Non fatal offences malaysia

ASSAULT DEFINITION

Making any gesture or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture ror preparation is about to use criminal force on that person .

Mere words MAY amount to assault

•  Datul Seri Samy Vellu v S Nararajah

  • Was there a reasonable apprehension which a person entertains about criminal force being imminent?

  • Accused must have been in position to carry out the threat.

ASSAULT MENS REA

• Intending or knowing it to be likely that:

  • Such gesture or preparation

  • Will cause any person present

  • To apprehend that he who makes that gesture or preparation 

  • is about to use criminal force against that person

• “Force”

• ‘S.249 Force to another if he causes motion, change of motion or cessation of motion to that other.

CRIMINAL FORCE MENS REA

• Intentionally uses force to any person in order to cause the committing of any offnece

• Intending by the use of such force illegally to cause, injurt, fear or annoynance to the person whom the force is used, or

• Knowing it will be likely that by the use of the force he will illegally causse injury, fear or annoyance. 

CRIMINAL FORCE ACTUS REUS

Collins v Wilcock

• Battery is the actual infliction of unlawful force on another person.

SECTION 353: To deter a public servant from discharge of duty

• Khor Ah Koh

  • Woman and son that were both selling in booths in Penang Road.

  • Police was harassing the boy.

  • Went up to police and used slippers to rescue the boy to deter him from discharging his duty.

    • Court HELD: Not guilty, public servant was not discharging his duty.

SECTION 354: Intent to outrage modesty

• Lau Eu Lye: Masturbating in bus and ejaculated on skirt of woman.

  • 8 months jail given though indirect touching.

SECTION 355: Intent to dishonour person

• Altaf Mian

  • Beat up policeman that was giving testimony in court.

SECTION 356: In attempt to commit theft

• Chia Poh Yee

  • Criminal force on child at the lift while trying to steal from the child

CAUSING HURT: Fright can amount to hurt

• Jashamal Jhamatmal v Brahmanand Sarupanand

WHERE IS GREVIOUS HURT FOUND?

320

AR & MR of causing hurt

ACTUS REUS: Does an act causing hurt

MENS REA: Intention or knowledge

AR & MR of Causing grevious hurt

ACTUS REUS: Causing grievous hurt

MENS REA: Intending to cause grievous hurt or knowledge that it would cause hurt

(Need not correspond with MR).

324: By dangerous weapons or means

• Mat Allas bin Mat Jusoh: Golf club is weapon

• Ng Ah Taik: Acid

330: Extort confession or compel restoration of property

• Baboo Moondu

  • Getting person to confess that he is a sorcerer does not fall under this.

• Lai Kim Hon & Ors

  • Police officer guilty for beating person to get confession.

Consent as a defence

• Ngwa Shwe Kin: 

Consent requirements

Section 88:

• Consent (express implied) a defence of

1. No intention to kill

2. Act done in good faith for the benefit of the other

Consent (child) requirements

• Consent is a defence if:

1. Act done in god faith

2. For benefit of the victim

3. Victim is below 12 years..unsound mind

4. Consent given by guardian person having lawful charge

5. Act done by person having lawful charage

Consent Invalidated s90

1. Obtained by fear/misconception

2. Unsoundness of mind/intoxication

3. Under 12 years old

Where consent is not needed?

• S.92

  • Impossible for victim or incapable, or no person in charge of him to obtain consent in time, with good faith.