The Star online. News. Courts. Tuesday September 18, 2007
PUTRAJAYA: The Federal Court has reserved its judgment on the prosecution’s appeal against a Court of Appeal’s decision to release a teenager detained in prison at the pleasure of the King for the murder of his tuition teacher’s daughter five years ago.
Chief Justice Ahmad Fairuz Sheikh Abdul Halim, Court of Appeal president Justice Abdul Hamid Mohamad, Chief Judge of Malaya Justice Alauddin Mohd Sheriff, Chief Judge of Sabah and Sarawak Justice Richard Malanjum and Federal Court judge Tan Sri Zaki Tun Azmi said they needed time to deliberate the matter as it involved the Federal Constitution.
The same panel also dismissed Karpal Singh’s application to recuse the Chief Justice and Justice Zaki from hearing the appeal.
The boy, who turned 18 last month, was freed on July 25 because Malaysia has no law that can sentence a child convicted of murder.
In 2003, the High Court found the boy guilty of murdering the 11-year-old girl at her house here, by stabbing her 20 times and slashing her four times with a sharp object on May 30, 2002, and ordered him to be detained at the pleasure of the King. The boy was 12 when he killed the girl.
On July 12, the Court of Appeal upheld the conviction but ruled that the sentencing was “unconstitutional” as Section 97(2) of the Child Act 2001, which provided for this sentence violated the doctrine of separation of powers by giving the Executive the judicial power to set the term to be served by a juvenile offender.
However, Attorney-General Tan Sri Abdul Gani Patail argued that the Child Act 2001 was validly passed by Parliament and the High Court could pass a sentence allowed by the law.
That law said the only sentence for a juvenile convicted of murder was that he or she would have to be detained at the pleasure of the King.
The boy’s counsel Karpal Singh, however, had argued that the country operated on the doctrine of the separation of powers and the Federal Constitution clearly set out the different roles of the legislative, executive and judiciary.
“There is constitutional guarantee of these arms being independent of each other and it is the doctrine of separation of powers which pervades in the parts and chapters adverted to.”
He added in this case, the offence for murder carried a death sentence, so it was not punishable by law, as Section 97(2) and 97(4) of the Child Act was void.
Showing posts with label Child Act 2001. Show all posts
Showing posts with label Child Act 2001. Show all posts
Wednesday, 19 September 2007
Sunday, 19 August 2007
2007 08: Remand at welfare homes
The Star Online. News. Nation. Monday August 13, 2007
KUALA LUMPUR: The Attorney-General’s Chambers has proposed that minors involved in minor offences be remanded in welfare homes instead of prisons.
Attorney-General Tan Sri Abdul Gani Patail said he had discussed the matter with the police and Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil.
“I am very reluctant to charge minors, especially those detained for identity card offences or other offences deemed petty.
“I believe they must be given a second chance. If they are put in prisons then there is a strong possibility that they may be bitter and become even worse upon release.
“It is better if they are remanded in welfare homes where they can be educated and rehabilitated,” he told The Star.
It was reported that there are about 400 young people being remanded in prisons awaiting trial.
Gani said he was sensitive to public reaction and appreciated the expressions of concern.
“To us such reactions are like information and we listen so that we can do justice to those concerned,” he added.
Gani said that in some cases he had no choice but to charge minors and bind them over.
“But if they are caught again they would be remanded in prisons,” he said.
He said details were being finalised on the type of remand centres needed and their locations and he had asked the Prisons Department to inform the Chambers of any minors being charged with petty offences.
He said before a person was sent to a welfare home, the necessary checks would be made to ascertain the type of offences and if it involved a first-time offender.
On another subject, Gani said he had also discussed with Inspector-General of Police Tan Sri Musa Hassan on how best to handle witnesses.
He said there have been weaknesses in the handling of witnesses.
“I don’t want to point fingers at anyone.
“We follow strictly the three basic ideals and principals of prosecution that is to ensure a fair trial, protect the accused rights and finally to disclose evidence that is favourable to the accused,” he said.
KUALA LUMPUR: The Attorney-General’s Chambers has proposed that minors involved in minor offences be remanded in welfare homes instead of prisons.
Attorney-General Tan Sri Abdul Gani Patail said he had discussed the matter with the police and Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil.
“I am very reluctant to charge minors, especially those detained for identity card offences or other offences deemed petty.
“I believe they must be given a second chance. If they are put in prisons then there is a strong possibility that they may be bitter and become even worse upon release.
“It is better if they are remanded in welfare homes where they can be educated and rehabilitated,” he told The Star.
It was reported that there are about 400 young people being remanded in prisons awaiting trial.
Gani said he was sensitive to public reaction and appreciated the expressions of concern.
“To us such reactions are like information and we listen so that we can do justice to those concerned,” he added.
Gani said that in some cases he had no choice but to charge minors and bind them over.
“But if they are caught again they would be remanded in prisons,” he said.
He said details were being finalised on the type of remand centres needed and their locations and he had asked the Prisons Department to inform the Chambers of any minors being charged with petty offences.
He said before a person was sent to a welfare home, the necessary checks would be made to ascertain the type of offences and if it involved a first-time offender.
On another subject, Gani said he had also discussed with Inspector-General of Police Tan Sri Musa Hassan on how best to handle witnesses.
He said there have been weaknesses in the handling of witnesses.
“I don’t want to point fingers at anyone.
“We follow strictly the three basic ideals and principals of prosecution that is to ensure a fair trial, protect the accused rights and finally to disclose evidence that is favourable to the accused,” he said.
Monday, 13 August 2007
2007 08: Ministry studying issue of children under remand
The Star Online. News. Nation. Sunday August 12, 2007
PETALING JAYA: The Ministry of Women, Family and Community Development is looking into the issue of children under remand.
Its Minister, Datuk Seri Shahrizat Abdul Jalil, who visited the Kajang Prison in May, said the issue was discussed at the National Advisory and Consultative Council for Children.
The council set up a committee consisting of representatives from the ministry, the police, Attorney-General’s chambers, the Prison Department, courts and several related NGOs.
After a series of meetings, the committee came up with several proposals to be submitted to the council.
Among the proposals are making bails more affordable for parents or guardians, fast-tracking children’s cases, ensuring that children get legal aid and ensuring that remand centres for children have child-friendly facilities.
Provisions such as education, recreational activities and health would also be included in these remand centres.
Shahrizat said the policy on children was that only those charged with serious offences could be remanded in prison.
“The non-serious offenders should be remanded under the Department of Social Welfare. We are also looking at moving these children to the centre under the department,” she said.
Shahrizat was referring to the case of Jeff Lee Kwong Yong, 19, who was jailed more than six months after pleading guilty to an identity card offence. The case had been postponed five times.
.............................................................
Not the place for children
The Star Online. Opinion. Sunday August 12, 2007
There is an urgent need to set up special courts with magistrates assigned solely to cases involving children, and to expedite court hearings. The Child Act 2001 has to be enforced in spirit and not just in letter.
JEFF Lee Kwong Yong is now safely back home after being held in remand at Kajang prison for six months and seven days. With the welfare of one boy now taken care of, there are now in excess of 400 boys left to be dealt with – in Kajang prison alone.
In Malaysia, an accused is presumed to be innocent until proven guilty. Unfortunately, for these 400 boys, they appear to be receiving punishment even before they have been tried. This is all because – for one reason or another – bail has not been posted pending their respective trials.
Some of them, like Lee, end up spending terms that exceed the incarceration period for their offence as prescribed by law.
Lee, at 19, is not considered a child (under the Child Act 2001, a child is 18 years of age and below) but a young offender (below 21), hence his incarceration in this particular place of detention.
Notwithstanding Lee's age, a six-month incarceration may seem to be excessive punishment for a minor offence like not being able to produce an identity card, but according to the strict letter of the law, it is all by the book.
Under Section 84 of the Child Act 2001, a child must be brought before a magistrate in a Court For Children within 24 hours to determine bail.
The problem, however, arises in instances where the accused is not bailed. According to Section 86 (1) of the said Act, a child awaiting trial who has not been bailed shall be held in a “place of detention”. Kajang Prison has been gazetted as such.
The Malaysian Bar Council Criminal Law committee chairman Datuk V. Sithambaram, who was also legal counsel for Lee, says, “Most of them are being held for bailable offences but their families have not posted bail. Therefore, if they are not bailed, they inevitably end up spending time there.”
Lawyer Yapp Swee Hock, who works together with the Shelter Home for Children on certain cases, adds that many are detained on minor offences where the bail set is very low, sometimes as low as RM500. One child, for example, is still in Kajang Prison for stealing a motorcycle because his parents were not able to come up with RM1,000 for bail.
Why then are these cases not expedited so they do not spend extended time in prison? Says Sithambaram: “To be fair to the courts, there is a shortage of magistrates, interpreters and courts – all these have resulted in cases being adjourned for long periods. We have the same magistrates who sit in the Court for Children who are also handling traffic cases.”
Additionally, there are other mitigating circumstances that can lead to delays in the system.
In the case of Lee, says Sithambaram, he could not remember his IC number and refused to let his family know of his whereabouts, which contributed to his case being postponed up to six times because they were unable to verify his identity.
But he qualifies, “Everything is online, and they knew four months earlier that he was working in Kuala Lumpur, so it should not have taken six months to verify.”
Another issue is that some children who appear in the Court for Children for bail hearings do not have legal representation.
Yapp says that some are represented, but not all of them are.
“It all depends if the parents have appointed a lawyer or not. As for free Legal Aid, they would not necessarily know as the bail hearing is set soon after the charge. So if nobody knows they are being detained, nobody will take any action.”
Yapp also believes that some of the children's families cannot afford a lawyer. “If they cannot even afford the deposit for the lawyer, what more the bailable amount?”
James Nayagam, executive director of Shelter, is distressed that such situations can arise.
“They are supposed to have legal representation, but in most cases they do not. This worries me because they are just children and have to stand alone with no protection – so off they go to Kajang Prison.”
Nayagam says that sadly Kajang Prison is not the only place that has been gazetted as a “place of detention”, and there are more conducive environments where children can be held in remand, such as the Tunas Bakti boarding schools.
“Simply put, it appears the magistrates are not aware of, and not even provided with a list of options besides Kajang Prison, so they follow whatever is convenient.”
Sithambaram believes that there is a need for a revamp of the whole system. Special courts for children need to be set up that are different and separate from the normal courts, with dedicated magistrates assigned solely to take care of cases involving children, and not just deal with the problems when they crop up.
“This concerns the rights of children. One should take serious notice because if you do not, the people will lose respect for the Rule of Law. In that context, children are a major issue. The Child Act has to be enforced in spirit and not just in letter,” he adds.
Fortunately, the outlook is not all doom and gloom, and Nayagam speaks of a task force – of which he is a member – set up in March this year, the brainchild of Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil.
The task force is headed by Datuk Shamsiah Abdul Rahman, with its members consisting of personnel from the Attorney-General's department, the Judiciary, the Police, the Social Welfare Department and the Legal Aid department.
“Our main task is to advise the minister on the well-being of children in detention and to present a fast track for court hearings. We have come up with a proposed flow chart on how to deal with such cases,” Nayagam says.
Among the issues proposed are to have parents and a social welfare officer – as a protector – present at the time of the police report, and a maximum detention period of one month or less if possible.
“Not only are we looking to reduce the number of cases, but also rehabilitation programmes at centres with proper facilities. We also need proper detention centres – it should be more like a hostel managed with the co-operation of the Prisons Department, and upon release, there should be a follow-up to the well-being of the child. We should no longer need the services of a prison.”
Nayagam adds: “I am very encouraged by the participation of the members and would like to thank them for speaking freely and being committed to dealing with the situation.”
.............................................................
Something is very wrong with us
The Star Online. Opinion. Wednesday August 15, 2007
The 2,718 male children aged 14-20 being remanded in prisons to abuse of toddlers, some resulting in death, by young parents, are indeed worrying to say the least. Yet little seems to be done to reduce or to prevent this from happening altogether.
YOUNG people are in the news again, with the recent furore about them being remanded in prison. Although it may be too late for many of them, hopefully the concern expressed by NGOs, the public and the Government will mean that no more children and young ones will be subject to prison for the smallest of offences.
However, we have to wonder why there are already 2,718 male children aged 14-20 in prisons before someone finally made a fuss. Surely it was already an injustice for the very first child to have been held in prison. Why had nobody raised the issue earlier? Surely even prison wardens must have known this was not right.
Some of these children were arrested for not having their identity cards on them. As much as this is an offence under the law, surely it should not lead to prison especially for children. Do we follow the law in automatic fashion leaving no room for humanitarian considerations?
Having now realised that there are all these children in prisons, in what way will we compensate for their loss of childhood? Prison is hardly the most conducive place for children.
Who knows what sorts of things are now wired into the minds of these unfortunate young people setting the course for their futures.
Teenage years are a particularly sensitive time and not handling them correctly can lead to later misbehaviour. How do we prevent that from happening? Or do we simply blame them later without considering our own complicity?
It seems to be a particularly Malaysian thing to not spend much effort on prevention when often it is much easier to do than to sweep up the after-effects of lack of forethought later.
Our refusal to teach young people proper sex education means that unwed pregnancies are not prevented. Even if young people get married because there is a baby on the way, what do we do to prepare them for the many responsibilities of marriage including the stresses and strains that one can expect?
If there is one thing that seems to be common among the recent cases of child abuse is how young the parents are, barely out of childhood themselves. In the recent death of a 17-month-old toddler, the mother was 18 and the father was 22. The child was the elder of their two children.
In Penang, a 22-year-old man pleaded guilty to physically and emotionally abusing his girlfriend’s two-year-old daughter. Another 25-year-old man in Kota Kinabalu was accused of abusing his lover’s four-year-old son.
Perhaps when a baby ceases to be cute and becomes ever-more demanding, young parents become less patient. Perhaps they are no longer with their child’s other biological parent and feel less secure with their new boyfriend or girlfriend.
Nothing could be less attractive than a wailing child. Perhaps one day it just got too much.
We should realise that sometimes prevention has to start several steps before the very dangers we want to prevent. If we had good sex education in schools which talks about risks and responsibilities, we might avoid teenage pregnancies altogether.
If we counselled couples that did get pregnant and had to get married, we might be able to teach them better ways of handling conflict. As it is, many premarital courses are just another step on the way towards getting that marriage certificate.
As the Mufti of Perlis has pointed out, for all the premarital courses we’ve had, the divorce rates (among Muslims) hasn’t reduced. Perhaps if we taught young people parenting and relationship skills, and told them where they can get help, their young children may not become vulnerable to abuse.
Of course, it’s not just young parents who are the ones who abuse children but it does seem to be a common thread in recent cases that have not been remarked on.
Ultimately what will happen to these cases? The abusers will probably wind up in jail, which leaves the question of what will happen to their children.
Are they likely to abuse children who are not theirs, that they should be put away from society?
Or do we serve society better if we rehabilitate these parents, perhaps help to solve the problems that may have put unbearable pressures on them. That may include having to deal with adult abuse as well.
In order to really deal with the many social issues that we have, we need to approach things from a holistic perspective, with the understanding that they rarely occur in isolation. Factors in the environment create the dangerous scenario and then something triggers it off. We need to ascertain what those are.
Otherwise we’ll continue to shake our heads at more child tragedies.
By MARINA MAHATHIR
PETALING JAYA: The Ministry of Women, Family and Community Development is looking into the issue of children under remand.
Its Minister, Datuk Seri Shahrizat Abdul Jalil, who visited the Kajang Prison in May, said the issue was discussed at the National Advisory and Consultative Council for Children.
The council set up a committee consisting of representatives from the ministry, the police, Attorney-General’s chambers, the Prison Department, courts and several related NGOs.
After a series of meetings, the committee came up with several proposals to be submitted to the council.
Among the proposals are making bails more affordable for parents or guardians, fast-tracking children’s cases, ensuring that children get legal aid and ensuring that remand centres for children have child-friendly facilities.
Provisions such as education, recreational activities and health would also be included in these remand centres.
Shahrizat said the policy on children was that only those charged with serious offences could be remanded in prison.
“The non-serious offenders should be remanded under the Department of Social Welfare. We are also looking at moving these children to the centre under the department,” she said.
Shahrizat was referring to the case of Jeff Lee Kwong Yong, 19, who was jailed more than six months after pleading guilty to an identity card offence. The case had been postponed five times.
.............................................................
Not the place for children
The Star Online. Opinion. Sunday August 12, 2007
There is an urgent need to set up special courts with magistrates assigned solely to cases involving children, and to expedite court hearings. The Child Act 2001 has to be enforced in spirit and not just in letter.
JEFF Lee Kwong Yong is now safely back home after being held in remand at Kajang prison for six months and seven days. With the welfare of one boy now taken care of, there are now in excess of 400 boys left to be dealt with – in Kajang prison alone.
In Malaysia, an accused is presumed to be innocent until proven guilty. Unfortunately, for these 400 boys, they appear to be receiving punishment even before they have been tried. This is all because – for one reason or another – bail has not been posted pending their respective trials.
Some of them, like Lee, end up spending terms that exceed the incarceration period for their offence as prescribed by law.
Lee, at 19, is not considered a child (under the Child Act 2001, a child is 18 years of age and below) but a young offender (below 21), hence his incarceration in this particular place of detention.
