Criminal Force

The main issue that will be discussed and analysed below is whether Johnny is liable
under Section 352 of the Penal Code for the use of assault of criminal force on Ayu.

Under Section 349 of the Penal Code, a person is said to use force to another if he causes
motion, change of motion, or cessation of motion to that other, or if he causes any substance such
motion, or change of motion, or cessation of motion as brings that substance into contact with
any part of that other’s body, or with anything which that other is wearing or carrying, or with
anything so situated that such contact affects that other’s sense of feeling provided that the
person causing the motion, or change of motion, or cessation of motion, causes that motion,
change of motion, or cessation of motion in one of the three ways hereinafter described: (a) by
his own bodily power; (b) by disposing any substance in such a manner that the motion, or
change or cessation of motion, takes place without any further act on his part, or on the part of
any other person; or (c) by inducing any animal to move, to change its motion, or to cease to
move.

The offence of criminal force is defined in Section 350 of the Penal Code. Under the said
section, whoever intentionally uses force to any person, without that person’s consent, in order to
cause the committing of any offence, or intending by the use of such force illegally to cause, or
knowing it to be likely that by the use of such force he will illegally cause injury, fear, or
annoyance to the person to whom the force is used, is said to use criminal force to that other.

Additionally, there are several main elements that need to be proven to establish the
offence of criminal force. These elements include: (a) Force; (b) intent; (c) consent; and (d)
offence. These elements can be further divided into two separate categories of elements: (1) The
physical element (Actus Reus); and (2) the fault element (Mens Rea). This will be discussed
separately below.

Criminal Force: Physical Element (Actus Reus)

Criminal Force: Fault Element (Mens Rea)

Under Section 350 of the Penal Code, the fault element for criminal force involves a
remarkably complicated two-stage enquiry. The prosecution must prove not only that the
accused intentionally used force to the victim but also that he or she had an ulterior purpose. The
purpose may be the commission of another offence, or the intention illegally to cause injury, fear
or annoyance, or the knowledge that the act was likely illegally to cause injury, fear or
annoyance.

The first requirement is that the accused intentionally applied force and there is no
reference as to any lesser degree of fault. This means that knowledge that force is likely to result
will not suffice.

Even if it is established that the accused intentionally applied force to the victim, it will
not be an offence of criminal force unless one of the ulterior purposes is also proved. The first of
these is that force was used ‘to cause the committing of any offence’. This clause has limited
application because other offences will cover most situations where force is used in order to
bring about another crime. It should also be noted that under Section 40(1) of the Penal Code, the
word ‘offence’ in this context ‘denotes a thing made punishable by this Code.’ Curiously, this
category of criminal force is therefore limited to cases where the person is using force to commit
a Penal Code offence and not an offence under any other law.

The second form of ulterior purpose is where the accused intends illegally to cause
injury, fear or annoyance, or knows that injury, fear or annoyance is likely to be illegally caused.
Three specific points of interpretation may arise. First, the reference to injury, fear or annoyance
is clearly part of the fault element (mens rea). It is not necessary that the victim actually suffers
injury, fear or annoyance as the physical element (actus reus) of the offence is simply the use of
force. Secondly, the word ‘injury’ is defined by Section 44 of the Penal Code to mean harm ‘in
body, mind, reputation or property’. Thirdly, the word ‘illegally’ must be interpreted by
reference to Section 43 of the Penal Code where it is defined as ‘everything which is an offence,
or which is prohibited by law, or which furnishes ground for a civil action’.

Criminal Force: Cases

In Mohamed Abdul Kader v PP1, it was stated that Section 349 of the Penal Code defines what is
force and criminal force is defined in Section 350 of the Penal Code. The illustrations thereto
show that some application of force to the other party is required to amount to using criminal
force. Assault however requires no contact with the body and section 351 says any gesture or
preparation which causes the other person to apprehend that he who makes that gesture or
preparation is about to use criminal force is assault.... the so-called movement of the appellant's
hand which was at that time holding a chopper followed by the words "if you go in, I will
hammer you.“...certainly it did not constitute use of criminal force.

In Ng Eng Huat v Public Prosecutor2, it was held that the act of the appellant of reversing his car
was not a negligent act but an intentional and deliberate act of the appellant to collide into
complainant’s car. Such act of the appellant was not a negligent act within the meaning of
Section 336 of the Penal Code but the appellant had committed the offence of using criminal
force on Complainant, an offence under Section 352 of the Penal Code.

Criminal Force: Application

Applying to the situation, the police had found a dead body floating in Sungai Putat’s
river and have been identified as Ayu, a 23 years old student. Upon the discovery, the police
1 [1967] MLJ 86
2 [1988] 1 MLJ 417
apprehended John, Johnny, and Jonas for the investigation of Ayu’s death. It has been
established from the investigation that Johnny slapped Ayu on her face which led to her falling
on the ground. He contended that he had only slapped Ayu as he was dissatisfied with her
explanation and claimed that, even if he had used excessive force, it was an accident.

Applying the law, the physical element can be established as there was no consent as to
the slapping. Additionally, criminal force can be established under Sections 349 and 350 of the
Penal Code as Johnny slapped Ayu (using force) by his own bodily power and intentionally
without her consent.

On the other hand, the fault element can be established as the second form of ulterior
purpose can be displayed. Johnny had intentionally used force without Ayu’s consent intending
or knowing it to be likely that he may thereby injure or frighten Ayu. This can fall within any of
the three specific points of interpretation stated above.

Criminal Force: Conclusion

In conclusion, Johnny is liable under Section 352 of the Penal Code for the use of assault
or criminal force on Ayu.

References

1. Mohamed Abdul Kader v PP [1967] MLJ 86