KIDNAPPING AND ABDUCTION

UNDER PENAL CODE

by
Dr. Aspalella A. Rahman

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INTRODUCTION
 Offences that affect a person’s freedom of movement
include:
i. Wrongful restraint;
ii. Wrongful confinement;
iii. Kidnapping and abduction; and
iv. Hostage- taking

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Wrongful restraint
 s339-whoever voluntarily obstructs any person from
proceeding in any direction in which that person has a
right to proceed is said wrongfully to restrain that
person.
 s341- punishment for wrongful restrain
i.e. imprisonment up to one month OR max fine
RM1000 OR both.

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Wrongful Confinement
 s340- whoever wrongfully restrains any person in such
a manner as to prevent that person from proceeding
beyond certain circumscribing limits, is said to
wrongfully confine that person.
 s342- punishment for wrongful confinement
i.e. imprisonment up to one year, OR fine max
RM2000 OR both.
 See PR v Isa bin Johnit [1994] 3 MLJ 218

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KIDNAPPING
 Penal Code provides two forms of kidnapping:
i. s.360- Kidnapping from Malaysia; and
ii. s.361 -Kidnapping from lawful guardianship
 These sections are not exhaustive as there may be
cases in which the two kinds overlap each other.

 s.363- Punishment for kidnapping

i.e. max 7 years imprisonment AND fine.

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KIDNAPPING ACT 1961
 provide for the detection and punishment of the
offences of abduction, wrongful restraint and wrongful
confinement for ransom and other related offences
and for matters incidental thereto.

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Kidnap from Malaysia
 s360-whoever conveys any person beyond the limits of
Malaysia without the consent of that person, or of
some person legally authorised to consent on behalf of
that person, is said to kidnap that person from
Malaysia.
 The essence of the offence is the conveyance of the
victim beyond the territory of Malaysia without the
victim’s consent or of a person legally authorised to
consent on his behalf, where a person is unable to give
a valid consent.

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Cont’
 See s90 PC- circumstances when a consent can be an
improper consent.
 i.e. when the consent is given under fear or
misconception and consent of a child or person of
unsound mind.

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Case;
Peraiswami Kangani [1910]MWN 11 Cr LJ 368
The accused induced some women to leave India for
Ceylon on the promise that they were to be married to
his sons. H/e after arriving in Ceylon, they were made
to work as labourers on his tea plantations.
Held: The women were taken to Ceylon without their
consent and that they were kindapped from India.

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Kidnap from lawful guardianship
 s361- whoever takes or entices any minor under 14
years of age if a male, or under 16 years of age if a
female, or any person of unsound mind, out of the
keeping of the lawful guardian of such minor or
person of unsound mind, without the consent of such
guardian, is said to kidnap such minor or person from
lawful guardianship.
 ‘lawful guardian’ includes any person lawfully
entrusted with the care or custody of such minor or
other person.
i.e. no need formal entrustment. May include the
mother/ adopted family.

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Exception:
 This section does not extend to the act of any person
who in good faith believes himself to be the father of
an illegitimate child or who in good faith believes
himself to be entitled to the lawful custody of such
child, unless such act is committed for an immoral or
unlawful purpose.

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Cont’
 S361 is the offence of taking or enticing of a minor or a
mentally incapacitated person out of the keeping of
his or her lawful guardian.
 The essence of the offence is the taking or enticing of
the victim out of the keeping of the lawful guardian.
 It must be shown that the accused took some actual
step, by persuasion or otherwise to cause the person to
leave home.
 ‘taking’ means a physical taking.

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Jagan Nath [1914] AIR 126
A father had sent his daughter to live with another
married daughter of his, who then, without the
father’s consent, had her married to an inmate of the
house.
Held: An offence of kidnap had not been committed as
there was no taking her out of the keeping of the
lawful guardian as she had not left the house of the
married daughter, where she was living with her
father’s consent.

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Cont’
 Acc to Ratanlal & Dirajlal, if a minor suggests to the
accused to go away with her and the acsused only takes
the passive part of yielding to the suggestion, it is not
taking.

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Cont’
 ‘entice’ refers to the idea of inducement by exciting
hope or desires in the other.
 The offence of kidnapping from lawful guardian is
complete when the minor or incapacitated person is
taken out of the keeping of the lawful guardian.
 The distance of the taking is not material.
Chhajju Ram’s case
Held: a taking occurs even if the accused takes a minor
without the consent of the guardian to a distance of
20-30 yards.

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Cont’
 The period of detention is also not material.
 Timmin’s case
The accused took a girl away not with a view to
keeping her permanently away from home but in order
to gratify his passion for three days and then, allowed
her to return home.
Held: Guilty of the offence.

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Neelakandan v PP [1956] MLJ 206
 A 15 yrs old girl cheated her mother and went out with
his boyfriend and had sex with him. The parents had
not consented to her to be out with the boyfriend. The
accused was convicted under s363 PC and he appealed.
 Held: The offence was committed if the taking was
without the consent of the lawful guardian. The
consent of the girl was immaterial and it was not
necessary that the accused should make use of force or
fraud.

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Cont’
 It is not a defence that the accused did not know of the
victim’s age or that from the appearance, the accused
thought that the victim was of greater age.

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Abduction
 s362- whoever by force compels or by any deceitful means
induces any person to go from any place is said to abduct
that person.
 ‘by force compel’ indicate the actual use of certain physical
force in compelling the victim to move from one place to
another place against the victim’s will.
 The prosecution has to prove that the taking away of the
child was by compulsion.
 ‘by deceitful means induce’ indicate some allurement or
inducement done to lead a person to some direction in
which he would not otherwise have gone but for the
allurement or inducement.
 The offence of abduction is not a substantive offence per se.

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Aggravated Offences
 Where kidnapping or abduction with the following
intention.
1. s364- kidnapping or abduction in order to murder.
Punish with death or max 30 yrs imprisonment AND
whipping.

2. s365- kidnapping or abduction with intent secretly or

wrongfully to confine a person.
Punish with max 7 yrs imprisonment AND fine.
Case: PR v Wong Shew Choong [2008] 4 AMR 717

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Cont’
 s366- kidnapping or abduction of a woman to compel
marriage, illicit intercourse or a life of prostitution.
 Punish with max 10 yrs imprisonment AND fine.

Case: Wahab bin Osman v PR [2002] 7 MLJ 48

Held: the prosecution had to prove:
1) The A had kidnapped or abducted the woman; and
2) The kidnapping or abduction was done with the
intention to compel the woman to marry the A. Once
the intention can be proven, the offence was
completed.

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Cont’
 s367- kidnapping or abduction in order to subject a
person to grievous hurt, slavery or unnatural lust.
 Punish with max 10 yrs imprisonment AND fine.

 s369 - kidnapping or abducting a child under 10 yrs

old with intent to steal moveable property from the
person of such child.
 Punish with max 7 yrs imprisonment AND fine.

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