth for a tooth’ no longer plays any part in our criminal law. There is, however, 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 only way in which the courts can show this is by the sentences 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 public opinion.”
In another case, R v Davies (1978) 67 Cr App R 207, Lawton LJ said again : “ … the Courts have to make it clear that crimes do not pay and the only way they can do so is by the length of sentences. Sentences show the court’s disapproval on behalf of the community, of particular types of criminal conduct”.
Another objective of criminal law is deterrence where punishment is meted out to deter a particular offender or future offenders from committing the crime by making an example of that particular offender. The aim of deterrence is to impose a sufficient penalty to discourage the offender from criminal behaviour. General deterrence aims at society at large whilst individual deterrence is aimed toward the specific offender. By imposing a penalty on those who commit offences, others are discouraged from committing those offences.
Hilbery J in R v Ball...
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