ABDUCTION

Emylia, UUM COLGIS

INTRODUCTION - DEFINITION OF
ABDUCTION

1. Under Oxford dictionary,

abduction means the action of

forcibly taking someone away
against their will.
2. Under Section 362 of Penal Code

Whoever by force compels or by any deceitful

means induces any person to go from any
place, is said to abduct that person.

Abduction per se is not an offence because it

must be done with a purpose before it is
made punishable.
 3. Under Kidnapping Act 196
Abduction also can be referred under section
3(1) :

Whoever, with intent to hold any person for

ransom, abducts or wrongfully confines or
wrongfully restrains such person shall be guilty of
an offence and shall be punished on conviction
with death or imprisonment for life and shall, if he
is not sentenced to death, also be liable to
ELEMENTS OF ABDUCTION
Physical Element Fault Element (Mens
(Actus Reus) Rea)
Force OR deceitful Intention when do
means the act of
Induces any person abducting, she/he
to go from any must have
place objective to fulfill
Must fulfilled the AR and MR certain objective
Abduction per se not an offence
Because it must be done with a purpose before it is
made punishable
 PP v. Shatisruben Ithayakumar & Or
[2013] 10 CLJ 636
The three accused were jointly charged with the offence of
kidnapping under s. 3 of the Kidnapping Act 1961 (the Act).
SP11 (the victim) testified that she was abducted, confined to a
room and later released. SP11 was released after a ransom of
RM30,000 was paid.
About an hour after SP11 was released, SP12 and his team of
police officers stopped the three accused near a traffic light. The
first and second accused were in an Avanza car whilst SP3 was
riding a motorcycle.
The ransom money of RM30,000 was recovered from the first and
third accused.
 ACTUS REUS MENS REA
She was Abducting in
abducted, order to get
confined to a ransom
room
Held:
Three accused were sentenced to life imprisonment.
The accused 1 and 3 were each given six strokes of
whipping.
 Public Prosecutor V Ting Khai Sin & 3 Ors [2014]
AMEJ 0628
Facts:
Madam Wong was driving to her son's school when her car was knocked from behind. She alighted from the car
and saw a man coming out from the car behind that knocked against her car.
The man introduced himself as Andrew, the 3rd accused told Madam Wong that he would compensate her for the
damage to her car. He told Madam Wong that his cousin had a workshop and he could send her car there that
same day for repair. He then asked her to drive the car to a particular Petronas petrol kiosk.
When the car reached the Petronas petrol kiosk, Madam Wong saw that the 3rd Accused was already there. The
3rd Accused told Madam Wong to get into his car as he would send her home while the 1st Accused would send
Madam Wong's car to the workshop. The unsuspecting Madam Wong surrendered her car key to the 1st Accused
before getting into 3rd Accused's car.
Upon getting into 3rd Accused's car, Madam Wong noticed the presence of three men 3rd Accused (as driver)
and two other men. Later 4th Accused also got into the car and sat beside Madam Wong.
After driving a short distance, the 3rd Accused suddenly snatched Madam Wong's handbag that was on her lap
while the front seat passenger pushed her head down. The two men sitting beside her grabbed her hands, pulled
them behind her back and tied them, they also gagged her mouth and tied her legs. They blind folded her and
made her lie face down.
While inside the house, they forcefully remove her jewelry, took her credit cards and ATM cards. The main reason
they abducted Madam Wong was the 3rd Accused's father was hospitalized and he needed RM 250, 000 to save
his father's life.
 Public Prosecutor V Ting Khai Sin & 3
Ors [2014] AMEJ 0628
ACTUS REUS MENS REA
They deceived Madam Wong They abducted Madam Wong
(deceitful means) by saying that because they wanted money to
the 3rd Acussed cousin has a save the 3rd Accused father's
workshop life.
Held:
1stAccused, 2ndAccused, 3rd Accused and 4th Accused are
convicted and sentenced to life imprisonment for kidnapping under:
section 3(1) of Kidnapping Act 1961 read together with,
section 34 of Penal Code.
PUNISHMENT FOR THE
OFFENCE OF
SECTION 364 369 of
ABDUCTION
Penal Code
SECTION 3(1) Kidnapping
Act 1961
 SECTION 364 (ABDUCT TO MURDER)
Whoever kidnaps or abducts any person in order that such person may
be murdered, or may be disposed of that said person to be put in
danger of being murdered, shall be punished with death or
imprisonment for a period which may extend to thirty years and
shall also liable to whipping if he is not sentenced to death.
ACTUS REUS MENS REA
kidnaps or abducts any to murder or put that
person person under the danger of
being murdered. (pre-
arranged plan)
CONSEQUENCES:
Death or imprisonment extend to 30 years. Also liable to whipping.
 SECTION 367 ( ABDUCTING CAUSING
GRIEVOUS HURT,SLAVERY,ETC)

