LAW NOTES : Criminal Law - Summary Notes for Non-Fatal Offences That Affecting Body : ASSAULT / CRIMINAL OFFENCES / HURT / GRIEVOUS HURT / KIDNAPPING / ABDUCTION / MISCARRIAGE

Sharing the notes  [2014]
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MALAYSIA CRIMINAL LAW : PENAL CODE

Criminal Law - Summary Notes for Non-Fatal Offences That Affecting Body :
ASSAULT / CRIMINAL OFFENCES / HURT / GRIEVOUS HURT / KIDNAPPING / ABDUCTION / MISCARRIAGE 


NON- FATAL OFFENCES THAT AFFECTING BODY


ASSAULT Sec.351



          "Whoever makes any gesture / any preparation, intending / knowing it to be likely that such gesture/prep will cause any person present to apprehend that he who makes that gesture/prep is about to use criminal force to that person is said to commit an assault"

v  ELEMENTS
1)        AR : "makes any gesture / any preparation" 
·         *It can't be an omission
·         Gesture : It can be an act of Showing fist  / Menyinsing lengan baju / Showing rotan
·         Physical Preparation : It is only prep. to do something, eg - Ali takes up a stick and walk towards Zila 
2)      MR : "intending / knowing"
·         *He intented/know that his act will cause the other person feel apprehend (fear)
3)      Consequences :  Causing the victim to apprehend / fear that (s)he will faced a ‘criminal force’.
v  Other Issues :  Does uttering “words” amount to an assault?
ü  Mere “words” does not amount to an assault. However if the words are used give meaning to the accused gesture / prep, it does amount to an assault.
ü  Eg – Ali takes up a stick (only takes up, not swinging it or etc), and he said, “I will beat you till death”. *These kind of words do give meaning to the act of taking up the stick, equivalent to an assault.
ü  *Relationship between the party also is quite a factor to be considered.
4)    Punishment : Sec.352 – Imprisonment for a term may extend to 3 months, or fine which may extend to RM1k, or both.

v  CASES :
RAM SINGH

ü F: The accused had threatened an officer saying that he will be back later to attack the officer. Later, he did going back to see the officer with weapon at his hand, and he did came with his gang.
ü H: There is an assault done upon the officer.

MUNISAMI

ü F: One of the accused had hit the police officer, while the remaining accused had form circular movement around the police officer in a threatened way.
ü H: The remaining accused in this case were regarded as not liable for the assault as there is no clear execution of criminal force was about to happen.

DATUK SERI SAMY VELLU v S NADARAJAH**

ü F: App in this case had angered and challenged Resp in the meeting of Maika Holding. He had also went to Resp to hit him, but stopped as soon as he saw a group of media/journalist over there.
ü H:
1.         It must be proven before the court that before the assault took place, there shouldn’t be any provocation done by the victim which caused a grave anger.
2.       There is no assault had taken place if, the accused is incapacitated from carrying the threat he said he wanted to do, (such as, he had been stopped by the 3rd party from hitting the victim).
3.       To established assault, it must be proven that the accused must has his way to execute the threat done.

JASHANMAL v BRAHMANAND  **

ü F: In this case, Resp had been evicted by the landlord. He try to get revenged by vacating others from that building too. Respd later confronted with A’s wife with pistol in his hand.
ü H: S. 352 of IPC – Assault/criminal force was established as in this case the accused put out his hand towards the woman in a menacing manner to cause her to apprehend that he was about to use criminal force.

CRIMINAL OFFENCE Sec.350



·         "Whoever intentionally uses "force" to any person, without that person's consent, in order to cause the committing of any offence, or intending by the use of such force illegally to cause, or knowing it to be likely that by the use of such force he will illegally cause injury, fear, or annoyance to the person to whom the force is used, is said to use criminal force to that other"
·         "Force"  = Sec.349
·         A person is said to use for if he CAUSES motion/change of motion/ cessation(stop) of motion or he CAUSES ANY SUBSTANCE (object / animal) such motion/ change of motion/ cessation & this MUST come into contact with another party.
·         FORCE can only be done in 3 WAYS :
1) By his own bodily power
2)Disposing any substance (other     objects/3rd party)
3) Induce any animal to move (3rd party)

v  ELEMENTS
1)        AR : An act of Criminal "Force" (refer act stated under S.349)
·         Those acts must be illegal -  Act of teacher canning a student is not illegal, if he done it under the rules of the school.
2)      MR : "intending / knowing"
·         *The act must be without the consent of the other party.
3)      Consequences :  Contact (menyentuh) the victim, causing the victim to feel :
·         illegally cause injury
·         fear
·         annoyance
4)      Punishment : Sec.352 – Imprisonment for a term may extend to 3 months, or fine which may extend to RM1k, or both.
v  CASES :
CHANDRIKA SAO v THE STATE of BIHAR **

