Assault and Criminal Force

Section 50 of Penal Code (Act 574) explained the meaning of criminal force by stating that
‘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 uses is said to use criminal force to the other.
The act later makes an example by providing an illustration on part of consent of parties
which explained in Illustration (a) off Section 350:

‘Z is sitting in amoored boat on a river. A unfastens the moorings, and thus

intentionally causes the boat to drift down the stream. Here A intentionally causes motion to
Z, and he does this by disposing substances in such manner that the motion is produces
without any other act on any person’s part. A has therefore intentionally uses force to Z, and
if he had dose so without Z’s consent, in order to the committing of any offence, or intending
or knowing it to be likely that this use if force will cause injury, fear or annoyance to Z, A has
used criminal force to Z.’

Another example of consent in criminal force can be seen in case of Malette v.

Shulman 19901This case highlights the requirement of consent in medical emergencies. In
this case, Malette is injured in a car accident and is unconscious. Dr Shulman administers
blood transfusions to save her life, despite being aware of Mallete’s religious objections to
blood transfusion as Jehovah’s witness. In this case the court held that defendant found liable
for battery and must pay the plaintiff the damages.

Under the doctrine of informed consent, a doctor cannot perform a medical operation
unless he has the consent of the patient. Otherwise he can be held for battery or criminal
force. In this case, the card carried by Malletes clearly indicates that she would not have
consented and Shuman was aware of Jehovah’s Witnesses rejection of blood transfusion.

While an assault by the Section 351 of Penal Code (Act 574) is defines as whoever
makes any gesture or any preparation, intending or knowing it to be likely that such gesture
or preparation, intending or knowing it to be likely that such gestures or preparation will
cause any person present to apprehend that he who makes that gesture or preparation is about
to use criminal force to that person, is said to commit an assault. But, in assault mere words
do not amount to any assault. But the words which a person uses may give to his gestures or
preparation such a meaning as may make those gestures or preparations amount to an assault.

In the case of Burrell v Harmer (1967)2,the defendant tattooed two boys aged 12 and
13. The boys had consented to the tattoo. It was held that the boys’ consent was ineffective
since the court was of the opinion, they were unable to comprehend the nature of the act. The
defendant was liable for assault occasioning actual bodily harm under Section .47 Offences
Against the Person Act 1861.

This case can be cross referred to Section 90 of the Penal Code highlighted on the
consent known to be given under fear or misconception and consent of a child or person of
unsound mind. In this Section it stated that, a consent is not such a consent as is intended by
any section of this code. One of the categories that was not considered as valid consent is
1
Mallete v. Shuman (Ont. CA.) 990 CanLll 6868 (ONCA)
2
Burrell v Harmer [1967] Crim LR 169
consent given by a person who is under 12 years of age as explained in Section 90 (c) of
Penal Code. Children are considered to lack the full capacity to understand the consequences
their actions such as in Burrell v Harmer (1967), where the children did not have the legal
capacity to consent to a tattoo.

Hurt and Grievous Hurt

Hurt by the Section 319 of Penal Code was defined as whoever causes bodily pain, disease or
infirmity to any person. Many of the offences which falls under the heading of hurt will also
fall under the assault and criminal force such as a stab, a blow which fractures a limb, the
throwing of boiling water over a person, are assaults and are also acts which cause bodily
hurt. However bodily hurt may be caused by many acts which are not assaults. A person who
mixes a poisonous drink and placing it on the table of another, a person who conceals a sharp
object on the partway on which the other is in the habit of walking, a person who digs a hole
in a public path, intending that another may fall into it, may cause serious hurt and may be
justly punished for causing such hurt, but they cannot be said to have committed assault.

Section 320 of Penal Code designates specifically for certain hurt to be deemed grievous hurt
that is to say hurt which is by law regarded of a more serious kind such as emasculation
which is depriving a male of masculine vigor, or permanent privation of the sight of either
eye or privation such as loss/absence, permanent privation of hearing of either ear(deafness),
privation of any member or joint or any organ or limb which is incapable of performing its
function and could cause crippling disability or any injury that diminishes the usefulness of a
member or joint is sufficient to fall within this category or permanent disfiguration of head or
face , external injury which detracts a man from his personal appearance but does not weaken
him as cutting of a man’s nose or ears or fracture or dislocation of a bone or any hurt which
endangers life or which causes the sufferer to be during a space of twenty days, in severe
bodily pain or unable to follow his ordinary pursuits.

Regarding these two offences, its rarely related to consent. Logically its impossible for
someone to give consent to be harm or hurt by someone but there’s some cases that it surely
relates to consent even though causing hurt to someone. Section 87 of the Penal Code
highlight on the act that nit intended and not known to be likely to cause death or grievous
hurt, done by consent.

The section later explained that nothing which is not intended to cause death or grievous hurt
and which is not known by the doer to be likely to cause death or grievous hurt is an offence
by reason of any harm which it may cause or be intended by the doer to cause, to any person
above eighteen years of age, who has given consent, whether express or implied to suffer that
harm or by reason of any harm which it may be known by the doer to be likely to cause to
any such person who has consented to take the risk of that harm.

In the case of Emperor v GB Ghatge (1948)3, the headmaster of the school was charged under
Section 323 of Penal Code which is the same section as Section 323 of the Penal Code of
Malaysia for causing grievous bodily harm to his student. The headmasters hit his student as
punishment for the purpose of disciplining him. The High Court of Bombay held that the
headmaster was not guilty under Section 323 of Indian Penal Code because first, the parents
or guardians of the students have given their consent to the school to discipline which
3
Emperor v GB Ghatge (1948) 51 QCM LR 103
includes corporal punishment as their children for any wrongdoing on their part and second,
the punishment meted out to the students is for the purpose of disciplining the students and
not with the ill will to cause them bodily harm.

In Malaysia, schools are bound to adhere to the rules and regulations stipulated in the
Educational Institutions (Discipline) Act 1976 (Act 174) and Orders made thereunder,
whereby the punishment meted out must correspond to the breach and not be excessive.