CRIMINAL LAW II

GLUP 2063
GROUP ASSIGNMENT

GROUP PINK: UNLAWFUL ASSEMBLY

No. NAME STUDENT ID

1. SYAFINAZ BINTI IDRUS 244653
2. HUDA HUMAIRA BINTI IDRIS 248122
3. NUR AMEERALIZA BINTI ANHAR 244592
ANUAR
4. LIM WAI LAP 244568
5. LIM CHEE KIUNG 244558
6. PRICILLA A/P FRANSIS 244530
7. ANTHONY CHRISTOPHER 244572
CRIMSON

LECTURER: DR YUSRAMIZZA MD ISA @ YUSUF

DATE OF SUBMISSION: 3RD MAY 2018
 TABLE OF CONTENTS

No. TOPIC PAGE

1. Introduction 1-2
2. Unlawful Assembly in Malaysia 3-5
3. Sources of Law for Unlawful 6-8
Assembly
4. The Enforcement of Unlawful 9-11
Assembly Laws in Malaysia
5. Analysis on Unlawful Assembly
Law in Malaysia
6. Conclusion
7. Bibliography
1. INTRODUCTION
Based on the case of R v Mahroof1, the court defines unlawful assembly as an offence when three
or more persons, present together, use or threaten unlawful violence. However, in Malaysia,
section 141 of the Penal Code2 of Malaysia (hereinafter referred as ‘PC’) explains unlawful
assembly as an assembly of five or more persons if the common object of the persons composing
that assembly is either to overawe by criminal force the people that exercise lawful power, to resist
the execution of any law, to commit any criminal trespass, to obtain possession of any property by
means of criminal force or to compel any person to do what he is not legally bound to do by means
of criminal force.

By virtue of section 142 of the PC, a person is said to be a member of the unlawful assembly
when he is aware of the facts that it is an unlawful assembly and had intentionally joined it. The
punishment for this offence under the PC is imprisonment for a term which may extend to six
months, or fine, or both.

The objective of this paper is to solely analysing and criticise deeply about the unlawful
assembly in Malaysia by focusing on the law that governs it.

The structure of this paper is first, it will examine the seriousness and the statistics of
unlawful assembly in Malaysia. Next, this paper will scrutinised the sources of law for unlawful
assembly in Malaysia as there are lots of laws that govern this type of offence and not only relying
on the PC. Furthermore, this paper will be explaining on how the enforcement of unlawful
assembly laws in Malaysia such as the procedures, advantages and disadvantage of it. Lastly, this
paper will analyse the unlawful assembly laws in Malaysia critically as to know whether the law
have any lacunae where it can be improve and the effectiveness of the law.

The reason behind the structure of this paper is to make the reader have a clearer picture
regarding the unlawful assembly in Malaysia as it will not only be explaining in details on what is
unlawful assembly but it will also be explaining the analysis of the effectiveness of the laws such
as whether the law really solve the problems or only just limiting the citizens right.

1
(1988) 88 Cr App R 317
2
Act 574

1
 By writing this paper, it is a big hope that it will be one of the sources for the people
especially the citizen of Malaysia for their knowledge regarding the unlawful assembly in this
country. Other than that, by having this paper it will give an impact for the readers to think broadly
and out of the box regarding the laws in Malaysia specifically the unlawful assembly whether it is
sufficient or it can be improve more. Lastly, by having this paper done, it will help the readers to
know deeply about the unlawful assembly laws in Malaysia.

2
 2. UNLAWFUL ASSEMBLY IN MALAYSIA
In common law, an unlawful assembly is a gathering of at least three persons whose
conduct causes onlookers to reasonably fear that a breach of the peace will result.3 However, there
are noticeable dissimilarities between Penal Code and English common law. Under Malaysian
Penal Code, minimum number of five persons are required to constitute an unlawful assembly.
However, on the other hand a minimum number of three persons are required under English
common law to start an unlawful assembly. The crime of unlawful assembly is covered in the
Penal Code in Chapter VIII for the offences against the public tranquility.