Notwithstanding Lee's age, a six-month incarceration may seem to be excessive punishment for a minor offence like not being able to produce an identity card, but according to the strict letter of the law, it is all by the book.
Under Section 84 of the Child Act 2001, a child must be brought before a magistrate in a Court For Children within 24 hours to determine bail.
The problem, however, arises in instances where the accused is not bailed. According to Section 86 (1) of the said Act, a child awaiting trial who has not been bailed shall be held in a “place of detention”. Kajang Prison has been gazetted as such.
The Malaysian Bar Council Criminal Law committee chairman Datuk V. Sithambaram, who was also legal counsel for Lee, says, “Most of them are being held for bailable offences but their families have not posted bail. Therefore, if they are not bailed, they inevitably end up spending time there.”
Lawyer Yapp Swee Hock, who works together with the Shelter Home for Children on certain cases, adds that many are detained on minor offences where the bail set is very low, sometimes as low as RM500. One child, for example, is still in Kajang Prison for stealing a motorcycle because his parents were not able to come up with RM1,000 for bail.
Why then are these cases not expedited so they do not spend extended time in prison? Says Sithambaram: “To be fair to the courts, there is a shortage of magistrates, interpreters and courts – all these have resulted in cases being adjourned for long periods. We have the same magistrates who sit in the Court for Children who are also handling traffic cases.”
Additionally, there are other mitigating circumstances that can lead to delays in the system.
In the case of Lee, says Sithambaram, he could not remember his IC number and refused to let his family know of his whereabouts, which contributed to his case being postponed up to six times because they were unable to verify his identity.
But he qualifies, “Everything is online, and they knew four months earlier that he was working in Kuala Lumpur, so it should not have taken six months to verify.”
Another issue is that some children who appear in the Court for Children for bail hearings do not have legal representation.
Yapp says that some are represented, but not all of them are.
“It all depends if the parents have appointed a lawyer or not. As for free Legal Aid, they would not necessarily know as the bail hearing is set soon after the charge. So if nobody knows they are being detained, nobody will take any action.”
Yapp also believes that some of the children's families cannot afford a lawyer. “If they cannot even afford the deposit for the lawyer, what more the bailable amount?”
James Nayagam, executive director of Shelter, is distressed that such situations can arise.
“They are supposed to have legal representation, but in most cases they do not. This worries me because they are just children and have to stand alone with no protection – so off they go to Kajang Prison.”
Nayagam says that sadly Kajang Prison is not the only place that has been gazetted as a “place of detention”, and there are more conducive environments where children can be held in remand, such as the Tunas Bakti boarding schools.
“Simply put, it appears the magistrates are not aware of, and not even provided with a list of options besides Kajang Prison, so they follow whatever is convenient.”
Sithambaram believes that there is a need for a revamp of the whole system. Special courts for children need to be set up that are different and separate from the normal courts, with dedicated magistrates assigned solely to take care of cases involving children, and not just deal with the problems when they crop up.
“This concerns the rights of children. One should take serious notice because if you do not, the people will lose respect for the Rule of Law. In that context, children are a major issue. The Child Act has to be enforced in spirit and not just in letter,” he adds.
Fortunately, the outlook is not all doom and gloom, and Nayagam speaks of a task force – of which he is a member – set up in March this year, the brainchild of Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil.
The task force is headed by Datuk Shamsiah Abdul Rahman, with its members consisting of personnel from the Attorney-General's department, the Judiciary, the Police, the Social Welfare Department and the Legal Aid department.
“Our main task is to advise the minister on the well-being of children in detention and to present a fast track for court hearings. We have come up with a proposed flow chart on how to deal with such cases,” Nayagam says.
Among the issues proposed are to have parents and a social welfare officer – as a protector – present at the time of the police report, and a maximum detention period of one month or less if possible.
“Not only are we looking to reduce the number of cases, but also rehabilitation programmes at centres with proper facilities. We also need proper detention centres – it should be more like a hostel managed with the co-operation of the Prisons Department, and upon release, there should be a follow-up to the well-being of the child. We should no longer need the services of a prison.”
Nayagam adds: “I am very encouraged by the participation of the members and would like to thank them for speaking freely and being committed to dealing with the situation.”
.............................................................
Something is very wrong with us
The Star Online. Opinion. Wednesday August 15, 2007
The 2,718 male children aged 14-20 being remanded in prisons to abuse of toddlers, some resulting in death, by young parents, are indeed worrying to say the least. Yet little seems to be done to reduce or to prevent this from happening altogether.
YOUNG people are in the news again, with the recent furore about them being remanded in prison. Although it may be too late for many of them, hopefully the concern expressed by NGOs, the public and the Government will mean that no more children and young ones will be subject to prison for the smallest of offences.
However, we have to wonder why there are already 2,718 male children aged 14-20 in prisons before someone finally made a fuss. Surely it was already an injustice for the very first child to have been held in prison. Why had nobody raised the issue earlier? Surely even prison wardens must have known this was not right.
Some of these children were arrested for not having their identity cards on them. As much as this is an offence under the law, surely it should not lead to prison especially for children. Do we follow the law in automatic fashion leaving no room for humanitarian considerations?
Having now realised that there are all these children in prisons, in what way will we compensate for their loss of childhood? Prison is hardly the most conducive place for children.
Who knows what sorts of things are now wired into the minds of these unfortunate young people setting the course for their futures.
Teenage years are a particularly sensitive time and not handling them correctly can lead to later misbehaviour. How do we prevent that from happening? Or do we simply blame them later without considering our own complicity?
It seems to be a particularly Malaysian thing to not spend much effort on prevention when often it is much easier to do than to sweep up the after-effects of lack of forethought later.
Our refusal to teach young people proper sex education means that unwed pregnancies are not prevented. Even if young people get married because there is a baby on the way, what do we do to prepare them for the many responsibilities of marriage including the stresses and strains that one can expect?
If there is one thing that seems to be common among the recent cases of child abuse is how young the parents are, barely out of childhood themselves. In the recent death of a 17-month-old toddler, the mother was 18 and the father was 22. The child was the elder of their two children.
In Penang, a 22-year-old man pleaded guilty to physically and emotionally abusing his girlfriend’s two-year-old daughter. Another 25-year-old man in Kota Kinabalu was accused of abusing his lover’s four-year-old son.
Perhaps when a baby ceases to be cute and becomes ever-more demanding, young parents become less patient. Perhaps they are no longer with their child’s other biological parent and feel less secure with their new boyfriend or girlfriend.
Nothing could be less attractive than a wailing child. Perhaps one day it just got too much.
We should realise that sometimes prevention has to start several steps before the very dangers we want to prevent. If we had good sex education in schools which talks about risks and responsibilities, we might avoid teenage pregnancies altogether.
If we counselled couples that did get pregnant and had to get married, we might be able to teach them better ways of handling conflict. As it is, many premarital courses are just another step on the way towards getting that marriage certificate.
As the Mufti of Perlis has pointed out, for all the premarital courses we’ve had, the divorce rates (among Muslims) hasn’t reduced. Perhaps if we taught young people parenting and relationship skills, and told them where they can get help, their young children may not become vulnerable to abuse.
Of course, it’s not just young parents who are the ones who abuse children but it does seem to be a common thread in recent cases that have not been remarked on.
Ultimately what will happen to these cases? The abusers will probably wind up in jail, which leaves the question of what will happen to their children.
Are they likely to abuse children who are not theirs, that they should be put away from society?
Or do we serve society better if we rehabilitate these parents, perhaps help to solve the problems that may have put unbearable pressures on them. That may include having to deal with adult abuse as well.
In order to really deal with the many social issues that we have, we need to approach things from a holistic perspective, with the understanding that they rarely occur in isolation. Factors in the environment create the dangerous scenario and then something triggers it off. We need to ascertain what those are.
Otherwise we’ll continue to shake our heads at more child tragedies.
By MARINA MAHATHIR
Tuesday, 31 July 2007
2007 07: Child Act to be amended in next sitting of Parliament
The Star Online. News. Nation. Friday July 27, 2007
KUALA LUMPUR: The Child Act 2001 will be amended in the next sitting of Parliament at the end of next month, Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil said yesterday.
She said Attorney-General Tan Sri Abdul Gani Patail would propose amendments not only to Section 97(2) of the Act but also on many other areas “that need to be beefed up”.
On amendments to Section 97(2), she said the ministry would wait for the outcome of the case of the boy who killed his tuition teacher’s daughter should the case be referred to the Federal Court.
In a landmark judgment, the Court of Appeal freed a 17-year-old convicted child killer after spending five years in prison.
The teenager was freed by the Court of Appeal as the Child Act 2001 did not give the courts the power to sentence a juvenile convicted of murder.
Speaking to reporters after opening the “Women Striking the Balance in Contemporary Malaysia” Forum, Shahrizat said her ministry has been closely following the developments of the case.
“I spoke to the AG this morning on the decision of the Court of Appeal on this case.
“It may take a little bit of time but we will make sure the lacuna in the law is addressed,” she said. – Bernama
............................................................
PM wants Child Act reviewed
NST Online. NewsBreak. 28/7/07
KUANTAN: Datuk Seri Abdullah Ahmad Badawi has called for a review of the Child Act 2001 to ensure fairness in imposing penalty on juvenile criminals.
Alluding to the Court of Appeal’s decision on Wednesday to free a teenager who was detained in prison at the pleasure of the King for the murder of his tuition teacher’s daughter five years ago, the Prime Minister said the Act should be amended to address any shortcomings.
“I read the news when I was overseas and I think the Act should be reviewed to ensure justice in the implementation of the law and the imposition of penalty,” he told reporters here today.
He was approached by reporters at a hotel here prior to attending the wedding of Mohamad Hitam, 27, a member of the Seri Perdana staff, and Nurul Hanisah Judi, 25, in Kampung Balok near here.
The freed teenager, who turns 18 next month, had to be set free as there was no law that prescribed a sentence for a child convicted of murder.
In 2003, the High Court found the boy guilty of murdering the 11-year-old girl at her house in Kuala Lumpur by stabbing her 20 times and slashing her four times with a sharp object on May 30, 2002.
The boy was 12 when he killed the girl. He spent five years at the Kajang Prison before his release.
The prosecution has filed an appeal in the Federal Court against the boy’s release.
Abdullah said he would ask the Attorney-General’s Department to look into the matter.
“We have to study the Act, bring it to parliament, and this will take a bit of time. It’s important to review the law and introduce the necessary changes,” he added.
............................................................
'Grey areas' of Child Act to be studied
The Star Online. News. Nation. Sunday July 29, 2007
POH: Grey areas in the Child Act 2001 will be studied in view of the recent court judgment that saw the release of a boy convicted of killing his tuition teacher's 11-year-old daughter.
Women, Family and Community Development Ministry parliamentary secretary Datin Paduka Chew Mei Fun said the ministry would be looking at the "grey areas."
Declining to elaborate on the "grey areas," Chew said the ministry was working closely with the Attorney-General's Chambers on the matter.
On July 12, the Court of Appeal judgment saw the release of the boy convicted of killing his tuition teacher's daughter at her house in Kuala Lumpur on May 30, 2002.
The boy, who was 12 at the time, turns 18 next month.
It had been reported that on July 12, Court of Appeal Justices Gopal Sri Ram, Zulkefli Ahmad Makinudin and Raus Sharif had declared unconstitutional Section 97 (2) of the Child Act 2001, which provides for a child convicted of murder to be detained at the pleasure of the Yang di-Pertuan Agong.
They had said that it violated the doctrine of separation of powers by consigning to the Executive the judicial power to determine the measure of the sentence to be served by a juvenile offender.
Prime Minister Datuk Seri Abdullah Ahmad Badawi had also called for the Child Act 2001 to be reviewed urgently so that justice could be served.
Earlier when opening the 2007 Sports Day of Tadika Kinderjoy on Sunday, Chew said good early childcare and education could provide the best defence in the fight against juvenile crime.
For the last three years, she said, there were a total of 18,334 convictions of criminal offences involving children aged between 10 and 18.
Those offences included theft, robbery, extortion, house-breaking, drug possession and trafficking, gambling, firearms, illicit sex, rape, illegal racing and prostitution, she said.
She added that of of last year there were 1,571 youths in remand and correctional institutions, involving children who were convicted in criminal cases and those who were deemed "uncontrollable."
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Nothing pleasurable about it
The Star Online. Opinion. Sunday July 29, 2007
What does it mean to be ‘detained at the pleasure of the King’ – a term that seems almost feudal – and how did this provision in law come about?
IT may sound archaic today, but the provision in law for someone to be detained at the pleasure of the King has its origins in ensuring that the welfare of a person was looked after.
Universiti Malaya law lecturer Norbani Mohamed Nazeri said the first time the term made its way into legislature was in England’s Criminal Lunatics Act 1800.
Norbani, who has written a paper on the history and origin of the term, said this was done as a direct result of an assassination attempt on King George III.
“It was decided then that someone deemed insane could be rehabilitated and this concept was borrowed and placed into legislature dealing with children.”
She added that the nature of the provision was the belief in welfare, and that the welfare of a child, especially in education and treatment, had to be considered.
“From the 1800 Act, the provision made its way into the Children’s Charter 1908 before appearing in the Children and Young Persons Act 1933 for England and Wales.”
It was from the 1933 Act that Malaysia’s Juvenile Courts Act 1947 borrowed the provision to detain a juvenile, found guilty of a capital crime and sentenced to death, at the pleasure of the King and there are currently 30 juvenile and adult males held in prison in this manner.
“This was then taken, extended and put into Section 97 (2) of the Child Act 2001 (which replaced the Juvenile Courts Act) but it seems that the people who drafted the act did not understand the nature of the provision.
“Malaysian law does not consider the welfare aspect especially with the indefinite duration being set for the detention of juveniles at the pleasure of the King,” said Norbani.
The only provision that possibly addresses the welfare of the child is Section 97 (4) of the Child Act that states a Board of Visiting Justices must review the cases of those convicted under Section 97 (2) annually and decide if the child should be detained or released.
“However, there are no procedures on how the board should carry out its duties,” Norbani said.
Bar Council criminal law committee chairman Datuk V. Sithambaram said there had to be uniform guidelines on how this board operated.
“The court should also be allowed to pass sentences of a definite duration under Section 97 (2) with the case to be reviewed every year thereafter,” he added.
Deputy Internal Security Minister Datuk Fu Ah Kiow said a time limit could not be set as detaining someone at the King's pleasure indefinitely was the substitute for a death sentence. “It is a serious matter. If they had been 18, they would have been hung.”
Fu also insisted that the Board of Visiting Justices did carry out annual reviews. They will compile a list of names of those reviewed and submit it to the Pardons Board.
“After some time, if they had behaved well and the Pardons Board feels that they have been rehabilitated, they will be released,” he said, adding that those reviewed would also be informed of the Pardons Board's decision.
Bar Council vice-president Ragunath Kesavan said the laws in Malaysia were inadequate to deal with such cases in a fair manner.
“There are better ways of doing things,” he said, citing the infamous case in Britain involving two 10-year-old boys found guilty of abducting, torturing and beating two-year-old James Bulger to death before dumping the toddler on a railway line in 1993.
Ragunath said the sentencing of the two boys, who were also held at Her Majesty's pleasure, was all about probation, control, counselling and revision.
In the Bulger case, the two boys were eventually released after serving the time that was determined by a tariff system that exists in Britain.
Interestingly, the tariff system, at that time, allowed for the period of detention for those held at Her Majesty's pleasure to be determined (with advice from the trial judge) by the Home Secretary, the Malaysian equivalent of the Home Affairs Minister.
After a lengthy court process, however, it was decided that the Home Secretary had no right to determine the sentencing, as it would mean the executive was meddling in the judiciary – the same argument that the Malaysian Court of Appeal used in its July 12 landmark decision, which led to the release of the teenager who had murdered his tuition teacher's daughter in 2002.
“Eventually, it was the judge who determined the sentence (the duration of time under the tariff system) and the Lord Chief Justice wrote a practice and procedure for similar cases,” Norbani said.
She added that this meant the term “at Her Majesty's pleasure” was merely cosmetic and that by having a tariff system, it would give a child some hope of being released.
Since there are no proper procedures here, Sithambaram said the clear guidelines present in England on deciding such cases were needed.
As for those convicted as juveniles and are now over 18, the Pardons Board that reviews an individual’s case every four years is the only avenue for freedom.
But one would need a lot of help in applying for the pardon. In the case of Kok Foo Seng who was imprisoned at the age of 14 and was only released 13 years later after being pardoned by the Sultan of Pahang, it was his uncle who won his freedom.
The uncle, a former teacher who declined to be named, said it took almost 10 years of writing letters and waiting for responses.
“A lot of good people helped me, especially with writing a letter to the Sultan asking for the Pardons Board to meet to review Foo Seng's case,” he said.
Asked if other convicted juveniles could receive a pardon if there was no one helping on the outside, he said it would be impossible. Infamous case: In Britain, these two 10-year-old boys were found guilty of abducting, torturing and beating two-year-old James Bulger to death before dumping the toddler on a railway line in 1993.Sithambaram: ‘The court should be allowed to pass sentences of a definite duration’
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Not just blind justice
The Star Online. Opinion. Sunday July 29, 2007
Landmark judgments can change your life, or not. While judges can even make law in a groundbreaking decision the Executive, Legislature, civil society and the media are responsible for what happens after.
