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a) Jahat and Samseng were engaged in a brawl. Jahat then pointed a gun at
Samseng saying : I am going to blow your head off . The brawl ceased when
Jahat was pulled away by Hansem.

The issues of this situation are whether assault has been committed by Jahat
and Samseng. In this case, there have three persons where Jahat as defendant,
Samseng as a plaintiff and Hansem as the third person. Jahat as the defendant
pointed a gun at Samseng as the plaintiff and Hansem as the third person who is
need to settle down the fighting between Jahat and Samseng. Assault only can be
committed if there have the four elements of assault in the case. Without the four
elements occur in the case, the case cannot be considered as assault.
Assault can be defined as the act of putting another person in reasonable fear
or apprehension of an immediate battery by means of an act amounting to an
attempt to commit a battery. It is consider as assault if someone do the action and
make the other person feel fear and anxiety. There have four elements of assault
that is intention of the defendant to do harm onto plaintiff, effect on the plaintiffs
mind, capability of the defendant to carry out the threat and bodily movement of the
defendant.
The first element is intention of the defendant to do harm onto the
plaintiff. The intention of defendant can be shown by his threat to plaintiff even do
not yet touch the plaintiff body but the threat may cause the plaintiff face a mental
disorder such as feel fear and anxiety. For example is the case of Tuberville v.
Savage. The defendant told plaintiff had lay his hand upon his sword and said if it
were not assize time I would not take such language from you. In this case there
were not established as assault because defendants words negative the element of
intention on defendants part to injure plaintiff. Defendant does not have any intention
to do harm to plaintiff on that time and defendant does not have a time to injure
plaintiff. So, there do not have any act by defendant toward plaintiff. By appliying the
element of the intention of defendant toward plaintiff, Jahat have an intention to harm
Samseng when he had pointed a gun to Samseng and saying want to blow
Samseng head off. It makes Samseng feel anxiety and fear with the threat from
Jahat. Therefore, the first element has been fulfilled.
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The second element is effect on plaintiffs mind. Plaintiff must feel
reasonable apprehension that a force will be inflicted upon him. If the act of
defendant cannot make the plaintiffs feel fear, it is not consider as an assault
because the threat are not effecting mind of plaintiff. This reasonable apprehension
can be measured by the judge through an objective test. Objective test is where the
judge will questioned is it the ordinary man that feel the same feeling same with the
plaintiff was in feel apprehensive with the forced that inflicted upon him. If the answer
yes, that means the assault was established. The case related is the case of R v St.
George. Defendant pointing an unloaded gun at a plaintiff and it is considering as
assault. It is still consider as assault even the gun is unloaded because the ordinary
people still feel fear and anxiety toward the threat by defendant. By applying the
second element, it is can be seen where the action is effect on plaintiffs mind where
Samseng feel fear when Jahat pointed gun at him and threat to blow his head. It is
consider as assault where the plaintiffs mind will be affected with the defendant
action. The objective test will be applied when the ordinary man might be feeling the
same feeling as Samseng when the forced inflicted upon them. The second element
has been fulfilled.
The third element that can be established as assault is if defendant has a
capability to carry out the threat. The capability of defendant toward the threat to
plaintiff can be measured through the eyes of a reasonable plaintiff. If plaintiff
believes that defendant have a capability to carry out the threat that is considered as
assault. The capability also can used an objective test as a second element by ask
that the ordinary feel the same reasonable fear that there is threat of immediate force
upon them and would a reasonable man believe that the defendant will realize his
threat. If ordinary man believes the defendant will realize his threat toward plaintiff,
the case is considered as assault. Based on the case of Stephan v Myers in 1830,
defendant threatened to hit plaintiff and he advanced with clenched fists upon the
plaintiff. He then was stopped by a third party just before he could reach the plaintiff.
In this case, assault was established as there was a capability on the defendant to
carry out his threat if he was not stopped by the third party a mere few second before
he hit the plaintiff. Is mean that if the third party does not exist, the defendant still
have capability to do his action. By applying this element in the case of Jahat and
Samseng, there is an assault because defendant has capability to brawl and also
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capability to carry out his threat toward Samseng. Samseng also believe that Jahat
may carry out his threat if he was not stopped by Hansem as a third party in a brawl.
If Hansem does not exist during the cases happen, but the defendant still have
capability to do his action towards plaintiff. So, the third element has been fulfilled.
