VOLUNTARILY CAUSING HURT

Offence Elements

Section 3 of Penal Code:Any person liable by law to be tried for an offence committed beyond the limits of Malaysia, shall be dealt with according to the provisions of this Code for any act committed beyond Malaysia, in the same manner as if such act had been committed within Malaysia.

Definition

Section 319 of the Penal Code ;Whoever causes bodily pain, disease of infirmity to any person is said to cause hurt.Hurt usually related to non-fatal offences and embrace a wide range of harms. There will be cases that involve little more than force but constitute hurt because some degree of pain is caused. E.g: pushing somebody over and causing a slight gash to their leg.

Hurt may also include some quite severe beatings that fall short that will lead to grievous hurt.In conclusion, the offence of voluntarily causing hurt is non-fatal offence, and need to be discussed before considering criminal force, assaults and voluntarily causing grievous hurt.

SECTION 321

Defines the offence of voluntarily

causing hurt

It reads as follows:

Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said ‘voluntarily to cause hurt”.

Therefore, the fault element for voluntarily causing hurt is intending to cause hurt or knowing that hurt is likely

to cause.

Some local commentors have stated that the word ‘voluntarily’ in s321 is to be read with the definition of ‘voluntarily’ in s39.

However, reference to s39 should be avoided. The word voluntarily

should simply be treated as a label

which adds nothing to the requirements contained in the

sections themselves.

The problem if we referred to s39 is that, it states that

a person acts voluntarily if he or

she intends a result, know that result is likely, or

has reason to believe it was

likely to cause.

However, s 321 requires the

prosecution to prove subjective fault (an intention), to cause hurt or knowledge

that hurt was likely to cause. It is not

sufficient to prove that the accused had

reason to believe that hurt was likely to

cause.

CONCLUSION

To sum up, reference to s39 should therefore be avoided

to be read with s 321.

The Code framers had expressed their thought that there may

be cases where a person can be found guilty of voluntarily

causing hurt even though the conduct may not parallel to the

definitions of criminal force and assault.

These three offences are laid in different sections in the Penal

Code. For the ‘voluntarily causing hurt’ , it falls under Section 321.

While for the offence of criminal force and assault , both falls

under Section 350 and 351 respectively.

This is by means there is a reason for treating hurt offences

separately from assaults.

The Code framers then gave the example by categorized it into

two.

First, is that many offences which falls under the head of Hurt

will also fall under the head of assault.

A stab, a blow which fractures a limb, the flinging of boiling

water over a person, are assaults and are also acts which

cause bodily hurt.

Second is where the bodily hurt may be caused by

many acts which are not assaults.

A person who mixes a deleterious potion, and

places it on the table of another, a person who

conceals a scythe in the grass on which another is

in the habit of walking, a person who digs a pit in

a public path (with the intention someone may fall

into it).

The second example shows that those actions can

invite a greater injury and may be justly punished

for causing hurt but not to be said to have

committed assaults.

Alignment of Physical and Mental Elements

Since s321 requires

proof of an intention to cause hurt or knowledge of the likelihood of hurt,

An accused who has caused hurt but only intended force, and did not know that hurt was likely

He will not be guilty of voluntarily causing hurt.

The correct conviction will be one of criminal force, assuming all the elements of that offence are proved.

This is markedly different from many other jurisdictions where the offence of assault occasioning bodily harm only requires proof of the fault element for assault

&

with proof that bodily harm in fact resulted from the assault.

In principle, the Penal Code position,

in which hurt offences are defined separately from assault, is

preferable

as it ensures that the fault element for the more serious offence is aligned with the physical element.

HURT: PIVOTAL BUT NON-SEIZABLE

Hurt play a important role and can cause a serious harm but

under Malaysian and Singaporean criminal penal code

voluntary causing hurt is not a seizable offences and not are

offence of criminal force or assault.

There are four important consequences

flow from this statement:-

A purported arrest without a warrant for a suspected offence of hurt or criminal force would be illegal and the arrested person is entitled to resist with force and to sue for the wrongful arrest. This restricted the power of police.

This also include in domestic violence incident,eventhough it covers serious beating.The police officer only will be given power the accused without warrant after consider how ‘grievous’ the hurt is with the reference of the medical report and duration of injury.

The second circumstances is Bail which is more likely to be granted in the cases of non-seizable rather than in the cases of seizable offences. For example theft is the offence of non-bailable.