IN the last three weeks, several superior court judgments have taken centrestage, relegating even reports on the high profile Altantuya murder trial further back in the newspapers.
Three of them called for further action, either on the part of the Legislature or the Federal Court, and two stressed the importance of conforming with the Federal Constitution, the supreme law of the land.
The Federal Court decision in re Latifah Mat Zin on Thursday was of especial importance: Justices Abdul Hamid Mohamed, Arifin Zakaria and Augustine Paul held that all law flows from the Constitution.
While they clarified some of the conflict in jurisdiction between the civil and syariah courts, they noted there were matters that might be outside the jurisdiction of both, resulting in no available remedy in either court.
Asking Parliament to step in, Justice Abdul Hamid said Article 121(1A) of the Constitution was not introduced for the purpose of ousting the jurisdiction of the civil courts. (Article 121 (1A) states that civil courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.)
He asked: “Are such laws constitutional in the first place?”
While Bar Council chairman Ambiga Sreenevasan said the matter had to be addressed either by the courts or Parliament, de facto law minister Datuk Seri Nazri Aziz responded by saying the Prime Minister would have to consult with the Barisan Nasional component parties on the matter.
On July 12, Court of Appeal Justices Gopal Sri Ram, Zulkefli Ahmad Makinudin and Raus Sharif declared unconstitutional Section 97 (2) of the Child Act 2001, which provides for a child convicted of murder to be detained at the pleasure of the Yang di-Pertuan Agong.
They said it violated the doctrine of separation of powers by consigning to the Executive the judicial power to determine the measure of the sentence to be served by a juvenile offender.
On grounds there was no other prescribed law to punish such an offender, the court released the boy who had been convicted of killing his tuition teacher’s 11-year-old daughter.
There are parallels with the case of Robert Thompson and Jon Venables, the 10-year-old killers of toddler James Bulger, in England from where the “unconstitutional” provision in the Juvenile Courts Act (repealed by the Child Act) was imported.
There, children aged 10 or over who have been convicted of murder must be sentenced to indefinite detention. The minimum period (tariff) to be served is set by the Home Secretary, who receives advice from the trial judge and the Lord Chief Justice, but he does not have to follow it.
In their case, the Home Secretary went on to raise the judge’s minimum mandatory sentence of eight years to 15.
The two boys challenged it in the European Court of Human Rights.
In the 1999 decision, the European Court said detention “at Her Majesty’s pleasure” was legal under English law. But following a decision of the House of Lords Judicial Committee that the setting of tariffs for juveniles was a sentencing exercise, it held the Home Secretary was not independent of the Executive.
It ruled it was a violation of their right not to have the legality of the detention assessed by a judicial body.
The second Court of Appeal decision to grab public attention was when Justices Sri Ram, Md Raus Sharif and Hasan Lah allowed on July 13 an appeal by two brothers who had lost their land to forgers.
They did so by ruling the 2001 Federal Court decision in re Adorna Properties – in favour of a bona fide purchaser of land which ownership had been forged – was wrongly decided.
However, while Justices Md Raus and Hasan called on the apex court to review its own decision, saying they were tied by the doctrine of binding precedent, Justice Sri Ram chose not to follow the Federal Court on grounds it had ignored the definitions of proprietor and purchaser in the National Land Code and had disregarded an earlier Supreme Court decision in M&J Frozen Foods.
Since then, the Government has agreed to study a Bar Council proposal for a review of the law and Chief Justice Ahmad Fairuz Sheikh Abdul Halim has rapped Justice Sri Ram on the knuckles for ignoring a superior court ruling.
The surprising thing, however, is that another Court of Appeal – comprising Justices Sri Ram, Ahmad Fairuz and Denis Ong – made the same decision in 2004 in re Subramaniam NS Dhurai (3 CLJ 2005).
Justice Sri Ram made similar observations about Adorna and Justice Ahmad Fairuz said that while he agreed with them, lower courts had to follow a superior court decision because of the doctrine of binding precedent.
The only difference is that that decision was not reported in the media.
Looking past the personalities, difficult as that may be for some, senior lawyer Datuk N. Chandran is of the opinion the law need not be amended here, unlike the case involving the juvenile.
He says the Federal Court should review its own decision, quoting the House of Lords decision in Horton v Sadler (1 AC, 2007) which held that although it would “rarely exercise its power to depart from its previous decisions”, it would do so if “too rigid an adherence to precedent might lead to individual injustice”, especially if the earlier decision was unsound and compelled appellate courts to “draw fine distinctions which reflected no credit on the law”.
There have been several groundbreaking decisions, some good, some not, impacting the rights of co-operatives, women, employees, orang asli and tenant farmers, to name a few.
A judge’s duty ends after the judgment is delivered. Only in an appeal can the decision be set aside. Or, the state can amend a law to negate a decision, as it did after the Supreme Court held in 1990 in re Wong Pot Heng that employees of the beleaguered Central Co-operative Bank ranked pari passu (equal) with depositors in priority in the payment of claims.
One area of law in which several landmark decisions abound is in industrial relations.
In two Court of Appeal decisions – Tan Tek Seng and Hong Leong Equipment – labour lawyer B. Lobo says the panels “elevated” the right not to be dismissed without procedural safeguards and just grounds to constitutional rights.
“While Justice Sri Ram had interpreted the right to life in the latter to include the right to seek and be engaged in lawful and gainful employment, he interpreted it in the former to include the right to live in a reasonably healthy and pollution free environment.”
How are landmark judgments “born”? Is it up to the lawyers to argue a novel point or for judges to take a liberal approach?
International Islamic University law professor Dr Abdul Aziz Bari says: “Most of the time our judges have taken the literal approach; this has been the major trend since 1957. The exceptions are few.”
What would “pre-dispose” a judge to swing liberal and breathe life into dry constitutional provisions? Do a judge’s upbringing, law school and years of experience play a role?
These might be factors to consider with a judge sitting alone, but hardly so in a panel of three.
No judge worth his salt is going to sit back and ride on another’s judgment if he disagrees strongly with a legal interpretation. This is certainly clear from the 2004 and recent Court of Appeal judgments in how they dealt with the Adorna decision.
It is probably more important that the court was unanimous in upholding the doctrine of separation of powers in the juvenile’s appeal and reclaimed the judiciary’s power to sentence.
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Court urged not to let underaged criminals off lightly
The Star Online. News. Nation. Tuesday July 31, 2007
IPOH: The court would be sending a wrong message that it is all right to commit crime if it allows underage offenders to go off lightly, a Sessions Court was told.
In urging the court to impose custodial sentences on two boys who robbed and assaulted a lab assistant, Deputy Public Prosecutor Ahmad Ishrakh Saad said age should not be the only factor considered by the court.
“Age is always used by young accused persons as a mitigating factor. As such, the court must consider the case in its entirety.
“The court must take into consideration that the crime had been pre-planned.
“Although underage, they had seemingly matured criminal minds and capable of committing crimes like adults,” he said.
The two boys, aged 16 and 17, had pleaded guilty to assaulting and robbing their victim of RM30, her gold pendant, chain and bracelet, and a mobile phone and charger worth RM1,000 at her home in Tronoh on May 14.
They committed the offences with another 16-year-old boy, who has since escaped from the welfare department hostel in Silibin here while awaiting sentencing, and one Syahrulnizam Jamali Ali.
Syahrulnizam, 23, who claimed trial to the offence, was also charged with raping the 24-year-old lab assistant.
According to the facts of the case, the four planned the robbery and had staked out at the house for five hours before breaking in through a window.
The lab assistant was tied up while her house was being ransacked and suffered injuries to her arm, neck, chest, leg and hip.
Sessions judge Hamzah Hashim ordered the two boys to be sent to the Henry Gurney School in Malacca for three years from Tuesday.
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The child act: Section 97(2) is still valid
NST Online. Letters. 8/08/07
THE Malaysian government accepted the United Nations Convention on the Right of the Child (UNCRC) on Dec 28, 1994. The government then made an in-depth study of existing laws to conform to the UNCRC.
As a result, the Child Act 2001 was passed. The act took into consideration the right of the child as advocated by the UNCRC and is in fact a consolidation of the Child Protection Act 1991, the Juvenile Courts Act 1947 (as revised in 1972), and the Women and Girls Protection Act 1973.
On July 12 this year, the Court of Appeal declared unconstitutional Section 97 (2) of the Child Act 2001 which provides for a child convicted of murder to be ordered by the court to be detained at the pleasure of the Yang di-Pertuan Agong. The child concerned, who was 13 years old was upon conviction in July 2003, ordered to be detained at the pleasure of the Yang di-Pertuan Agong under Section 97(2) of the Child Act 2001.
The Court of Appeal stated that Section 97(2) of the Child Act 2001 contravenes the doctrine of separation of powers by consigning to the executive the judicial power to determine the measure of the sentence to be served by the child offender.
The Court of Appeal chose not to apply the death penalty as provided for under the Penal Code and therefore the child, despite being convicted of murder, cannot be punished and must be set free.
I find it difficult to believe that such a situation can arise.
There have been an exchange of views in the media on this issue and the prime minister responded by saying that the law should be reviewed. With the greatest respect to the Court of Appeal judges, I wish to express the view that Section 97(2) of the Child Act 2001 is valid and the course of action to be taken is for the prosecution to appeal against the Court of Appeal’s decision to the Federal Court.
There is no need to decide on the review of the law until the decision of the Federal Court.
My argument is that Section 97(2) of the Child Act 2001 does not contravene any provision of the Federal Constitution and is therefore valid.
Any provision of any act of parliament can be declared invalid only if it is ultra-vires the Federal Constitution. The doctrine of separation of powers is by itself not law. It is a legal principle which has been taken into consideration in formulating the Federal Constitution. The applicable law is the content of the Constitution.
We should note that the doctrine of the separation of powers in its application to modern government does not mean that a rigid threefold of legislature, executive and judiciary classification of their functions is possible.
There is for instance no separation of powers in the strict sense between the executive and the legislature. The practical necessities of parliamentary government demand a large measure of delegation to the executive of powers to legislate by rules, regulations and orders.
The independence of the judiciary has been strictly preserved, but many justiciable issues are referred not to the ordinary courts, but to the administrative authorities.
In any case, Section 97(2) of the Child Act 2001 has not ignored the doctrine of separation of powers. Under that section, the court orders and not the executive for the convicted child to be detained at the pleasure of the Yang di-Pertuan Agong, who under Article 42 of the Federal Constitution is given the power to grant pardons, reprieves and respites in respect of all offences committed in the federal territory. The issue of the doctrine of separation of powers does not arise at all.
It should be noted that section 97 is the old section 16 of the Juvenile Courts Act 1947 (Revised 1972). Section 97(4) is an additional provision which gives the power to the board of Visiting Judges to review the case every once a year and the board can make recommendation to the Yang di-Pertuan Agong accordingly.
This Section 97(4) is a provision protecting the right of the child and does not contravene any provision of the Federal Constitution.
KUALA LUMPUR: The Child Act 2001 will be amended in the next sitting of Parliament at the end of next month, Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil said yesterday.
She said Attorney-General Tan Sri Abdul Gani Patail would propose amendments not only to Section 97(2) of the Act but also on many other areas “that need to be beefed up”.
On amendments to Section 97(2), she said the ministry would wait for the outcome of the case of the boy who killed his tuition teacher’s daughter should the case be referred to the Federal Court.
In a landmark judgment, the Court of Appeal freed a 17-year-old convicted child killer after spending five years in prison.
The teenager was freed by the Court of Appeal as the Child Act 2001 did not give the courts the power to sentence a juvenile convicted of murder.
Speaking to reporters after opening the “Women Striking the Balance in Contemporary Malaysia” Forum, Shahrizat said her ministry has been closely following the developments of the case.
“I spoke to the AG this morning on the decision of the Court of Appeal on this case.
“It may take a little bit of time but we will make sure the lacuna in the law is addressed,” she said. – Bernama
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PM wants Child Act reviewed
NST Online. NewsBreak. 28/7/07
KUANTAN: Datuk Seri Abdullah Ahmad Badawi has called for a review of the Child Act 2001 to ensure fairness in imposing penalty on juvenile criminals.
Alluding to the Court of Appeal’s decision on Wednesday to free a teenager who was detained in prison at the pleasure of the King for the murder of his tuition teacher’s daughter five years ago, the Prime Minister said the Act should be amended to address any shortcomings.
“I read the news when I was overseas and I think the Act should be reviewed to ensure justice in the implementation of the law and the imposition of penalty,” he told reporters here today.
He was approached by reporters at a hotel here prior to attending the wedding of Mohamad Hitam, 27, a member of the Seri Perdana staff, and Nurul Hanisah Judi, 25, in Kampung Balok near here.
The freed teenager, who turns 18 next month, had to be set free as there was no law that prescribed a sentence for a child convicted of murder.
In 2003, the High Court found the boy guilty of murdering the 11-year-old girl at her house in Kuala Lumpur by stabbing her 20 times and slashing her four times with a sharp object on May 30, 2002.
The boy was 12 when he killed the girl. He spent five years at the Kajang Prison before his release.
The prosecution has filed an appeal in the Federal Court against the boy’s release.
Abdullah said he would ask the Attorney-General’s Department to look into the matter.
“We have to study the Act, bring it to parliament, and this will take a bit of time. It’s important to review the law and introduce the necessary changes,” he added.
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'Grey areas' of Child Act to be studied
The Star Online. News. Nation. Sunday July 29, 2007
POH: Grey areas in the Child Act 2001 will be studied in view of the recent court judgment that saw the release of a boy convicted of killing his tuition teacher's 11-year-old daughter.
Women, Family and Community Development Ministry parliamentary secretary Datin Paduka Chew Mei Fun said the ministry would be looking at the "grey areas."
Declining to elaborate on the "grey areas," Chew said the ministry was working closely with the Attorney-General's Chambers on the matter.
On July 12, the Court of Appeal judgment saw the release of the boy convicted of killing his tuition teacher's daughter at her house in Kuala Lumpur on May 30, 2002.
The boy, who was 12 at the time, turns 18 next month.
It had been reported that on July 12, Court of Appeal Justices Gopal Sri Ram, Zulkefli Ahmad Makinudin and Raus Sharif had declared unconstitutional Section 97 (2) of the Child Act 2001, which provides for a child convicted of murder to be detained at the pleasure of the Yang di-Pertuan Agong.
They had said that it violated the doctrine of separation of powers by consigning to the Executive the judicial power to determine the measure of the sentence to be served by a juvenile offender.
Prime Minister Datuk Seri Abdullah Ahmad Badawi had also called for the Child Act 2001 to be reviewed urgently so that justice could be served.
Earlier when opening the 2007 Sports Day of Tadika Kinderjoy on Sunday, Chew said good early childcare and education could provide the best defence in the fight against juvenile crime.
For the last three years, she said, there were a total of 18,334 convictions of criminal offences involving children aged between 10 and 18.
Those offences included theft, robbery, extortion, house-breaking, drug possession and trafficking, gambling, firearms, illicit sex, rape, illegal racing and prostitution, she said.
She added that of of last year there were 1,571 youths in remand and correctional institutions, involving children who were convicted in criminal cases and those who were deemed "uncontrollable."
............................................................
Nothing pleasurable about it
The Star Online. Opinion. Sunday July 29, 2007
What does it mean to be ‘detained at the pleasure of the King’ – a term that seems almost feudal – and how did this provision in law come about?
IT may sound archaic today, but the provision in law for someone to be detained at the pleasure of the King has its origins in ensuring that the welfare of a person was looked after.
Universiti Malaya law lecturer Norbani Mohamed Nazeri said the first time the term made its way into legislature was in England’s Criminal Lunatics Act 1800.
Norbani, who has written a paper on the history and origin of the term, said this was done as a direct result of an assassination attempt on King George III.
“It was decided then that someone deemed insane could be rehabilitated and this concept was borrowed and placed into legislature dealing with children.”
She added that the nature of the provision was the belief in welfare, and that the welfare of a child, especially in education and treatment, had to be considered.
“From the 1800 Act, the provision made its way into the Children’s Charter 1908 before appearing in the Children and Young Persons Act 1933 for England and Wales.”
It was from the 1933 Act that Malaysia’s Juvenile Courts Act 1947 borrowed the provision to detain a juvenile, found guilty of a capital crime and sentenced to death, at the pleasure of the King and there are currently 30 juvenile and adult males held in prison in this manner.
“This was then taken, extended and put into Section 97 (2) of the Child Act 2001 (which replaced the Juvenile Courts Act) but it seems that the people who drafted the act did not understand the nature of the provision.
“Malaysian law does not consider the welfare aspect especially with the indefinite duration being set for the detention of juveniles at the pleasure of the King,” said Norbani.
The only provision that possibly addresses the welfare of the child is Section 97 (4) of the Child Act that states a Board of Visiting Justices must review the cases of those convicted under Section 97 (2) annually and decide if the child should be detained or released.
“However, there are no procedures on how the board should carry out its duties,” Norbani said.
Bar Council criminal law committee chairman Datuk V. Sithambaram said there had to be uniform guidelines on how this board operated.
“The court should also be allowed to pass sentences of a definite duration under Section 97 (2) with the case to be reviewed every year thereafter,” he added.
Deputy Internal Security Minister Datuk Fu Ah Kiow said a time limit could not be set as detaining someone at the King's pleasure indefinitely was the substitute for a death sentence. “It is a serious matter. If they had been 18, they would have been hung.”
