Introduction — Juvenile offenders
Juvenile offenders aren’t adults — yet. But, they are subject to the same criminal justice system that sentences adults.
Last year, an Iranian juvenile offender was sentenced to death. Zeinab Sekaanvand Lokran was 17 years old when she became a juvenile offender. Six years later, she was sentenced to death. She was the fifth juvenile offender to be executed in 2018.
The United Nations called the execution “deeply distressing”. Death by execution, in general, is depressing, and distressing.
But thankfully, Malaysia is not Iran. As far as we know, Malaysian courts don’t sentence children to death.
Malaysia has procedures in place to deal with juvenile offenders.
We were recently approached by a fellow lawyer to assist in a case where the accused was a child. He was around 15 years old, and had been accused of receiving stolen property.
The mother of the accused was distressed, because her child was so young. She requested that her lawyer do whatever he could do, to prevent her child from going to the Henry Gurney School. (More on that later.)
Detention at the Henry Gurney School is only one of the few punishments available to a Children’s Court. There’s also bond for good behaviour and keeping the peace. (More on that later, as well.)
But first, let’s start with the Children’s Court.
Malaysia has a court dedicated specially for children. It was established in the Child Act 2001 and is called a Children’s Court.
The word “child” was defined under the Child Act 2001 to mean,
(a) a person below the age of eighteen years; and
(b) in criminal proceedings, a person who has attained the age of criminal responsibility following section 82, Penal Code.
Under section 97 of the Child Act, a Children’s Court shall not pass a death sentence, if the offence was committed when the accused was a child.
However, section 11(5) of the Child Act 2001, only allows a Children’s Court to try the child, for offences that are not punishable by death.
This means, there are cases which, if they are punishable by death, they are outside the jurisdiction of the Child Court.
Thus, juvenile offenders charged with offences punishable by death, will be tried in a court for adults.
Incidentally, the Child Act 2001 replaced the Juvenile Courts Act 1947. That’s why you won’t hear of juvenile courts in Malaysia — they’ve been replaced by Children’s Courts.
Henry Gurney Schools
Henry Gurney Schools are special schools in Malaysia. They are also called “naughty boys school”, due to the fact that they are rehabilitative schools for convicted children.
A Children’s Court may order that a child be detained in a Henry Gurney School, even past the age of 18 years. (See section 14)
However, to be sent to the Henry Gurney School, a child must be at least 14 years of age.
In several situations, the Children’s Court can send a child to Henry Gurney School. (section 75 of the Child Act)
First, if the child is found guilty, and the offence is punishable with imprisonment;
Second, if the probation report shows that:
- the parents or guardians of the child cannot or are not exercising control over the child; and
- the child is habitually in the company of bad characters; and
- the child cannot be rehabilitated in an approved school;
AND If the Court for Children feels that
- The offence is serious; and
- The detention can reform the child’s natural tendency to commit criminal activities.
Youthful offenders under the CPC
Under section 293 of the Criminal Procedure Code (CPC), a court may punish “youthful offenders” by:
- Ordering the offender to be discharged, after giving a stern warning (“due admonition”);
- Ordering the offender to be delivered to his nearest relative, or parent, and making him execute a bond for twelve months of good behaviour;
- Ordering the offender (male only) to be whipped by a cane for up to 10 strokes;
- Dealing with the offender following provisions of the Child Act 2001; or
- Ordering the offender to carry out community service, of up to 240 hours.
“Youthful offender” means an offender between 18 to 21 years old. (Section 2, Criminal Procedure Code).
First Time Offenders and Bonds for Good Behaviour
The age of first time offenders are a relevant factor when the criminal court passes a sentence. (section 294, CPC)
So, juvenile offenders who are also first time offenders can potentially benefit from this section.
Instead of being punished, the juvenile offender can be released on condition that he enters a bond to “keep the peace” and maintain good behaviour. (Section 294(1), CPC)
A bond can be executed with sureties, or without. (Section 294A, CPC). Generally, at least one surety would be expected to be a family member. Which family member can be an interesting question, if the parents of the juvenile offender are divorced. Presumably, it’s the parent with the custody rights.
As an example of bonds for good behaviour:
- A taekwondo coach was released on bond for good behaviour of RM10,000, with two sureties. One of the sureties was a family member. He was accused of having raped an underage girl.
- Three offenders, of which one was a juvenile offender, were released on bond for good behaviour. The juvenile offender was released on bond without surety. They had been accused of abducting an infant.
- Rafizi Ramli, the politician, was released on bond for good behaviour of RM10,000, with one surety. He had been accused of exposing a single page of the 1MDB report, which he had obtained illegally.
Bonds for good behaviour should not be confused with investment bonds. Investment bonds can potentially grow, or shrink, your money, depending on the economy, and the fund manager. Bonds for good behaviour can potentially result in total loss of the money (if the bond is breached), or a total return of the money (but without any profit involved).
It’s natural for parents to be concerned when their children are accused of criminal activity.
An important detail to keep in mind, is the age of the offender.
The juvenile offender’s age determines whether he is a “child” under the Child Act 2001, or a “youthful offender” under the Criminal Procedure Code. Here it is, simplified:
- Child: Aged below 18.
- Youthful offender: Aged between 18 to 21.
Thanks for reading.
This article was prepared by Kevin Koo with assistance with our chambering pupil, Lok Hon Jet.
This article was prepared for general information only. It is not intended to serve as legal advice.
Kindly consult with a practising lawyer before making any decision.
We offer legal consultation and will be happy to speak with you.