Kidnapping and Abduction
Kidnapping
 S.359 PC - Kidnapping is of two kinds: kidnapping
from Malaysia and kidnapping from lawful
guardianship.
Kidnapping from Malaysia
 S.360 PC - Whoever conveys any person beyond
the limits of Malaysia without the consent of that
person, or of some person legally authorized to
consent on behalf of that person, is said to kidnap
that person from Malaysia.
Kidnapping from lawful guardianship
 S.361 PC - Whoever takes or entices any minor
under fourteen years of age if a male, or under
sixteen 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.
Explanation—The words “lawful guardian” in this
section include any person lawfully entrusted with
the care or custody of such minor or other person.
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.
Abduction
 S.362 PC - Whoever by force compels or by any
deceitful means induces any person to go from any
place, is said to abduct that person.
Punishment for kidnapping
 S.363 PC - Whoever kidnaps any person from
Malaysia or from lawful guardianship, shall be
punished with imprisonment for a term which may
extend to seven years, and shall also be liable to
fine.
Law 2311 Criminal Law II
Kidnapping or abducting in order to murder
 S.364 PC - Whoever kidnaps or abducts any
person in order that such person may be
murdered, or may be so disposed of as to be put in
danger of being murdered, shall be punished with
death or imprisonment for a term which may
extend to *thirty years and shall, if he is not
sentenced to death, also be liable to whipping.
ILLUSTRATIONS
(a) A kidnaps Z from Malaysia intending or
knowing it to be likely that Z may be
sacrificed to an idol. A has committed the
offence defined in this section.
(b) A forcibly carries or entices B away from his
home in order that B may be murdered. A has
committed the offence defined in this section.
Kidnapping or abducting with intent secretly and
wrongfully to confine a person
 S.365 PC - Whoever kidnaps or abducts any
person with intent to cause that person to be
secretly and wrongfully confined, shall be
punished with imprisonment for a term which
may extend to seven years, and shall also be liable
to fine.
Kidnapping or abducting a woman to compel her
marriage, etc.
 S.366 PC - Whoever kidnaps or abducts any
woman with intent that she may be compelled, or
knowing it to be likely that she will be compelled
to marry any person against her will, or in order
that she may be forced or seduced to illicit
intercourse, or to a life of prostitution, or knowing
it to be likely that she will be forced or seduced to
illicit intercourse, or to a life of prostitution, shall
be punished with imprisonment for a term which
may extend to ten years, and shall also be liable to
fine.
Kidnapping or abducting in order to subject a
person to grievous hurt, slavery, etc.
 S.367 PC - Whoever kidnaps or abducts any person
in order that such person may be subjected, or may
be so disposed of as to be put in danger of being
subjected to grievous hurt or slavery, or to the
unnatural lust of any person, or knowing it to be
likely that such person will be so subjected or
disposed of, shall be punished with imprisonment
for a term which may extend to ten years, and shall
also be liable to fine.
Wrongfully concealing or keeping in confinement
a kidnapped person
 S.368 PC - Whoever, knowing that any person has
been kidnapped or has been abducted, wrongfully
conceals or keeps such person in confinement, shall
be punished in the same manner as if he had
kidnapped or abducted such person with the same
intention or knowledge or for the same purpose as
that with or for which he conceals or detains such
person in confinement.
Kidnapping or abducting child under ten years
with intent to steal movable property from the
person of such child
 S.369 PC - Whoever kidnaps or abducts any child
under the age of ten years, with the intention of
taking dishonestly any movable property from the
person of such child, shall be punished with
imprisonment for a term which may extend to
seven years, and shall also be liable to fine.
1
Kidnapping and Abduction
 In Malaysia, Kidnapping is of two kinds:
i. S.360 - Kidnapping from Malaysia
 Does not specify who is the victim
 No specific character
 Victim must be taken out of Malaysia
 The crime must happen within Malaysia
territory
ii. S.361 - Kidnapping from lawful guardian
 To protect the child and the right of the
lawful guardian
 There different between lawful guardian and
legal guardian
 A legal guardian can also fall under the
offence of kidnapping, if he take the child
from the lawful guardian.
 Specifically mention types of people:
- A male, age below 14
- A female, age below 16
- Any person of unsound mind
 Consent of the victim is immaterial
 Cross refer to s.96, only consent from
lawful guardian and whether the consent is
valid consent or not.
 Age limit can only prove by birth certificate
 Actus reus (AR) – either taking the victim
or enticing the victim
- The accused must have taken or entice
- The victim must be a male below 14 or
female below 16 or a person of unsound
mind (age is immaterial)
- Out of the keeping of the lawful guardian
- Without the consent of the lawful
guardian
 Explanation of lawful guardian is extremely
important and also known as custodian
 In divorce cases, the lawful guardian is
entrusted to care or custody and not the
legal guardian.