Fu also insisted that the Board of Visiting Justices did carry out annual reviews. They will compile a list of names of those reviewed and submit it to the Pardons Board.
“After some time, if they had behaved well and the Pardons Board feels that they have been rehabilitated, they will be released,” he said, adding that those reviewed would also be informed of the Pardons Board's decision.
Bar Council vice-president Ragunath Kesavan said the laws in Malaysia were inadequate to deal with such cases in a fair manner.
“There are better ways of doing things,” he said, citing the infamous case in Britain involving two 10-year-old boys found guilty of abducting, torturing and beating two-year-old James Bulger to death before dumping the toddler on a railway line in 1993.
Ragunath said the sentencing of the two boys, who were also held at Her Majesty's pleasure, was all about probation, control, counselling and revision.
In the Bulger case, the two boys were eventually released after serving the time that was determined by a tariff system that exists in Britain.
Interestingly, the tariff system, at that time, allowed for the period of detention for those held at Her Majesty's pleasure to be determined (with advice from the trial judge) by the Home Secretary, the Malaysian equivalent of the Home Affairs Minister.
After a lengthy court process, however, it was decided that the Home Secretary had no right to determine the sentencing, as it would mean the executive was meddling in the judiciary – the same argument that the Malaysian Court of Appeal used in its July 12 landmark decision, which led to the release of the teenager who had murdered his tuition teacher's daughter in 2002.
“Eventually, it was the judge who determined the sentence (the duration of time under the tariff system) and the Lord Chief Justice wrote a practice and procedure for similar cases,” Norbani said.
She added that this meant the term “at Her Majesty's pleasure” was merely cosmetic and that by having a tariff system, it would give a child some hope of being released.
Since there are no proper procedures here, Sithambaram said the clear guidelines present in England on deciding such cases were needed.
As for those convicted as juveniles and are now over 18, the Pardons Board that reviews an individual’s case every four years is the only avenue for freedom.
But one would need a lot of help in applying for the pardon. In the case of Kok Foo Seng who was imprisoned at the age of 14 and was only released 13 years later after being pardoned by the Sultan of Pahang, it was his uncle who won his freedom.
The uncle, a former teacher who declined to be named, said it took almost 10 years of writing letters and waiting for responses.
“A lot of good people helped me, especially with writing a letter to the Sultan asking for the Pardons Board to meet to review Foo Seng's case,” he said.
Asked if other convicted juveniles could receive a pardon if there was no one helping on the outside, he said it would be impossible. Infamous case: In Britain, these two 10-year-old boys were found guilty of abducting, torturing and beating two-year-old James Bulger to death before dumping the toddler on a railway line in 1993.Sithambaram: ‘The court should be allowed to pass sentences of a definite duration’
............................................................
Not just blind justice
The Star Online. Opinion. Sunday July 29, 2007
Landmark judgments can change your life, or not. While judges can even make law in a groundbreaking decision the Executive, Legislature, civil society and the media are responsible for what happens after.
IN the last three weeks, several superior court judgments have taken centrestage, relegating even reports on the high profile Altantuya murder trial further back in the newspapers.
Three of them called for further action, either on the part of the Legislature or the Federal Court, and two stressed the importance of conforming with the Federal Constitution, the supreme law of the land.
The Federal Court decision in re Latifah Mat Zin on Thursday was of especial importance: Justices Abdul Hamid Mohamed, Arifin Zakaria and Augustine Paul held that all law flows from the Constitution.
While they clarified some of the conflict in jurisdiction between the civil and syariah courts, they noted there were matters that might be outside the jurisdiction of both, resulting in no available remedy in either court.
Asking Parliament to step in, Justice Abdul Hamid said Article 121(1A) of the Constitution was not introduced for the purpose of ousting the jurisdiction of the civil courts. (Article 121 (1A) states that civil courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.)
He asked: “Are such laws constitutional in the first place?”
While Bar Council chairman Ambiga Sreenevasan said the matter had to be addressed either by the courts or Parliament, de facto law minister Datuk Seri Nazri Aziz responded by saying the Prime Minister would have to consult with the Barisan Nasional component parties on the matter.
On July 12, Court of Appeal Justices Gopal Sri Ram, Zulkefli Ahmad Makinudin and Raus Sharif declared unconstitutional Section 97 (2) of the Child Act 2001, which provides for a child convicted of murder to be detained at the pleasure of the Yang di-Pertuan Agong.
They said it violated the doctrine of separation of powers by consigning to the Executive the judicial power to determine the measure of the sentence to be served by a juvenile offender.
On grounds there was no other prescribed law to punish such an offender, the court released the boy who had been convicted of killing his tuition teacher’s 11-year-old daughter.
There are parallels with the case of Robert Thompson and Jon Venables, the 10-year-old killers of toddler James Bulger, in England from where the “unconstitutional” provision in the Juvenile Courts Act (repealed by the Child Act) was imported.
There, children aged 10 or over who have been convicted of murder must be sentenced to indefinite detention. The minimum period (tariff) to be served is set by the Home Secretary, who receives advice from the trial judge and the Lord Chief Justice, but he does not have to follow it.
In their case, the Home Secretary went on to raise the judge’s minimum mandatory sentence of eight years to 15.
The two boys challenged it in the European Court of Human Rights.
In the 1999 decision, the European Court said detention “at Her Majesty’s pleasure” was legal under English law. But following a decision of the House of Lords Judicial Committee that the setting of tariffs for juveniles was a sentencing exercise, it held the Home Secretary was not independent of the Executive.
It ruled it was a violation of their right not to have the legality of the detention assessed by a judicial body.
The second Court of Appeal decision to grab public attention was when Justices Sri Ram, Md Raus Sharif and Hasan Lah allowed on July 13 an appeal by two brothers who had lost their land to forgers.
They did so by ruling the 2001 Federal Court decision in re Adorna Properties – in favour of a bona fide purchaser of land which ownership had been forged – was wrongly decided.
However, while Justices Md Raus and Hasan called on the apex court to review its own decision, saying they were tied by the doctrine of binding precedent, Justice Sri Ram chose not to follow the Federal Court on grounds it had ignored the definitions of proprietor and purchaser in the National Land Code and had disregarded an earlier Supreme Court decision in M&J Frozen Foods.
Since then, the Government has agreed to study a Bar Council proposal for a review of the law and Chief Justice Ahmad Fairuz Sheikh Abdul Halim has rapped Justice Sri Ram on the knuckles for ignoring a superior court ruling.
The surprising thing, however, is that another Court of Appeal – comprising Justices Sri Ram, Ahmad Fairuz and Denis Ong – made the same decision in 2004 in re Subramaniam NS Dhurai (3 CLJ 2005).
Justice Sri Ram made similar observations about Adorna and Justice Ahmad Fairuz said that while he agreed with them, lower courts had to follow a superior court decision because of the doctrine of binding precedent.
The only difference is that that decision was not reported in the media.
Looking past the personalities, difficult as that may be for some, senior lawyer Datuk N. Chandran is of the opinion the law need not be amended here, unlike the case involving the juvenile.
He says the Federal Court should review its own decision, quoting the House of Lords decision in Horton v Sadler (1 AC, 2007) which held that although it would “rarely exercise its power to depart from its previous decisions”, it would do so if “too rigid an adherence to precedent might lead to individual injustice”, especially if the earlier decision was unsound and compelled appellate courts to “draw fine distinctions which reflected no credit on the law”.
There have been several groundbreaking decisions, some good, some not, impacting the rights of co-operatives, women, employees, orang asli and tenant farmers, to name a few.
A judge’s duty ends after the judgment is delivered. Only in an appeal can the decision be set aside. Or, the state can amend a law to negate a decision, as it did after the Supreme Court held in 1990 in re Wong Pot Heng that employees of the beleaguered Central Co-operative Bank ranked pari passu (equal) with depositors in priority in the payment of claims.
One area of law in which several landmark decisions abound is in industrial relations.
In two Court of Appeal decisions – Tan Tek Seng and Hong Leong Equipment – labour lawyer B. Lobo says the panels “elevated” the right not to be dismissed without procedural safeguards and just grounds to constitutional rights.
“While Justice Sri Ram had interpreted the right to life in the latter to include the right to seek and be engaged in lawful and gainful employment, he interpreted it in the former to include the right to live in a reasonably healthy and pollution free environment.”
How are landmark judgments “born”? Is it up to the lawyers to argue a novel point or for judges to take a liberal approach?
International Islamic University law professor Dr Abdul Aziz Bari says: “Most of the time our judges have taken the literal approach; this has been the major trend since 1957. The exceptions are few.”
What would “pre-dispose” a judge to swing liberal and breathe life into dry constitutional provisions? Do a judge’s upbringing, law school and years of experience play a role?
These might be factors to consider with a judge sitting alone, but hardly so in a panel of three.
No judge worth his salt is going to sit back and ride on another’s judgment if he disagrees strongly with a legal interpretation. This is certainly clear from the 2004 and recent Court of Appeal judgments in how they dealt with the Adorna decision.
It is probably more important that the court was unanimous in upholding the doctrine of separation of powers in the juvenile’s appeal and reclaimed the judiciary’s power to sentence.
.............................................................
Court urged not to let underaged criminals off lightly
The Star Online. News. Nation. Tuesday July 31, 2007
IPOH: The court would be sending a wrong message that it is all right to commit crime if it allows underage offenders to go off lightly, a Sessions Court was told.
In urging the court to impose custodial sentences on two boys who robbed and assaulted a lab assistant, Deputy Public Prosecutor Ahmad Ishrakh Saad said age should not be the only factor considered by the court.
“Age is always used by young accused persons as a mitigating factor. As such, the court must consider the case in its entirety.
“The court must take into consideration that the crime had been pre-planned.
“Although underage, they had seemingly matured criminal minds and capable of committing crimes like adults,” he said.
The two boys, aged 16 and 17, had pleaded guilty to assaulting and robbing their victim of RM30, her gold pendant, chain and bracelet, and a mobile phone and charger worth RM1,000 at her home in Tronoh on May 14.
They committed the offences with another 16-year-old boy, who has since escaped from the welfare department hostel in Silibin here while awaiting sentencing, and one Syahrulnizam Jamali Ali.
Syahrulnizam, 23, who claimed trial to the offence, was also charged with raping the 24-year-old lab assistant.
According to the facts of the case, the four planned the robbery and had staked out at the house for five hours before breaking in through a window.
The lab assistant was tied up while her house was being ransacked and suffered injuries to her arm, neck, chest, leg and hip.
Sessions judge Hamzah Hashim ordered the two boys to be sent to the Henry Gurney School in Malacca for three years from Tuesday.
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The child act: Section 97(2) is still valid
NST Online. Letters. 8/08/07
THE Malaysian government accepted the United Nations Convention on the Right of the Child (UNCRC) on Dec 28, 1994. The government then made an in-depth study of existing laws to conform to the UNCRC.
As a result, the Child Act 2001 was passed. The act took into consideration the right of the child as advocated by the UNCRC and is in fact a consolidation of the Child Protection Act 1991, the Juvenile Courts Act 1947 (as revised in 1972), and the Women and Girls Protection Act 1973.
On July 12 this year, the Court of Appeal declared unconstitutional Section 97 (2) of the Child Act 2001 which provides for a child convicted of murder to be ordered by the court to be detained at the pleasure of the Yang di-Pertuan Agong. The child concerned, who was 13 years old was upon conviction in July 2003, ordered to be detained at the pleasure of the Yang di-Pertuan Agong under Section 97(2) of the Child Act 2001.
The Court of Appeal stated that Section 97(2) of the Child Act 2001 contravenes the doctrine of separation of powers by consigning to the executive the judicial power to determine the measure of the sentence to be served by the child offender.
The Court of Appeal chose not to apply the death penalty as provided for under the Penal Code and therefore the child, despite being convicted of murder, cannot be punished and must be set free.
I find it difficult to believe that such a situation can arise.
There have been an exchange of views in the media on this issue and the prime minister responded by saying that the law should be reviewed. With the greatest respect to the Court of Appeal judges, I wish to express the view that Section 97(2) of the Child Act 2001 is valid and the course of action to be taken is for the prosecution to appeal against the Court of Appeal’s decision to the Federal Court.
There is no need to decide on the review of the law until the decision of the Federal Court.
My argument is that Section 97(2) of the Child Act 2001 does not contravene any provision of the Federal Constitution and is therefore valid.
Any provision of any act of parliament can be declared invalid only if it is ultra-vires the Federal Constitution. The doctrine of separation of powers is by itself not law. It is a legal principle which has been taken into consideration in formulating the Federal Constitution. The applicable law is the content of the Constitution.
We should note that the doctrine of the separation of powers in its application to modern government does not mean that a rigid threefold of legislature, executive and judiciary classification of their functions is possible.
There is for instance no separation of powers in the strict sense between the executive and the legislature. The practical necessities of parliamentary government demand a large measure of delegation to the executive of powers to legislate by rules, regulations and orders.
The independence of the judiciary has been strictly preserved, but many justiciable issues are referred not to the ordinary courts, but to the administrative authorities.
In any case, Section 97(2) of the Child Act 2001 has not ignored the doctrine of separation of powers. Under that section, the court orders and not the executive for the convicted child to be detained at the pleasure of the Yang di-Pertuan Agong, who under Article 42 of the Federal Constitution is given the power to grant pardons, reprieves and respites in respect of all offences committed in the federal territory. The issue of the doctrine of separation of powers does not arise at all.
It should be noted that section 97 is the old section 16 of the Juvenile Courts Act 1947 (Revised 1972). Section 97(4) is an additional provision which gives the power to the board of Visiting Judges to review the case every once a year and the board can make recommendation to the Yang di-Pertuan Agong accordingly.
This Section 97(4) is a provision protecting the right of the child and does not contravene any provision of the Federal Constitution.
Friday, 20 July 2007
2007 07: Give juveniles a second chance
The Star Online. Opinion. Sunday July 15, 2007
IT IS heartening indeed to know that the judiciary and laws of this country have not abandoned juvenile criminals and delinquents like so many countries in the West have done.
In a time when our children are increasingly being victimised and brutalised by monsters masquerading amongst us as human beings, the last thing we need is for the system and the law that has vowed to protect them to victimise and turn on them instead.
I laud the move by the Court of Appeals to rule that it is “unconstitutional” to hold a minor at the King’s pleasure for whatever crimes the minor had committed.
Although I may not be well versed in legal jargon, I firmly believe that holding a minor at the pleasure of the King infringes upon the child’s rights and is not the best possible way to rehabilitate and counsel the minor involved.
Even though the child has committed a heinous crime, the said child still has every right to be given the chance to redeem himself, and be given the chance to pick up the pieces of his life rather than be locked away in a prison, in the company of the worst possible criminals on earth.
There’s no doubt the child would probably be isolated from adult criminals, but just think about the repercussions on the child’s mental state when he is imprisoned in such an environment.
I have followed this boy’s case since it was first reported in 2002, and my heart goes out to him. Even though I am shocked by his actions, I am convinced it was the result of years of pent-up frustration, anger and emotions that was too much for a child to cope.
It still does not absolve him of the crime, but what he needs is not punishment, but intensive rehabilitation and counselling, and in this case, house arrest would have been a fitting solution.
The child needs someone to talk to, someone who can understand him, someone who can be there for him in his darkest hour, and I am glad to see that his parents have not cast him off like many parents of juvenile criminals are so wont to do.
There is hope yet for our juvenile delinquents in prison and reform schools throughout the country. We must learn and be willing to understand why a child commits a crime and must teach him to understand why it is wrong.
Five years in Kajang Prison is more than what a child at his age could bear. He deserves a second chance, like all of us do when we make mistakes.
Let’s give this child and other minors out there a chance to lead normal lives once they have put the past behind them and have truly been reformed.
PHILIPP C.K. GAN,
Petaling Jaya.
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Juveniles are no longer naive
The Star Online. Opinion. Tuesday July 17, 2007
I DISAGREE with Philipp C.K. Gan – Give juveniles a second chance (The Star, July 15). In his letter Gan wants juveniles committing serious offences to be given a chance.
I have no problem with that. By granting a second chance to the juveniles, we are giving them a glimpse of hope of a future.
However, we must never deny that a 12-year-old child who has committed such a heinous act must be seen as not innocent.
What guarantee can anyone give that he would not become more monstrous?
What assurance can Gan give that after much “intensive rehabilitation and counselling” this juvenile will not stab another person the moment he is mocked and teased for being fat or ugly?
Our courts of law must not only base their judgments on the age factor, but also the crime committed. With the advances in technology, our juveniles are no longer stupid and naive, but a bunch of people with unimaginable intelligence.
SYED MOHAZRI SYED HAZARI AL-QADRY,Port Dickson, Negri Sembilan.
...................................
IT IS heartening indeed to know that the judiciary and laws of this country have not abandoned juvenile criminals and delinquents like so many countries in the West have done.
In a time when our children are increasingly being victimised and brutalised by monsters masquerading amongst us as human beings, the last thing we need is for the system and the law that has vowed to protect them to victimise and turn on them instead.
I laud the move by the Court of Appeals to rule that it is “unconstitutional” to hold a minor at the King’s pleasure for whatever crimes the minor had committed.
Although I may not be well versed in legal jargon, I firmly believe that holding a minor at the pleasure of the King infringes upon the child’s rights and is not the best possible way to rehabilitate and counsel the minor involved.
