Abang confronted Bomoh at a coffee shop angrily over a matter involving Abang's sister. Abang lunged threateningly at Bomoh and said he would teach Bomoh a lesson he would never forget. As Abang was about to hit Bomoh, others restrained him. Abang intended to cause Bomoh apprehension of imminent physical force based on his threatening gestures and words. A reasonable person in Bomoh's position would fear immediate force based on Abang's actions. Thus, Abang can likely be found liable under Section 351 of the Penal Code for assault on Bomoh.

1. 6. Angry & frustrated, Bini asks his brother, Abang to solve the
matter. When Abang sees Bomoh at a coffee shop, he lunged
towards Bomoh in a threatening manner while saying “I am
going to teach you a lesson that you will never forget for the
rest of your life. You’re going to regret what you’ve done to
my sister,” As Abang was about to hit Bomoh, he was
restrained from doing so by other persons. Has Abang
commited any offence?
ISSUE.
Whether Abang can be held liable under Section
351 of the Criminal Penal Code for the offence of
assault on Bomoh?

2. LAW.
1. Definition of Assault
Section 351
-”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,”
2. Mohamed Abdul Kader v PP
-Assault requires no contact with the body but needs only
the gesture or preparation that causes a person to
apprehend that said gesture/ preparation will be
inflicted upon him.

3. 3. Mere words cannot amount to an assault. However words may
colour gestures so as to indicate their meaning.
Tuberville v Savage
-The accused placed his hand on the hilt of his sword saying;
“If it was not assize time, I would not take such language
from you”
-The placing of the accused’s hand on the hild of his sword was
a sufficient gesture but because the accompanying words
indicated that force would not be used, there was held to not
be a present threat.

4. 4. Literal and Indian Approach
i) [literal] -accused’s intention
- offender must intend or know it likely by way of his gesture or
preparation that he will cause apprehension of immediate
physical force. So long as the offender intends the apprehension,
it is irrelevant whether the victim actually apprehends
immediate physical force.
ii) [Indian approach; adopted in Malaysia]
- apprehension & effect on the victim
- focus on whether the victim actually felt apprehension and the
effect of the gesture/ preparation on the victim.
- Datuk Seri S Samy Vellu v S Nadarajah
*the question whether a certain act amounts to an assault
depends upon the reasonable apprehension which a person
entertains about criminal force being imminent.
- Jashanmal Jhamatmal –held: assault when the accused put out
his hand towards the woman in a menacing manner that caused her
to apprehend that he was about to use criminal force on her.

5. 5. Threat Must be of Immediate Force
S351: “is about to use physical force”
S Swam Pillay v PP
held: threat was of immediate force as the accused
pointed a revolver at the complainant in a coffee shop.
6. Punishment provided in Section 352
“Whoever assaults or uses criminal force to any person
otherwise than on grave and sudden provocation
given by that person, shall be punished with
imprisonment for a term which may extend to 3
months or with fine which may extend RM 1000 or
both”

6. APPLICATION
& CONCLUSION.
Applying to the question at hand, Abang can be seen to have formed
the intention to inflict criminal force upon Bomoh after he, as a sibling was
approached by his brother to solve a matter with Bomoh. As a sibling, Abang
will only naturally be inclined to be protective of his sibling and thus, to help
his sibling resolve the matter with Bomoh. The infliction of the criminal force
intended by Abang can be proven through Abang’s action when he
threateningly lunged towards Bomoh at the coffee shop and uttered “…” to
Bomoh. The speech uttered by Abang was also a good indicator of Abang’s
intention which was to “teach Bomoh a lesson he will not forget and make him
regret what he did to Abang’s sister,” that coupled with the accompanying
action by Abang of lunging towards Bomoh was a clear present threat towards
Bomoh who did not only anticipate the attack but who would also have had his
defences down and thus, unready to defend himself.

7. It is reasonable to assume that a reasonable man would feel an
apprehension of actual infliction of the force upon himself
especially when the confrontation was done at a public place (a
coffee shop) and the community’s tendency to not intervene in
confrontations. Furthermore, apprehension is only expected to be
felt by the victim, Bomoh as the accused had the audacity to not
only lunge but also utter the threatening speech towards him. The
victim, Bomoh would fear for his safety especially when it was
evident that the person who intended to inflict the force on him
was the brother of a person who he already had a history of conflict
with.
Apart from that, it was only due to the restraint by a third party
that intervened with the chain of events that the threat was never
materialized. If it were not for the restraint on Abang, Abang would
have surely inflicted force upon Bomoh because the restraint was
done at the very last minute, “just as Abang was about to hit
Bomoh,”.

8. Moreover, the threat can also be proven to be immediate as Abang had
set the chain of events when he lunged in a threatening manner and
had intended to deliver a blow to Bomoh’s person. If the third party
had not intervened, the immediate force in the form of the blow would
have surely been inflicted upon Bomoh by Abang. Any person would
be compelled to feel an apprehension of actual infliction especially
when the only event deterring said infliction was an intervention by a
third party.
Thus, in conclusion –it can be said that it is likely that Abang may be
held liable under Section 351 of the Penal Code for the assault on
Bomoh and thus served the punishment provided under Section 352 of
the Penal Code.