October 2009

(Question 7)
Jaguh, Jantan and Hansem went to watch a football match between Malaysia and Manchester
United. Being big fans of the Manchester United team, they wanted to sit as close as possible to the
field. Upon finding three empty seats designated for other fans, they took the seats.
Tom, Jeri and Jimi had purchased the seats and when Tom saw the three of them, he politely asked
them to move. When they refused to vacate the seats, Tom poured 100 plus drinks on them and
left.
State whether Tom has committed any offence.

CRIMINAL FORCE

The parties involve are Tom, the accused, meanwhile Jaguh, Jantan and Hansem, the victim.
The issue is whether Tom can be held liable for criminal force as defined under Section 350 of
the Penal Code and punishable under Section 352 of the same code for pouring 100 plus
drinks on Jaguh, Jantan and Hansem.

Section 350 defines criminal force as if an accused caused motion, change of

motion or cessation of motion to any substance as to bring it into contact to
body as to create feeling, by his own bodily power, disposing substance or
inducing animals to move.

Force is further defined in section 349 as a person is said to use force on

another if he causes motion, change of motion or cessation of motion.

The definition of criminal force however has been further explained in few cases. Firstly, in
the case of Mohamed Abdul Kader v PP. The court held that unlike the offence of assault
which requires no contact with the body, an act of criminal force requires the application of force
requires the application of force to the other party.
Meanwhile, in the case of Jai Ram, it was even held that raising a stick to hit another
person was criminal force if it caused the other to flee to save himself or even just to move slightly
to avoid being struck.

The force must be intentionally inflicted. The force must be; firstly in Section 40 of Penal
Code, it must be an offence under Penal Code. Secondly, it must be done with intention illegally to
cause injury, fear or annoyance or with knowledge it is likely illegality to cause injury, fear or
annoyance.
In determining whether Tom can be held liable for criminal force, we must see whether his
act falls within the meaning of the offence. The first element which is the actus reus of this
offence is that the force must be intentionally inflicted, as it is not sufficiently to constitute an
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offence if force was accidently or recklessly inflicted or that the offender knew his action was likely
to cause force. In Ng Eng Huat v PP, there was no direct force but the movement was affected
when the appellant intentionally reversed his car to collide with the other car. The court held that the
appellants act was an intentional and deliberate act and he had used criminal force. The accused
was convicted with the offence under Section 352 of the Penal Code because even though
there was no direct use of force but the movement was affected when the appellant intentionally
reversed his car to collide with the other car.

The second element is that the force must be used on a person. The person must be the
ultimate object of the force. No offence of criminal force is committed when the lock of a house is
broken or where a ladder is removed leaving the victim stranded on the roof of a house. Its shows
that the purpose of doing such acts is to directly affect the person. In the case of Raja Izzuddin
Shah v PP, the accused was convicted with the offence under Section 353 of Penal Code
when he had slapped the complainant who was a police officer, dragged him by shirt and pushed
him against the wall.

Then, the third element of this offence is the force must be without the victims consent.
Where the victim consents to the use of force, there is no offence.

Then, the criminal force as an offence can be found on several other cases where the
court held that they met with the elements and therefore they were liable for criminal force towards
victim.
Firstly, in the case of Goh Ang Huat v PP, the court held that the force must be used on a
person. The person is the ultimate object of the force.
Next, in the case of Chandrika Sao v Hazari Lal, a tax inspector entered a shop to
inspect the books. He was examining them when the appellant entered and snatched them away. It
was held that by seizing of the books, the appellant had caused the hands of the inspector to jerk and
caused motion. This was held to be criminal force.

Furthermore, the additional cases in regards of criminal force is not an offence can
be taken from all of the cases below.
Firstly, in the case of Bihari Lal, the court held that it was not an offence of criminal force
when the force was used to break open the lock of a house.
Secondly, in the case of Telapolo Sabbab, the court held that it was not an offence of
criminal force where a ladder is removed leaving the victim stranded on the roof of a house.
Thirdly, in the case of Mohamed Abdul Kader v PP, the accused had been convicted of
using criminal force to a public servant to prevent him from discharging his duty. The evidence was
that the appellant who had a chopper in his hand had said, If you go in, I will hammer you. The
court held that as no force was in fact used, the appellant could not be convicted of using criminal
force.

In addition, criminal force to outrage modesty can be found in the case of Rajeevan
Edakalavan v PP . The accused was convicted of an offence under Section 354 for slipping his
left hand through the gap between the window and the victims seat while they were traveling in a
bus. He then pressed the victims blouse twice at the left breast region.

Then, in the case of Tan Beng Chye v PP, the appellant had been convicted of
attempting to commit rape. The evidence showed that the appellant had taken the complainant to
some bushes where he took off his shorts and lowered his inner pants to his knees. He then made
the complainant take off her coat and trousers, leaving her in her knickers, which she refused to take
off. An old Chinese man then came to the place and the complainant shouted to him for help.
Thereupon the appellant pulled up his inner pants, put on his shorts and started to run while
buttoning them. The court held that in this case the acts done by the appellant did not amount to an
attempt to commit rape and therefore the conviction must be set aside and a conviction for using
criminal force with intent to outrage modesty substituted for it.