Unlawful assembly is a legal term used to describe an assembly of people with the mutual
intent of inducing deliberate disturbance of harmony and peace. If the group is about to start an act
of disturbance, it is termed a rout, once the disturbance is commenced, it is then termed a riot. 4
Recently in Malaysia, happenings of demonstrations here and there can be heard often. This is
conducted when citizens feel that their certain rights have been deprived. During demonstrations,
participants will gather in large numbers in specified locations to show their thoughts and views
concerning certain matters.

The occurrence of demonstrations in a democratic nation such as Malaysia is common

since the power of the government is in the hands of the citizens. Particia Hewitt pointed out that
the characterization of demonstrations and other forms of public protest becomes a threat to normal
community living and it obscures the basic fact that protest is a part of normal community life and
serves a vital function in a democratic system of government.5

In legal term, unlawful assembly can be defined as stated under Section 141 of the Penal
Code.6 Here it is stated that an assembly of five or more persons is designated as ‘unlawful
assembly’, if the common object of the persons composing that assembly is;

3
Unlawful Assembly Law and Legal Definition. (n.d.). Retrieved from USLegal:
https://definitions.uslegal.com/u/unlawful-assembly/
4
Duhaimie’s Law Dictionary, (n.d.). Unlawful Assembly Definition: Retrieved from
http://www.duhaime.org/LegalDictionary/U/UnlawfulAssembly.aspx on 30th March 2018.
5
Patricia Hope Hewitt is a British Party politician, who served in the Cabinet until 2007, most recently as
Secretary of State for Health. Retrieved from http://aimalaysia.org/promote-freedom-association-assembly on 2nd
of April 2018.
6
Penal Code (Act 574), s 141

3
 a) To confine by criminal force, or display criminal force, the Legislative or Executive
Government of Malaysia or any State, or any public servant in the exercise of the lawful
power such public servant;
b) To resist the execution of any law, or of any legal procedure;
c) To commit any mischief or criminal trespass, or other offences;
d) By means of criminal force, to any person, to take possession of any property, or to
dispossess any person of the enjoyment of a right of way, or of use of water or other
incorporeal right of which he is in possession or enjoyment, or to enforce any right or
supposed right; or
e) By means of criminal force, or show of criminal force, to coerce any person to do what he
is not legally bound to do, or to omit to do what he is legally entitled to do.

Over the past few years in Malaysia, the exercise of freedom of assembly has certainly
come a long way. Although there are definitely a lot of room for enhancements, it appears as
though the authorities nowadays are more willing to lend their assistance to peaceful assemblies
compared to before. Being in a democratic nation, the right to demonstrate and protest is an
essential component and citizens must be given the freedom to assemble peacefully to express
themselves for a particular purpose which is free from unreasonable restrictions, harassment or
intimidation.7

However, there are instances where we can see individuals being prosecuted for
participation in peaceful assemblies. These individuals are frequently arrested, called for
questioning and some have even been charged with criminal offences. Recently, in March 2018, a
law student from Universiti Kebangsaan Malaysia named Asheeq Ali Sethi Alivi had been
suspended for one semester for his participation in the TangkapMO1 rally. Besides Asheeq, four
Universiti Malaya students named Anis Syafiqah Md Yusof, Muhammad Luqman Nul Haqim Zul
Razali, Suhail Wan Azahar and Muhammad Luqman Hakim Mohd Fazli had also filed a suit to

7
Syahredzan Johan. “The right to peaceful assembly.” The Star Online, 11 November 2016,
https://www.thestar.com.my/opinion/online-exclusive/a-humble-submission/2016/11/11/the-right-to-peaceful-
assembly-unlike-the-police-act-before-this-the-peaceful-assembly-act-allows-as/ (accessed April 23, 2018).

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challenge the constitutionality of the University’s subsidiary legislation after they were also found
guilty of participating in the rally.8

In a recent case of Maria Chin Abdullah v. PP9, the accused had appealed against her charge
in the High Court with failing to comply with the requisite 10-day notice to the police before the
two-day Bersih 4 rally in August 2015, which is an offence punishable under the Peaceful
Assembly Act Section 9(5) with a maximum of RM10,000 fine. The accused then appealed but
however her appeal was dismissed.

