Criminal Law 2

Tutorial 2
Sayor and Labu are employed by Mandur to work
at his factory. One day, Mandur was shocked to
discover that his products had gone missing.
Sayor, who was in charge of the property, was
called to give an explanation. Sayor claimed that
when he left the factory on the day in question,
everything was in order and that Labu was the
last person to leave the building. Suspecting Labu
to be responsible for the loss, Mandur lunged
towards Labu in a threatening manner saying, if I
cannot get back the property I am going to teach
you a lesson that you will never forget for the rest
of your life. Labu managed to avoid the blow
from Mandur and escape.
Discuss the criminal liability of Mandur.
ISSUE
Whether Mandur is liable for the offence of
non-fatal offences under S351 of the Penal
Code.

LAW
Section 351 of the Penal Code defined assault
which stated :
Whoever makes any gesture or any
preparation, intending or knowing it to be
likely that such gesture or preparation will
cause any person present to apprehend
that he who makes that gesture or
preparation is about to use criminal force
to that person, is said to commit an
assault.
LAW
Based on Section 351, it can be derived 3 main
elements of assault.
1. The person must makes any gesture or any
preparation.
2. The person intending or knowing it to be likely
that such gesture or preparation will cause any
person present to apprehend
3. The person who makes that gesture or
preparation is about to use criminal force to
other person.
LAW
It is the gesture or preparation conveying the threat of
violence that causes the apprehension that thus
constitutes the offence.
No criminal force need be used.
In Mohamed Abdul Kader v PP, it was said that assault
requires no contact with the body. It is the gesture or
preparation that causes the other person to apprehend
that he who makes the gesture or preparation is about
to use criminal force.
In S Swam Pillay v PP, the accused was charged for an
offence of assault in respect of his action in pointing a
revolver at the complainant in a coffee shop.
LAW
It is clear from the explanation to Section 351 that mere words
cannot amount to an assault. However, words may colour gestures so
as to indicate their meaning.
In Tuberville v Savage, the accused place his hand on the hilt of his
sword saying if it was no assize time, I would not take such language
from you. Although placing his hand on the heat was a sufficient
gesture, the accompanying words indicated that force would not be
use. There was therefore no present threat.
A literal reading of Section 351 also suggest that the actus reus
requirement is that there should be a physical gesture or preparation.
The offender must intend or know lt likely by way of his gesture or
preparation that he will cause apprehension of immediate physical
force.
This is subjective and as long as the offender intend the
apprehension, it is irrelevant whether the victim apprehend
immediate physical force.
LAW
The threat must be of immediate force. This is evident
from the definition that they must be apprehension
that the offender is about to use physical force.
Threat of future violence are not covered.
In Smith v Chief Superintendent, Waking Police Station,
a woman was held to be assaulted when she saw the
accused lurking through her closed bedroom window
at about 11 pm. Although he was outside and had to
break the window to climb in before he could inflict
violence on her, it was held the threat of force was
sufficiently immediate.
LAW
A threat to inflict force may be conditional upon the
victim doing or restraining from doing something. The
threat to use force is not immediate but on a certain
contingency dependent upon the volition of the victim.
HS Gour in The Penal Code of India, express the view in
such circumstances , there can be no assault.
Gour also cited Birbal Khalifa, where the accused,
objecting to having his thumb print taken by the
policemen, produce a lathi and said he would break the
head of anyone who asked for his thumb print. It was
held that because this threat was conditional, it did not
amount to assault.
APPLICATION
The threat by Mandur was accompanied by
gesture as he lunged towards Labu in a
threatening manner. So there was an assault as
mere words cannot amount to assault as
illustrated in the case of Tuberville v Savage.
In addition, the threat also is an immediate force
as Mandur can commits the violence to Labu as
he was with Mandur at that time. The threat was
not a threat of future violence as illustrated in the
case of Smith v Chief Superintendent, Waking
Police Station.
Application
However, the threat by Mandur was
accompanied by his words saying thatif I cannot
get back the property I am going to teach you a
lesson that you will never forget for the rest of
your life can be regards as a conditional threat
as illustrated in the case of Birbal Khalifa.
This is because Mandur only threat Labu to use
violence on him if he does not get back the
property from Labu and not otherwise.
So, the threat does not amount to assault as it
was conditional.
CONCLUSION
Mandur will not be liable for assault under
Section 351 of the Penal Code.