6- court for children 2007

Court for Court for ChildrenChildren

LBA 1043 Malaysian Legal System II

© Muhammad Nizam Awang @ Ali

ISLAMIC SCIENCE UNIVERSITY OF M A L A Y S I A

Faculty of Syariah and Law

Special Courts

Objective of the Act’ Definition of child Court Members Court Jurisdiction Out of court Jurisdiction Arrest Bail Detention pending trial Media reporting Parent attendance during trial Separation from adults Conduct of proceeding Court power

DiscussioDiscussionn

Points Points

(13)(13)

Objectives of the Child Act 2001

PreamblePreamble

‘‘An act to consolidate and An act to consolidate and amend the laws relating to the amend the laws relating to the care, protection, rehabilitation care, protection, rehabilitation of children and to provide of children and to provide matters connected therewith matters connected therewith and incidental thereto.’and incidental thereto.’

Definition of Child – s.2

a) a) Under Under 18 years18 years

b)b) In criminal proceedings, refer to s. In criminal proceedings, refer to s. 82 of the Penal Code82 of the Penal Code

10 years old - age of criminal 10 years old - age of criminal responsibilityresponsibility

Issue: Who is the court Issue: Who is the court members? -. S11(3)members? -. S11(3)

1. Magistrate 1. Magistrate

2.2. 2 Advisers (one shall be a woman)2 Advisers (one shall be a woman)

- Appointed by the Minister-in-charge- Appointed by the Minister-in-charge

- Functions:- Functions:

a) a) to advise before the court to advise before the court may may consider the verdict consider the verdict

b)b) if necessary, to advise if necessary, to advise parent/guardian of the childparent/guardian of the child

Court Members – s.11(3)Court Members – s.11(3)

a)a) Jurisdiction to try – s.11(5)Jurisdiction to try – s.11(5)All offences except those All offences except those

punishable with deathpunishable with death

b) b) Jurisdiction to impose sentence Jurisdiction to impose sentence Class A: 10 to 13 years old - Class A: 10 to 13 years old -

s.96(1)s.96(1)– Shall not be imprisoned for offence; orShall not be imprisoned for offence; or– Shall not be imprisoned Shall not be imprisoned in default ofin default of

payment of fine, compensationpayment of fine, compensation

Court Jurisdiction – Court Jurisdiction – s.11(5)s.11(5)

Court Jurisdiction (2)Court Jurisdiction (2)

Class B: 14 to 18 years old - s.96(2))Class B: 14 to 18 years old - s.96(2))– Shall not be imprisoned unless there is other Shall not be imprisoned unless there is other

suitable way e.g. send him to Henry Gurney suitable way e.g. send him to Henry Gurney SchoolSchool

On death sentence (e.g murder) - S.97On death sentence (e.g murder) - S.97– The child will be tried in the ordinary court (High The child will be tried in the ordinary court (High

Court)Court)– But…sentence of death may be imposed only after But…sentence of death may be imposed only after

he has attained the age of majority he has attained the age of majority – Thus, before attaining 18, the child will be detained Thus, before attaining 18, the child will be detained

under the pleasure of YDPA/ Ruler of the Stateunder the pleasure of YDPA/ Ruler of the State

Ali, 16, was charged for robbery. Ali, 16, was charged for robbery. Whilst proceeding was still running Whilst proceeding was still running he has already attained the age of he has already attained the age of 19. Can the proceeding continues? 19. Can the proceeding continues? How he is going to be punished? How he is going to be punished?


The answer…..The answer…..YESYES!!!!

The court may exercise the power under:The court may exercise the power under:– s.76s.76

– s.91(a) to (g); ors.91(a) to (g); or

– to impose the punishment likewise to impose the punishment likewise the Session Court (if the offence is the Session Court (if the offence is punishable with imprisonment)punishable with imprisonment)


Offence punishable with death – Offence punishable with death – s.11(5)s.11(5)

Cases under s. 3 of the ESCAR Cases under s. 3 of the ESCAR RegulationRegulation

The child is already 18 at the time of The child is already 18 at the time of charge made (though the offence charge made (though the offence committed before he is 18!!) – s.83(3)committed before he is 18!!) – s.83(3)

Out of Court JurisdictionOut of Court Jurisdiction

Jointly charged with person above 18 Jointly charged with person above 18 – s.83(4)– s.83(4)– Child will be charged in CFC Child will be charged in CFC – Adult will be charged in ordinary Adult will be charged in ordinary

courtscourts

Out of Court Jurisdiction Out of Court Jurisdiction (2)(2)