Maria then told reporters that she welcomed the decision and stated that, “honestly, in the
first place, the rally was peaceful, there was no need to bring it up from the Sessions Court right
up here to the Federal Court. So we still maintain that it’s our right to be on the streets, our right
to expression and we have followed the law,” immediately after the decision.10

Suhakam chairperson Hasmy Agam in a statement said that “An assembly is to be

considered peaceful if its organisers have clarified that its intentions are peaceful and have duly
conveyed them to the authorities.”

8
National Human Rights Society Hakam, “Student groups plan protest rally over suspension of UKM activist.”
http://hakam.org.my/wp/2018/03/14/student-groups-plan-protest-rally-over-suspension-of-ukm-activist/#more-
17839 (accessed April 23,2018).
9
Maria Chin Abdullah v. PP [2016] 5 CLJ 428
10
Ida Lim. “Prosecution fails to revive illegal assembly charge against Bersih chief.” Malaymail, 11 October 2017,
https://www.malaymail.com/s/1484599/prosecution-fails-to-revive-illegal-assembly-charge-against-bersih-chief
(accessed April 20, 2018)

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 3. SOURCES OF LAW FOR UNLAWFUL ASSEMBLY
Universal Declarations of Human Rights

Universal Declarations is a global document that listed all the freedom and basic rights of a human.
Article 20 of the Universal Declaration of Human Rights clearly stated that every person has the
right to have the peaceful assembly11. The Federal Constitution of Malaysia also in accordance
with the Universal Declarations of Human Rights by providing that every person has the right to
assemble peacefully in the absence of any weapon subject to some condition as stated in the article
10(1)(b) of the Federal Constitution of Malaysia. However, a coin has two sides. The peaceful
assembly might become an unlawful assembly due to some action by some person. They are
several of sources of law regarding the unlawful assembly. Firstly, the sources of law that will be
referred are the Penal Code.

Penal Code

Penal Code is one of the important and main sources of law for unlawful assembly. The section
regarding the unlawful assembly was stated in Part eight of the Penal Code. Before we refer to the
provision regarding the offences of unlawful assembly, we need to refer the meaning of the
‘unlawful’ first. According to the section 43 of the Penal Code, unlawful means against the law.
After referring to the section 43 of the Penal Code, we need to cross-refer with the section 141
which stated that the definition of unlawful assembly. According to the section 141 of the Penal
Code, the unlawful assembly defined as the gathering comprised of at least five or more persons
sharing the common object of five type of offences12. The five type of offences were listed in
section 141(a), (b), (c), (d) and also (e). The unlawful assembly in this section did not means that
the assembly must be unlawful from the beginning, the lawful assembly can suddenly become
unlawful assembly when one of the common objects stated in above happen.

Section 142 defines the meaning of the member of the unlawful assembly. According to the
section 142 of the Penal Code, member of the unlawful assembly is those who had knowledge of

11
Yacine Ait, Kaci. "Universal Declaration of Human Rights." Accessed April 25, 2018.
http://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf.
12
Federal Constitution: (as at 20th February 2016). Petaling Jaya: International Law Book Services, 2016.

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facts regarding the unlawful assembly and participate in that unlawful assembly purposely, or
remain in the unlawful assembly. The punishment of participants of the unlawful assembly was
provided in section 143 of the Penal Code. The Penal Code classified the type of participants in
the unlawful assembly, section 144 stated the participants of the unlawful assembly which is
armed. The participants that still remain in the unlawful assembly after the authority disband the
assembly is liable under section 145 of the Penal Code.