Hurt: pivotal butnon-seizable

• If an offence is not seizable, the process of

‘compounding’ may apply. This means, in effect, that

there is a negotiated agreement between the parties for

the offender to pay compensation to the victim. The idea

behind compounding is to keep relatively trivial matters

out of the formal court processes but it is important not

to allow a person to ‘buy their way out’ of the criminal

process on serious charges. This can have particular

importance in cases involving family violence where the

victim may come under some pressure to agree to a

settlement. Again, theft is non-compoundable.

• In Singapore, hurt offences do not appear in official published statistics on crime rates because the statistics are limited to seizable offences. The same appears to be true in Malaysia. This is very different from most other countries in which all levels of assault are certain to be recorded and tracked in official crime statistic.

Bodily pain, diseaseAnd infirmity

First, it should be noted that the Code framers were careful to include ‘disease’ within the scope of hurt. This has raised particular issues in the context of sexually transmitted diseases and infections such as HIV.

Secondly, the word ‘bodily’ in section 319 of the Penal Code only qualifies the word ‘pain’ and does not qualify the words disease or infirmity.

No other interpretation is possible because it would be nonsensical to speak of ‘a bodily disease’.

By using the term ‘infirmity’, Section 319 of the Penal Code embraces or accepts cases of mental distress, even when there has been no direct physical contact or physical injury.

We shall look at the example in the Indian case of Jashanmal Jhamatmal v Brahmanand Sarupanand AIR 1944 Sind 19.

Section 319 of the Penal Code:

Whoever causes BODILY PAIN, DISEASE or INFIRMTIY to any person is said to cause hurt.

There are small numbers of case law which discuss on the meaning of bodily pain, disease and infirmity.

However, there are a few numbers of important issues have arisen.

Case: Jashanmal Jhamatmal v Brahmanand Sarupanand AIR 1944 Sind 19.

FACT: the incident occurred in the dark and at the bottom of a staircase where the accused confronted the victim. He uttering a piercing shout and pointing a pistol at her. she collapsed. There was medical evidence which shows that she had suffered nervous chock for some time after the event.

HELD: by The Sind High Court, “Hurt may be extended to cases where

serious mental derangement is caused by some voluntary act. It would be ridiculous to say for instance that a person who deliberately set out to cause shock to somebody with a weak heart and succeeded in doing so has not caused hurt; likewise obviously hurt would be likely to be caused to a nervous child, were a person to array himself in a white sheet and suddenly, without warning , spring upon that child on a dark night.”

PENALTIES for HURT

&

AGRRAVATED HURT

• There are many different provisions and penalties relating to aggravated hurt offences between Malaysia and Singapore.

• Further, will compare the elements of the different hurt offences and their penalties that apply to the basic offence.

• It shows the offences are aggravated by one of the three factors, which are:

the status of the victims the means that are employed enhanced level of culpability, in the sense that an ulterior purpose.

OFFENCES ELEMENTS PENALTY : MALAYSIA Penal Code ( Act 574 )

PENALTY : SINGAPORE Singaporean Penal Code (Amendment ) Bill.

Voluntarily causing hurt (S.323), shall be punished

Maximum 1 year and/ or RM 2,000 fine (except in the case of section 334)

Maximum 1 year and/or $1,000 fine

Singapore only: an offence under S 323 committed on a female domestic maid by her employer or a member of the employer’s household

N/A Maximum 18 months

and/ or $1500

Voluntarily causing hurt by a dangerous weapon or means (s 324)

Maximum 3 years and/or fine or whipping

Maximum 5 years and/or fine or caning (7.5 years if victim is a domestic maid)

Voluntarily causing hurt to extort property from the sufferer ( or from any person interested in the sufferer) or to constrain such a person to do anything illegal or to facilitate an offence (s 327)

D shall be imprisoned (maximum. 10 years) and also liable to a fine or whipping

D shall be imprisoned (maximum 10 years) and also liable to fine or caning.

Administering, or causing to be taken, any poison or any stupefying, intoxicating or unwholesome drug or other thing with intent to cause hurt, knowing hurt is likely, or intending to commit or facilitate a crime ( s 328)

D shall imprisoned (maximum 10 years) and also liable to a fine.

D shall be imprisoned (maximum 10 years) and also liable to a fine.

Voluntarily causing hurt to extort a confession or to compel the restoration of any property

D shall be imprisoned (maximum 7 years and also be liable to a fine)

D shall be imprisoned (maximum 7 years) and also liable to a fine.

Voluntarily causing hurt to a public servant in the exercise of their duty, or with intention to prevent a person from discharging such duty, or in consequence of acts done in lawfully discharge such duty ( s 332)

Maximum 3 years and/or fine

Maximum 5 years and/or caning.