Arrest Arrest

The child shall be brought to the The child shall be brought to the Magistrate within 24 hours – s.84(1) Magistrate within 24 hours – s.84(1)

Otherwise, the police officer can use Otherwise, the police officer can use s.84(2)s.84(2)

Case: Case: Re N ( A Child) [2003] 3 MLJ 45

BailBail

A child should be released on bail, except A child should be released on bail, except for the following grounds:for the following grounds:1.1. He commits one of the ‘grave He commits one of the ‘grave

crimes’crimes’– ‘‘Grave crimes’? – s.2Grave crimes’? – s.2

a) murder, culpable homicide not amounting to a) murder, culpable homicide not amounting to murdermurder

b) under Firearms (Increased Penalties) b) under Firearms (Increased Penalties) Act 1971Act 1971

c) under ISA 1960c) under ISA 1960

d) under Dangerous Drugs Act 1952d) under Dangerous Drugs Act 1952

e) under Kidnapping Act 1961e) under Kidnapping Act 1961

Bail

2.2. In the child interest, to avoid In the child interest, to avoid ‘undesirable person’ (that may bring ‘undesirable person’ (that may bring ‘bad influence’ on him)‘bad influence’ on him)

3. If such release would ‘defeat the end 3. If such release would ‘defeat the end of justice’!! (i.e he has absconded of justice’!! (i.e he has absconded

from from home, or approved school)home, or approved school) Case: Case: PP v. Saiful Afikin Mohd Firus [1996] 4 PP v. Saiful Afikin Mohd Firus [1996] 4

MLJ 309MLJ 309

Bail (2)

Detention Pending Trial

Child may be detained while waiting Child may be detained while waiting (or during) for trial (or during) for trial – s.86(1), unless– s.86(1), unless

– It is It is impracticalimpractical to do so to do so– He has unruly or He has unruly or depraved depraved

charactercharacter that makes him not that makes him not safely detainedsafely detained

– Inadvisable to detain him because Inadvisable to detain him because of his state of of his state of health, mental or health, mental or body conditionbody condition

Place of detention - s.86(2)Place of detention - s.86(2)– Police station Police station – Mental hospitalMental hospital

Detention Pending Trial (2)

Separation from Adult

Should be separated from adult in Should be separated from adult in detention, conveyance or waiting/ after detention, conveyance or waiting/ after attendance in any court:attendance in any court:

– Presence of the child (s.85(a)) Presence of the child (s.85(a))

– To ensure the child under the care of To ensure the child under the care of woman (if the child is a girl) (s.85(b)) woman (if the child is a girl) (s.85(b)) from being taped on any mannerfrom being taped on any manner

– Picture of the child (s.85(c)) Picture of the child (s.85(c))

Media Reporting

No coverage is allowed. Media shall not: 1. Reveal name, address, institution

or any particulars that may lead to an identification regarding:

Pre-trial, trial or post-trial stageCustody of childSuspicion of offence under First Schedule

Any proceedings under Part V- s.15(1)

2. 2. PublishPublish child picture child picture or any other person, place or things that may lead to the identification of the child –s.15(2)

Breach of prohibition: Breach of prohibition: RM10,000 fine, 5 years’ imprisonment @ both –s.15(4)

Prohibition waived Prohibition waived if it is in the interests of justice or with an application/ an authority of ‘Protector’(s.2)

Media Reporting (2)

Parents AttendanceParents Attendanceduring Trialduring Trial

Parents attendance is moral and Parents attendance is moral and legal duty, unless it would be legal duty, unless it would be reasonable to do so – s.88(1)reasonable to do so – s.88(1)

Failure to attend – may be liable to:Failure to attend – may be liable to: RM5,000 fineRM5,000 fine 2 years’ imprisonment – s.88(2)2 years’ imprisonment – s.88(2)

Conduct of Proceeding- s.90(1) Child brought before the court for

the alleged offence-Duty of the court : explain to him in simple language suitable to his age, maturity and understanding of the alleged offence

(3) Ask whether the child admit the facts of the alleged offence

(3) Read and explain the substance of charge

Yes No

(4) The Court shall-(a) ascertain that the child understands

the nature and consequences of his admission; and

(b) record a finding of guilt.