Peaceful Assembly Act 2012

The Peaceful Assembly Act 2012 was the latest law regarding the issue of unlawful Assembly.
The Peaceful Assembly Act 2012 was introduced in the year of 2012, which is after the Bersih 2.0
assembly. This statute contains six part. The first part stated the purpose of this statute and also
interpretation for certain terms contained in this statute13. For an example, the definition of
prohibited place, assembly, participants to avoid any confusion when referring to the provision.
The second part of this statute grants the right of organizing and participating in an assembly.
However, this kind of right is subject to certain circumstances which will make the assembly
become the unlawful assembly. The third part of this statute listed the legal obligation of the
organizer, police and also the participants. The fourth part of this statute stated the procedure for
the application of a peaceful assembly. Firstly, there must be the notification regarding the
assembly and the organizer need to make sure the assembly fulfil certain of the condition listed in
section 9 and section 10 of the Peaceful Assembly Act 2012. Then, the organizer needs to obtain
the permission from the person that owns the place of assembly. After that, there will be the
meeting in between the organizer with the officer in charge after the officer in charge receive the
notification from the organizer. During the meeting, terms and prohibition will impose by the
office in charge to the organizer. However, the organizer also has the right to appeal against those
terms and prohibition. The fifth part of this statute is regarding the power conferred to the police
under the provision of this part. The police have the power of arrest according to section 20 of
Peaceful Assembly Act 2012 under certain condition. Besides, the police also have the power to
disband the assembly according to section 21 of Peaceful Assembly Act 2012 under certain

13
Peaceful Assembly Act 2012: Act 736: As at 8 June 2012. Petaling Jaya, Selangor Darul Ehsan, Malaysia:
LexisNexis, 2012.

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circumstances. The final part of this statute contains the different type of provision such as the
regulations, media access, recordings and so on. In a nutshell, Peaceful Assembly 2012 was an
important source regarding unlawful assembly because it always referred in the latest case of
unlawful assembly such as the case of Nik Nazmi Nik Ahmad v Public Prosecutor. In this case,
the court held that the section 9(1) and section 9(5) of Peaceful Assembly Act 2012 ultra vires the
Federal Constitution14.

Criminal Procedure Code

Criminal Procedure Code also one of the sources of the law regarding the unlawful assembly. The
provision pertaining the unlawful assembly was stated in part eight of this statute15. The authority
which has the right to command and instruct the disbandment of the unlawful assembly was stated
in section 83 of the Criminal Procedure Code. The disbandment by the police officer against the
participants in the unlawful assembly can be done by force if it is necessary according to the section
84 of the Criminal Procedure Code. The authority orders the disbandment and using force against
the participants by using the power conferred under section 83 and section 84 can be protected
from the prosecution according to the section 88 of the Criminal Procedure Code subject to certain
conditions.

As a conclusion, there are many sources of law regarding the unlawful assembly such as the
Penal Code, Peaceful Assembly Act 2012, and Criminal Procedure Code and so on. It is
unreasonable to rely on a single statute in order to determine the offence of a person. So, it is
necessary to refer several of the statute in order to give a just and fair judgement. For an example,
the Criminal Procedure Code just state the protection of the authority without stating the protection
or any right regarding the organizer and the participants. However, the right of the organizer and
the participants was stated in the Peaceful Assembly Act 2012. This shows that each of the statutes
with supplement the other statute because it is impossible that one statute can cover everything.

14
Nik Nazmi Nik Ahmad v Public Prosecutor. (Court of Appeal, Putrajaya May 15, 2016).
15
Criminal Procedure Code (Act 593) (as at 1 November 2012). Kuala Lumpur: MDC Publishers, 2012.

8
 4. THE ENFORCEMENT OF UNLAWFUL ASSEMBLY
LAWS IN MALAYSIA

Malaysians citizens have a constitutional right of freedom of assembly. The right to

assemble peacefully without arms involvement is protected under the supreme law of the land.
Freedom of assembly by virtue of Section 10(1)(b) of Federal Constitution regulates that, all
citizens have the right to assemble peaceably and without arms. Also under the act, such
restrictions as it deems necessary or expedient in the interest of the security of the Federation or
any part thereof or public order.