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.
ACTUS REUS MENS REA
Kidnaps or abducting any person
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
CONSEQUENCES : maximum ten years disposed of
of imprisonment and liable to fine.
 Lee Ch o h Pe t & O rs V. Pu b li c P ro sec u to r

[1 9 7 2 ] 1 L NS 6 5
FACTS: The deceased was taken in a car by 4 strangers which he was forced to
sit next to the driver. He was attacked from behind with weapons by the persons
who were in the back seat of the car. The deceased resisted the attack, opened
the door of the car and ran out but he was chased and attacked again until he
collapsed. He was carried into the car which was then driven to a sewerage
manhole in where his body was dumped into the manhole. The abductors then
commenced negotiations with the father who did not know that his son had been
killed.

HELD: The appeals of all the three appellants against their convictions under ss.
364 and 302 of the Penal Code fail and are accordingly dismissed. Their conviction
under s. 386 of the Penal Code is quashed.
 Bhola Munda vs The State Of
Jharkhand
On 28 January, 2015 the petitioner had taken the
daughter of the informant while she was aged seven
years only. The petitioner told that the girl has been
employed in a house in Punjab. Between last ten years,
the informant was not allowed to meet his daughter and
the petitioner has been giving false excuses.
Lastly the informant went to Punjab to meet his
daughter, but he did not find his daughter anywhere in
Punjab. The petitioner did not give whereabouts
of daughter of the informant. So petitioner's prayer
for bail stands rejected.
SECTION 365 (ABDUCT TO CONFINE)
Whoever kidnaps or abducts any person with intent to
cause that person to be secretly and wrongfully
confined, he shall be punished with imprisonment for a
period which may extent to seven years and shall be
ACTUS REUS liable to fine. MENS REA
kidnaps or abducts any to cause that person to be
person secretly and wrongfully
confined. (pre-arranged
plan)

CONSEQUENCES: imprisonment extend to 7 years and

 SECTION 368 (WRONGFULLY
CONFINES A PERSON)
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.
ACTUS REUS MENS REA
wrongfully conceals or having the knowledge
keeps any person in that the person had
confinement. been abducted.

CONSEQUENCES: same manner as if he had abducted for the same

purpose of which he conceals or detains such person in confinement.
 Pe nd ak wa R aya v Arun n a /l
Ram alingam & 4 Ors [2 012 ] 3 AM R 66 2
FACTS: The five accused persons, namely, OKT1, OKT2, OKT3, OKT4
and OKT5 were jointly charged with the offence under s 3 of the
Kidnapping Act 1961 (the principal charge). In addition, OKT1, OKT2
and OKT3 were also charged with the offence under s 365 of the Code
read together with s 34 of the same (the first additional charge).
They pleaded guilty to all of the charges and their pleas were
accepted by the court.

HELD: The court found that OKT1, OKT2 and OKT3 were guilty and
convicted each of them under the first additional charge and each of
them is sentenced to five years imprisonment from the date of arrest.
 SECTION 366 (ABDUCT A WOMEN TO COMPEL HER MARRIAGE)

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.
ACTUS REUS MENS REA
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

CONSEQUENCES: imprisonment for maximum of ten years, and liable to

fine.
 Pritam Singh v PP

FACT:
In this case the complainant was a 17 years old girl who
was on her way to the cinema. Along the way, she met
the accused who offered a ride in his taxi. The accused
brought her to Penang for 1 month, they had sex and
later induced her to prostitution. After one month, they
went back to KL and the complainant continued her
prostitution activities.
HELD:
It was held that, the accused was convicted under
 SECTION 369 ( ABDUCTING CHILD UNDER 10 YEARS OLD)

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.
ACTUS REUS MENS REA
kidnaps or abducts any child under
intention of taking dishonestly any

the age of ten years movable property from the person
of such childI. (in most of the cases,
this movable property is either
ornaments worn by the child or the
money with him.)
CONSEQUENCES: imprisonment up to seven years and liable to fine.
 SECTION 3(1) KIDNAPPING ACT
Whoever, with intent to hold any person for ransom, abducts or
wrongfully confines or wrongfully restrains such person shall be
guilty of an offence and shall be punished on conviction with death
or imprisonment for life and shall, if he is not sentenced to death,
also be liable to whipping.