(5) The Court shall hear the evidence of witness and (6) cross-examination of the witness

(7) CfC shall allow parent/other responsible person to assist in the defence

(8) If the child is legally represented, the CfC may put any relevant question or witness as it think necessary on behalf of the child

Any legal representation? No

Any prima facie case?

(9) Yes

a) The Court shall explain to the child the substance of the evidence against him and any points in the evidence which specially tell against him or require his explanation;

(b) The child shall be allowed to- (i) sworn statement; or (ii) make any statement if he so desires; and

(c) The evidence of any witness for the defence shall be heard.

No

Case dismissed

(10) Not Guilty (11) Guilty

Conduct of Proceeding (2)

(10) Not Guilty (11) Guilty

The Court shall record an order of acquittal. The court shall

(a) record a finding of guilt; or(b) Has satisfied that the offence is proved,

- So, the child and his parent/guardian/other responsible person shall be asked about extenuation or mitigation of the penalty if they desire .

1. H/ever, the court shall consider probation report prepared probation officer – s.90(12). For the contents of the report: s.90(13)2. After considering the report, the court shall explain something about the report – s.90(15) (16)

H/ever, the CfC shall consider this first!!!

1. Before giving order, the CfC shall ascertain & record 2 advisers’ opinions - s.90(17)

2. But, CFC shall not be bound by such opinion and record reason(s) for dissenting such opinion(s)s.90(18)

Types of order?refer to the power of the court (next pg)

Conduct of Proceeding (3)

Court Power(a) (a) admonish and dischargeadmonish and discharge the child; the child;

(b) discharge the child upon his executing a (b) discharge the child upon his executing a bond to be bond to be of good behaviourof good behaviour and to comply with such conditions and to comply with such conditions as may be imposed by the Court;as may be imposed by the Court;

(c) order the child (c) order the child to be placed in the careto be placed in the care of a relative of a relative or other fit and proper person-or other fit and proper person-(i) (i) for such period to be specified by the Court; andfor such period to be specified by the Court; and(ii) (ii) with such conditions as may be imposed by the with such conditions as may be imposed by the Court;Court;

(d) order the child (d) order the child to pay a fine, compensation or to pay a fine, compensation or costscosts;;

(e) make a (e) make a probationprobation orderorder under section 98; under section 98;

Power of the CfCPower of the CfC(f) order the child to be sent to an (f) order the child to be sent to an approved school or a approved school or a

Henry Gurney SchoolHenry Gurney School;;

(g) order the child, if a (g) order the child, if a malemale, to be , to be whipped with not whipped with not more than ten strokesmore than ten strokes of a light cane- of a light cane-(i) within the (i) within the CourtCourt premisespremises; and; and

(ii) in the (ii) in the presencepresence, if he desires to be present, of the , if he desires to be present, of the parentparent or guardian of the child; or guardian of the child;

(h) (h) impose order of imprisonmentimpose order of imprisonment which could be which could be awarded by a Sessions Court - if :awarded by a Sessions Court - if :- he is 14 years and above and- he is 14 years and above and- the offence is punishable with imprisonment and - the offence is punishable with imprisonment and subject to s.96(2)subject to s.96(2)

Court Power (2)

Cases in DiscussionCases in Discussion

Khairudin v. PP [1969] 1 MLJ 45Khairudin v. PP [1969] 1 MLJ 45 PP v. Ramli Long & Anor [1993] 1 MLJ PP v. Ramli Long & Anor [1993] 1 MLJ

9393 PP v. Yap Min Woie [1996] 1 MLJ 169PP v. Yap Min Woie [1996] 1 MLJ 169 PP v. Ayasamy [1955] 1 MLJ 64PP v. Ayasamy [1955] 1 MLJ 64 PP v. Saiful Afikin bin Mohd Firus [1996] PP v. Saiful Afikin bin Mohd Firus [1996]

4 MLJ 3094 MLJ 309 PP v. Mohd Turmizy Mahdzir & Anor PP v. Mohd Turmizy Mahdzir & Anor

[2007] 9 CLJ 187[2007] 9 CLJ 187

RReeccaap p

Objective of the Act’ Definition of child Court Members Court Jurisdiction Out of court Jurisdiction Arrest Bail Detention pending trial Media reporting Parent attendance during trial Separation from adults Conduct of Proceeding Court Power

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Court Martial Legislation: Armed Forces Act 1977

6- court for children 2007

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