Peaceful assemblies in Malaysia are regulate by the Peaceful Assembly Act 2012 (PAA),
where this act is the principal law for peaceful assemblies to the people in organizing or attending
any assembly in Malaysia. The gist of this act is to govern all matters related to assemblies in
Malaysia.

The abolishment of Section 27 of Police Act 1967 will be replaced by PAA, whereby
police permits or any prior notification were no longer compulsory. The power are not being
diminished as it is enforce with the justification of allowing the police role to ease the assembly.
Nonetheless, a police officer may arrest any organizer or participant without a warrant if he fails
to comply with any restrictions, possess any arms, or recruits or brings a child to an assembly not
permitted under the act. Necessary steps shall be taken by the police officer before exercising his
power to arrest to ensure voluntary compliance.

An assembly may be dispersed by a police officer if it is held at or within 50 meters of a

prohibited place, it becomes street protest, promote ill will or hostility amongst the public, commits
any offence, participants do not comply with the restrictions and engage in unlawful or disorderly
conduct of violence towards persons or property. The third schedule under section 3 of PAA
mentions the prohibited places are water catchments areas, water treatment plants, electricity
generating stations, petrol stations, hospitals, fire stations, airports, railways, land public transport
terminals, ports, canals, docks, wharves, piers, bridges, marinas, places of worship, kindergartens
and schools.

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 According to Section 9(1) of PAA, it is mentions to hold any assembly or gathering, one
is required to give notice to the police 10 days in advance. The police officer will respond to the
notification within five days, outlining the restrictions and conditions imposed. Occasion such as
religious assemblies, funeral processions, wedding receptions, open houses during festivities,
family gathering, company’s family day, and general meeting of association will be exempted
from the 10-days’ notice requirement16.

An assembly may be regarded as unlawful or illegal if the lawful requirements are not met
as of stipulated under section 9(1) or else the conditions provided under section 15 are not being
followed, as there is no interpretation provided by PAA for an assembly to be considered unlawful.
Unlawful assembly member shall be punished with imprisonment for a term which may extend to
six months, or with a fine, or with both17.

In a landmark case decision on 25th April 2014, Nik Nazmi got acquitted after the Court of
Appeal ruled that to criminalize public assemblies in breach of 10-day notice required under
section 9(1) of PAA was unconstitutional18. Nevertheless, in November 2015, a well known case
of Maria Chin Abdullah, Maria was charged in the Session Court with failing to comply with the
requisite 10-day notice before the two-day Bersih 4.0 rally on August 2015 to the police officer.
Later on appeal, Maria was acquitted from the charges against her19. In the case of PP v
Yuneswaran a/l Ramaraj, the Court of Appeal departed from its previous decision and ruled that
it was necessary for organizers to give 10-day notice to the authorities20.

On the other hand, in the Penal Code of Malaysia, section 141 clearly stated that an
unlawful assembly is of five or more persons trying to commit an action that is deemed as a crime
in accordance to the Penal Code. Furthermore, the main ingredient of the unlawful assembly will
be the offence committed in prosecution of common object. Generally, common object in the
context of unlawful assembly, it can be defined as, when one joined an unlawful assembly with
the intention and full knowledge towards the purpose of the assembly, it is deemed that one is
participating in the process of committing a crime. Thus, section 149 of the Penal Code stipulated

16
Schedule 3 of Peaceful Assembly Act 2012
17
Article 143 of Penal Code (Act 574)
18
Nik Nazmi bin Nik Ahmad v PP [2014] 4 MLJ 157
19
Maria Chin Abdullah v PP [2016] 9 MLJ 601
20
[2015] 6 MLJ 47

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that anyone who joined the unlawful assembly shall be deemed to be guilty of the same offence
being committed by any of the member in the assembly in pursuance of Section 146 of the Penal
Code.