ACTUS REUS MENS REA

abducts or wrongfully confines intent to hold any person for
or restrains any person. ransom.
CONSEQUENCES: death or imprisonment for life and liable to
whipping.
 PP v Sh atisrub en Ithayak uma r & Ors
[2 013 ] 10 C LJ
FACTS: The three accused were jointly charged with the offence of
kidnapping under s. 3 of the Kidnapping Act 1961. SP11 (the victim)
testified that she was abducted, confined to a room and later released. She
could identify all the three accused and relate what each of them did or the
parts they played in the whole incident. SP11 was released after a ransom of
RM30,000 was paid. About an hour after SP11 was released, SP12 and his
team of police officers stopped the three accused near a traffic light. The
first and second accused were in an Avanza car whilst SP3 was riding a
motorcycle. The ransom money of RM30,000 was recovered from the first
and third accused.

HELD: All the three accused were sentenced to life imprisonment. The
accused 1 and 3 were each given six strokes of whipping.
 ABDUCTION IN MALAYSIA
Total of 3,937 children, aged between 6 to 18
years old, have been reported missing between
2014 until January of 2016

2,691 were Malay children

241 involving Chinese children
409 Indian children and,
596 were from other races
 The death of William Yau
Williams family went to a Putra Heights electrical appliances
store to purchase a washing machine.
The parents went into the store and told them they will be back
in a jiffy.
Williams younger sister Cindy began to cry as she missed her
parents presence after few minutes passed.
William decided to go to look for his parents and told Cindy and
his elder brother he will be back with their parents very soon.
This was the last time William was seen.
Finally found death
 Abduction of Raymond Koh

Raymond Koh, 62 years old was driving alone along

Jalan SS4B/10 in Petaling Jaya.
Subsequently, he was forced to a stop by unknown
persons in three large SUVs, a fourth sedan and
suspected accomplices on motorbikes.
Been caught and missing until now
 How does Malaysian jurisdiction deal with abduction cases?

Malaysia is not a party to The Hague Convention on the Civil Aspects of

International Child Abduction 1980
For that reason, there is no expeditious method to return a child
internationally abducted by a parent from or to Malaysia.
If a child enters the Malaysian jurisdiction, the Malaysian court shall
have jurisdiction over the child, applying the Malaysian law to consider
what is in the best interest of the welfare of the child.
If a child is abducted by one parent and brought to another country
without the other parents knowledge and consent, it is in the childs
welfare to be returned to its home country, unless there is compelling
reason to the contrary, or the child would come to any harm if returned.
 ANALYSIS

1)Definition of kidnapping and abduction are vague

2)S359 : kidnapping is separated to 2 kinds which is
kidnapping from Malaysia and kidnapping from lawful
guardianship.
3)S362 : whoever by force compels or by any deceitful
means induces any person to go from any place, is
said to abduct that person.
4)Whether the requirement of consent is needed
5) The question also arose whether kidnapping is only applied for
children or adult as well.

6) Moreover, the burden of proof on the part of public prosecutor

also not clear as there is no confirmative answer found in the
section that the motive of kidnapping is required to proof or the
action of kidnapping per se is enough to charge the accused.

7) The abduction as well

8) United Kingdom, there is Law Commission to simplify the

kidnapping and related offences under criminal law.
 UNITED KINGDOM v. MALAYSIA

UK: Child Abduction Act 1984

Malayisa: Kidnapping Act 1961
This act itself again contain of the action of abduction
Section 3(1), whoever, with intent to hold any person
for ransom, abducts or wrongfully confines or wrongfully
restrains such person shall be guilty of an offence and
shall be punished on conviction with death or
imprisonment for life and shall, if he is not sentenced to
death, also be liable to whipping.
 SUGGESTION

1) Make sure the meaning of kidnapping and abduction

must be clear

2) There is no overlapping between kidnapping and

abduction in the act book.

3) Burden of proof on the part of public prosecutor