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.