Next, in the case of Rajeevan Edakalavan v PP, the accused slipped his left hand
through the gap between the window and the victims seat while they were traveling in a bus. He
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pressed against the victims blouse twice at her left breast region. This act alerted the victim. She
turned around and shouted at the petitioner who apologised immediately. The court held that the
accused was guilty of using criminal force to a person with intent to outrage modesty under Section
354 of the Penal Code.
Similarly, in Razali Hamzah v PP, the accused was convicted of using criminal force on
the complainant with intent to outrage her modesty based on the evidence adduced. The
complainant had taken a ride in the accuseds car. On the way from Parit Sulong to Muar, the
accused had driven her into a banana plantation where he molested her.
Plus, in the case of Abdul Ghani Daud v PP, the accused was convicted for an offence
of using criminal force to outrage the victims modesty under Section 354 of Penal Code. He had
embraced the victim, a 12 years old girl suffering from downs syndrome, from the rear and fondled
her bosom.
Then, in the case of Ismail v PP, the appellant was charged under Sections 354 and
Section 511 of Penal Code. The appellant came and asked the complainant where a neighbour
Rahmat or his wife had gone. She told the appellant that Rahmat and his wife were not at home and
she did not know where they had gone. Appellant then went up to about 3 feet to Mek. Mek
retreated a little. Appellant became pale and Mek interpreted this facial expression as an intention to
disturb her. She went underneath the house. Appellant went to the front steps of the house. He
asked Mek whether she was single or married. Mek told him she was married. He then pul out $ 5
and said : Even if you are married take this money. Mek refused and ran away towards the river.
The court held that he was not guilty of using criminal force to outrage modesty as no evidence
whatsoever was adduced to suggest that appellant intended to use criminal force on Mek.
However, this is not one of the element under general criminal force and must be
distinguished from both criminal force and criminal force to outrage modesty.
Another cases that relates to criminal force are as follows. Firstly as in the case of
Paramasivan & Ors v Public Prosecutor, The respondent was charged on two charges,
namely: (a) hawking vegetables without a licence, contrary to byelaw 2 of the Kuala Lumpur
Municipal (Itinerant Hawkers) Byelaws 1957, an offence under s 53 of the Municipal Ordinance,
and (b) using criminal force on a police constable in the execution of his duty, an offence
punishable under s 353 of the Penal Code. He pleaded guilty to both charges and the magistrate
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fined him RM10 for the first offence and on the second offence he was bound over for RM100 to be
of good behaviour for six months. On appeal by the Public Prosecutor against the inadequacy of
sentence in respect of the second charge. The court held that from the facts as stated by the learned
magistrate, the arrest was not made in the proper form as required by s 15(i) of the Criminal
Procedure Code, and it was justifiable for the respondent to put up a struggle since he was resisting
an illegal or unjustifiable use of force against him. Reasons advanced for not imposing prison
sentence.

Then, in the case of Soo Nyown v R, The appellant was convicted under s 353 of the
Penal Code. She appealed on two grounds, one of which was that the prosecution had failed to
prove that the police constable was acting in the execution of his duties. It appeared that the son of
the appellant was selling handkerchiefs at a small stall on the five-foot way of Penang Road,
Penang, a short distance from where the appellant also was selling articles at a stall. On the record,
it was not clear which provision of which law the son of the appellant was alleged to have broken. It
was also not clear whether the son of the appellant was at any time under arrest. The court held that
the prosecution failed to prove that the police constable was in law a public servant acting 'in the
execution of his duty'.

In the case of Public Prosecutor v Mardai, This was an appeal by the Public Prosecutor
against the acquittal of the respondent at the end of the prosecution case on a charge of using
criminal force on the complainant with the intention of outraging her modesty, an offence
punishable under s 354 of the Penal Code. The complainant, who had known the respondent for
some time, had recognized his face by flashes of lightning when the alleged offence was committed.
Notwithstanding all the evidence for the prosecution, which was not contradicted by other evidence
and remained unshaken by cross-examination, the magistrate acquitted the respondent on the
ground that the complainant's evidence could not be relied on in so far as identification alone was
concerned. The court held that in this case, there was nothing inherently improbable about the
complainant's story, and her evidence was neither contradicted nor shaken by cross-examination. In
the circumstances, it was the duty of the magistrate to have called on the defence.

In applying this issue, firstly there must be an establishment of criminal force according to
the definition given under Section 349 and Section 350. Tom has caused motion and change of
motion or cessation of motion to any substance as to bring it into contact to body as to create
feeling, by his own bodily power, disposing substance by pouring 100 plus drinks on Jaguh, Jantan
and Hansem. Then, there was a force by Tom towards them because he causes motion, change of
motion or cessation of motion. Plus, Tom action also fulfilled the definition requirement as in the
case of Mohamed Abdul Kader v PP and Jai Ram.

Then, the force must be intentionally inflicted. The force must be; firstly in Section 40 of
Penal Code, it must be an offence under Penal Code. Secondly, it must be done with intention
illegally to cause injury, fear or annoyance or with knowledge it is likely illegality to cause injury,
fear or annoyance.
In applying the first element, Tom was intentionally inflicted the force on the three of them
where he was annoyed when he politely asked them to move from his purchased seats.
In applying the second element, Tom inflicted the force on persons and they were the
ultimate object of the force as they were poured with 100 plus drinks.
In applying the third element, the force was done without the victims consent where three
of them did not give any consent to be poured with 100 plus drinks as they were also not expected
that to be happened.
Thus, Tom has fulfilled all the elements in order to establish criminal force and he was also
fulfilled the definition of criminal force.

In conclusion, Tom may be held liable for criminal force under section 350 of the Penal
Code and punishable under section 352 of the same code for causing threat to Jaguh, Jantan and
Hansem.