Even though the child has committed a heinous crime, the said child still has every right to be given the chance to redeem himself, and be given the chance to pick up the pieces of his life rather than be locked away in a prison, in the company of the worst possible criminals on earth.
There’s no doubt the child would probably be isolated from adult criminals, but just think about the repercussions on the child’s mental state when he is imprisoned in such an environment.
I have followed this boy’s case since it was first reported in 2002, and my heart goes out to him. Even though I am shocked by his actions, I am convinced it was the result of years of pent-up frustration, anger and emotions that was too much for a child to cope.
It still does not absolve him of the crime, but what he needs is not punishment, but intensive rehabilitation and counselling, and in this case, house arrest would have been a fitting solution.
The child needs someone to talk to, someone who can understand him, someone who can be there for him in his darkest hour, and I am glad to see that his parents have not cast him off like many parents of juvenile criminals are so wont to do.
There is hope yet for our juvenile delinquents in prison and reform schools throughout the country. We must learn and be willing to understand why a child commits a crime and must teach him to understand why it is wrong.
Five years in Kajang Prison is more than what a child at his age could bear. He deserves a second chance, like all of us do when we make mistakes.
Let’s give this child and other minors out there a chance to lead normal lives once they have put the past behind them and have truly been reformed.
PHILIPP C.K. GAN,
Petaling Jaya.
.....................................................................
Juveniles are no longer naive
The Star Online. Opinion. Tuesday July 17, 2007
I DISAGREE with Philipp C.K. Gan – Give juveniles a second chance (The Star, July 15). In his letter Gan wants juveniles committing serious offences to be given a chance.
I have no problem with that. By granting a second chance to the juveniles, we are giving them a glimpse of hope of a future.
However, we must never deny that a 12-year-old child who has committed such a heinous act must be seen as not innocent.
What guarantee can anyone give that he would not become more monstrous?
What assurance can Gan give that after much “intensive rehabilitation and counselling” this juvenile will not stab another person the moment he is mocked and teased for being fat or ugly?
Our courts of law must not only base their judgments on the age factor, but also the crime committed. With the advances in technology, our juveniles are no longer stupid and naive, but a bunch of people with unimaginable intelligence.
SYED MOHAZRI SYED HAZARI AL-QADRY,Port Dickson, Negri Sembilan.
...................................
2007 07: Doing away with the cane
The Star Online. Opinion. Sunday July 15, 2007
The Women, Family and Community Development Ministry is proposing to abolish the cane, which has long been the tool of old-school disciplinarians and in the punishment of convicted child offenders.
AS kids, many of us have had our bums whacked! One doting grandfather recalled that when the teacher caned him and he sought compassion from his mother, she too would pick up the rotan, or a piece of firewood, and add to his lashes — no questions asked.
“I was a bit of a rascal in my (all-boys) school, and we did harmless mischief like throwing chalk at each other,” he admitted. By the time he was midway through primary school, he just bore his welts in philosophical silence.
“But I am none the worse for it,” he added. Tellingly, he never laid a hand on his own children.
Another person brought up by the cane is herself today a teacher.
“I don't resent my own mother caning me because I was remorseful about whatever naughty thing I had done. But I did resent it when my religious teacher slapped me on the face for daydreaming,” she said.
The days when parents brought their children to the teacher, presented him with a light rotan (cane) and urged “Cikgu, buatlah macam anak sendiri (treat him as you would your own child),” are long gone.
Among teachers who strictly uphold this role of mentor and have not hesitated to wield the stick, the ball rebounds swiftly with furious parents rushing to the headmaster complaining against Encik Farid and Cikgu Faridah.
Now, the Women, Family and Community Development Ministry is proposing to abolish the cane. A signatory to the (United Nations) International Convention on Children's Rights (CRC) since 1995, Malaysia wants to give life to mere words. If passed, it means that the Court For Children will no longer have caning as an option for child offenders.
Under the present Child Act 2001, only boys between the ages of 10 and 18 may be subjected to corporal punishment. And there are clear guidelines:
a maximum of 10 strokes with a light rotan;
the boy must be clothed;
whipping must not be inflicted on the face, head, stomach, chest and private parts;
the person meting out the punishment must not raise his hand over his head;
if a doctor deems the boy no longer fit to be whipped, the caning must stop; Caning, a negative reinforcement, has lost its popularity among many who have interacted first-hand with children today.
They prefer the non-punitive approach, focussing on positive reinforcement of good behaviour such as praise, love, tokens for younger children, recognition, rewards and treats, said Director of the Institut Sosial Malaysia, Associate Professor Dr Mohamed Fadzil Che Din.
Even positive discrimination like taking away an hour of television, or cutting back on pocket money, or negative discrimination such as standing on a chair or the “submarine” (where the child has to sit under the table), which I went through, are preferred, he said.
A trained psychologist and a lecturer in psychological counselling for 10 years with Universiti Putra Malaysia, Dr Mohamed Fadzil has worked with non-governmental organisations, adolescents and schools and today continues to advise adults and children alike.
“How a child sees himself will determine whether he is self-confident or anxious,” said Dr Mohamed Fadzil.
“Caning may bring about a negative self-concept, where he grows up in fear, panicking easily. This tendency follows into adulthood. If as children they are afraid to try, as adults they are not independent, not industrious.”
This makes them a manpower liability. After having spent millions on educating them as children, to then have to pour millions more to make them creative adults is a drain on the nation's coffers, he pointed out.
“One of the side-effects of caning is hatred, revenge, rebellion,” he added.
“In an aggressive personality, in its extreme form, we get terrorists.
“But passive personalities internalise the aggression. They become runaways, or in extreme cases, commit suicide.”
More to the point, corporal punishment, even for adults, has not been proven to be psychologically effective in character development. Depending on the individual, some who survive the school of hard-knocks may in fact become hardened by the experience.
The trend for adults, but even more so for children, has shifted to community service.
A legal practitioner admitted that he had been a naughty lad. One day, angry with his elderly neighbour, he lit a matchstick and threw it at his neighbour's roof. His mother roundly scolded him, not least because their adjoining roofs meant he could easily have burnt his own house down.
But it was his neighbour's forgiving generosity that was the turning point. His punishment? To tend to the neighbour's flowers and plants.
The real authority who may cane a child are his parents. But here too there are pitfalls.
Neighbours might hear the child regularly crying out, see the welts on his arms and leg, and complain to a welfare officer or even the police of child abuse. But what is the alternative? Spare the rod and spoil the child?
Judging by reports, caning is more frequently conducted in schools, where it falls under the ambit of the Child Act.
Ideally and theoretically it is the punishment of last resort.
In urban schools, teachers concur and parents concede that children are spoilt, especially in dual-income families. Parents admit to wanting so desperately to give their kids a better childhood than theirs: sushi snacks, maids, mobile phones, branded shoes and Disneyland school holidays.
The proposal to withdraw the cane should be seen in the context of another proposed amendment to the Child Act 2001 made just last year — to punish parents for errant children.
That proposal from the police received the support of Youth and Sports Minister Datuk Seri Azalina Othman Said.
At present, Section 33 of the Act metes out a fine of up to RM5,000, a two-year jail sentence or both for failure to properly supervise a child under their care.
But is it fair to blame parents for errant children?
For most of their primary years, children mirror their parents. Aggressive parents beget school bullies while offspring of reticent parents become their victims.
But caning also begets a chain reaction.
“Studies have shown that many criminals and convicts either came from troubled families or had suffered corporal punishment as children,” said Dr Mohamed Fadzil.
By setting the age of criminal responsibility at 10, the Act recognises that individual characteristics set in around that age and thereafter. Somewhere after 11, parents start “losing” their adolescents. Instead it is their peers who have the greatest influence on teenagers.
This age of criminal responsibility differs from country to country, reflecting the societies in which they operate. In Hong Kong it is 10, while mainland China, Taiwan and the United Kingdom set it at 14; France has lowered it from 15 to 13; Greece and Netherlands to 12.
The Women, Family and Community Development Ministry is proposing to abolish the cane, which has long been the tool of old-school disciplinarians and in the punishment of convicted child offenders.
AS kids, many of us have had our bums whacked! One doting grandfather recalled that when the teacher caned him and he sought compassion from his mother, she too would pick up the rotan, or a piece of firewood, and add to his lashes — no questions asked.
“I was a bit of a rascal in my (all-boys) school, and we did harmless mischief like throwing chalk at each other,” he admitted. By the time he was midway through primary school, he just bore his welts in philosophical silence.
“But I am none the worse for it,” he added. Tellingly, he never laid a hand on his own children.
Another person brought up by the cane is herself today a teacher.
“I don't resent my own mother caning me because I was remorseful about whatever naughty thing I had done. But I did resent it when my religious teacher slapped me on the face for daydreaming,” she said.
The days when parents brought their children to the teacher, presented him with a light rotan (cane) and urged “Cikgu, buatlah macam anak sendiri (treat him as you would your own child),” are long gone.
Among teachers who strictly uphold this role of mentor and have not hesitated to wield the stick, the ball rebounds swiftly with furious parents rushing to the headmaster complaining against Encik Farid and Cikgu Faridah.
Now, the Women, Family and Community Development Ministry is proposing to abolish the cane. A signatory to the (United Nations) International Convention on Children's Rights (CRC) since 1995, Malaysia wants to give life to mere words. If passed, it means that the Court For Children will no longer have caning as an option for child offenders.
Under the present Child Act 2001, only boys between the ages of 10 and 18 may be subjected to corporal punishment. And there are clear guidelines:
a maximum of 10 strokes with a light rotan;
the boy must be clothed;
whipping must not be inflicted on the face, head, stomach, chest and private parts;
the person meting out the punishment must not raise his hand over his head;
if a doctor deems the boy no longer fit to be whipped, the caning must stop; Caning, a negative reinforcement, has lost its popularity among many who have interacted first-hand with children today.
They prefer the non-punitive approach, focussing on positive reinforcement of good behaviour such as praise, love, tokens for younger children, recognition, rewards and treats, said Director of the Institut Sosial Malaysia, Associate Professor Dr Mohamed Fadzil Che Din.
Even positive discrimination like taking away an hour of television, or cutting back on pocket money, or negative discrimination such as standing on a chair or the “submarine” (where the child has to sit under the table), which I went through, are preferred, he said.
A trained psychologist and a lecturer in psychological counselling for 10 years with Universiti Putra Malaysia, Dr Mohamed Fadzil has worked with non-governmental organisations, adolescents and schools and today continues to advise adults and children alike.
“How a child sees himself will determine whether he is self-confident or anxious,” said Dr Mohamed Fadzil.
“Caning may bring about a negative self-concept, where he grows up in fear, panicking easily. This tendency follows into adulthood. If as children they are afraid to try, as adults they are not independent, not industrious.”
This makes them a manpower liability. After having spent millions on educating them as children, to then have to pour millions more to make them creative adults is a drain on the nation's coffers, he pointed out.
“One of the side-effects of caning is hatred, revenge, rebellion,” he added.
“In an aggressive personality, in its extreme form, we get terrorists.
“But passive personalities internalise the aggression. They become runaways, or in extreme cases, commit suicide.”
More to the point, corporal punishment, even for adults, has not been proven to be psychologically effective in character development. Depending on the individual, some who survive the school of hard-knocks may in fact become hardened by the experience.
The trend for adults, but even more so for children, has shifted to community service.
A legal practitioner admitted that he had been a naughty lad. One day, angry with his elderly neighbour, he lit a matchstick and threw it at his neighbour's roof. His mother roundly scolded him, not least because their adjoining roofs meant he could easily have burnt his own house down.
But it was his neighbour's forgiving generosity that was the turning point. His punishment? To tend to the neighbour's flowers and plants.
The real authority who may cane a child are his parents. But here too there are pitfalls.
Neighbours might hear the child regularly crying out, see the welts on his arms and leg, and complain to a welfare officer or even the police of child abuse. But what is the alternative? Spare the rod and spoil the child?
Judging by reports, caning is more frequently conducted in schools, where it falls under the ambit of the Child Act.
Ideally and theoretically it is the punishment of last resort.
In urban schools, teachers concur and parents concede that children are spoilt, especially in dual-income families. Parents admit to wanting so desperately to give their kids a better childhood than theirs: sushi snacks, maids, mobile phones, branded shoes and Disneyland school holidays.
The proposal to withdraw the cane should be seen in the context of another proposed amendment to the Child Act 2001 made just last year — to punish parents for errant children.
That proposal from the police received the support of Youth and Sports Minister Datuk Seri Azalina Othman Said.
At present, Section 33 of the Act metes out a fine of up to RM5,000, a two-year jail sentence or both for failure to properly supervise a child under their care.
But is it fair to blame parents for errant children?
For most of their primary years, children mirror their parents. Aggressive parents beget school bullies while offspring of reticent parents become their victims.
But caning also begets a chain reaction.
“Studies have shown that many criminals and convicts either came from troubled families or had suffered corporal punishment as children,” said Dr Mohamed Fadzil.
By setting the age of criminal responsibility at 10, the Act recognises that individual characteristics set in around that age and thereafter. Somewhere after 11, parents start “losing” their adolescents. Instead it is their peers who have the greatest influence on teenagers.
This age of criminal responsibility differs from country to country, reflecting the societies in which they operate. In Hong Kong it is 10, while mainland China, Taiwan and the United Kingdom set it at 14; France has lowered it from 15 to 13; Greece and Netherlands to 12.
Wednesday, 18 July 2007
2007 07: Court of Appeal upholds teenager's conviction
The Star Online. News. Nation. Thursday July 12, 2007
KUALA LUMPUR: A teenager, who was found guilty of killing his tuition teacher's daughter by stabbing and slashing her more than 20 times, had his conviction upheld by the Court of Appeal.
However, in its landmark decision, the appellate court set aside the sentence that he be detained in a prison at the pleasure of the King.
Instead, it ruled that the 17-year-old boy be remanded by an order of the Court of Appeal.
Justice Gopal Sri Ram who read out the judgment, said:
"We must say at once that this was a gruesome murder and that there is abundant material on record to support the conviction of the appellant. The victim in this case was found to have had 20 stab wounds.
"This clearly points to an intention to kill. There is absolutely no evidence to bring the case within one of exceptions," he said.
He said the trial judge had "admirably dealt with the evidence and drew the proper inferences from it".
"In our judgment, the conviction is therefore entirely safe," Justice Gopal said when dismissing the appeal against conviction.
Upon hearing the verdict, the boy, who was now being detained at Kajang prison, was expressionless.
Justice Gopal set Thursday (July 19) to hear arguments from both parties on the consequential orders to be made on the appeal for the boy.
The teenager was charged on June 7, 2002 with murdering the 11-year-old girl at her house in Wangsa Maju between 3.30pm and 4.30pm on May 30, 2002.
The boy, who would be 18 in August, was convicted of the crime on July 1.
High Court Justice Ahmad Maarop had on July 24, 2003 ordered for him to be detained in a prison at the pleasure of the King.
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Appeals Court: Juveniles cannot be held at King's pleasure
The Star Online. Courts. Friday July 13, 2007
PUTRAJAYA: The Court of Appeal has ruled as “unconstitutional” the sentencing of a teenager who is being held at the pleasure of the King after he was convicted of murdering his tuition teacher's daughter five years ago.
In a landmark decision yesterday read out by Justice Gopal Sri Ram, the court ruled that Section 97 (2), which allows a juvenile to be held at the pleasure of the King, was unconstitutional.
The two other judges on the Bench, which heard the boy's appeal against conviction and sentence, were Justice Zulkefli Ahmad Makinudin and Justice Raus Sharif.
The Bench was unanimous in ruling that the power to determine the punishment against a child convicted of murder, in lieu of a death punishment, was vested in the hands of the judiciary and not the executive.
Justice Sri Ram, in his 18-page judgment, said Section 97 (2) of the Child Act violated the doctrine of separation of powers, by consigning to the executive the judicial power to determine the measure of the sentence to be served by a juvenile offender.
He said the doctrine of separation of powers was an integral part of the Federal Constitution and since Article 4 (1) of the Federal Constitution declared the Constitution to be the supreme law, any state action violating the doctrine of separation of powers must be struck down as unconstitutional.
Following the court's decision, there is now no provision to punish a juvenile convicted for murder.
Justice Sri Ram said this was an instance where “Parliament has provided for the entry of a conviction and passing of sentence but has made no valid law for the measure of sentence.”
The judge quoted a similar situation in Soon Kim Seng v PP (1978), where the accused was fined RM1,500 on each of the three copyright charges. He then appealed on the ground that the legislation had not provided for any fine or punishment for the possession of a duplicating contrivance.
“(Former Federal Court judge Tan Sri) Chang Min Tat in allowing the appeal held, with regret, that Parliament had failed to provide a punishment for the offence in question. He accordingly upheld the conviction but set aside the sentence.
“We must, with like regret, follow suit. Here, Parliament has said that the appellant shall not, by reason of his age, receive the capital punishment but has made no valid law conferring power upon the courts to impose some other sentence,” said Justice Sri Ram.
He said the court would have been inclined to impose a life imprisonment in this case but unfortunately there was no written law prescribing it.
He added that it was unfortunate that those charged with the drafting of the Child Act did not pay proper attention to decided cases.
“If they had done so, the incongruent and unfortunate circumstances now before this court may well have been avoided. But as judges, we have to apply the law as it exists. We simply have no choice whatever in the matter,” he said.