The last element of assault is bodily movement. If defendant is not static in
his position, it is considered as assault because involves body movement even do
not have any contact yet. It is means that assault involves no contact some from of
bodily movement is still necessary. Bodily movement of defendant means the
positive act that can indicate that defendant want to carry out his threat. Sometimes
the mere words could not considered as assault without any movement because
sometime the word only for joke and do not have any intention to do the action. The
body movement do not only act based on defendant bodies but also from the tone of
defendant voice, facial expression such as threat with a anger face, and gesticulation
like pointed some object to plaintiff that can be a prove defendant in a position to
realize his threat. In the case of R v Wilson in 1955 which is defendant said get out
your knives as it is constituted as assault. The words that said from defendant must
be seen in the context in which they were spoken. The element of bodily movement
is apllied in the cases. It can be shown in the cases of Jahat and Samseng. The
movement shows by the Jahat when he pointed a gun at Samseng and word that he
said can indicate he will carry out his threat. Hence, the last element has been
fulfilled.
In a nutshell, since all the elements have been fulfilled, there is assault that
has committed by Jahat against Samseng. This situation of trespass to person can
comprised as a tort of assault because there have established all the four elements
of assault. Jahat has intention to harm Samseng and the threat effect the mind of
Samseng. Samseng feel fear and he believe that Jahat have capability to carry out
his threat if Hansem do not stopped the brawl. The case also shows that involves the
body movement in Jahat by pointed the gun to Samseng. If Samseng bring the case
to trial or report it to police, Jahat will get the punishment because have positive act
as opposed to an omission. So trespass to person ha been committed under the Tort
of Assault.

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b) Datin suspected Cinta is having an affair with her husband. One day, Datin
happened to meet Cinta at a saloon. Feeling very angry, Datin grabbed Cintas
hair and slapped her face.
The issue according to the case, is whether Tort of Battery has been
committed by Datin against Cinta ?. Based on the case that happen, there are two
persons are involved where the defendant is Datin who is the person who make an
offences whereas the plaintiff is Cinta who is the person that have been slapped and
grabbed hair by the defendant. In this case, Cinta have been suspected by Datin,
and it makes the defendant feel angry toward the plaintiff. This factor is influenced
Datin to make a negative action toward Cinta because she is emotion and have an
intention to do so.
Tort of battery is the intentional and direct application force to another person
without the persons consent. Some cases are considered as the battery when the
defendant have an intentional and already touch to the persons body without their
consent toward that action. The touch that make by defendant without the persons
consent is considered as battery even there are not involved violence. For example,
the sexual arrestment toward the women is considered as battery because the action
is forced to that women without their consent unlike, that women like to that action an
there is not consider as battery. Tort of Battery is functioning to protect individual
from any interference onto his person, thus preserving his dignity and reputation. All
the people have a dignity and it must be protect to control their reputation in the
society.
Battery is established when the entire element are fulfilled. First and foremost,
the element that must fulfil is there have intention of defendant to apply force.
Defendant must have applied the force intentionally and have any physical contact
with the body of the plaintiff or his clothing is sufficient to constitute force. In the case
of Cole versus Turner (1704) the judge has stated that the least touching a person
in anger is a battery. It means, even the touching does not involved violence but the
touch in anger it is still considered as battery. The general rule of the battery is that
the intention must relate to the direct act of the defendant. That means, the force
action is considered as battery if the defendant have the intention to do the action
and have direct act toward the plaintiff even the action does not give any effect to the
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plaintiff. There also have exception where the doctrine of transferred intent widens
the scope and meaning of intention thus extending the possible liability of the
defendant. For example, in case of Scott versus Shepherd (1773) where the
lighted squib was thrown by defendant and A picked the squib and throw it upon B
who picked up and threw it away. Then, the squib hit the plaintiff and burst into
flames. The court held that defendant was liable for tort of trespass to person even
his act did not directly affect to plaintiff. According to the court, A and B react for their
safety so, they are not commit with the act because does not have intention. In the
case, the element is applied in Datin and Cinta cases, where defendant have
intention to apply the force where she it self meet Cinta at Saloon and at the
meantime, she apply the force by grabbed the Cintas hair and slapped her faced.
Hence, this situation is shown that Datin have intention to apply force and relate to
the direct act that have done by Datin. So, the first element has been fulfilled.
