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Lecture One

Non-Fatal Offences
Part One

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

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Types of Non-Fatal Offences
 Criminal Force – It  The meaning of force
is penalised under s is defined under s
350 of the Code. 349.

 Thus, the defendant


 Under this section, it can plead the
is an offence if one defence of consent.
uses force on However, the given
another person consent could be
without his consent. invalidated if it falls
under the ambit of s
90.
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Assault
 It is penalised
under  cause another to
s 351 of the Code. apprehend that the
offender is about to
use criminal force.
Under this section, it
is an offence if the
offender makes any  Refer to pgs. 336-
gesture or attempts 337
to make a gesture
with the intention or
knowledge that these
actions will
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AR of Assault
 In this case, it was held
 A physical gesture that the defendant had
or a preparation committed assault
was made towards because by putting his
the victim, case in hand on the victim, she
had apprehended that the
point - Jashanmal
defendant was about to
Jhamatmal v use immediate physical
Brahmanand force on her.
Sarupanand.

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Mens Rea of Assault
 The prosecution has
 The section clearly to prove beyond
stipulates the mens reasonable doubt
rea as follows: that the defendant
had either:
 i) intended that his
victim apprehend
immediate physical
force; OR

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Mens Rea of Assault
 ii) it is likely that the  Thus, in essence this
victim will apprehend section imputes
immediate force. criminal liability on
the defendant if his
actions had caused
the victim to merely
apprehend criminal
force although the
actual force was not
applied.

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Lecture Two
 Non-Fatal Offences Pt. 2
 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 under from Malaysia and
two sections : The kidnapping from
section reads as lawful guardianship.
follows: 

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Kidnapping
 Under s 360 -
 Under s 361 -
 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 such
from Malaysia. minor or person from lawful
guardianship.

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

 Background

 The appellant 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 7th 2010 she was found guilty and convicted
for the offence, upon which she was sentenced to 36
months imprisonment.
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 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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 If consent 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 from the 14th
day of May 2010 and 5 strokes.

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