“We will now hear arguments on the consequential orders that we should make on this appeal,” said Justice Sri Ram, who instructed both parties to make submissions on Thursday. He also ordered the boy, who is now 17, to be remanded under an order of the appellate court pending the submissions.
The Court of Appeal, however, upheld the conviction of the teenager, who was only 12 when he stabbed the 11-year-old girl 20 times with a sharp object.
“We must say at once that this was a gruesome murder and that there is abundant material on record to support the conviction of the appellant.
“In our judgment, the conviction is entirely safe,” Justice Sri Ram said.
The boy is being detained at Kajang Prison.
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Power in hands of court, says Karpal
The Star Online. Courts. Friday July 13, 2007Friday July 13, 2007
PUTRAJAYA: The decision was a victory for the judiciary, said the boy’s lawyer Karpal Singh.
“The decision has very far-reaching consequences and implications and it is a victory for the judiciary because judicial power has been emphasised to be in the hands of the court and not that of the executive,” he said.
Following the court’s decision that there was no provision for punishment under law for such offenders, Karpal Singh said the only remedy was for the Parliament to amend the Child Act 2001.
“I call upon the Government to make provisions for the Child Act to be amended in the September sitting of Parliament to include the provision for the judiciary to make the orders with modifications to Section 97(2).
“It is not the King but the judiciary. The court can order a person to be detained at the pleasure of the court with the Board of Justices to be appointed by the court to make recommendations on the detention.”
He said the matter should be decided quickly as “any child could murder anyone without a sentence for the crime”.
“He could be convicted of murder but he cannot be sentenced because the provision for sentences under Sec 97(2) was declared unconstitutional.
“The public interest is very important,” he said.
He said amendments should not be backdated to affect the boy.
He elaborated that this was the first case involving a boy being ordered to be held at the pleasure of the King under the Child Act while the remaining 50 other cases involved detentions under Section 348 of the Criminal Procedure Code (CPC), which provides for the detention of persons at the pleasure of the King, or a Ruler or Governor after the person is acquitted by reason of insanity.
Karpal Singh added that even Section 348 of the CPC had to be looked into by the authorities.
Justice Gopal Sri Ram had said in the verdict that the striking down of Section 97(2) would not affect Section 348 of the CPC. The judge said the validity of these other provisions must be dealt with on a case-by-case basis.
Earlier, Karpal Singh argued to the appellate court that the boy should be released after it has ruled that the provisions were unconstitutional.
“The court has no choice but to release him because there is no measure of punishment,” he said.
However, DPP Yaacob Sam indicated to the judges that he wants to take the matter to the Federal Court and asked for an order of remand for the boy. Speaking to reporters later, Karpal said it was a very strange condition for a person not to undergo a sentence but was remanded.
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Past cases of those jailed at pleasure of the King
The Star Online. Courts. Friday July 13, 2007
PETALING JAYA: There have been several cases of juveniles or those of unsound mind being sent to jail at the pleasure of the King previously. Among them are:
·IN 2005, Huzairin Azmi, 21, was acquitted on the grounds of insanity for stabbing an office worker twice with a knife in Kuala Lumpur three years earlier. However, the High Court judge ordered him to be held at the pleasure of the King for being insane when he committed the offence;
·IN the Court of Appeal in 2003, five men who had been found guilty of murdering an estate worker in Teluk Intan, Perak, in 1998, were acquitted because there was no prima facie case against them. One of them, identified only as Sivakumar, had been detained at the pleasure of the King because he was 17 when the murder occurred;
·IN 2001, it was stated in Parliament that 21 convicts had been ordered by the High Court to be held at the pleasure of the King for committing capital offences; and
·ON June 11, 2001, Kok Foo Seng, 27, became a free man when he received a royal pardon for good behaviour. He had been convicted of drug trafficking when he was 15 and was ordered by the High Court to be held at the pleasure of the King due to his age and was spared the gallows. He was sent to the Henry Gurney School in Malacca in 1991 and then to Kajang Prison when he turned 21 in 1995.
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Sri Ram: We want to keep child away for a long, long time
NST Online. Local News. 20/7/07
PUTRAJAYA: The teenager who killed his tuition teacher’s daughter may spend the rest of his natural life in prison.
"We have no intention of returning this boy back to society. I want to know if we have the power to keep him in prison for a long, long time," said Court of Appeal judge Datuk Gopal Sri Ram.
Sri Ram directed the prosecution to look into Section 5 of the Criminal Procedure Code (CPC), which allows Malaysian courts to apply English criminal procedure law, if no provision is available in the local CPC for a criminal offence.
Section 5 of the CPC reads: "As regards matters of criminal procedure for which no special provision has been made by this Code or by any other law for the time being in force, the law relating to criminal procedure for the time being in force in England shall be applied. So far as the same shall not conflict or be inconsistent with this Code and can be made auxiliary thereto.
The teenager brutally stabbed 13-year-old Liew Mei Fong 24 times in 2002 after she had taunted him with chants of "Fatty! Fatty! Fatty"!
The teenager, who was three months short of 13 then, was supposed to attend tuition lessons at the victim’s house in Taman Sri Rampai, Setapak, when the incident occurred.
He went into the kitchen, took a knife and stabbed her repeatedly before dragging her body into a bathroom on the ground floor of the double-storey house.
"It is out of the question to release this boy," Sri Ram said yesterday. "We want to put this child away for as long as possible.
"Yesterday’s proceedings were supposed to be for submissions whether to release the boy, who had been imprisoned for four years after being found guilty of murder.
At that time, he was sentenced by the High Court to be held at the pleasure of the king.
But last week, the same Court of Appeal overturned the High Court’s sentence on the grounds that it contravened the doctrine of separation of powers between the executive and judiciary. The court ruled that the sentence was unconstitutional.
Sri Ram, who sat with Datuk Zulkefli Ahmad Makinudin and Datuk Md Raus Sharif, said the English legal system’s life sentence equals being locked away for the rest of an individual’s natural life as opposed to the Malaysian version, which is 20 years in jail.
This was objected by defence counsel Karpal Singh (picture), who claimed that the boy should instead be sentenced under Section 125 of the Child Act.The Act states that if no penalty is provided for an offence committed by a minor, the maximum sentence shall be a fine not exceeding RM5,000, or two years’ imprisonment, or both.
The court noted Karpal’s objection but postponed the proceedings for one week to allow the prosecution time to look into the possibility of invoking Section 5 of the CPC.
Speaking to reporters later, Karpal said Malaysian laws are sufficient in this case and there was no need to look to England.While admitting that the sentence under Section 125 of the Child Act was lenient for this case, he said: "This is Malaysian law and it should be followed.
"The teenager, who is now 17 years old, was present in court. His parents, sister, and other relatives were also there.
The teenager was sitting in the public gallery, surrounded by his family. His mother stroked his hand and spoke to him in a hushed voice. The teenager barely spoke; he was simply seen nodding his head.He was handcuffed, wearing a T-shirt, windbreaker, jeans and slippers. He looked much leaner.
After Sri Ram’s comments of "keeping the boy in prison for a long, long time", the family looked visibly upset. They refused to comment when approached later.Submissions will be heard on Wednesday.
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Court orders release of 17 yr-old convicted of murder
The Star Online. News. Nation. Wednesday July 25, 2007
PUTRAJAYA: The Court of Appeal has ordered the release of the 17-year-old boy convicted of murdering his tuition teacher’s 11-year-old daughter five years ago.
When setting aside the sentence that the boy be detained in prison at the pleasure of the King in a landmark judgment earlier this month, Court of Appeal Justice Gopal Sri Ram had ordered DPP Yaacob Sam to look into whether the laws of England were applicable in Malaysia to sentence a teenager to natural life for murder.
The Court met Wednesday to hear submissions from the DPP and defence counsel on whether the appellate court could “import Section 5 of the Criminal Procedure Code (CPC) and send the 17-year-old boy to prison.”
The boy is currently being remanded at Kajang Prison under a Court of Appeal order. He has already served five years since his date of arrest on May 30, 2002.
The High Court had on July 1, 2003, found the boy guilty of murdering the 11-year-old girl at her house in Sentul, Kuala Lumpur, by stabbing her 20 times with a sharp object on May 30, 2002. He was 12 when he committed the offence.
On July 12, the Court of Appeal upheld the conviction for murder but set aside the sentence that the boy be held at the pleasure of the King, ruling that the sentence was unconstitutional.
Section 5 of the CPC provides for the laws of England to be applicable in Malaysia when there is no special provision made on matters of criminal procedure under the CPC or any written law.)
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Court: No choice but to free teen
The Star Online. News. Nation. Thursday July 26, 2007
PUTRAJAYA: The Court of Appeal has freed a teenager who was detained in prison at the pleasure of the King for the murder of his tuition teacher’s daughter five years ago.
In a landmark decision yesterday, Justices Gopal Sri Ram, Zulkefli Ahmad Makinudin and Raus Sharif held that the boy, who turns 18 next month, had to be set free as there was no law that prescribed a sentence for a child convicted of murder.
The Court of Appeal had on July 12 set aside the sentence that the boy be held at the pleasure of the King, ruling that the sentence was unconstitutional.
In his oral judgment yesterday, Justice Gopal Sri Ram said: “It follows, we have no choice to the matter except to maintain the conviction and order the release of the appellant. The order is as follows: Conviction affirmed and the accused released from custody forthwith.”
At the end of the proceedings, two policemen immediately went to the boy who was in the dock and removed his handcuffs.
His parents, sister, an uncle and an aunt then hugged him tight before leading him out.
Earlier, Justice Sri Ram said this was a “most unfortunate case” and that the boy had committed “a most heinous crime” which, if it had been committed by an adult, would have resulted in the death penalty.
In 2003, the High Court found the boy guilty of murdering the 11-year-old girl at her house in Kuala Lumpur, by stabbing her 20 times and slashing her four times with a sharp object on May 30, 2002, and ordered him to be detained in prison at the pleasure of the King. The boy was 12, when he killed the girl.
The Court of Appeal upheld the conviction but ruled that the sentencing was “unconstitutional” as Section 97(2) of the Child Act 2001 which provided for this sentence violated the doctrine of separation of powers by consigning to the Executive the judicial power to set the term to be served by a juvenile offender.
Last Thursday, the appellate court explored the possibility of applying the laws of England to sentence the boy to natural life for murder, in the absence of an appropriate sentence under Malaysian law.
The Court of Appeal fixed yesterday to hear submissions from DPP Yaacob Sam and counsel Karpal Singh on the matter.
DPP Yaacob submitted that the laws of England do not apply in Malaysia while Karpal Singh argued that the court had no alternative but to set the boy free.
After delivering his decision, Justice Sri Ram directed DPP Yaacob to take further action on his own pertaining to a warrant for the boy to be remanded pending any appeal to the Federal Court.
The prosecution had filed an appeal on Monday against the court’s ruling on July 12.
When contacted, Attorney General Tan Sri Gani Patail said the prosecution would file an appeal against the boy’s release.
“I am waiting for the written judgment.”
The boy’s case was the first where a juvenile was ordered to be held at the pleasure of the King under the Child Act 2001.
Fact of the case
On May 30, 2002, an international schoolteacher came home to find her 11-year-old daughter sprawled in a pool of blood on the bathroom floor of their house in Setapak.
She immediately rushed her daughter to a specialist centre, where she was pronounced dead on arrival.
The woman’s 13-year-old tuition student was said to be the last person to have been with the girl. The boy had arrived about an hour early for tuition, before the woman had returned home from a weekly school meeting. The teacher told her daughter to let the boy into the house first.
While waiting in the house, the boy was taunted by the victim, who repeatedly called him “fatty.” A spat soon ensued between the two children. Continuing their quarrel in the kitchen, the boy suddenly snapped and attacked her with a sharp weapon.
Post-mortem reports revealed that she had died due to massive blood loss from four slash wounds and 20 stab wounds.
After committing the murder, the boy had left the scene with his uncle, whom he had asked to pick him up on the excuse that his tuition class had been cancelled.
On finding her daughter’s body, the woman had called up the boy who repeatedly said: “Teacher, sorry, sorry. Teacher, sorry ... I don’t know why I did it.’’
The boy was picked up by the police from his father’s shop about an hour later.
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Murdered girl’s mother stunned
The Star Online. News. Nation. Thursday July 26, 2007
KUALA LUMPUR: “I am stunned.”
This was the reaction from the tuition teacher, whose daughter was murdered five years ago, upon learning that the boy who had been convicted of the crime had been freed.
The 48-year-old teacher described the decision as “unfair” to her daughter and family members.
“It is a fact that the boy has been convicted of murdering my daughter. But it is unacceptable to free him with no sentence being passed on him for the crime.
“I am not saying that the boy should not be given a second chance but clearly something more than this (being freed) could be done,” she said in a telephone interview.
Following the murder which took place at her house in Taman Seri Rampai, Setapak, on May 30, 2002, the family moved to Taman Ukay Perdana in Ulu Klang four years ago.
The victim’s uncle said the family had just begun to “heal” after their grief. He said the boy’s release came as a major blow to them.
“This is unfair. We are disappointed and shocked over the ruling,” said the 40-year-old contractor.
“This court has set a precedent that a juvenile would not be held accountable for a murder.
“I don’t know what else we can do. We will still pursue all means to ensure the murderer is handed the sentence he deserves,” he said.
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Child killer freed: Karpal suggests way to keep young killers in jail
NST Online. Frontpage. 26/7/07
KUALA LUMPUR: Current laws allow for minors to commit murder and walk scot-free.
"This case has set a precedent," said lawyer Karpal Singh who appeared for the teenager.
While he sympathised with the victim’s family, he said the current laws allow for minors to walk free after committing murder.
"I urge the government to do something about it by moving a bill in Parliament to amend Section 97 of the Child Act."
Karpal said the decision by the Court of Appeal in this case showed that judicial power is still in the hands of the judiciary and that has far reaching implications.
He said minors should be placed at the pleasure of the court with the board of justices making recommendations every year.
"Only then the whole process of the trial, meaning conviction and punishment remain in the hands of the court," Karpal said.
He said since the boy had undergone a trial and was detained for more than four years, any amendment now should not affect him.
"Any law should be prospective in application and not retrospective," said Karpal.
The teenager whom Karpal had defended, had brutally killed the victim, Liew Mei Fong, after she had allegedly taunted him with chants of "Fatty! Fatty! Fatty!"
The murderer who was then 13 years old, was at Liew’s house in Taman Seri Rampai, Setapak, for tuition lessons.
The boy’s tuition teacher was Liew’s mother, Chin Yoke Chan, a teacher at an international school.
On May 31, 2002, the boy went for his tuition lesson early. Only Liew was there and she started taunting him in Cantonese. It was reported that he told her to stop but Liew went on. She then went outside to buy an ice-cream from a vendor, taunting him even as she did so.
It was then that something in the boy snapped.
Police investigations revealed that the suspect followed Mei Fong to the kitchen, grabbed a knife and repeatedly stabbed her. She was then left bleeding in the bathroom on the ground floor of the house.
Testimony in court later revealed that Liew was stabbed and slashed 24 times.
The suspect then locked the house and left the scene with his uncle, whom he had contacted. He told his uncle that there was no tuition that day and asked him to take him home.
Police picked up the boy from his father’s shop an hour later and seized the clothes he was wearing during the incident. The murder weapon, a kitchen knife, was found later in the course of investigations.
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Former child prisoner empathises with boy
The Star Online. News. Nation. Friday July 27, 2007
KUALA LUMPUR: Having entered prison at the age of 14, Kok Foo Seng knows exactly what it is like to be lost behind bars as a child.
He spent 13 years in prison after being ordered to be held at the pleasure of the Pahang Sultan for a drug trafficking charge in 1989.
Now aged 33, he can speak with conviction about the case involving the release of a teenager who had been detained in prison for the murder of his tuition teacher's daughter in 2002.
“I am happy for the boy although I have served more than twice longer than him in prison. I wish him all the best,” added Kok, now a vegetable supplier.
Kok was arrested in 1989. Being a juvenile, he escaped the death sentence after being convicted.
He was ordered by the High Court to be held at the pleasure of the sultan in 1991.
He was released from Kajang Prison in 2001 at the age of 27 after being pardoned by the sultan.
With all that trauma behind him now, Kok advised the boy to treasure his freedom, saying that there “will never be a second chance” for him.
Kok, a Form One dropout, “salvaged” himself by brushing up on his Chinese language to write a book he titled Return of the Lost Lamb. The book was published in 2000, and his former prison mates also helped him market it upon their release.
Kok has tried various jobs – pasar malam trader, odd-job worker and property agent, before finally being a vegetable supplier.
He considers himself blessed – six months after he quit as a property agent, he closed a deal to sell a piece of land worth more than RM10mil.
With his commission, Kok could pay the deposit on a flat and has also signed up for a housing loan.
“I will be moving into my new house, hopefully in September. I am doing all right, but it could be better,” added the bachelor.
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Appeal filed against boy’s release
The Star Online. News. Nation. Saturday July 28, 2007
PUTRAJAYA: The prosecution filed an appeal in the Federal Court yesterday against the release of the boy convicted for the murder of his tuition teacher’s daughter.
The boy, who turns 18 next month, was sentenced by the High Court four years ago to be detained in prison at the pleasure of the King.
