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Criminal Procedure > Chapter 15 - Court For Children (Pending Mind Map) > Flashcards

Chapter 15 - Court For Children (Pending Mind Map) Flashcards

1
Q

COURT FOR CHILDREN

Overview

A

1) Definitions
2) Who is a child
3) Jurisdiction
4) The court
5) Investigation & arrest
6) Bail & remand
7) Charging a child
8) Trial for children
9) Order or disposition relating to child offenders

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2
Q

COURT FOR CHILDREN

Definitions

A

1) “grave crime” - S.2:
- includes murder, culpable homicide not amounting to murder & etc.
2) “court for children” jurisdiction - S.11:
- determine, hear & dispose of any charge against the child.
3) “shall not reveal the name, address or educational institution or any particulars” - S.15:
- This requirement can be dispensed provided that it is in the interest of justice to do so & the application by Protector.
4) “protector” - S.2:

  • the Director General; 

  • the Deputy Director General;
  • a Divisional Director of Social Welfare, Department of Social Welfare;
  • any Social Welfare Officer appointed under S.8.
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3
Q

COURT FOR CHILDREN

Who is a child

A

1) Definition - S.2:

  • Person under the age of 18 years; and
  • A person who has attained the age of criminal responsibility as under S.82 PC;
  • i.e. 10 years old.

2) Presumption of age - S.16:

  • certificate of a medical officer to the effect that, in his opinion, the person has or has not attained a specified age may be given in evidence;
  • CFC shall declare that person’s age for the purposes of the Act.
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4
Q

COURT FOR CHILDREN

Jurisdiction

A

1) What jurisdiction - S.11(1):
- hearing, determining or disposing of any charge against a child.
2) What offence - S.11(5):
- all offences except offences punishable with death.

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5
Q

COURT FOR CHILDREN

The court

A

1) What court - S.11(6):
- Magistrates’ court.
2) Who is the judicial officer - S.11(2) & (3):

  • Magistrate;
  • Assisted by two advisers appointed by the Minister.
  • One of the advisers shall be a woman.

3) Magistrate must NOT sit alone - Pendakwa Raya v Muhamad Fikri bin Mahmood:

  • CFC must be composed of a Magistrate and two advisors;
  • Where a Magistrate sits alone without the advisors, it could not be regarded as a CFC.
  • CFC must at all stages of proceedings ensure that the trial has & consists of sufficient quorum under S.11(2).

4) When criminal proceeding against child is transferred to High Court - PP v Buri Hemna:
- Where the proceeding is transferred to HC, it is not obligatory for the HC judge to be assisted by two advisers.
5) Who can be in the court - S.12(3):

  • members & officers of the court;
  • children;
  • parents, guardians, A&S, witnesses;
  • persons directly concerned in that case; and
  • other responsible persons..
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6
Q

TRIAL FOR CHILDREN

Overview

A

1) General rule
2) Exception - offence committed as a child but arrested as an adult
3) Exception - joint charge with adult
4) Exception - charge for capital offence
5) Procedures at trial

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7
Q

INVESTIGATION & ARREST OF A CHILD

Power to investigate & arrest

A

1) Power of investigation - S.109:
- Protector or police officer may investigate the commission of any offence.
2) Power to arrest w/o warrant - S.110:

  • reasonably believes that he has committed or attempt to commit; or
  • employed or aided any other person to commit or abet the commission of an offence.
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8
Q

INVESTIGATION & ARREST OF A CHILD

Arresting a child

A

1) Procedures of arresting - S.83A:

  • shall not be handcuffed unless grave crime or the child resisting or attempting to evade the arrest.
  • shall be informed of his grounds of arrest;
  • police shall communicate to the parent or guardian, or relative of the child;
  • police shall communicate to a probation officer to inform the child’s whereabouts, the grounds of arrest & the right to consult with a counsel.

2) Arrested - S.84:

  • shall be brought to CFC within 24 hours;
  • exclusive of the time necessary for the journey;
  • if cannot be brought to CFC, shall be brought to Magistrate instead & Magistrate shall direct the detention until can be brought to CFC.

3) Post-arrest - S.87:
- Police officer shall transmit the copy of charge & other information necessary to probation officer.

