Lectures One and Two

Non-Fatal Offences Against Another

For academic purpose, these

offences are considered as non-
fatal because the victims survived
the violence.

These offences are found in

chapter 12 of your textbook.

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 Offences Against
Offences that will be
a Person
covered under this
heading include :-
Part One of
Criminal Law
covered the Criminal Force;
following offences Assault;
Wrongful Restraint ;
Wrongful
Section 300, s299 s Confinement;
304A, s 312 s 321, Kidnapping; and
and s322. Rape.

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 Non-Fatal Offences
Covered under Part II

The offences that will be covered

here are:
Wrongful Restraint ;
Wrongful Confinement;
Kidnapping; and
Rape.

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 Wrongful Restraint
One who prevents or obstructs another
whereby the latter is prevented from
going in the direction that he wishes to
go, the one who prevents could be
charged under s 339 for wrongfully
restraining the victim, if convicted he
could be punished under
s 341.

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Possible Defence :

The accused could however claim

that the person he obstructed
does not have the right to
proceed in that direction.

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 Wrongful Confinement

The offence is penalised under s

340, where the accused is charged
of wrongfully confining another
person within certain boundaries.
If found guilty, the accused will be
convicted under s 342.

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However, the offenders may not
be charged of these offences if
they can prove that the restraint
or the confinement was justified.

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 Kidnapping
S 359 - Kidnapping
Section s359 Kidnapping is of two
recognises , kinds: kidnapping
kidnapping from Malaysia and
under two kidnapping from
sections : The lawful guardianship.
section reads as
follows:

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 Kidnapping
Under s 361 -
Under s 360 -
Kidnapping from
Kidnapping from lawful
Malaysia. guardianship.
Whoever conveys any
Whoever takes or entices any
person beyond the minor under fourteen years of
limits of Malaysia age if a male, or under sixteen
without the consent of years of age if a female, or any
that person, or of some person of unsound mind, out of
person legally the keeping of the lawful
authorised to consent guardian of such minor or
on behalf of that person of unsound mind,
person, is said to without the consent of such
kidnap that person guardian, is said to kidnap
from Malaysia. such minor or person from
lawful guardianship.

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 Noraini Mat Zainol v. PP,
[2011] 1 LNS 1061
Herethe accused was convicted and punished
under s 363 which punishes both types of
kidnapping.

Background

Theappellant was tried before a Magistrate

Court at Sungai Petani for an offence of
kidnapping an infant while working as a nurse at
Sultan Abdul Halim Hospital in Sungai Petani,
an offence under s 363. On the September 7 th
2010 she was found guilty and convicted for
the offence, upon which she was sentenced to
36 months imprisonment. 10
Brief Facts :

In June 2005 the appellant was

working as Community Nurse
(Jururawat Masyarakat) attached to
Hospital Sungai Petani. On the 19th
June 2005 an infant was found missing
from the Hospital Sungai Petani and
accordingly a police report was
lodged. As the result of the police
investigation the infant was recovered
from the appellant's house.

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The appellant was later convicted
of kidnapping and punished under
363. Her husband was charged of
abetting her
( an offence penalised under
s107) in committing the offence.

They were jointly tried before the

Magistrate. Her appeal was
allowed because of she raised the
defence of insanity under s 84.
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 Defence - Unsoundness of the Mind s 84

Excerpts which show the Appellate Court accepted

the defence
..In his judgement the learned magistrate said
the behaviour of the appellant indicated she was
of sound of mind at the time of the offence.
Perusing the record of appeal I found no doubt
the appellant did some acts after the commission
of the offence but she was assisted by her
husband and the parent in doing the acts. The
appeal record also shows she was so obsessed
with the belief of getting pregnant and having a
baby. DW2 had clearly considered these facts
and other surrounding before coming to
conclusion on the appellant mental capacity. As
such there was no other evidence to rebut this
finding

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The Effect of successfully pleading the defence
under s 84.

i) The application of in s 348 of CPC which reads as

follows
Safe Custody of person Acquitted.

(1) Whenever the finding states that the accused person

committed the act alleged, the Court before which the
trial has been held shall, if that act would, but for
incapacity found, have constituted an offence, order that
person to be kept in safe custody in such place and
manner as the Court thinks fit and shall report the case
for the orders of the Ruler of the State in which the trial
is held.

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ii) To be detained indefinitely

Provided that if the Court concerned is a

Magistrate's Court, the Magistrate may in his
discretion, if he considers that the offence charged
is not of a serious nature and that that person can
safely be released without danger of his doing
injury to himself or any other person, caution and
discharge him.

(2) The Ruler may order that person to be confined

in a mental hospital during the pleasure of the
Ruler of the State.
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Accordingly, the appeal was allowed and the conviction
and sentence pronounced by the learned Magistrate was
replaced with the following order:-

The appellant did the act of kidnapping but for the

reason of unsound mind at the time of incident she is
incapable of knowing the nature of her act as an offence.

The appellant shall be detained at the Hospital Bahagia,

Tanjung Rambutan, Perak.

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Abduction, Wrongful Restraint and Wrongful
Confinement
- Kidnapping Act 1961

Section 3. Abduction, wrongful restraint or

wrongful confinement for reason.

(1) Whoever, with intent to hold any person for

ransom, abducts or wrongfully confines or
wrongfully restrains such person shall be guilty of an
offence and shall be punished on conviction with
death or imprisonment for life and shall, if he is not
sentenced to death, also be liable to whipping.

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PP v. Arunn Ramalingam & Ors, [2012] 1 LNS
213

In this case, there were 5 accused persons were

jointly under s 3 Kidnapping Act 1961 and
four of them were also charged under s 5 of the
Act.

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Rape
It is penalised under s 375. The
offence can only committed by a male
and the victim can only a female.

It must have been done against her

and without her consent. Besides
these factors, the prosecution has
prove the other elements stated
under the section
.
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Ifconsent was given, it could be
invalidated provided that it falls within
s 90.

In Tai Hwee Hiong v PP, 2009, 1 LNS

226, the defendant contended that the
victim consented. In deciding this
element, the Court referred to several
cases, besides s 90 and finally
concluded that the victim did not
consent and accordingly did not allow
the appeal.
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 Tasman Baharuddin v. PP, [2011] 1 LNS 1467

On the 30th of April 2008 upon returning from school, the

victim then aged 9 saw the Accused who happened to pass
by and offered her a ride on his motorcycle he told her that
her was going to pick up victim`s mother at the jetty. She
accompanied him on his motorcycle.

On appeal, he contented that the rape did not take place.

Based on the facts, the appeal was not allowed.

The appellate court affirmed the sentence imposed by

Sessions Court Judge - 20 years imprisonment.

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