8/2/2019 Assignment Criminal 2011 Sem 2

1/2

First issue to be addressed is kidnapping. The fact is that Carol and Ralph ran away from home when

Carol is only 14 years old. The fact that Carol is under 16 years old and is considered as minor will fall

under the offence of kidnapping from lawful guardian. The offence could be found under s361 of the

Penal Code1 as it stipulated that:

Whoever takes or entices any minor under fourteen years of age if a male, or under sixteen

years of age if a female...is said to kidnap such minor or person from lawful guardianship.

Ralph has taken progressive steps of persuading Carol to run away from home by telling her the plan

to get married in Thailand. This would have sufficiently constituted to persuasion towards the

taking of Carol out of her parents guardianship. The case ofChathu v Govindankutty2supported

the statement above. According to the case ofJagan Nath3, the word taking also impliedly means

a physical taking. In the above case, the plaintiffs daughter was sent to live with another married

daughter by plaintiff. Subsequently, the daughter was married to the inmate in the house withoutthe consent of the father. The plaintiffs claim failed as the court held that there is no physical

removal of the daughter from the plaintiffs guardianship as the daughter still remained in the house

but in fact married to the inmate who stays in the same house. The case ofJagan Nath is

distinguished from the current scenario is question 2 where Carol is actually taken physically away

from the guardianship of her parents without their consent. Hence, the element of taking

physically is well established.

The second phrase to be discussed is the word entice which is also left undefined in the Penal

Code. The learned judge in the case ofKhalandar Saheb4

quipped that enticement will fail to exist

unless the other attempts to do anything he otherwise would not do and it is not confined only toa single perspective of allurement but in any form including promise to marriage or sexual

intercourse5. In this scenario, Ralph successfully enticed Carol by coaxing her with his intention to

marry her with the knowledge that Carol was infatuated and attracted to him. Hence, the word

entice could be successfully found in this scenario.

According to the case ofNemai Chattoraj,6the offence of kidnapping from lawful guardianship is

considered as complete as soon as the child is taken beyond the keeping of the guardian. Hence, in

this case, it is proven as clear case of kidnapping. The above decision is also followed by the case of

Chekutty[1962].7

If Ralph defended that Carol consented to go with him to Thailand, it would be declined by the court

as it is not a good defence as found in the case of Neelakandan v PP.8The fact of the case is where

the 15 years old girl told her mother she was going to the concert but subsequent she went to a

house where the defendant was present. The finding is that she had sexual intercourse with the

1Act 574

2[1958] Cr LJ 637

31914 AIR 126

4[1955] CR LJ 581

5Davood SAheb [1954] MWN 389

6

[1900] 23 Cal 1041726 Mad 454

8[1956] MLJ 208.

8/2/2019 Assignment Criminal 2011 Sem 2

2/2

defendant and evidence showed that she had duly consented to meet the defendant and stayed

with him although it was without her parents consent. Appeal court held that it is immaterial to

whether consent of a minor is obtained or not, what is necessary is the consent of the guardian.

Applying to this scenario, even though at prima facie, Carol consented to the run away from home

plan but her consent is immaterial. According to the case ofKrishna Maharana9, it would be a no

good defence if the accused said that he is of a mistake of fact to the age of the victim. Hence, here,

there is no good defence by Ralph.

The next issue is to the definition of lawful guardian. The explanation could be found in the

Explanation of s361 in Penal Code where it mentions that it include any person lawfully entrusted

with the care or custody of such minor or other person. According to the case ofDPP v Abdul

Rahman10

, it is necessary to have an insight of the definition of lawful guardian by construing the

above provision. However, to make a better understanding of what constitute to a lawful

guardianship, it is worth to have a look into section 5 of the Guardianship of Infant Act 196111

as per

say in the case ofSyed Abu Tahir a/l Mohamed Esmail v PP.12

The next discussion will encompass the issue of Ralph taking Carol to Narathiwat in Thailand. This

will amount to an act of taking a person beyond the limit of Malaysia without prior consent her

parents. His action would have contravene s360 of the Penal Code where it is said that kidnap is

committed when any person is conveyed beyond the limit of Malaysia without the consent of some

person legally authorised to consent on behalf of the person. Hence, in this case, the person

authorised to consent on behalf of the person is the guardian since she is underage. This is further

supported by the case ofPeraiswami Kangani13

where the accused coaxed some women to leave

india for Ceylon with the promise to marry them to his sons but, in fact, they were employed to be

tea plantation workers. The court held that the accused is guilty as the victims were taken from India

to Ceylon beyond the boundaries of the country without their consent. Hence, without a doubt, in

this case, it is clear that the act of Ralph falls under s360 of the Penal Code.

In a nutshell, Ralph will either be guilty for one of the two offences or both under s360 and s361.

Upon successful conviction, he will be sentenced under s363 and shall be punished with

imprisonment of a term which may extend to seven years, and shall also be liable to fine.

9[1929] 9 Pat 647

10[1963] MLJ 213

11

Act 35112[1988] 3 MLJ 485.

13[1910] MWN 11 Cr LJ 368