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9
Q

INVESTIGATION & ARREST OF A CHILD

Search of a child

A

1) S.111: Search by warrant
- By Magistrate on the ground that there is a “reasonable cause” to believe that in any “premises” there is evidence of (a), (b), (c).
2) S.112: Search without warrant
- If a Police officer or protector has reasonable cause to believe that the investigation would be adversely affected or the object of the entry is likely to be frustrated.
3) S.113: Power to examine person (to be invoked first before arrest)
- Power to examine person in relation to the child or the offence.

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10
Q

BAIL & REMAND OF A CHILD

Whether a child can be remanded

A

1) The law - S.83(1):
- a child who is alleged to have committed an offence shall not be arrested, detained or tried except in accordance with this Act.

2) Whether a child can be remanded - PP v N (A child):
If the Act does not provide for the arrest, detention or trial of a child, i.e. there is no power to detain a child pending the investigation (remand) under Child Act 2001.
If parliament had intended to categorically prohibit a child from being detained for investigation for more than 24 hours, it would have said so under CA 2001.
As such, it must follow under the CPC, S.117.

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11
Q

BAIL & REMAND OF A CHILD

Proceeding after remand

A

Chief Registrar Circular No. 2 of 2002:

  • Where a child is remanded in custody pending trial, the case must be disposed of as soon of possible;
  • This is to be done within 3 months.
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12
Q

CHARGING A CHILD

Attains age 18 when the case is pending after being charged

A

S.83(2):

  • i.e. charge is read when he was a child, but trial is pending until he attains 18.
  • If the child attains the age of 18 during pendency of the case, CFC shall continue to hear the charge.
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13
Q

CHARGING A CHILD

Attains the age 18 when the child is charged

A

S.83(3):

  • Offence committed as a child; but the child is charged when he attains the age of 18;
  • Court other than CFC shall hear the charge.
  • It will be however be governed by Child Act 2001.

NOTE:

  • therefore, what matters how old is the child at the time being charged;
  • i.e. below 18: CFC
  • i.e. above 18: other courts
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14
Q

CHARGING A CHILD

Charging with an adult

A

S.83(4):

If the child is charged with an adult, a court other than CFC shall hear the charge.

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15
Q

CHARGING A CHILD

Procedure to charge a children

A

1) Attendance of parents - S.88:
- Parent or guardian is required to attend.
2) Procedures to read charge - S.90:

  • (1) to explain the charge in a simple language.
  • (3) to ask the child whether he admits the facts constituting the offence.
  • Admit: ascertain whether the child understands the nature & consequence of admission & record the finding of guilt.
  • Does not admit: Trial - S.90(6) to S.90(8).
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16
Q

TRIAL FOR CHILDREN

General rule

A

S.83

  • shall be tried in accordance with this Act.
17
Q

TRIAL FOR CHILDREN

Exception - offence committed as a child but charged as an adult

A

S.83(3):

  • charge shall be heard by court other than CFC.
18
Q

TRIAL FOR CHILDREN

Exception - joint charge with adult

A

S.83(4):

  • charge shall be heard by court other than CFC.

S.117 - joint trial with an adult:

  • e.g. when a child is jointly tried with an adult in the HC & Sessions Court, HC & Sessions court can still exercise the jurisdiction of CFC if the crime does not fall under the grave crime.
  • HC & Sessions court have the same power as exercised by CFC.
19
Q

TRIAL FOR CHILDREN

Exception - charge for capital offence

A

1) S.11(5):
- CFC does not have a jurisdiction to try offence punishable with death.

2) Procedure at High Court -
PP v Buri Hemna:

  • when a case is tried at HC, a judge at HC does not have to be assisted by two advisers in exercising its judicial functions.
20
Q

TRIAL FOR CHILDREN

Procedures at trial

A

1) Attendance & withdrawal of parents or guardian:
- Attendance - S.88: CFC shall require the attendance unless it would be unreasonable.
- Withdrawal - S.89: CFC may require the guardian to be withdrawn from the court if it considers it necessary for the best interests of the child.
2) Prima facie:

  • No prima facie - acquittal
  • Yes prima facie:
  • Give evidence upon oath or make any statement if he so desires.

