Citation(2004) 16 SAcLJ 354
Date01 December 2004
Published date01 December 2004

This article evaluates certain requirements of the defence of duress under s 94 of the Penal Code (Cap 224, 1985 Rev Ed) which involve matters of time and space. The thrust of the evaluation is that close adherence to the underlying rationale of the defence promotes a liberal approach towards the interpretation and application of these requirements. Relying on comparisons with the laws of other jurisdictions, it is contended that the requirement of instant harm should be removed from s 94; that it is correct for s 94 not to require the coercer’s presence; and that elucidation is needed under s 94 on the requirement to escape.

1 The defence of duress is contained in s 94 of the Penal Code (Cap 224, 1985 Rev Ed) which has remained unchanged since it first appeared in the Indian Penal Code of 1860. Duress (or compulsion or coercion as it is sometimes called) is recognised as a defence in many other criminal codes, both old and new, as well as by the common law.

2 The defence operates as an excuse in that the accused’s conduct is regarded as wrongful in the eyes of society, but the circumstances in which the accused committed the offence were such as to render him or her blameless.1 As might be expected, society demands these circumstances to be extreme before it is prepared to excuse the accused for the wrong committed. This article will examine three requirements which are frequently found in the law of duress. They are: a threat of instant (or immediate) harm; the need for the coercer to be present at the scene of the crime; and the need for the accused to escape if a reasonable opportunity presents itself. These requirements have in common the fact that they are all concerned with issues of time and space.

3 In line with this focus on considerations of time and space, it is unnecessary to discuss the other requirements of the defence such as excluded offences, the confinement of the type of harm threatened to death alone, or the requirement that the accused and not a third party must be the subject of the threatened harm.2

4 The discussion will commence with an explanation of the connection between these three requirements and the underlying rationale of the defence of duress. This will be followed by separate discussions of the requirements. For each, the local (ie Malaysian and Singaporean law) will first be considered, proceeded by a brief examination of the laws of other jurisdictions, and concluding with a section on whether s 94 of our Code is in need of reform.

I. The rationale of duress and considerations of time and space

5 The underlying rationale of the defence is that the accused was placed in circumstances where he or she lacked free choice as to whether or not to commit the crime in question. A classic example is of a person who is forced at gunpoint to deliver prohibited drugs to a designated location and who is subsequently charged with drug-trafficking. Technically, the accused chose to commit the offence to save herself or himself. However, in reality, the accused’s capacity to choose was substantially undermined by the coercer’s threat. The defence of duress recognises that it would be unfair to convict and punish such a person “whose only choice was the morally unacceptable one between either self-sacrifice or breaking the law”.3

6 The requirements of the defence generally serve to ensure that the accused was indeed exposed to such a dilemma and had committed the offence solely as a result of the coercer’s threat operating on the accused’s mind at the time of the offence. It is in this context that considerations of time and space are material. Thus, the requirement that the threat would be carried out within a short time period should the accused refuse to comply with the coercer’s wishes, would certainly

have a significant impact on the accused’s choice of preserving herself or himself, or committing the offence. Likewise, the spatial proximity between the coercer and the accused at the scene of the crime would strongly influence the accused’s choice of whether or not to break the law. Regarding the requirement of a reasonable opportunity to escape, such an opportunity would usually depend on whether there was a time interval between the making of the threat and the carrying out of the offence, and also on the degree of spatial proximity between the accused and coercer.

7 A very compelling case of duress will be established where all these three requirements exist. A person facing the prospect of instant harm from a coercer standing beside her or him, and with no reasonable opportunity to escape, will have her or his choice of whether or not to break the law substantially undermined by the coercer’s threat. That said, it is important to appreciate that these requirements are not interdependent of one another; rather, each can work separately to help ensure that the underlying rationale of the defence is maintained. Hence, it is possible to envisage a case where the accused is influenced by a threat of instant harm even where the coercer is nowhere in sight, such as a coercer aiming a high velocity rifle at the accused from a considerable distance away. There could also be circumstances where, despite the coercer being physically present and threatening the accused with instant harm, there exists a reasonable opportunity for the accused to escape. Take the case of an accused and coercer in a room teeming with police officers. Furthermore, it is possible to envisage circumstances where, even though the accused is threatened with future harm, that does not provide her or him with a reasonable opportunity to escape. For instance, an accused held in captivity by her or his coercers who could carry out the threat at their leisure.

8 It follows that the form which each of the three requirements takes need not be affected by the existence or otherwise of the other requirements, or the forms of those other requirements. For example, simply because the law requires the threat to be of instant harm does not mean that the coercer must be physically present, or that the requirement of escape can be dispensed with. Similarly, merely because the law does not require the coercer to be physically present, does not mean that the threat must be of instant harm, or that the requirement of escape must necessarily take a certain form. Given the independent nature of each of these three requirements of duress, it will be necessary to evaluate them separately.

9 At this juncture, it would be appropriate to reproduce s 94 of the Penal Code:

Except for murder and offences against the State punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably

cause the apprehension that instant death to that person will otherwise be the consequence:

Provided that the person doing the act did not of his own accord … place himself in the situation by which he became subject to such constraint.

10 Regarding the requirement of instant harm, s 94 expressly stipulates this in no uncertain terms. In contrast, the section is silent on whether the coercer needs to be present at the scene of the crime. Likewise, a cursory reading of the section shows it to be silent on the need for the accused to escape from the coercer if a reasonable opportunity presents itself. Our local courts have had something to say about each of these requirements beyond the express wording of s 94. An analysis of these judicial rulings will now be undertaken, assisted by comparisons with the laws of other jurisdictions, notably, of Australia, Canada, England and New Zealand.

II. The requirement of instant harm
A. The local law

11 In spite of the clear invocation under s 94 that the coercer must have threatened to harm the accused instantly should he or she refuse to break the law, the term “imminent” has crept into the judicial authorities on the subject. The difference between the words “instant” and “imminent” is not a mere matter of semantics. The former requires the threatened harm to be carried out within a very short time and is synonymous with the word “immediate”.4 In contrast, the term “imminent” is synonymous with “impending”5 and it permits a longer time interval to occur between the accused’s refusal to break the law and the coercer’s carrying out of the threat. Accordingly, whatever might be the merits of equating “instant” with “imminent”, it was inappropriate for our courts to do so.

12 This assertion is made stronger when it is noted that the source of this equation of the words was borrowed from the English common law. This transpired in the case of Tan Seng Ann v PP6 (“Tan Seng Ann”) where the Malayan Court of Criminal Appeal, after holding that there was nothing wrong with the trial judge’s direction that “only fear of immediate death would be a sufficient excuse”, went on to say that:

It is clear from s 94 itself and from decided cases eg M’Growther’sCase 168 ER 8; R v Stratton 99 ER 156, that duress to be pleaded successfully must be imminent, extreme and persistent.7

13 Thereafter, there has been a long series of local cases which have described the threat under s 94 as having to be “imminent, extreme and persistent”.8

14 The English case of M’Growther9 involved an accused who claimed to have been coerced into joining a rebel army upon a threat of death if he refused to do so. The part of the judgment which the court in Tan Seng Ann most probably had in mind states that

The only force that doth excuse is a force upon the person, and present fear of death; and this force and fear must continue all the time the party remains with the rebels.10

This statement supports the “extreme and persistent” components of the Tan Seng Ann formula but says nothing about the imminence of the carrying out of the threat.

15 The word “imminent” was, however, used by the court in R v Stratton11 which...

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