KIDNAPPING AND

ABDUCTION

Sec 359 – 362 Penal Code

Kidnapping -Meaning &
Definition
 The word “kidnapping”- derived from
the words “kid” which means a child,
and “nap or nab”, which means “to
steal”, originally meant “child-
stealing”.
 Definition: the carrying away of a
person against his will or if he or she is
a minor, against the will of his or her
lawful guardian.
Sec 359

 Kidnapping is of two kinds: kidnapping from Malaysia

and kidnapping from lawful guardian
 The classification of kidnapping in this section is not
exhaustive as there may be cases in which the two kinds
overlap each other.
 eg: a minor may be kidnapped from Malaysia as well
from his or her lawful guardianship.
Kidnapping from Malaysia

 Sec 360 “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 elements:

 Victim must be in Malaysia

 Conveyance of a person
 Beyond the limits of Malaysia
 Without the consent of that person or some person
legally authorized to consent on behalf of that person
 In this section, there is no age limitation therefore it
can be applied to anyone.
Kidnapping from lawful
guardianship
 Sec 361 “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

 Lawful guardian = any person lawfully entrusted with

the care or custody of such minor or other person.
 May include the mother/ adopted family.
Exception under sec 361

 Section 361 does not apply 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.
The elements

 There must be taking or enticing of a minor.

 The minor must be under fourteen years of age if a
male, or under sixteen years of age if a female.
 The taking or enticing must be out of the keeping of the
lawful guardian of the minor; and
 The taking or enticing must be without the consent of
such guardian.

‘taking’ means a physical taking

JaganNath (1914)

 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.
Neelakandan v PP (1956)

 A 15 years old girl cheated her mother and

went out with her boyfriend and had sex with
him. The parents had not consented to her to
be out with the boyfriend. The accused was
convicted under Section 363 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.
Punishment for kidnapping

 Sec 363 “whoever kidnaps any person from Malaysia of

from lawful guardianship, shall be punished with
imprisonment for a term which may extend to seven
years, and shall also be liable to fine”
Cases

 Public Prosecutor v Azilah Bin Hadri & Anor [2015] MLJU

1
 Teh Kim Hong & Ors v Public Prosecutor and other
appeals[2014] MLJU 265
Abduction

 Sec 362 “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.
 ‘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.
Kidnapping with specific intention/ purpose
Offences Punishment Sec

1 Kidnapping or abducting in order to Imprisonment up to 30 and shall, if not 364

murder sentenced to death, also be liable to
whipping

2 Kidnapping or abducting with intent Imprisonment up to 7 and shall also be 365

secretly and wrongfully to confine a liable to fine
person

3 Kidnapping or abducting a woman to Imprisonment up to 10 and shall also 366

compel her marriage be liable to fine

4 Kidnapping or abducting in order to Imprisonment up to 10 and shall also 367

subject a person to grievous hurt, be liable to fine
slavery etc

5 Wrongful concealing or keeping in Same punishment as if he had 368

confinement a kidnapped person kidnapped or abducted such person