 A lawful guardian is not necessary the legal
guardian, it can be person any person who
lawfully entrusted as custodian.
 Custodian can be permanent or temporary
Law 2311 Criminal Law II
 Exception to s.361:
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.
 In good faith cross refer to s.52 with due care
and attention
 “taking” – must physically remove the victim
or victim who had voluntarily follow the
accused.
 As long it can be proved that the accused do
anything to take the child or enticing (eg: ice
cream) is sufficient
Pimmi case
 A girl went to the accused and spent few nights
without the knowledge of the lawful guardian and
later returned back safely.
 Accused was charged for kidnapping.
Held:
- the fact that the girl consented and returned to
the lawful guardian,
- The actus reus of the accused must have either
taken or entice the girl and the accused must
have do something to let the girl to come to him.
- Therefore, the accused is guilty of kidnapping.
Sayyad Abdul Sattar v Emperor (1928) AIR Mad
585
 Held: The victim, a girl consented to follow the
accused person will not negate the liability of the
accused.
 The facts shown that the victim has been influence
by the accused person.
 Therefore, the accused is guilty of kidnapping.
 kidnapping.
Neelakandan v PP [1956] MLJ 209
 A 15 years ole girl told her mother that she will
going out to attend school concert. However, she
went to meet her boyfriend and spending a night
there.
 Accused was charge for kidnapping and he argue
that the mother consented to let the girl go out.
Held: even the mother consented to let the girl go
out, however, the consent was only for the girl to
attend the school concert. Therefore, there was n
valid consent from the lawful guardian and accused
was guilty for kidnapping.
Biseswar Misra v The King (1949) AIR Orissa 22
 The girl was a married minor and the husband was
her lawful guardian. She had quarrel with her
husband and she run away from her husband.
 She met the accused a bus conductor and the
accused convinced her to follow him.
 Accused was charged for kidnapping.
 Accused argued that the minor was already out of
the keeping of her husband.
 Held: the word “keeping” is not the mere physical
custody of the guardian, but rather maintenance,
protection and control over the minor. The accused
is guilty of kidnapping.
Emperor v Jetha Nathoo 1 Cr LJ 931; 6 Bom LR 785
 Held: A minor who is temporarily away from the
house of her guardian does not cease to be in
keeping of the guardian, and
 it has been held that a married girl under 16 years
of age who leaves her husband’s house of her own
accord and is proceeding to the house of her
maternal uncle does not cease to be in th keeping
of her lawful guardian and that a person who
induces her at the time to go with him is guilty of
2
Kidnapping and Abduction
Jagannadha Rao v Kamaraju (1901) ILR 224 Mad
284
 The girl, victim, aged 8 years.
 Victim had been on a visit with her sister in the
house of Kamaraju for about a month, with her
father's knowledge and consent.
 The accused are four brothers, and they are the
nephews of her father. About midnight on the 10th
June they came to the house of Kamaraju, which is
close to their own, and took victim to their own
house, where she was at once married to the third
accused.
 The consent of the father was not asked for, nor
obtained, and the accused and Kamaraju knew that
it would be refused if asked for.
 Kamaraju after the marriage pretended that the girl
was taken away without his consent, but the finding
is that he was present at the marriage and really
consented to it, hoping to persuade her father to
accept accomplished facts after the marriage was
over.
 The girl was kept for some 36 hours in the house of
the accused, and was then given up to the police
whose aid had been sought on behalf of the victim
father.
Held:
- The words "lawful guardian "include" any person
lawfully entrusted with the care or custody of
such minor." Kamaraju had been entrusted with
the care and custody of the minor for a
temporary, but indefinite, period, and was
therefore a lawful guardian for the time being,
within the meaning of the section, so that a taking
out of his possession, without his consent, would
have been an offence. But the the guardianship of
Kamaraju did not extend to the giving of the
girl in marriage, and that, for that purpose, she
was still under the guardianship of her father.
- Such a temporary guardianship does not exclude
the higher legal guard ship of the father. That
remains in full force.
Law 2311 Criminal Law II
Ghouse bin Haji Kader Mstan v Rex [1946] MLJ  In England, the word kidnapping and abduction are
36 use inter-changeably
 The accused ran away to elope with victim a  However, in Malaysia it cannot be use inter-
minor girl and were married without the consent changeably, even though the punishment provided
of the lawful guardian. is in the same section.
 The accused argued that even though the girl was
below the age of 16, because a Muslim (follow the
Hanafi school) when a girl attain the age of
puberty, she can consent for herself. Since she no
longer a minor, therefore the accused cannot be
guilty of kidnapping.
 Held: the court accepted the argument and since
both are from Hanafi school and held that the girl
is not a minor.
*** this case was criticize, because to determine a
minor is based the age not from the view of the
Hanafi school.
