Lectures Three, Four and Five

 The following offences will be discussed:

 Kidnapping;
 Abduction;
 Rape;
 Inchoate; and
 Abetment
 Cont- Case on
Kidnapping


Ong On Nin v Public Prosecutor (1900 1 CLJ 1176.

Brief Facts

 The appellant on this case was charged with kidnapping a girl under 16 years of
age from the legal guardianship of her mother and therefore committed an offence
punishable under s. 363 of the Penal Code.
 The appellant was found guilty and was sentenced to 15 months imprisonment from
date of conviction.
 The appellant appealed and his main ground of appeal and the only one meriting
consideration was that the girl, the subject of the charge, had left her parents
home on her own volition.
 The appellant on this case was charged with kidnapping a girl
under 16 years of age from the legal guardianship of her mother
and therefore committed an offence punishable under s. 363 of
the Penal Code.

 The appellant was found guilty and was sentenced to 15 months

imprisonment from date of conviction.

 The appellant appealed and his main ground of appeal and the only
one meriting consideration was that the girl, the subject of the
charge, had left her parents home on her own volition
 Held:
 [1] The calculated conduct of the appellant did constitute 'enticing'
under the provisions of s. 361 of the Penal Code.

 [2] There is no merit in the appeal insofar as it relates to the conviction

of the appellant.
 Abduction - Definition – 362
 Case in Point - PP v. SHATISRUBEN ITHAYAKUMAR &
ORS [2013] 10 CLJ 636

 Brief Facts - The three accused were jointly charged

with the offence of kidnapping under s. 3 of the
Kidnapping Act 1961 ('the Act'). SP11 ('the victim')
testified that she was abducted, confined to a room
and later released. She could identify all the three
accused and relate what each of them did or the parts
they played in the whole incident. …
 The ransom money of RM30,000 was recovered from the
first and third accused. All the accused claimed trial to
the charge.
 IN this case, s3 of the Kidnapping Act 1961 was invoked – Why?

 (1) Pursuant to s. 3 of the Act, it was incumbent for the

prosecution to prove: (a) a person was abducted or wrongfully
confined or restrained; and (b) the confinement or restraint was
'for ransom'. On top of the two elements, in this case, the
prosecution had to prove another element, ie, common intention
as the charge stated that it was to be read together with s. 34 of
the Penal Code.

 (2) There was more than sufficient evidence that SP11 was abducted,
confined and/or restrained against her wishes by the three
accused. The confinement/restraint was as what is defined by s. 3
of the Act and meets the requirements of ss. 339, 340 and 362 of
the Penal Code. SP11 could not proceed in any direction or
proceed beyond certain limits. (para 11)
(6) The fact that the victim was safe and well treated was taken into
account in sentencing the accused to life imprisonment instead of the
death penalty. (para 43)

Do read:
WONG LEH YIN v. PP [2007] 8 CLJ 438  
- where section 364 was raised.
 Rape

It is penalised under s 375. The offence can only be

committed by a male and the victim can only a female.

It must have been done against her and without her

consent. Refer to the subsections.

Besides these factors, the prosecution has prove the other

elements stated under the section.
 Rape is defined as sexual intercourse with a woman against her will
or without her consent.
 Sexual intercourse with a woman is also rape when:

 her consent is obtained by putting her in fear of death or hurt; -

 refer s 375 ( c ) onwards
 when she unable to understand the nature and consequences of what
she is consenting to;
 or when her consent is obtained by using a position of authority, a
professional relationship, or other relationship of trust.
 Sexual intercourse with a girl under 16 years of age, with or
without her consent, is also rape.
 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, and finally concluded that the victim did not consent and
accordingly did not allow the appeal.

 Other cases include:

 PP v. Huang Qiang [2020] 1 LNS 768  
 Tasman Baharuddin v. PP, [2011] 1 LNS 1467 – punishment under s376.
 Baharudin Kulop v PP and Another Case [2019] 1 LNS 1295 – the prosecution
could not prove the offence – however, the charge was reduced to s 354.
  Rape and Married Couples

 i) As a general rule, a husband cannot be charged of rape. –

 Refer to the Exception under s 375.

 ii) Unless the marriage falls under:

 Explanation 1 – for non-Muslim couples; or

 Explanation 2- for Muslim couples.

 If these Explanations are not applicable – refer to s 375 A

 Case:
 PP lwn Mahathir Abu Bakar [2016] 10 CLJ 567.
 Inchoate Offences

 The offence of abetment and criminal conspiracy are also called

inchoate offences – just begun or incipient.

 The relevant sections;

 1. Criminal conspiracy – 120A and 120B
 2. Abetment – ss107, s 108 and 109;
 1. Criminal Conspiracy

 Definition: Section 120A –

 Two or more persons;
 Agreed to enter into a criminal conspiracy;
 Intention to carry out the agreement.
 Refer to pg. 916
Cases

 Ng Song Luak v PP [1985] 1 CLJ 365

 Defendant pleaded to guilty to a charge under s 120B but it was

said to be defective.

 Murad Halimuddin Hassan & Satu Lagi lwn PP Dan Satu Lagi Rayuan
[2018] 1 LNS 992.
 2. Abetment

 Relevant sections s 107 the subsections stipulate the

manner the assistance was given to the principal
offender.
 Section 108 – abettor
 S019 – Punishment
 Refer to pg. 894 onwards
 These sections would be relevant if the secondary
offender assists the principal offender either by
instigating, conspiring or by providing assistance.
  
Abetment by Instigation – s107(a)

 Perhaps the judgment given by Raja Azlan Shah, CJ in Haji

Abdul Ghani b Ishak(1981) would give a better picture as to
how such an offence could take place. He made the
following statement :
 It is of the essence of the offence of abetment that the
abettor should substantially assist the principal
offender towards the commission of principal offence
in the commission of the principal offence.

 In fact it is an essential ingredient in a prosecution

that the abettor actively suggested, or stimulated the
principal offender to the act by any means of language
direct or indirect in the form of “hints” insinuations or
encouragement ..
 In Isaac Paul Ratnam v The Law Society [1976] 1 MLJ,
195, it was held that the instigation could also take
effect if the communication was by letter.
 However, the defendant cannot have
instigated if he was silent – Raj Kumar v
State of Punjab [1983] Cri. LJ 706.

 Alsoread the case of Whang Sung Lin v PP,

[2010] 2 SLR 958.

 Both these cases show that the defendants

DID NOT actively suggest, or support or cause
the commission of the offence to take place.
 Likewise, in the case of R v Mohit Pandey, the
accused was said to have instigated because, he
encouraged the victim to commit suicide, by
chanting, ‘Ram, Ram.’

 However, if he had only silently watched, he

would not have been held liable, as in the case
of PP v Tee Tee Siong, [ 1963]. MLJ 201.

 Thisrule could be subject to exceptions,

Balakrishnan S v PP, 4 SLR 249, refer to pg. 898.
Take note of the judgment.
 The offence of abetment by instigation is complete when the offender
communicates his support or encouragement to the other to commit the
offence, even if this communication is done through a 3rd party – refer to
your textbook, pg. 899, footnote 30.
 Cont - Abetment

 Abetment by Conspiracy – s107 (b)

 This is possible under s107 (b) and it may overlap with

s120A which penalises all types of criminal conspiracies.
However, s120A is wider than s107 (b) because of two
main reasons.
 Carefully analyse the difference in the wording of s 120A and s107 (b) and
refer to pgs. 923 and 924 of your text book.

 S 120A requires no conditions, unlike s 107 (b) which states that act must
be done in pursuance of the conspiracy.

 Both these sections will be discussed in the next lecture.