In the case of Poovaneswaran Sellan & Anor v PP, where the victim, Muhunthen a/l
Ramasamy was searching around for his cows along the road, around the area of Tan Chong
Motor’s Factory. At the material time, he was riding a motorcycle and was struck down by a white
van coming from behind. Awhile later, six men came out of the van and started to attack the victim.
According to Muhunthen, the first appellant attacked his leg, left and head with a knife. Whilst,
the second appellant attacked the victim’s hands and legs with a hockey stick. He was then being
left there and the victim’s brother came and save him. He was then being hospitalized for 26 days
as he sustained partial amputation at his left hand’s wrist. All of them are being charged with a
sentence of 15 years imprisonment with 12 strokes in pursuance to section 149 of the Penal Code.
In the findings of the court, two important elements had to be proven by the prosecution which is,
all of the appellants were a member of the unlawful assembly and the common object of that
unlawful assembly. The elements can be proved from the testimony of the victim, where he saw
that six persons came out of the van and started to attack him. On the other hand, the second
elements can be proved from the evidence, whereas there was a small quarrel between the
appellants and the victim before the attack. Not only that, the appellant also told that he would
seek for revenge. Therefore, when all of the appellants came out from the van with a knife and
hockey stick and attacked the victim, the common object had been successfully proven from the
action of injuring the victim. However, since all of the offenders are first time offender, the court
setting aside the judgement and substituting it with a sentence of 12 years of imprisonment with
eight strokes21.

21
[2016] 10 CLJ 508

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 6. CONCLUSION
The reason behind the structure of this paper is to make the reader have a clearer picture
regarding the unlawful assembly in Malaysia as it will not only be explaining in details on what is
unlawful assembly but it will also be explaining the analysis of the effectiveness of the laws such
as whether the law really solve the problems or only just limiting the citizens right. In a legal term,
unlawful assembly is describe as an assembly of people with the mutual intent of inducing
deliberate disturbance of harmony and peace which has been explicitly stated under Section 141
of the Penal Code.

There are a number of sources of law in regard of lawful assembly, which are Universal
Declarations of Human Rights, Penal Code, Peaceful Assembly Act 2012 and Criminal Procedure
Code. The existence of all of these sources of law has made it clear that the right of freedom to
assemble as provided under Article 10(1)(b) has been put under certain restrictions. In a relation
to this, every citizen has the right to assemble peacefully and it ought to be noted that an assembly
may be regarded as unlawful or illegal if the lawful requirements are not met as of stipulated under
Section 9(1) or else the conditions provided under Section 15 are not being followed, as there is
no interpretation provided by Peaceful Assembly Act 2012 for an assembly to be considered
unlawful.

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 7. BIBLIOGRAPHY
Legal Statutes
Criminal Procedure Code (Act 593) (as at 1 November 2012). Kuala Lumpur: MDC Publishers,
2012.
Peaceful Assembly Act 2012: Act 736: As at 8 June 2012. Petaling Jaya, Selangor Darul Ehsan,
Malaysia: LexisNexis, 2012.
Federal Constitution: (as at 20th February 2016). Petaling Jaya: International Law Book
Services, 2016.
Penal Code (Act 574)
Cases of Law
R v Mahroof (1988) 88 Cr App R 317
Poovaneswaran Sellan & Anor v Public Prosecutor [2016] 10 CLJ 508
Nik Nazmi bin Nik Ahmad v PP [2014] 4 MLJ 157
Maria Chin Abdullah v PP [2016] 9 MLJ 601
PP v Yuneswaran a/l Ramaraj [2015] 6 MLJ 47
Online Sources
Unlawful Assembly Law and Legal Definition. (n.d.). Retrieved from USLegal:
https://definitions.uslegal.com/u/unlawful-assembly/
Duhaimie’s Law Dictionary, (n.d.). Unlawful Assembly Definition: Retrieved from
http://www.duhaime.org/LegalDictionary/U/UnlawfulAssembly.aspx on 30th March 2018.
Patricia Hope Hewitt is a British Party politician, who served in the Cabinet until 2007, most
recently as Secretary of State for Health. Retrieved from http://aimalaysia.org/promote-freedom-
association-assembly on 2nd of April 2018.
Yacine Ait, Kaci. "Universal Declaration of Human Rights." Accessed April 25, 2018.
http://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf.

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