On July 12, the Court of Appeal upheld the conviction but set aside the sentence, ruling that it was “unconstitutional”. The prosecution had already filed an appeal on Monday against the ruling.
On Wednesday, the Court of Appeal released the boy, which prompted the prosecution to file another appeal yesterday.
In 2003, the High Court found the boy guilty of murdering the 11-year-old girl at her house in Kuala Lumpur by stabbing her 20 times and slashing her four times with a sharp object on May 30, 2002. The boy was 12 when he killed the girl.
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30 others are being held at the pleasure of the king - will they be freed, too?
The Star Online. News. Nation. Sunday July 29, 2007
KUALA LUMPUR: The Court of Appeal decision that saw a 17-year-old boy convicted of murder going free has raised hopes that 30 others also detained at the pleasure of the King may be released too. But for now, they will just have to wait and hope.
Their fate will depend on the outcome of the Attorney-General’s appeal in the Federal Court against the ruling.
Even then, freedom is not a certainty as there are different schools of thought, even in legal circles. Some say the decision is binding on all those detained at the pleasure of the King but others disagree.
Bar Council’s Criminal Law Committee chairman Datuk V. Sithambaram is of the opinion that the decision applies to that particular teenager and not to all.
“Even if the families of those detained at the pleasure of the King applied for a revision of their sentences immediately, the courts will stay the application until the Federal Court has disposed of the AG’s appeal,” he said yesterday. “This would be the same for those who have not exhausted all their avenues of appeal.”
According to Deputy Internal Security Minister Datuk Fu Ah Kiow, there are currently 30 boys and men convicted of murder or drug trafficking, being detained at the pleasure of the Yang di-Pertuan Agong in various prisons nationwide.
Of these, he said 11 were still under 18, while 14 had been convicted when they were below 18 but are now over 18. The remaining five were adults who were escaped the gallows on the grounds of insanity.
Fu said that 10 of the 11 were detained for murder under Section 97 (2) of the Child Act 2001, which was declared unconstitutional by the court on July 12, and one came under the same provision of the Juvenile Courts Act 1947 (repealed by the Child Act in 2001).
In the case of the freed boy, since he was 12 when he murdered his tuition teacher’s daughter in 2002, and the law prohibits children from being sentenced to death, the High Court had applied Section 97 (2) of the Child Act 2001 to ordered his detention at the pleasure of the King, after convicting him in July 2003.
Section 348 of the Criminal Procedure Code, provides for the detention of persons at the pleasure of the King after the person is acquitted by reason of insanity and Section 97(1) of the Child Act states that a minor found guilty of murder cannot be sentenced to death.
On July 12, the Court of Appeal declared Section 97 (2) unconstitutional saying it gave to the Executive the Judiciary’s power to determine the measure of the sentence, for example the length of detention, to be served by a juvenile offender.
The boy was subsequently freed although the conviction remains.
Following the landmark decision, the boy’s counsel Karpal Singh said that the 11 juveniles now being held in prison should be released forthwith without having to go to court.
All 11 have already served between two and six years in the prisons in Kajang, Sungai Petani and Marang.
KUALA LUMPUR: A teenager, who was found guilty of killing his tuition teacher's daughter by stabbing and slashing her more than 20 times, had his conviction upheld by the Court of Appeal.
However, in its landmark decision, the appellate court set aside the sentence that he be detained in a prison at the pleasure of the King.
Instead, it ruled that the 17-year-old boy be remanded by an order of the Court of Appeal.
Justice Gopal Sri Ram who read out the judgment, said:
"We must say at once that this was a gruesome murder and that there is abundant material on record to support the conviction of the appellant. The victim in this case was found to have had 20 stab wounds.
"This clearly points to an intention to kill. There is absolutely no evidence to bring the case within one of exceptions," he said.
He said the trial judge had "admirably dealt with the evidence and drew the proper inferences from it".
"In our judgment, the conviction is therefore entirely safe," Justice Gopal said when dismissing the appeal against conviction.
Upon hearing the verdict, the boy, who was now being detained at Kajang prison, was expressionless.
Justice Gopal set Thursday (July 19) to hear arguments from both parties on the consequential orders to be made on the appeal for the boy.
The teenager was charged on June 7, 2002 with murdering the 11-year-old girl at her house in Wangsa Maju between 3.30pm and 4.30pm on May 30, 2002.
The boy, who would be 18 in August, was convicted of the crime on July 1.
High Court Justice Ahmad Maarop had on July 24, 2003 ordered for him to be detained in a prison at the pleasure of the King.
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Appeals Court: Juveniles cannot be held at King's pleasure
The Star Online. Courts. Friday July 13, 2007
PUTRAJAYA: The Court of Appeal has ruled as “unconstitutional” the sentencing of a teenager who is being held at the pleasure of the King after he was convicted of murdering his tuition teacher's daughter five years ago.
In a landmark decision yesterday read out by Justice Gopal Sri Ram, the court ruled that Section 97 (2), which allows a juvenile to be held at the pleasure of the King, was unconstitutional.
The two other judges on the Bench, which heard the boy's appeal against conviction and sentence, were Justice Zulkefli Ahmad Makinudin and Justice Raus Sharif.
The Bench was unanimous in ruling that the power to determine the punishment against a child convicted of murder, in lieu of a death punishment, was vested in the hands of the judiciary and not the executive.
Justice Sri Ram, in his 18-page judgment, said Section 97 (2) of the Child Act violated the doctrine of separation of powers, by consigning to the executive the judicial power to determine the measure of the sentence to be served by a juvenile offender.
He said the doctrine of separation of powers was an integral part of the Federal Constitution and since Article 4 (1) of the Federal Constitution declared the Constitution to be the supreme law, any state action violating the doctrine of separation of powers must be struck down as unconstitutional.
Following the court's decision, there is now no provision to punish a juvenile convicted for murder.
Justice Sri Ram said this was an instance where “Parliament has provided for the entry of a conviction and passing of sentence but has made no valid law for the measure of sentence.”
The judge quoted a similar situation in Soon Kim Seng v PP (1978), where the accused was fined RM1,500 on each of the three copyright charges. He then appealed on the ground that the legislation had not provided for any fine or punishment for the possession of a duplicating contrivance.
“(Former Federal Court judge Tan Sri) Chang Min Tat in allowing the appeal held, with regret, that Parliament had failed to provide a punishment for the offence in question. He accordingly upheld the conviction but set aside the sentence.
“We must, with like regret, follow suit. Here, Parliament has said that the appellant shall not, by reason of his age, receive the capital punishment but has made no valid law conferring power upon the courts to impose some other sentence,” said Justice Sri Ram.
He said the court would have been inclined to impose a life imprisonment in this case but unfortunately there was no written law prescribing it.
He added that it was unfortunate that those charged with the drafting of the Child Act did not pay proper attention to decided cases.
“If they had done so, the incongruent and unfortunate circumstances now before this court may well have been avoided. But as judges, we have to apply the law as it exists. We simply have no choice whatever in the matter,” he said.
“We will now hear arguments on the consequential orders that we should make on this appeal,” said Justice Sri Ram, who instructed both parties to make submissions on Thursday. He also ordered the boy, who is now 17, to be remanded under an order of the appellate court pending the submissions.
The Court of Appeal, however, upheld the conviction of the teenager, who was only 12 when he stabbed the 11-year-old girl 20 times with a sharp object.
“We must say at once that this was a gruesome murder and that there is abundant material on record to support the conviction of the appellant.
“In our judgment, the conviction is entirely safe,” Justice Sri Ram said.
The boy is being detained at Kajang Prison.
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Power in hands of court, says Karpal
The Star Online. Courts. Friday July 13, 2007Friday July 13, 2007
PUTRAJAYA: The decision was a victory for the judiciary, said the boy’s lawyer Karpal Singh.
“The decision has very far-reaching consequences and implications and it is a victory for the judiciary because judicial power has been emphasised to be in the hands of the court and not that of the executive,” he said.
Following the court’s decision that there was no provision for punishment under law for such offenders, Karpal Singh said the only remedy was for the Parliament to amend the Child Act 2001.
“I call upon the Government to make provisions for the Child Act to be amended in the September sitting of Parliament to include the provision for the judiciary to make the orders with modifications to Section 97(2).
“It is not the King but the judiciary. The court can order a person to be detained at the pleasure of the court with the Board of Justices to be appointed by the court to make recommendations on the detention.”
He said the matter should be decided quickly as “any child could murder anyone without a sentence for the crime”.
“He could be convicted of murder but he cannot be sentenced because the provision for sentences under Sec 97(2) was declared unconstitutional.
“The public interest is very important,” he said.
He said amendments should not be backdated to affect the boy.
He elaborated that this was the first case involving a boy being ordered to be held at the pleasure of the King under the Child Act while the remaining 50 other cases involved detentions under Section 348 of the Criminal Procedure Code (CPC), which provides for the detention of persons at the pleasure of the King, or a Ruler or Governor after the person is acquitted by reason of insanity.
Karpal Singh added that even Section 348 of the CPC had to be looked into by the authorities.
Justice Gopal Sri Ram had said in the verdict that the striking down of Section 97(2) would not affect Section 348 of the CPC. The judge said the validity of these other provisions must be dealt with on a case-by-case basis.
Earlier, Karpal Singh argued to the appellate court that the boy should be released after it has ruled that the provisions were unconstitutional.
“The court has no choice but to release him because there is no measure of punishment,” he said.
However, DPP Yaacob Sam indicated to the judges that he wants to take the matter to the Federal Court and asked for an order of remand for the boy. Speaking to reporters later, Karpal said it was a very strange condition for a person not to undergo a sentence but was remanded.
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Past cases of those jailed at pleasure of the King
The Star Online. Courts. Friday July 13, 2007
PETALING JAYA: There have been several cases of juveniles or those of unsound mind being sent to jail at the pleasure of the King previously. Among them are:
·IN 2005, Huzairin Azmi, 21, was acquitted on the grounds of insanity for stabbing an office worker twice with a knife in Kuala Lumpur three years earlier. However, the High Court judge ordered him to be held at the pleasure of the King for being insane when he committed the offence;
·IN the Court of Appeal in 2003, five men who had been found guilty of murdering an estate worker in Teluk Intan, Perak, in 1998, were acquitted because there was no prima facie case against them. One of them, identified only as Sivakumar, had been detained at the pleasure of the King because he was 17 when the murder occurred;
·IN 2001, it was stated in Parliament that 21 convicts had been ordered by the High Court to be held at the pleasure of the King for committing capital offences; and
·ON June 11, 2001, Kok Foo Seng, 27, became a free man when he received a royal pardon for good behaviour. He had been convicted of drug trafficking when he was 15 and was ordered by the High Court to be held at the pleasure of the King due to his age and was spared the gallows. He was sent to the Henry Gurney School in Malacca in 1991 and then to Kajang Prison when he turned 21 in 1995.
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Sri Ram: We want to keep child away for a long, long time
NST Online. Local News. 20/7/07
PUTRAJAYA: The teenager who killed his tuition teacher’s daughter may spend the rest of his natural life in prison.
"We have no intention of returning this boy back to society. I want to know if we have the power to keep him in prison for a long, long time," said Court of Appeal judge Datuk Gopal Sri Ram.
Sri Ram directed the prosecution to look into Section 5 of the Criminal Procedure Code (CPC), which allows Malaysian courts to apply English criminal procedure law, if no provision is available in the local CPC for a criminal offence.
Section 5 of the CPC reads: "As regards matters of criminal procedure for which no special provision has been made by this Code or by any other law for the time being in force, the law relating to criminal procedure for the time being in force in England shall be applied. So far as the same shall not conflict or be inconsistent with this Code and can be made auxiliary thereto.
The teenager brutally stabbed 13-year-old Liew Mei Fong 24 times in 2002 after she had taunted him with chants of "Fatty! Fatty! Fatty"!
The teenager, who was three months short of 13 then, was supposed to attend tuition lessons at the victim’s house in Taman Sri Rampai, Setapak, when the incident occurred.
He went into the kitchen, took a knife and stabbed her repeatedly before dragging her body into a bathroom on the ground floor of the double-storey house.
"It is out of the question to release this boy," Sri Ram said yesterday. "We want to put this child away for as long as possible.
"Yesterday’s proceedings were supposed to be for submissions whether to release the boy, who had been imprisoned for four years after being found guilty of murder.
At that time, he was sentenced by the High Court to be held at the pleasure of the king.
But last week, the same Court of Appeal overturned the High Court’s sentence on the grounds that it contravened the doctrine of separation of powers between the executive and judiciary. The court ruled that the sentence was unconstitutional.
Sri Ram, who sat with Datuk Zulkefli Ahmad Makinudin and Datuk Md Raus Sharif, said the English legal system’s life sentence equals being locked away for the rest of an individual’s natural life as opposed to the Malaysian version, which is 20 years in jail.
This was objected by defence counsel Karpal Singh (picture), who claimed that the boy should instead be sentenced under Section 125 of the Child Act.The Act states that if no penalty is provided for an offence committed by a minor, the maximum sentence shall be a fine not exceeding RM5,000, or two years’ imprisonment, or both.
The court noted Karpal’s objection but postponed the proceedings for one week to allow the prosecution time to look into the possibility of invoking Section 5 of the CPC.
Speaking to reporters later, Karpal said Malaysian laws are sufficient in this case and there was no need to look to England.While admitting that the sentence under Section 125 of the Child Act was lenient for this case, he said: "This is Malaysian law and it should be followed.
"The teenager, who is now 17 years old, was present in court. His parents, sister, and other relatives were also there.
The teenager was sitting in the public gallery, surrounded by his family. His mother stroked his hand and spoke to him in a hushed voice. The teenager barely spoke; he was simply seen nodding his head.He was handcuffed, wearing a T-shirt, windbreaker, jeans and slippers. He looked much leaner.
After Sri Ram’s comments of "keeping the boy in prison for a long, long time", the family looked visibly upset. They refused to comment when approached later.Submissions will be heard on Wednesday.
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Court orders release of 17 yr-old convicted of murder
The Star Online. News. Nation. Wednesday July 25, 2007
PUTRAJAYA: The Court of Appeal has ordered the release of the 17-year-old boy convicted of murdering his tuition teacher’s 11-year-old daughter five years ago.
When setting aside the sentence that the boy be detained in prison at the pleasure of the King in a landmark judgment earlier this month, Court of Appeal Justice Gopal Sri Ram had ordered DPP Yaacob Sam to look into whether the laws of England were applicable in Malaysia to sentence a teenager to natural life for murder.
The Court met Wednesday to hear submissions from the DPP and defence counsel on whether the appellate court could “import Section 5 of the Criminal Procedure Code (CPC) and send the 17-year-old boy to prison.”
The boy is currently being remanded at Kajang Prison under a Court of Appeal order. He has already served five years since his date of arrest on May 30, 2002.
The High Court had on July 1, 2003, found the boy guilty of murdering the 11-year-old girl at her house in Sentul, Kuala Lumpur, by stabbing her 20 times with a sharp object on May 30, 2002. He was 12 when he committed the offence.
On July 12, the Court of Appeal upheld the conviction for murder but set aside the sentence that the boy be held at the pleasure of the King, ruling that the sentence was unconstitutional.
Section 5 of the CPC provides for the laws of England to be applicable in Malaysia when there is no special provision made on matters of criminal procedure under the CPC or any written law.)
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Court: No choice but to free teen
The Star Online. News. Nation. Thursday July 26, 2007
PUTRAJAYA: The Court of Appeal has freed a teenager who was detained in prison at the pleasure of the King for the murder of his tuition teacher’s daughter five years ago.
In a landmark decision yesterday, Justices Gopal Sri Ram, Zulkefli Ahmad Makinudin and Raus Sharif held that the boy, who turns 18 next month, had to be set free as there was no law that prescribed a sentence for a child convicted of murder.
The Court of Appeal had on July 12 set aside the sentence that the boy be held at the pleasure of the King, ruling that the sentence was unconstitutional.
In his oral judgment yesterday, Justice Gopal Sri Ram said: “It follows, we have no choice to the matter except to maintain the conviction and order the release of the appellant. The order is as follows: Conviction affirmed and the accused released from custody forthwith.”
At the end of the proceedings, two policemen immediately went to the boy who was in the dock and removed his handcuffs.
His parents, sister, an uncle and an aunt then hugged him tight before leading him out.
Earlier, Justice Sri Ram said this was a “most unfortunate case” and that the boy had committed “a most heinous crime” which, if it had been committed by an adult, would have resulted in the death penalty.
In 2003, the High Court found the boy guilty of murdering the 11-year-old girl at her house in Kuala Lumpur, by stabbing her 20 times and slashing her four times with a sharp object on May 30, 2002, and ordered him to be detained in prison at the pleasure of the King. The boy was 12, when he killed the girl.
The Court of Appeal upheld the conviction but ruled that the sentencing was “unconstitutional” as Section 97(2) of the Child Act 2001 which provided for this sentence violated the doctrine of separation of powers by consigning to the Executive the judicial power to set the term to be served by a juvenile offender.
Last Thursday, the appellate court explored the possibility of applying the laws of England to sentence the boy to natural life for murder, in the absence of an appropriate sentence under Malaysian law.
The Court of Appeal fixed yesterday to hear submissions from DPP Yaacob Sam and counsel Karpal Singh on the matter.
DPP Yaacob submitted that the laws of England do not apply in Malaysia while Karpal Singh argued that the court had no alternative but to set the boy free.
