The Queen v Poonai Fattemah

Group 2: Raja Nur Dalilah, See Kwang Guan, See Xin Ying, Shermon Ong, Soo Bei Han

Section 90(a)(ii)

A consent is not such a consent as is intended by any section of this Code —

(a) if the consent is given by a person —(ii) under a misconception of fact,

and the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception;

Two limbs in this test. The second limb of this test is crucial in our understanding of Poonai Fattemah

Misconception of Fact

Two interpretations

Wide interpretation (Poonai Fattemah)Consent is vitiated if the misconception pertained to any fact, no matter how trivial.

Narrow interpretation (Siew Yit Beng – Group 3)

Consent is vitiated only if the misconception pertained to the identity of the accused or the nature of the act performed on the person giving consent

Factual Matrix

The accused were snake charmers who had induced several people to allow themselves to be bitten by poisonous snakes from which bites they died.

The deceased had consented because they had been led to believe that the accused had the power to protect them from harm.

YMCPage 486 of YMC textbook: “The court held that their consent was vitiated by misconception of fact.”

We think this is misleading.

Though the court supported the wide interpretation of misconception of fact, the court actually held that consent was valid and the accused were allowed the partial defence of consent to murder under Exception 5 to section 300.

Since we differ from YMC, we have to examine the case in detail

Procedural History

The trial judge found the accused guilty of culpable homicide not amounting to murder. The accused appealed.

Norman J interpreted the trial judge’s decision to mean that the latter seemed to assume that the case did not come within s 300.

Norman J then tried to explain that if the offence was not murder, it was because it might fall within Exception 5 to s 300, namely the deceased took the risk of death with his own consent

Norman J

“No doubt the deceased gave their consent under a misconception of fact, namely, a belief that the accused by incantations could heal or protect them from the effects of the bites of venomous snakes” This means that the first limb of the test was satisfied.

This analysis supports the wide interpretation of misconception of fact to refer to any facts and not just to the identity of the accused or the nature of the act performed on the person giving consent.

Norman J (continued)

“But if the [trial] Judge is right that the [accused] believed, though erroneously, that they had the power of restoring to health persons who might have been bitten, they did not know that the consent of the deceased was given ‘in consequence of any misconception.’ They must in that case have acted in the belief that the deceased gave their consent with a full knowledge of the fact in the belief of the experience of powers which the [accused] asserted and believed themselves to possess.”

Norman J (continued)

“It is because, on the finding of the [trial] Judge, the case appears to come fairly within Exception 5, that I think the conviction of culpable homicide under section 304 must be taken to be correct…”

What all this means is that consent was not vitiated because the second limb of s 90(a)(ii) was not satisfied.

In other words, if the accused did not believe in their own powers to cure snake bites then they would have known that deceased gave consent under misconception of fact

Norman J (continued)

Norman J then suspected that this might be the case but ultimately he did not reverse the trial judge’s decision.

“There are however, circumstances in this case, which lead to a suspicion that the guilt of the [accused] in causing the snake to bite the [deceased] may have been of a far deeper dye than the [trial] Judge supposes.”

Jackson JJackson J was more sceptical than Norman J.

“I certainly would not interfere with the conviction of the [accused] or with the sentence passed upon them. The only doubt which I have regarding their case is whether they should not have been convicted of murder.”

“The consent of [deceased] is, in my opinion, under the law, no consent, because it was founded on a misconception of facts and the [accused] knew that the consent was given in consequence of such misconception.

Jackson J (continued)

“The [deceased] believed that the [accused] had power by charm to cure snake bites. The [accused] pretended that they had such power, when they had no such power, and the consent to be bitten was given by the [deceased] only under the misconception that the [accused] possessed such power. The [accused] then knew that the consent of [deceased] was given under a misconception of facts as to their power over snakes” This means that the judge thinks both limbs were satisfied. The judge therefore rejected the appeal but did not substitute the charge of culpable homicide not amounting to murder with the charge of murder.

FAQ and trivia

The snake that bit the [deceased] belonged to the class of common krait – one of the Big Four snakes in South Asia