6- Court For Children 2007

ISLAMIC SCIENCE UNIVERSITY OF M A L A Y S I A Faculty of Syariah and Law

LBA 1043 Malaysian Legal System II

© Muhammad Nizam Awang @ Ali

Special Courts

Court for Children

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Discussio n Points (13)

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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

Objectives of the Child Act 2001 Preamble

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

Definition of Child – s.2 a) Under 18 years b) In criminal proceedings, refer to s. 82 of the Penal Code 10 years old - age of criminal responsibility

Issue: Who is the court Court Members – s.11(3) members? -. S11(3) 1. Magistrate 2. 2 Advisers (one shall be a woman) - Appointed by the Minister-incharge - Functions: a) to advise before the court may consider the verdict b) if necessary, to advise parent/guardian of the

a)

Court Jurisdiction – s.11(5)

Jurisdiction to try – s.11(5) All offences except those punishable with death

b) Jurisdiction to impose sentence  Class A: 10 to 13 years old s.96(1) – Shall not be imprisoned for offence; or – Shall not be imprisoned in default of payment of fine, compensation

Court Jurisdiction (2) 

Class B: 14 to 18 years old - s.96(2)) – Shall not be imprisoned unless there is other suitable way e.g. send him to Henry Gurney School

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On death sentence (e.g murder) S.97 – The child will be tried in the ordinary court (High Court) – But…sentence of death may be imposed only after he has attained the age of majority – Thus, before attaining 18, the child will be detained under the pleasure of YDPA/ Ruler of

Court Jurisdiction (3)  Ali,

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

Court Jurisdiction (3) The answer….. YES!! 

The court may exercise the power under: – s.76 – s.91(a) to (g); or – to impose the punishment likewise the Session Court (if the offence is punishable with

Out of Court Jurisdiction  Offence

s.11(5)

punishable with death –

 Cases

under s. 3 of the ESCAR Regulation

 The

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

Out of Court Jurisdiction (2)  Jointly

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

Arrest  The

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

 Otherwise,

s.84(2)

the police officer can use

 Case:  Re

N ( A Child) [2003] 3 MLJ 45

Bail A

child should be released on bail, except for the following grounds: 1. He commits one of the ‘grave crimes’ – ‘Grave crimes’? – s.2 a) murder, culpable homicide not amounting to murder b) under Firearms (Increased Penalties) Act 1971 c) under ISA 1960 d) under Dangerous Drugs Act 1952 e) under Kidnapping Act 1961

Bail (2)  2.

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

 3.

If such release would ‘defeat the end of justice’!! (i.e he has absconded from home, or approved school)  Case:  PP v. Saiful Afikin Mohd Firus [1996] 4 MLJ 309

Detention Pending Trial 

Child may be detained while waiting (or during) for trial – s.86(1), unless – It is impractical to do so – He has unruly or depraved character that makes him not safely detained – Inadvisable to detain him because of his state of health, mental or body condition

Detention Pending Trial (2)  Place

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

Separation from Adult 

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

– Presence of the child (s.85(a)) – To ensure the child under the care of woman (if the child is a girl) (s.85(b)) from being taped on any manner – 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 stage  Custody of child  Suspicion of offence under First Schedule

Media Reporting (2) 

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

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

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

Parents Attendance during Trial  Parents

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

 Failure

to attend – may be liable to:  RM5,000 fine  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) Read and explain the substance of charge

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

No

(4) The Court shall(5) The Court shall hear the evidence of witness (b) ascertain that the child understands and (6) cross-examination of the witness the nature and consequences of his admission; and (b) record a finding of guilt. No Any legal representation? (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

Conduct of Proceeding (2) Any prima facie case?

(9) Yes

No

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.

(10) Not Guilty

(11) Guilty

Case dismissed

Conduct of Proceeding (3) (10) Not Guilty

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

(11) Guilty

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 .

2. But, CFC shall not be bound by such opinion H/ever, the CfC shall and record reason(s) consider this first!!! for dissenting such opinion(s) s.90(18) 1. H/ever, the court shall consider probation report prepared probation officer – s.90(12). For the contents of the report: s.90(13) Types of order? 2. After considering the report, the court shall explain refer to the power of something about the report – s.90(15) (16) the court (next pg)

Court Power (a) admonish and discharge the child; (b) discharge the child upon his executing a bond to be of good behaviour and to comply with such conditions as may be imposed by the Court; (c) order the child to be placed in the care of a relative or other fit and proper person(i) for such period to be specified by the Court; and (ii) with such conditions as may be imposed by the Court; (d) order the child to pay a fine, compensation or costs;

Court Power (2) Power of the CfC (f) order the child to be sent to an approved school or a Henry Gurney School; (g) order the child, if a male, to be whipped with not more than ten strokes of a light cane(i) within the Court premises; and (ii) in the presence, if he desires to be present, of the parent or guardian of the child; (h) impose order of imprisonment which could be awarded by a Sessions Court - if : - he is 14 years and above and - the offence is punishable with imprisonment and subject to s.96(2)

Cases in Discussion  Khairudin

v. PP [1969] 1 MLJ 45  PP v. Ramli Long & Anor [1993] 1 MLJ 93  PP v. Yap Min Woie [1996] 1 MLJ 169  PP v. Ayasamy [1955] 1 MLJ 64  PP v. Saiful Afikin bin Mohd Firus [1996] 4 MLJ 309  PP v. Mohd Turmizy Mahdzir & Anor [2007] 9 CLJ 187

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R e c a p

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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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