After delivering his decision, Justice Sri Ram directed DPP Yaacob to take further action on his own pertaining to a warrant for the boy to be remanded pending any appeal to the Federal Court.
The prosecution had filed an appeal on Monday against the court’s ruling on July 12.
When contacted, Attorney General Tan Sri Gani Patail said the prosecution would file an appeal against the boy’s release.
“I am waiting for the written judgment.”
The boy’s case was the first where a juvenile was ordered to be held at the pleasure of the King under the Child Act 2001.
Fact of the case
On May 30, 2002, an international schoolteacher came home to find her 11-year-old daughter sprawled in a pool of blood on the bathroom floor of their house in Setapak.
She immediately rushed her daughter to a specialist centre, where she was pronounced dead on arrival.
The woman’s 13-year-old tuition student was said to be the last person to have been with the girl. The boy had arrived about an hour early for tuition, before the woman had returned home from a weekly school meeting. The teacher told her daughter to let the boy into the house first.
While waiting in the house, the boy was taunted by the victim, who repeatedly called him “fatty.” A spat soon ensued between the two children. Continuing their quarrel in the kitchen, the boy suddenly snapped and attacked her with a sharp weapon.
Post-mortem reports revealed that she had died due to massive blood loss from four slash wounds and 20 stab wounds.
After committing the murder, the boy had left the scene with his uncle, whom he had asked to pick him up on the excuse that his tuition class had been cancelled.
On finding her daughter’s body, the woman had called up the boy who repeatedly said: “Teacher, sorry, sorry. Teacher, sorry ... I don’t know why I did it.’’
The boy was picked up by the police from his father’s shop about an hour later.
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Murdered girl’s mother stunned
The Star Online. News. Nation. Thursday July 26, 2007
KUALA LUMPUR: “I am stunned.”
This was the reaction from the tuition teacher, whose daughter was murdered five years ago, upon learning that the boy who had been convicted of the crime had been freed.
The 48-year-old teacher described the decision as “unfair” to her daughter and family members.
“It is a fact that the boy has been convicted of murdering my daughter. But it is unacceptable to free him with no sentence being passed on him for the crime.
“I am not saying that the boy should not be given a second chance but clearly something more than this (being freed) could be done,” she said in a telephone interview.
Following the murder which took place at her house in Taman Seri Rampai, Setapak, on May 30, 2002, the family moved to Taman Ukay Perdana in Ulu Klang four years ago.
The victim’s uncle said the family had just begun to “heal” after their grief. He said the boy’s release came as a major blow to them.
“This is unfair. We are disappointed and shocked over the ruling,” said the 40-year-old contractor.
“This court has set a precedent that a juvenile would not be held accountable for a murder.
“I don’t know what else we can do. We will still pursue all means to ensure the murderer is handed the sentence he deserves,” he said.
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Child killer freed: Karpal suggests way to keep young killers in jail
NST Online. Frontpage. 26/7/07
KUALA LUMPUR: Current laws allow for minors to commit murder and walk scot-free.
"This case has set a precedent," said lawyer Karpal Singh who appeared for the teenager.
While he sympathised with the victim’s family, he said the current laws allow for minors to walk free after committing murder.
"I urge the government to do something about it by moving a bill in Parliament to amend Section 97 of the Child Act."
Karpal said the decision by the Court of Appeal in this case showed that judicial power is still in the hands of the judiciary and that has far reaching implications.
He said minors should be placed at the pleasure of the court with the board of justices making recommendations every year.
"Only then the whole process of the trial, meaning conviction and punishment remain in the hands of the court," Karpal said.
He said since the boy had undergone a trial and was detained for more than four years, any amendment now should not affect him.
"Any law should be prospective in application and not retrospective," said Karpal.
The teenager whom Karpal had defended, had brutally killed the victim, Liew Mei Fong, after she had allegedly taunted him with chants of "Fatty! Fatty! Fatty!"
The murderer who was then 13 years old, was at Liew’s house in Taman Seri Rampai, Setapak, for tuition lessons.
The boy’s tuition teacher was Liew’s mother, Chin Yoke Chan, a teacher at an international school.
On May 31, 2002, the boy went for his tuition lesson early. Only Liew was there and she started taunting him in Cantonese. It was reported that he told her to stop but Liew went on. She then went outside to buy an ice-cream from a vendor, taunting him even as she did so.
It was then that something in the boy snapped.
Police investigations revealed that the suspect followed Mei Fong to the kitchen, grabbed a knife and repeatedly stabbed her. She was then left bleeding in the bathroom on the ground floor of the house.
Testimony in court later revealed that Liew was stabbed and slashed 24 times.
The suspect then locked the house and left the scene with his uncle, whom he had contacted. He told his uncle that there was no tuition that day and asked him to take him home.
Police picked up the boy from his father’s shop an hour later and seized the clothes he was wearing during the incident. The murder weapon, a kitchen knife, was found later in the course of investigations.
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Former child prisoner empathises with boy
The Star Online. News. Nation. Friday July 27, 2007
KUALA LUMPUR: Having entered prison at the age of 14, Kok Foo Seng knows exactly what it is like to be lost behind bars as a child.
He spent 13 years in prison after being ordered to be held at the pleasure of the Pahang Sultan for a drug trafficking charge in 1989.
Now aged 33, he can speak with conviction about the case involving the release of a teenager who had been detained in prison for the murder of his tuition teacher's daughter in 2002.
“I am happy for the boy although I have served more than twice longer than him in prison. I wish him all the best,” added Kok, now a vegetable supplier.
Kok was arrested in 1989. Being a juvenile, he escaped the death sentence after being convicted.
He was ordered by the High Court to be held at the pleasure of the sultan in 1991.
He was released from Kajang Prison in 2001 at the age of 27 after being pardoned by the sultan.
With all that trauma behind him now, Kok advised the boy to treasure his freedom, saying that there “will never be a second chance” for him.
Kok, a Form One dropout, “salvaged” himself by brushing up on his Chinese language to write a book he titled Return of the Lost Lamb. The book was published in 2000, and his former prison mates also helped him market it upon their release.
Kok has tried various jobs – pasar malam trader, odd-job worker and property agent, before finally being a vegetable supplier.
He considers himself blessed – six months after he quit as a property agent, he closed a deal to sell a piece of land worth more than RM10mil.
With his commission, Kok could pay the deposit on a flat and has also signed up for a housing loan.
“I will be moving into my new house, hopefully in September. I am doing all right, but it could be better,” added the bachelor.
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Appeal filed against boy’s release
The Star Online. News. Nation. Saturday July 28, 2007
PUTRAJAYA: The prosecution filed an appeal in the Federal Court yesterday against the release of the boy convicted for the murder of his tuition teacher’s daughter.
The boy, who turns 18 next month, was sentenced by the High Court four years ago to be detained in prison at the pleasure of the King.
On July 12, the Court of Appeal upheld the conviction but set aside the sentence, ruling that it was “unconstitutional”. The prosecution had already filed an appeal on Monday against the ruling.
On Wednesday, the Court of Appeal released the boy, which prompted the prosecution to file another appeal yesterday.
In 2003, the High Court found the boy guilty of murdering the 11-year-old girl at her house in Kuala Lumpur by stabbing her 20 times and slashing her four times with a sharp object on May 30, 2002. The boy was 12 when he killed the girl.
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30 others are being held at the pleasure of the king - will they be freed, too?
The Star Online. News. Nation. Sunday July 29, 2007
KUALA LUMPUR: The Court of Appeal decision that saw a 17-year-old boy convicted of murder going free has raised hopes that 30 others also detained at the pleasure of the King may be released too. But for now, they will just have to wait and hope.
Their fate will depend on the outcome of the Attorney-General’s appeal in the Federal Court against the ruling.
Even then, freedom is not a certainty as there are different schools of thought, even in legal circles. Some say the decision is binding on all those detained at the pleasure of the King but others disagree.
Bar Council’s Criminal Law Committee chairman Datuk V. Sithambaram is of the opinion that the decision applies to that particular teenager and not to all.
“Even if the families of those detained at the pleasure of the King applied for a revision of their sentences immediately, the courts will stay the application until the Federal Court has disposed of the AG’s appeal,” he said yesterday. “This would be the same for those who have not exhausted all their avenues of appeal.”
According to Deputy Internal Security Minister Datuk Fu Ah Kiow, there are currently 30 boys and men convicted of murder or drug trafficking, being detained at the pleasure of the Yang di-Pertuan Agong in various prisons nationwide.
Of these, he said 11 were still under 18, while 14 had been convicted when they were below 18 but are now over 18. The remaining five were adults who were escaped the gallows on the grounds of insanity.
Fu said that 10 of the 11 were detained for murder under Section 97 (2) of the Child Act 2001, which was declared unconstitutional by the court on July 12, and one came under the same provision of the Juvenile Courts Act 1947 (repealed by the Child Act in 2001).
In the case of the freed boy, since he was 12 when he murdered his tuition teacher’s daughter in 2002, and the law prohibits children from being sentenced to death, the High Court had applied Section 97 (2) of the Child Act 2001 to ordered his detention at the pleasure of the King, after convicting him in July 2003.
Section 348 of the Criminal Procedure Code, provides for the detention of persons at the pleasure of the King after the person is acquitted by reason of insanity and Section 97(1) of the Child Act states that a minor found guilty of murder cannot be sentenced to death.
On July 12, the Court of Appeal declared Section 97 (2) unconstitutional saying it gave to the Executive the Judiciary’s power to determine the measure of the sentence, for example the length of detention, to be served by a juvenile offender.
The boy was subsequently freed although the conviction remains.
Following the landmark decision, the boy’s counsel Karpal Singh said that the 11 juveniles now being held in prison should be released forthwith without having to go to court.
All 11 have already served between two and six years in the prisons in Kajang, Sungai Petani and Marang.
Monday, 2 July 2007
2007 06: Bid to abolish caning for child offenders
The Star online. News. Nation. Thursday June 28, 2007
KUALA LUMPUR: The Women, Family and Community Development Ministry is proposing to amend the Child Act 2001 to do away with the provision that allows the Court of Children to mete out caning to child offenders.
A ministry official who confirmed this said the move was to conform to the International Convention on Children’s Rights, of which Malaysia is a signatory.
Under Section 91 of the Act, the court can order the child offender, if male, to be whipped with a light cane not more than 10 times.
The whipping, however, must be within the court premises and in the presence, if he/she desires to be present, of the parents or parent or guardian of the child.
The official said the proposal was still at the ministry level and once completed, would be submitted to the Attorney-General.
Yesterday, the Sixth National Conference on Child Abuse and Neglect on Status of Child Protection in Malaysia: Multi-Disciplinary Agency Role organised by the Malaysian Association for the Protection of Children (MAPC) spoke of the abolishment of the provision.
Speaker Dr Farah Nini Dusuki, who is a law lecturer and MAPC vice-president, said that while corporal punishment within the penal system was being reviewed, there were no concrete steps towards abolishing the practice at homes and in schools.
She said Malaysia was not among the 18 countries which had prohibited corporal punishment on children in the home, school and legal institutions.
“Many people view beating with belts or canes by parents at home as a private matter and there is no legal sanction against this unless it results in severe injury.
“In schools, it is mandated by the Education Ministry to be carried out by the principal, assistant and disciplinary teachers.
“But the fact is that teachers themselves are beating students even for the smallest mistakes such as not bringing their books or not standing up straight at school assemblies,” she said.
Dr Farah Nini said that there were alternative ways to discipline children rather then resort to physical punishment, as this could lead to child abuse.
KUALA LUMPUR: The Women, Family and Community Development Ministry is proposing to amend the Child Act 2001 to do away with the provision that allows the Court of Children to mete out caning to child offenders.
A ministry official who confirmed this said the move was to conform to the International Convention on Children’s Rights, of which Malaysia is a signatory.
Under Section 91 of the Act, the court can order the child offender, if male, to be whipped with a light cane not more than 10 times.
The whipping, however, must be within the court premises and in the presence, if he/she desires to be present, of the parents or parent or guardian of the child.
The official said the proposal was still at the ministry level and once completed, would be submitted to the Attorney-General.
Yesterday, the Sixth National Conference on Child Abuse and Neglect on Status of Child Protection in Malaysia: Multi-Disciplinary Agency Role organised by the Malaysian Association for the Protection of Children (MAPC) spoke of the abolishment of the provision.
Speaker Dr Farah Nini Dusuki, who is a law lecturer and MAPC vice-president, said that while corporal punishment within the penal system was being reviewed, there were no concrete steps towards abolishing the practice at homes and in schools.
She said Malaysia was not among the 18 countries which had prohibited corporal punishment on children in the home, school and legal institutions.
“Many people view beating with belts or canes by parents at home as a private matter and there is no legal sanction against this unless it results in severe injury.
“In schools, it is mandated by the Education Ministry to be carried out by the principal, assistant and disciplinary teachers.
“But the fact is that teachers themselves are beating students even for the smallest mistakes such as not bringing their books or not standing up straight at school assemblies,” she said.
Dr Farah Nini said that there were alternative ways to discipline children rather then resort to physical punishment, as this could lead to child abuse.
Friday, 18 May 2007
2007 05: Attempted suicide girl freed on probation
NST online. Local News. 18/05/07
JOHOR BARU: The High Court gave a 16-year-old girl, initially charged jointly with her father with murdering her three step-siblings, a new lease on life by releasing her on probation yesterday.
Judge Datuk Jeffrey Tan sentenced the girl to three years’ probation and to be placed in the care of her maternal uncle in Klang, Selangor, under the Child Act after she pleaded guilty to an amended charge of attempted suicide.
Deputy public prosecutor Shahrizal Shaari had earlier successfully applied to the court to amend the charge against the girl.
The girl was originally charged with her security guard father with murdering the three children aged 6, 5 and 3, at their home in Kulai between 10.30am and 3.30pm on Nov 20, 2004.
The girl who had spent nine months at the Kajang women’s prison after being arrested on Nov 20, 2004, and before her release on RM5,000 bail on Aug 1, 2005, appeared sad throughout the sentencing. In passing sentence, Tan told her: "Considering the fact that you were in remand while you were not even 14 years of age, you would have undergone a terrible experience.
"However, in general, the law says there is criminal liability after the age of 10 years as at that age one should naturally know what is right or wrong, at least about simple things in life.
"The court, therefore, is committed to sentence you to a three-year probation and to reside at your uncle’s house.
"Tan told the girl’s uncle to look after her with care as she needed emotional support.
The facts of the case stated that the girl was in a room at a house at Taman Muhibbah in Kulai with her father and three step-siblings at the time of the incident.
The girl had attempted suicide using a dhoti tied to the ceiling which she had tied around her neck while standing on a chair. She was rescued by a neighbour.
Shahrizal said he could not adduce further facts as it might be prejudicial to the girl’s father whose trial was still ongoing. In mitigation, the girl’s counsel, S. Gunapati, pleaded for a lenient sentence as his client was a young child living in an unhappy home situation and was depressed at the time of the incident.
"Her mother had died when she was seven and her father remarried. She had been living under the care of her stepmother and her four children.
"The family had just moved to Johor Baru a month before the incident and the stepmother was not at home due to some reason at the time of the incident."
Counsel K.S. Segaran and Bernard George are handling the father’s case which was postponed to June 19.
JOHOR BARU: The High Court gave a 16-year-old girl, initially charged jointly with her father with murdering her three step-siblings, a new lease on life by releasing her on probation yesterday.
Judge Datuk Jeffrey Tan sentenced the girl to three years’ probation and to be placed in the care of her maternal uncle in Klang, Selangor, under the Child Act after she pleaded guilty to an amended charge of attempted suicide.
Deputy public prosecutor Shahrizal Shaari had earlier successfully applied to the court to amend the charge against the girl.
The girl was originally charged with her security guard father with murdering the three children aged 6, 5 and 3, at their home in Kulai between 10.30am and 3.30pm on Nov 20, 2004.
The girl who had spent nine months at the Kajang women’s prison after being arrested on Nov 20, 2004, and before her release on RM5,000 bail on Aug 1, 2005, appeared sad throughout the sentencing. In passing sentence, Tan told her: "Considering the fact that you were in remand while you were not even 14 years of age, you would have undergone a terrible experience.
"However, in general, the law says there is criminal liability after the age of 10 years as at that age one should naturally know what is right or wrong, at least about simple things in life.
"The court, therefore, is committed to sentence you to a three-year probation and to reside at your uncle’s house.
"Tan told the girl’s uncle to look after her with care as she needed emotional support.
The facts of the case stated that the girl was in a room at a house at Taman Muhibbah in Kulai with her father and three step-siblings at the time of the incident.
The girl had attempted suicide using a dhoti tied to the ceiling which she had tied around her neck while standing on a chair. She was rescued by a neighbour.
Shahrizal said he could not adduce further facts as it might be prejudicial to the girl’s father whose trial was still ongoing. In mitigation, the girl’s counsel, S. Gunapati, pleaded for a lenient sentence as his client was a young child living in an unhappy home situation and was depressed at the time of the incident.
"Her mother had died when she was seven and her father remarried. She had been living under the care of her stepmother and her four children.
"The family had just moved to Johor Baru a month before the incident and the stepmother was not at home due to some reason at the time of the incident."
Counsel K.S. Segaran and Bernard George are handling the father’s case which was postponed to June 19.
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