Chapter 15 - Court For Children (Pending Mind Map) Flashcards
COURT FOR CHILDREN
Overview
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
COURT FOR CHILDREN
Definitions
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.
COURT FOR CHILDREN
Who is a child
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.
COURT FOR CHILDREN
Jurisdiction
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.
COURT FOR CHILDREN
The court
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..
TRIAL FOR CHILDREN
Overview
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
INVESTIGATION & ARREST OF A CHILD
Power to investigate & arrest
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.
INVESTIGATION & ARREST OF A CHILD
Arresting a child
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.
INVESTIGATION & ARREST OF A CHILD
Search of a child
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.
BAIL & REMAND OF A CHILD
Whether a child can be remanded
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.
BAIL & REMAND OF A CHILD
Proceeding after remand
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.
CHARGING A CHILD
Attains age 18 when the case is pending after being charged
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.
CHARGING A CHILD
Attains the age 18 when the child is charged
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
CHARGING A CHILD
Charging with an adult
S.83(4):
If the child is charged with an adult, a court other than CFC shall hear the charge.
CHARGING A CHILD
Procedure to charge a children
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).
TRIAL FOR CHILDREN
General rule
S.83
- shall be tried in accordance with this Act.
TRIAL FOR CHILDREN
Exception - offence committed as a child but charged as an adult
S.83(3):
- charge shall be heard by court other than CFC.
TRIAL FOR CHILDREN
Exception - joint charge with adult
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.
TRIAL FOR CHILDREN
Exception - charge for capital offence
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.
TRIAL FOR CHILDREN
Procedures at trial
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.
ORDERS & DISPOSITION RELATING TO CHILD OFFENDER
Conviction on a child
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.
ORDERS & DISPOSITION RELATING TO CHILD OFFENDER
Period of orders
GR - S.13:
- shall not extend beyond 18 years old.
Exception - S.14:
- Order placement detention & etc may extend beyond 18 years old.
ORDERS & DISPOSITION RELATING TO CHILD OFFENDER
Type of orders
S.91(1) CA
ORDERS & DISPOSITION RELATING TO CHILD OFFENDER
Death sentence
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.
ORDERS & DISPOSITION RELATING TO CHILD OFFENDER
5) Imprisonment
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.
ORDERS & DISPOSITION RELATING TO CHILD OFFENDER
6) Probation order
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.
ORDERS & DISPOSITION RELATING TO CHILD OFFENDER
Community service order
S.97A - 97F
- not exceeding 120 hours;
- within period 6 months.
ORDERS & DISPOSITION RELATING TO CHILD OFFENDER
Whipping order
1) The law:
- S.91(1)(g) CA
- Subjected to S.92:
Note: Provision is deleted by Act A1511
ORDERS & DISPOSITION RELATING TO CHILD OFFENDER
Compensation or fine
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.
ORDERS & DISPOSITION RELATING TO CHILD OFFENDER
Henry Gurney or approved school
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.
APPEAL AGAINST ORDER
Who may appeal
S.95(1)
- PP, child or his parent or guardian.
APPEAL AGAINST ORDER
Period for appeal
S.95(3)
- appeal shall be disposed of within 12 months after notice of appeal has been filed.