Besides the intention, the other element that must be fulfilled is the act must
under the defendant control. The case is considered as the battery if the action
that make by the defendant is must be done voluntarily. The defendant makes an
action without any force by another person. It must be done by their own need to do
so and under his control. For example, in case of Gibbons versus Pepper (1695),
where defendant was riding a horse when someone hit the horse from behind
causing the horse to bolt then the horse collide with the plaintiff. In this case the
court held that the defendant was not liable as the act of the horse bolting and
colliding with the plaintiff because it was outside the defendants control. By applying
the element, Datin have the intention to make a violence toward plaintiff because it
can be seen where Datin grabbed Cintas hair and slapped her faced because she
suspect that Cinta have an affair with her husband. It is shown that Datin apply the
force toward the plaintiff under her control without any forced by another person or
her husband itself. If the cases consider that defendant not liable, the action toward
the plaintiff must be outside the defendants control. Therefore, second element has
been fulfilled.
Another element that must be fulfilled to consider the case as battery is there
have presence of contact or application of force occurs. There is considered as
contact if there is contact or application of force with the plaintiffs body or clothing.
Force is the technical term where there is no violence is necessary. Any physical
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contact with the body of the plaintiff or his clothing is sufficient to constitute force.
For example, throwing water on the plaintiff my constitute battery but throwing water
on the cloth worn by plaintiff might not necessarily be battery because there is no
contact toward the plaintiff body or physical. This case has been interpreted to mean
that contact with the things attached to the person will only amount to battery if there
is transmission of force to the body of the plaintiff. For example, the case of Wilson
versus PringIe (1986) where the plaintiff and the defendant, both aged 13, were
schoolboys in the same class. The plaintiff suffered serious injury, so the plaintiff
alleged of the defendant have intention to jump on him and he claimed damages
from the defendant for battery. The defendant denied liability. Claimed that he had
merely pulled the plaintiffs schoolbag of his shoulder in the course of horseplay and
that as the result the plaintiff had fallen and sustain his injuries. In this case the act
must be intentional touching or contact in one form or another of the plaintiff by the
defendant. That touching must be approved to be hostile touching and the element
of hostility must be questioned of fact. Hostile touching means the action toward the
people, and it does not with consent of the other people. Hostile touching not be
equated with ill will or malevolence as long as the defendant understand that he is
doing something that plaintiff may object to hostile touching would be established.
Hostile touching is differs from one society to another society and even from one
generation to another generation in different circumstances. According to the case
given, by applying the third element, Datin who is the defendant also have make
contact or application of force toward the Cinta as the plaintiff. It is shown when
Datin grabbed the Cintas hair and slapped her face where she makes a contact
toward the Cintas physical. The action is considered as battery because the action
is without the plaintiff consent. It is also involved hostile touching, where the touch by
defendant is without the plaintiff consent and in the society, grabbed hair and
slapping face is the rude action toward a person. Hence, the third element has been
fulfilled.
Lastly, the element must be fulfilled is the action that apply to the plaintiff
must be without the plaintiffs consent. One cannot touch another person without
his consent or without lawful jurisdiction. But there are touching where it is presumed
implied consent exists like, tapping a persons shoulder to get his attention and
brushing shoulders on a crowded bus. This touching is not considered as battery
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because, the touching is not with the intention and it more to uncontrolled action
based on the situation. For example, the case of Wiffin versus Kincard (1807),
where a touch on the shoulder of man who hd climbed on the railing to get better
view of a mad ox, the touch being only to engage the mans attention, so it is not
consider as battery. Compared to the case of Tiong Pik Hiong versus Wong Siew
Gieu (1964), where defendant is liable for battery for scratching the plaintiffs face
and hitting the plaintiff due to her jealousy of plaintiffs friendship with her husband.
The defendant has an intention to do that force action toward the consent of the
plaintiff. By applying the last element it is similar to the case of Datin as the
defendant makes an action toward the plaintiff, Cinta without her consent. Cinta does
not consent with the force action by the defendant; Datin where plaintiffs hair have
been grabbed and her faced have been slapped at the saloon. It can disgrace her
dignity and reputation. The action by Datin is considered as battery because the
plaintiff does not consent with that action. So, the last element has been fulfilled.
As the conclusion, since the element have been fulfilled, there is Battery has
committed by Datin against Cinta. It is considered as the battery because all the four
element have been fulfilled according to the case that happen between Datin as the
defendant and Cinta as the plaintiff. In the case, the defendant have the intention to
apply the force toward the plaintiff, the act is under the defendant control, there is
presence of he contact force toward the plaintiff by the defendant and lastly, the
action force that apply by the defendant is without he plaintiff consent. Therefore in
the Datin and Cintas case, Datin can be punished because she has make a
trespass to person under Tort of Battery. All the elements have been fulfilled and this
case can be considered as the Battery.