KIDNAPPING AND

ABDUCTION
by
Assoc. Prof. 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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 Cont’

• The obstruction must be complete n successful as

to prevent the person obstructed from proceeding
in a direction, which he has a right to proceed.
• Obstruction may be physical/ by menace/ threats.
• Verbal prohibition will not amount to obstruction.

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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 ss 343, 344, 345, 346,347 and 348
• See PP v Isa bin Johnit [1994] 3 MLJ 218
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 TWO elements:

i. Wrongful restraint of a person;

ii. The restrain must prevent that person from
proceeding beyond certain circumscribing limits.

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 Cont’
• There must be a voluntary obstruction to the person so
as to prevent him from proceeding in any direction in
which he has the right to proceed.
• There must be established at least an impression of
obstruction in the mind of the victim which makes he
believes that he is not free to depart and if he attempted
to do so, he wd be forthwith restrained.
• The threat of some future harm is not sufficient.
• The restraint must be immediate.
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 No wrongful confinement if;

• The victim has no desire to proceed; or

• If the victim consented; or
• If there is an escape available if the victim wishes
to avail of it.

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PP v Isa bin Johnit [1994] 3 MLJ
• Rs were charged with an offence under s348 for
wrongfully confining a person (the son) for the
purpose of extorting from his father the sum of
money. The father had started a get-rich-quick
scheme in which the first R had invested a lot of
money.
• Held: The Rs had committed an offence under s340
(not s348).
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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 (hinders) 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.
• 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 authorized 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’
• ‘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 s361 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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