3) End of case:

  • guilty: sentence / order.
  • not guilty: acquit.
21
Q

ORDERS & DISPOSITION RELATING TO CHILD OFFENDER

Conviction on a child

A

1) The law - S.91(2):
- conviction & sentence shall not be used against the child.
2) Whether a child can be convicted - PP v The Offender (1998):

  • Offender of age of 14 cannot be convicted;
  • Conviction is substituted with finding of guilt.

3) Disposition of particulars taken - Khairuddin v PP & Govindarajoo v Registrar of Criminals:

  • since a child cannot be convicted, his particulars taken during the course of investigation would have to be returned to him;
  • or they shall be destroyed;
    since they would not be registrable under Registration of Criminals Ordinance 1948.
22
Q

ORDERS & DISPOSITION RELATING TO CHILD OFFENDER

Period of orders

A

GR - S.13:

  • shall not extend beyond 18 years old.

Exception - S.14:

  • Order placement detention & etc may extend beyond 18 years old.
23
Q

ORDERS & DISPOSITION RELATING TO CHILD OFFENDER

Type of orders

A

S.91(1) CA

24
Q

ORDERS & DISPOSITION RELATING TO CHILD OFFENDER

Death sentence

A

1) Whether death sentence can be passed - S.97:
- Cannot.
2) What sentence shall be given instead - S.97:
- Detained at the pleasure of YDPA or YDPN.
3) Whether S.97 is unconstitutional - Pendakwa Raya v Kok Wah Kuan:

  • FC held that S.97(2) is not unconstitutional.
  • S.97 empowers the court, after convicting a person who was a child at the time of the commission of an offence punishable with death, to make an alternative order instead of imposing a sentence of death.
  • When the court makes the order it is carrying out the process of sentencing which is generally understood to mean a process whereby punishment in accordance with established judicial principles is meted out by the court after a conviction order has been made following a full trial or a guilty plea.
25
Q

ORDERS & DISPOSITION RELATING TO CHILD OFFENDER

5) Imprisonment

A

1) When it shall be ordered: S.91(1)(h) CA

  • 14 years above;
  • offence is punishable with imprisonment.

2) When it shall not be ordered: S.96(2) CA & S.96(1) CA
- 14 years & above if he can be suitably dealt with other ways.
3) Association with adult prisoners, whether allowed: S.96(3) CA
- shall not be allowed to associate with adult prisoners.

26
Q

ORDERS & DISPOSITION RELATING TO CHILD OFFENDER

6) Probation order

A

1) When is probation appropriate - S.98:

Found guilty for an offence other than:

  • grave crime;
  • voluntarily cause grievous hurt, rape, incest or outraging modesty;
  • offence under 377B-E PC.

2) Whether culpable homicide appropriate - PP v Saiful Afikin bin Mohd Firus:
- Court held that cases for culpable homicide does not allow the making of a probation order.

27
Q

ORDERS & DISPOSITION RELATING TO CHILD OFFENDER

Community service order

A

S.97A - 97F

  • not exceeding 120 hours;
  • within period 6 months.
28
Q

ORDERS & DISPOSITION RELATING TO CHILD OFFENDER

Whipping order

A

1) The law:

  • S.91(1)(g) CA
  • Subjected to S.92:

Note: Provision is deleted by Act A1511

29
Q

ORDERS & DISPOSITION RELATING TO CHILD OFFENDER

Compensation or fine

A

S.94:

  • fine is to be paid or guardian of the child;
  • before order is made, CFC shall give the opportunity for parent or guardian to be heard.
30
Q

ORDERS & DISPOSITION RELATING TO CHILD OFFENDER

Henry Gurney or approved school

A

S.67

  • other offence than grave crime;
  • probation report shows that he is in need of institutional rehabilitation;
  • CFC finds it expedient that the child be subjected to detention.
31
Q

APPEAL AGAINST ORDER

Who may appeal

A

S.95(1)

  • PP, child or his parent or guardian.
32
Q

APPEAL AGAINST ORDER

Period for appeal

A

S.95(3)

  • appeal shall be disposed of within 12 months after notice of appeal has been filed.

Criminal Procedure (25 decks)

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