ü F: In this case, Ass. Sup. Of Commercial Taxes had make a sudden visit to A’s shop. The officer found 2 account books and tries to looked for its content, but before able doing so, App had snatched the books, and passed it to his worker up-stair. The act of snatching the books from the hand of the officer is amount to the criminal force.
ü H: S. 350 & S.349 of IPC – For the criminal for ce to takes place, the accused and victim must be proven to be together when the act happened. The accused also must be proven to have used the ‘force – s.349’ upon the victim (without his consent) in order for the criminal force (s.350) to take place.



SPECIFIC OFFENCES FOR  : ASSAULT & CRIMINAL OFFENCE.

Ø  sec.353 - Using criminalforce to deter (menakutkan) public servant from discharge of his duty.

MOHAMED ABDUL KADER

ü H: There is no criminal force done as the assault done in this case bring no execution on the ‘force’ part at all.

RAM SINGH

ü F: The accused had threatened an officer saying that he will be back later to attack the officer. Later, he did going back to see the officer with weapon at his hand, and he did came with his gang.
ü H: There is an assault done upon the officer.

Ø  Sec.354 – Assault / use of criminal force to a person with intent to outrage modesty.

RAZALI HAMZAH

ü F: The accused had pull the victim’s scarf, push her till she felt down, open up the victim’s skirt before touch the victim’s genital part.
ü H: The accused liable for Sec.354.

TERANG AMIT

ü F: The accused had inserted his finger into the victim’s vagina, and had also push the victim al away around.
ü H : The accused liable for Sec.354.


Ø  Sec.355 – Assault / criminal force with intent to dishonour a person, otherwise than on grave provocation.

ALTAF MIAN

ü F: The accused had hit the police officer in the middle of trial in the court, while the officer is giving his statement about the accused.
ü H: There is an offence committed under Sec.355. To use this section, the ‘dishonor’ must be a great/big dishonour.






Ø  Sec.356 – Assault / criminal force in attempt to commit theft of prop. carried by a person.

CHIA POH YEE

ü F: The accused was in the same lift as been used by the victim, aged 7 y.o. Later, the accused had taken 40 cent from the victim’s pocket before slapping her face and threatened that she must never used the same lift ever.
ü H: Sec.356 established.

Ø  Sec.357 – Assault/ criminal force in attempt wrongfully to confine a person.

Ø  Sec.358 – Assaulting / using criminal forceon grave provocation.



VOLUNTARILY CAUSING HURT Sec.321



·         "Whoever does any "act" with the intention of thereby causing hurt to any person, / with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt"."
·         "Act"  - Sec.319 : Whoever causes ... is said to cause HURT  -
1) bodily pain
2) disease
3) infirmity

v  ELEMENTS
1)        AR : "act"  - refer Sec.319
2)      MR : "intention / knowledge"
·         He intented/know that his act will causing hurt to the victim.
3)      Consequences :  Causing hurt to the victim
4)      Punishment : Sec.323 – Imprisonment for a term
may extend to 1 year, or fine which may extend to RM2k, or both.

v  CASES :
JASHANMAL JHAMATMAL v BRAHMANAND SARUPANAND

ü F: The accused had attack (menerpa) the victim in a very dark night which had caused the victim to shocked and apprehended by the act.
ü H: Court held that hurt not only referring to physical hurt, but also to any infirmity (kelemahan), physical or mental. In this case, it is the mental part.

ANIS BEG

ü H: Infirmity may be defined as an ‘failure’ of the human’s organs to function normally. This infirmity may be the permanent / temporary in nature.

