Kidnapping

Nurul Asyikeen Hj Abdul Jabar

DBML
MSU

s.359 Penal Code

Kidnapping is of two kinds:

1. Kidnapping from Malaysia

2. Kidnapping from lawful guardianship
Although kidnapping is not defined in the Code, its ordinary meaning is
the act of stealing, abducting or carrying away a person by force or
fraud, either as a hostage, or to extract ransom.
It is an aggravated form of wrongful confinement.

Objective of S.359
State v Raja Ram
Held: the underlying object of the provisions relating to kidnapping and
abduction is to protect children and other persons of tender age from being
abducted or seduced for illegal or improper purposes, and to preserve
rights of parents and guardians over their wards.

s.360 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

s.361 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 word lawful guardian in this section include any person lawfully entrusted
with the care or custody of such minor or other person.

Exception: those 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.

S.362 Abduction

Whoever by force compels or by any deceitful means induces any

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

To constitute abduction under criminal law, there must be compelling by

force or deceitful means whereby a person is induced by the abductor,
to go from one place to another.

Differences between kidnapping &

abduction

1.

K - kidnap from guardianship is committed only in respect of a minor or a person of

unsound mind
A - maybe in respect of any person

2.

K - person kidnapped is removed out of lawful guardianship

A - No such thing necessary. it has reference exclusively to the person abducted

3.

K - Taken away or enticed to go away with the kidnapper. the means used are
irrelevant
A - Force, compulsion and deceitful means are used

4.

K - consent of the person kidnapped is immaterial

A - Consent of the person condones the offence

5.

K - Intent of the kidnapper is irrelevant

A - Intent of the abductor is all-important factor

6.

K - Not a continuing offence. it is complete as soon as the minor or person

u/mind is removed from lawful guardianship
A - It is a continuing offence. it continues so long as the abducted person is
removed from one place to another

S. 363 Punishment

Imprisonment max 7 years and,

Fine