In Personam: A Child Caught A Child Caught | In Personam

In Personam

by Choo Dee Wei
Published February 3, 2015

A Child Caught

Things that happen when a child is charged in the Malaysian child's court.

Sometime in August 2014, many of us were shocked by news of a teenager accused of raping his mother. The child appeared in court designated solely for children (“Court for Children”).

This case is apparently the first of its kind. Looking from the perspective of the mother, she was placed in a position of both moral and legal conflict. On one hand, she is the mother and parent of the child. Yet on the other hand, she wears the hat of being the complainant and the victim of a serious crime committed by her child. So while she, by instinct, feels the need to protect her child, she also suffers from the trauma of such a crime.

This author will not dwell further on the conflict the mother finds herself in as this article is intended to briefly focus on the court orders that may be given against a child offender. It is not in any way an attempt to dilute the severity of the crime or effects on the victim.

To mention briefly, the procedures at the Child’s Court differs from that of other courts. For example, no one is allowed to be in court when it is in session save and except the lawyers and the parents of that child whose case is heard. Other family members are to remain outside the court room. The child is not placed in an accused box but stands almost to the front of court and finds himself or herself about a few feet from the Magistrate who sits at the same level as where he or she stands.

The Magistrate is assisted by two advisers (one of whom must be a woman). The functions of the advisers are to inform and advise the Court for Children with respect to any consideration affecting the order made upon a finding of guilt or other related treatment of any child brought before it and if necessary, to advise the parent or guardian of the child.

Which brings us back to the orders that may be given by a Magistrates. The Magistrate has the power, under the Child Act 2001, to:-

  1. admonish and discharge the child;

  2. discharge the child upon his executing a bond to be of good behavior and to comply with such conditions as may be imposed by the Court for Children;

  3. order the child to be placed in the care of a relative or other fit and proper person –

  4. for such period to be specified by the Court for Children; and

  5. with such conditions as may be imposed by the Court for Children;

  6. order the child to pay a fine, compensation or costs;

  7. make a probation order;

  8. order the child to be sent to an approved school or a Henry Gurney School;

  9. order the child, if a male, to be whipped with not more than 10 strokes of a light cane –

  10. within the premises of the court; and

  11. in the presence, if he desires to be present, of the parent or guardian of the child.

  12. order the parent or guardian of the child to execute a bond for the child’s good behavior and subject to conditions;

  13. order the parent or guardian of the child to pay a fine instead of the child;

  14. Impose on the child, if he is aged fourteen years and above and the offence is punishable with imprisonment and subject to subsection 96(2), any term of imprisonment which could be awarded by a Sessions Court.

It can be seen that there is a wide array of orders which will allow the Magistrate to impose after taking into account the age and offence committed.

The Magistrate has to then balance not only the offence committed but the hope that the order given will not push the child away but rather to reach out to the child with the message that although the child has done wrong, the court takes cognisance of his / her young age and growing developing mind and the court wants to help the child take that first step onto the right path.