MANZOOR AHMAD **

ü F: The accused had put poisoned in the victim’s drink, and had caused the victim to vomit & unconscious.
ü H: The court held that the accused did not intent for the death of the victim, but only wanted the victim to be infirmity and hurt. The accused liable.

SUBBIA GOUNDAN

ü H: The of husband hitting the wife is chargable under the offence of causing hurt.

SPECIFIC OFFENCES FOR VOLUNTARILY CAUSING HURT (VCH).

Ø  Sec.324 – VCH by dangerous weapons / means.

MAT ALIAS B. MAT JUSOH

ü H: The GOLF STICK is one of the weapon recognized under S.324

NG AH TAIK

ü H: The ACIDIC LIQUID is one of the weapon recognized under S.324.

VED PRAKASH

ü H: The KNIFE is one of the weapon recognized under S.324.

HALED

ü H: The HAMMER is one of the weapon recognized under S.324

Ø  Sec.327 – VCH to extort prop / to constrain to an illegal act.

Ø  Sec.328 – Causing hurt by means of poison , etc with intent to commit an offence.

DHARM DAS WADHWANI

ü F : The accused disliked the victim who was a doctor in a hospital. After being directed to bring some pills to the victim, the accused had brought 2 packaging, which one of them containing harmful substance. The victim had ate the pills, and hurt.
ü H: The accused charged under this offence.

Ø  Sec.330 – VCH to extort confession / to compel restoration of prop.

LAI HON

ü H: The 4 police officers had been held liable under this section as they extort an indi. to confess in one case.



VOLUNTARILY CAUSING GRIVEOUS HURT Sec.322



·         "Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is "grievous hurt", is said voluntarily to cause grievous hurt".
·         ""Griveous hurt"  - Sec.320 : - "Griveous hurt (GH)" involves the following -
·         Permenant GH :
a.       a) emasculation (Hilang tenaga lelaki) / b) GH to either eye / c) GH to either ear (hearing) / d) GH to either member of joint / e) GH to either member of joint (become impaired (lemah) permanently) & f) Permanent disfigure (cacat) to face / head
·         Temporary GH
a)      g) fracture or dislocation / h) hurt which endanger life, OR causes severe pain, OR causes hurt that make the victim unable to follow his ordinary pursuit for 20 days.
b)      20 days is not an absolute amount of days to be proven, in some cases, lower no. of days still being acceptable by the court.
v  ELEMENTS
1)        AR : "act of griveous hurt"  - refer Sec.320
2)      MR : “Intention / knowledge"
·         He intented/know that his act will causing griveous hurt to the victim.
MR : "intention /
3)      Consequences :  Causing grievous hurt to the victim
4)      Punishment : Sec.325 – Imprisonment for a term may extend to 7 year /7 shall also be liable for a fine.


v  CASES FOR THE GH Sec.320 (a) – (h) :
ü  (a) – None
ü  (b) -            CASE OF LAI HON
v  H: The act of the suppliers to supply the wine was set as liable for an offence of GH as he had caused the other 24 drinkers of the wine to be blind.
ü  (c) – None
ü  (d) – None.
ü  (e) - CASE OF RANGAPULA RAMASAMY
v  H: The act of the accused to caused injury at thigh, body and hand is said to be liable.
ü  (f) - CASE OF MD RASHID HARUN
v  H: The act of the accused to pour an acidic liquid to the victim’s face is said to be an offence of GH.
-CASE OF LEE HOR SAI
v  H: The act of the accused to slit the victim’s cheek amount to an offence of GH.
ü  (g) – CASE OF HORI LAL **
v  F : The victim in this case had been hit by the ‘kantas’ (wooden weapon).
v  H: The court held that for the bone to be fractured, its doesn’t have to be 100% fractured. Suffice if it was caused by the cutting  / ‘penyerpihna’ / broken / crack of the bone.
-CASE OF RAMBARAN MAHTON **
v  F : The victim’s ribs had been broken due to the fight between the victim & accused. The accused had actually sat on the victim while hitting him.
v  H : The offence committed in an offence of GH.
ü  (h) - CASE OF RAMLA
v  H: The court in this case had regarded the wound at the neck is not amounting to the GH as is doesn’t extended to the main capillary of blood.
-CASE OF RANGAPULA RAMASAMY
v  H: The court had regarded the victim’s wound at hand as GH as it cut-off the main capillary of blood.

