Kidnapping offences in Malaysia

The word “kidnapping”, which seems to be derived from the words “kid” which means a child, and “nap or nab”, which means “to steal”, originally meant “child-stealing”. But now, it simply means he 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.

Section 359 of Penal Code simply declares that kidnapping is of two kinds, namely kidnapping from Malaysia and kidnapping from lawful guardianship which are defined in the next Section 360 and Section 361 respectively and both of which are made punishable alike by Section 363 of Penal Code.

The classification of kidnapping in this section is not exhaustive as there may be cases in which the two kinds overlap each other. For instance, a minor may be kidnapped from Malaysia as well from his or her lawful guardianship.

Before that it is important to determine the element of actus reus and mens rea of the accused before we can make the accused liable under those sections. To prove the actus reus, it must be proven that the accused have acted unlawfully either by force or fraud, to lead or to take away or decoy or entice the person from one place to another. While the mens rea is with intent to deprive any parent, guardian, or other person having lawful care or custody of such person of the possession.
For kidnapping from Malaysia there must proved the following elements
1. that at the time of the offence, the person kidnapped was in Malaysia
2. that the person was conveyed by the accused beyond the limits of Malaysia
3. that the accused did so without the consent of that person, or some person legally authorized to consent on that person’s behalf

This section also mentioned that there was no age limitation therefore it can be applied to anyone.

According to section 360 of Penal Code: Kidnapping from Malaysia

“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”.
The elements in this section that must be proved are:
• 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 was no age limitation therefore it can be applied to anyone.

Before that, it is very important to look at the definition or what is amounted to the offence of kidnapping.

The word “to convey” in this section means to “carry from one place to another”. The conveyance or carrying is a continuous process until the destination is reached. In the case of an offence under this section, the destination may be some place in a foreign territory, but it is not necessary that it should be reached. The offence is complete as soon as the limits of Malaysia are crossed.

“Any person”. The use of the word “any” before “person” indicates that the person kidnapped may be a male or female, major or minor, sane or insane, and a citizen of Malaysia or a foreign subject.

“Beyond the limits of Malaysia”. These words in this section, indicate that for an offence under it, the kidnapping or conveyance must be from some place, within the limits of Malaysia to some place outside those limits. The offence is not completed until the person is conveyed to some place outside Malaysia and until such time, the offence is going on, but is capable of being abetted.

Regarding the consent in this section, it is also an important element in kidnapping but a consent given under a misapprehension of fact, is not a true consent as mentioned in section 90 of Penal Code.

Section 90 of Penal Code stated that

A consent is not such a consent as is intended by any section of this Code-
(a) if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception;
(b) the consent is given by a person who, from unsoundness of mind or intoxication, is unable to understand the nature and consequence of that to which he gives hi consent; or
(c) unless the contrary appears from the context, if the consent is given by person who is under 12 years of age.

Meanwhile, in section 361 of Penal Code provided for kidnapping from lawful guardianship.

In section 361 of Penal Code: Kidnapping from lawful guardianship

“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”.

The words “lawful guardian” in this section includes any person lawfully entrusted with the care or custody of such minor or other person. But 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.

This section defines the second kind of kidnapping, namely, kidnapping from lawful guardianship. This is kidnapping in the literal sense of the term “child-stealing”. Obviously, the section applies only to the kidnapping of a minor, or of a person of unsound mind whether male or female. The law does not permit even a girl of easy virtues to be taken away from lawful guardianship without the consent of parents, the object of the section being to provide security and protection to the wards themselves. Persuasion by the accused, which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian, would sufficient to attract this section.

The offence of kidnapping under section 361 of Penal Code consists solely of taking or enticing a minor from the keeping of her or his lawful guardian and no intention on the part of the accused is required to be established. The consent of a minor, who is taken or enticed, is wholly immaterial. It does not affect the commission of the offence though it is a matter for consideration under the question of sentence. The motive of the kidnapper is also immaterial unless it falls within the Exception to the section. Motive is however an important consideration with reference to the question of punishment.

All that is needed is the minor under fourteen in the case of a male, or under sixteen in the case of female, is taken or enticed from the keeping of the lawful guardian. The moment a child is taken out of the keeping of his or her lawful guardian, the offence of kidnapping is complete, the criminal intention being not a necessary ingredient for making out this offence.

Since the offence under this section consists in taking or enticing a minor, or a person of unsound mind, out of the keeping of a lawful guardian, it has no application to the taking, or enticing, of a minor, or a person of unsound mind, who has no guardian, whether legal, lawful or de facto. But the person taking away such a child, may himself become the lawful guardian of the child and any other person, taking or enticing the child out of his keeping, may be guilty of kidnapping.

To constitute an offence of kidnapping of a minor under section 361 of Penal Code, the essential ingredients that must be fulfilled are:
• 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 or enticing away a minor, or a person of unsound mind out of the keeping of a lawful guardian which is an essential element of the offence of kidnapping. Without a taking or enticing there can be no kidnapping. The section requires either taking or enticing, and not both.

Taking need not be by force whether actual or constructive as it implies neither force nor misrepresentation, nor fraud. According to Ratanlal & Dhirajlal, the word “take” merely means “to cause to go”, “to escort” or “to get into possession”. While the word “entices” is an idea of inducement by exciting hope or desire in the other. No doubt it does mean physical taking but not necessarily by use of force or fraud. Persuasion by the accused person, which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian, would be sufficient to attract this section. According to the case of Sayyad Abdul Satar v. Emporer (1928) AIR Madras 585, the taking or enticing must be out of the keeping of the lawful guardian. There must be some act or a series of acts on the part of the accused which maybe regarded as the proximate cause of the person going out of the keeping of the guardian.

Taking need not be constituted by a single act. A whole series of acts may together constitute the process of taking. So the question, whether the “taking” of a minor out of the custody of her lawful guardian was or was not complete at a given moment, is a question for determination with reference to the circumstances proved in each particular case. Speaking generally, the keeping of the guardian is at an end when the person on his behalf, into the custody of some person, not entitled to the custody of the minor. Thus, the act of taking is complete when the accused takes the minor with him or accompanies him in the ordinary sense of the term, irrespective of his or her mental attitude. In order to prove the offence of kidnapping from the lawful guardianship under section 361 of Penal Code, it must be proved that the accused had taken the minor out of the keeping of her lawful guardian.