PP v Abdul Rahman [1963] MLJ 213
 Held: the principle in Ghouse case can only be
apply if both are from hanafi school.
 In this case the girl is from Hanafi mazhab but the
acused is not from Hanafi, therefore the principle
in Ghouse cannot be applied.
 *** this finding is also inaccurate because the
decision does not follow the statutory provision
where
 It is different from Kidnapping Act where the act
of kidnapping with intends to “ransom” and its
deal with substantive and procedure law.
 SS.359, 360, 361 nothing mention about the
element of mens rea.
 Whether it’s strict liability offences or not.
 Factor to consider
- Intention of the law maker
- Nature of the offence
- Severity of the punishment
 For kidnapping, there was no issue of strict
liability because the act of taking or enticing can
only be done with intention.
 MR for kidnapping is the intention to take or
entice.
3
Kidnapping and Abduction
 The main difference between kidnapping and
abduction :
- S.362 does not create specific offence
- Its only create exemplary
- Unless its couple with evil motive
- At the time of committing the offence of
abduction, the accused person has evil motive.
 S.364 PC – the evil motive is in order to murder
 If death occur, there are two wrongful act
- Taking
- Causing death
Lee Choh Pet v PP [1972] 1 MLJ 1
 Accused abducted complainant’s son with intend to
demand ransom.
 When accused communicated the complainant that
if no payment, the accused will not release his son.
 Complainant paid the ransom and unknown to him
when he paid the ransom his son was already killed.
 The accused was arrested and there were 3 charges
against each accused in furtherance of their
common intention i.e under s.3 of the kidnapping
ordinance 1961, s.364 PC and s. 302 PC .
 At the close of the prosecution case, the court found
that the prosecution had made out a case against all
the three appellants on the second and third
charges which if unrebutted would warrant their
conviction; but had failed to make out such a case
against all three appellants on the first charge;
 However the trial court found that there was a
prima facie case of extortion in contravention of
section 386 of the Penal Code the first charge was
substituted with the new charge.
 Held: At its conclusion all three appellants were
convicted on all three charges. They were
sentenced to death on the charges of murder and
kidnapping for murder and the sentence on the
charge of extortion was suspended.
Law 2311 Criminal Law II
However, on the appeal:
Lee Choh Pet v PP (N0.2) [1972] 1 MLJ 187
 The essence of the offence of extortion as defined
in section 386 of the Penal Code is the putting of a
person in fear of death or of grievous hurt being
caused to him or to some other person.
 To sustain a conviction under this section there
must be evidence that the accused person made a
threat to the complainant of death or of grievous
hurt being caused to him or to any other person.
 The charge framed by the trial court at the close of
the prosecution case states that the appellants
together with two other persons in furtherance of
the common intention of all of them "committed
extortion by putting one Ong Yew Kee in fear of
grievous hurt being caused to Ong Beang Leck."
 The evidence of Ong Yew Kee (the father) does not
support this charge.
 According to him all that he was told by the
kidnappers on the telephone was that his son
would not be released unless ransom money was
paid. He does not say that he was put in fear of
grievous hurt being caused to his son.
 The information given by the kidnappers to
the father of the deceased that his son would
not be released unless ransom money was
paid, however alarming it may have been to
him, did not constitute an offence under
section 386 of the Penal Code.
 Held: The appeals of all the three appellants against
their convictions under sections 364 and 302 of
the Penal Code fail and are accordingly dismissed.
Their conviction under section 386 of the Penal
Code is quashed.
 S.362 PC – the elements:
- Forceful compulsion
- Cause change of motion or cease of motion
- any deceitful means induces any person
 abduction is a result crime
 must cause the victim remove from one place to
another place.
 If no removal, accused cannotbe liable for
abduction.
Allu case
 Victim was sleeping on top of her roof. When the
accused woke her up and demanded that she
follow him. When the victim refused, the accused
lifted her up and carried her off. Victim screamed
for help and on the way down, help came. The
accused panics and drop the victim and escaped
 Element :
- Force compulsion
- The victim must move to other place
- Did the accused fulfill the second element?
No, when he dropped the girl is still in her house.
 Held: there was no element of movement and the
accused cannot be liable for abduction, but he
liability was attempt to commit abduction.
 “deceitful” means it is an act leading the victim to
go to any place without which the victim would not
have got to that place.
Allahrakhio (1934) 36 CrLJ
 Held: Deceitful means require for there to change
of mind on the part of the victim caused external
factor by the accused person.
Pritam Singh v PP [1970] 2 MLJ 239
 Accused was a taxi driver met the victim, a 17 years
old girl and persuaded her to follow him. The
accused force the victim into immoral activities.
 Held: It is clear that the charge was wrongly
framed. As the complainant was at the material
time over the age of 16, the charge could not have
been one of kidnapping. Kidnapping and abduction
are two different offences.
 The conviction was quashed.