SPECIFIC OFFENCES FOR GRIVEOUS HURT (GH).

Ø  Sec.326 – GH by dangerous weapons / means.

ROSLAN IMUN
ü H: The insertion of a wood into the child’s anal amount to an offence of GH.

Ø  Sec.329 – GH to extort prop, / to constrain to an illegal act.
NONE

Ø  Sec.331 – GH to extort confession / to compel restoration of prop.
NONE
Ø  Sec.333 – GH to deter the public servant from his duty.
NONE


KIDNAPPING Sec.360 & 361



·         KIDNAPPING CAN BE DIVIDED INTO 2 CATEGORIES :
1)      KIDNAPPING FROM MALAYSIA : Sec. 360
·         “Whoever conveys any person beyond the limits of Malaysia, without consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from Malaysia.”
v  ELEMENTS
1.       AR - Conveys (Bawa lari) any person beyond Malaysia
·         Eg : Conveys a person beyond Kayu Hitam, into Thailand
·         Conveys a person beyond Kayu Hitam, into Thailand
2.      MR - Intentionally
·         It must be done without consent of the kidnapped person / without the consent from the person that have legal right on behalf of the victim.
·         Refer to Sec. 90 - "when consent is void"
·         Kidnapping is an act that can't be done accidentally / spontaneously
2)     KIDNAPPING FROM LAWFUL GUARDIANSHIP - Sec.361
·         “Whoever takes / entices any minor under 14 y.o. if male / under 16 y.o. if female, or any unsound mind person, out of keeping of the lawful guardian of such minor / person of unsound mind, without consent of such guardian, is said to kidnap such minor, is said to kidnap such minor / person from lawful guardianship.”

v  ELEMENTS
1.         1st Element: Victim
ü  Under 14 y.o. if male, OR
ü  Under 16 y.o. if female, OR
ü  Unsound mind


JAMALUDIN HASHIM

ü H: When the section specifically asked for the age’s proof, PP was on duty to prove the requested element.

2.       2nd element : AR -
                   i.            "Takes"
Ø  (Baby/small kid/unsound mind - minor)
OR
                 ii.            "Entices"
Ø  (Usually referring to a bit grown up kid/ unsound -mind, but still minor)
Ø  Suffice if it can be shown that the teen female have love relationship with the kidnapper
DALCHAND **

ü F : The court in this case had held that the act of the accused to take away the child aged around 5 y.o is amounting to the act of ‘takes’.

CHATHU v P. GOVINDAN

ü H: The court held that for the act to be valid as  ‘takes’, there must be a positive action took place, this positive act could be hint by enticing the child/etc.

NEELAKANDAN

ü F : The victim had leaved her house and went to the accused house without any positive act from the accused.
ü H:  The absent of positive act, such as enticing would make the offence under S.361 to be un-establshed.

3.       3rd element : MR - Intentionally
                   i.            Without consent of such "lawful guardian"
                 ii.            "Lawful guardian" is any person who lawfully entrusted with care & custody of the minor /unsound-mind
Ø  Custody = Hak penjagaan
Ø  Guardian = Hak melawat
GHOUSE B. HAJI KADER **

ü H: The court held that although, as according to the Mazhab Hanafi, a female child who had baligh does have right to determine her marriage, but this doesn’t EXCLUDE the right of the parent on the custody of the child.


v  CONT. ELEMENT FOR BOTH TYPE :
4.       ConsequencesKidnap an adult/minor/unsound-mind
5.       PUNISHMENT : SEC.363 – Imprisonment extend
to 7 years & fine. * REFER ALSO SEC.364-369

v  CASES
PARIASWAMI KANGANI

ü H: The court held that the act of taking out the victim from Sri Lanka on intention to marry the victim with his son, and had later turn the victim as the forced labour in Sri Lanka is an offence of kidnapping.


ABDUCTION Sec.321



·         "Whoever by force compels or by any deceitful means induces any person to go from any place, is said to abduct that person".
·         Usually abduction happen with objective to fulfil certain objective / aim.
·         Eg - Abduction to force a girl to marry him.

v  ELEMENTS
1.         AR : Force (Memaksa), Compels (Mendorong) & deceitful (Menipu), Induces any person to go from any place
2.       MR : "Intention"
·         The act must be done without intention as its done via force/compels/deceitful.
3.       ConsequencesAbduct  that person
4.       Punishment
Ø  Sec.364 – Abduct to murder : Death / Imprisonment extend to 30 years & whipping.
Ø  Sec.365 – Abduct ; wrongful confine : Imprisonment extend to 7 years, & fine.
Ø  Sec.366 – Abduct to marry : Imprisonment extend to 10 years & fine.Sec.367 – Abduct caused grievous hurt/slavery/etc : Imprisonment extend to 10 years & fine.
Ø  Sec.369 – Abduct child under 10 y.o. to steal prop : Imprisonment extend to 7 years, & fine.






SPECIFIC OFFENCES FOR ABDUCTION

Ø  Sec.364 – Kidnapping / abduction in order to murder.

TONDI

ü H: The accused must be proven as intended to cause the death, or not this section is unproven.

Ø  Sec.365 – Kidnapping / abduction with intent secretly and wrongfully confined a person.

WARIS

ü H: The accused held liable for kidnap but the punishment was reduced as he return back the victim without injured the victim.

Ø  Sec.366 – Kidnapping / abduction to compel her marriage.

WAHAB OSMAN **

ü F : In this case, the accused had abducted  a lady to forced her to marry him without the lady’s consent.
ü H : The court held, they must be 3 elements to established this section that are : 1) Intention to abduct the women 2) Abduction is for forcing the lady to marry him & 3) No consent given on the part of the victim.

Ø  Sec.367– Kidnapping / abduction in order  to subject  a person to GH.
Ø  Sec.369– Kidnapping / abduction child under 10 y.o. with intent to steal movable prop from the person of the child.


MISCARRIAGE Sec.312



·         “Whoever voluntarily causes a woman with a child to miscarry shall be punished with imprisonment for a term which may extend to 3 years/ or with fine/ or with both; and if the woman be quick with child, shall be punished with imprisonment for a term which may extend to 7 years, and shall also be liable to fine”.
·         Foetus is not recognized in legal as ‘human’, as for that, the offence only regarded as ‘miscarriage’ and not as murder. (Murder is only for human).


v  ELEMENTS
1)        AR - Doing an ‘act’ that causes a woman with a child to miscarriage.
·         This section include the offence committed by other person towards a pregnant lady / the pregnant lady herself.
·         Eg : Dr. give pill to clear the mom’s womb without any good faith on doing such act.
2)      MR – With ‘Intention’
v  To abort, it can’t be accident.
3)      EXCEPTION – This section doesn’t extend to :
v  Medical practitioner registered under Medical Act 1971, who in his/her opinion does the miscarriage’s act, as in a good faith to save the woman’s life or to avoid the mental / physical injury of the woman.
4)      Situation which miscarriage may occur
Ø  Sec.313 – If the miscarriage is done without the women’s consent, whether the woman is quick with a child or not, the accused must be be served with imprisonment extends to 20 years & fine.
Ø  Sec.314 – If a person intent to do the act of miscarriage and had caused to the death of the woman, and (s)he shall be punished with imprisonment extends to 10 years, & fine, and if such act done without the consent of the woman, the imprisonment shall extend to 20 years.

v  CASES :

DR NADASON KANAGALINGAM


ü  H : The court held that there are 3 elements that must be established in order for offence to be established. 1)The victim is a pregnant lady 2)The accused intentionally causing the miscarriage act 3) The act of miscarriage is not to save the lady’s life.



DONE BY :

AMERA MOHD YUSOF
FACULTY OF LAW, UM

Comments

  1. Hello,
    This includes assault occasioning actual bodily harm, where the victim suffers injuries such as bruising or skin abrasions.Thanks for sharing info.Sexual Assault Lawyers Melbourne

    ReplyDelete
  2. Cheers counsel!

    Such conduct prescribed in your comments are very much relevant for cause of action under Battery. Because there is actual injuries suffered by the victim isn't it. Assault is more towards the before-hand of the injuries. Battery is the result of after-act of the assault. There are indirectly link to each other. However, that is the current position in Malaysia! might be differed from Melbourne's position! :) Do share if you have

    ReplyDelete
  3. This comment has been removed by the author.

    ReplyDelete

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