N WAS a child within the meaning of the Child Act 2001 (CA). On April 11, 2003, she was arrested by police on suspicion of cheating under section 420 of the penal code.

As investigations could not be completed within 24 hours, the police produced N before the magistrate in Kuala Lumpur for an order to remand her for a period of seven days under section 117 of the Criminal Procedure Code (CPC).

The magistrate, recognising that N was a child, converted the application to one under section 84(2) of the Child Act. The provision reads as follows:

“If it is not possible to bring a child before a Court for Children within the time specified in subsection (1), the child shall be brought before a magistrate who may direct that the child be remanded in a place of detention until such time as the child can be brought before the Court for Children.”

The magistrate accordingly made an order for her detention, but entertained some doubts as to the propriety of the course of action taken and requested the High Court to revise the order made if there was an error.

At the revision proceedings before the High Court judge, the deputy public prosecutor argued that the procedure adopted by the magistrate was wrong because the application ought to have been under section 117 of the CPC, which dealt with remand applications to facilitate investigations.

The issue for deliberation before the High Court was whether the arrest and detention of a child must be under section 117, as contended by the prosecution, or under the Child Act as understood by the magistrate.

According to the High Court judge, the answer must lie in section 83(1) of the Child Act, which reads as follows:

“Notwithstanding anything contained in any written law relating to the arrest, detention and trial of persons committing any offence but subject to sub-ss (3) and (4), a child who is alleged to have committed an offence shall not be arrested, detained or tried except in accordance with this Act.”

This section makes it manifestly patent that the arrest and detention of a child shall be in accordance with the Child Act. It thereby renders section 117 of the CPC inapplicable.

Unlike section 117 of the CPC, section 84(2) of the Child Act does not prescribe any time period for detention.

The determination of the period in such a situation is therefore governed by section 54(2) of the Interpretation Act 1967, which reads as follows:

“Where no time is prescribed within which anything shall be done that thing shall be done with all convenient speed and as often as the prescribed occasion arises.”

The High Court judge accordingly decided that that the length of time for which a child may be detained is for a period absolutely necessary as decided by the court on the facts of each case. There can be further orders of detention if deemed to be appropriate.

It was further that section 110 of the Child Act – which provides for the arrest of ‘any person’ for the commission of any offence in the Child Act to be in accordance with the CPC – must be interpreted as being applicable to a person who is not a child.

As such, the course of action adopted by the magistrate was correct in law.

The prosecution appealed the decision of the High Court judge. At the Court of Appeal, the prosecution said that N had been released after the four days without any charge and that no further proceedings were contemplated.

However, the prosecution still wished to appeal in order to obtain a ruling on the applicability of section 117 CPC to a child. The ruling, whichever way it might go, would have no effect on N.

The Court of Appeal agreed to hear the prosecution’s submission, which argued that since section 83(1) belongs to part X of the Child Act – which that deals with ‘Criminal Procedure in Court for Children’ and not with the investigation of offences alleged to be committed by a child – and since the detention provided for in that part is detention of a child pending trial or punitive detention after trial, the word ‘detention’ in that section should be construed as not being intended to include detention pending investigation.

The Court of Appeal noted that it did not have the benefit of contrary argument. However, being unable to conceive of any contrary argument that could successfully be raised, the appellate court agreed with the prosecution.

Judge of the Court of Appeal, Abdul Aziz, in summation, said:

“We did ask ourselves the question why the scope of the word ‘detention’ should be curtailed by the mere fact of its being positioned in a part of the act that provides for detention for the purposes that we have mentioned [that is, pending trial or punitive detention after trial] and not for purposes of investigation, but we were overwhelmed by the consideration that if Parliament had intended to prohibit the detention of a child beyond 24 hours for the reason that investigation cannot be completed, it would have done so.”

Accordingly, the appellate court held that section 117 of the CPC is applicable to a child.

The appellate court distinguished between detention pending trial and detention pending investigation.

Detention in section 83(1) of the Child Act should be construed as not being intended to include detention pending investigation.

With the greatest of respect, without the benefit of a counter argument, the appellate court did not consider the legislative purpose of the Child Act, which is, among others, to protect a child in all circumstances. 

In all actions concerning children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration.

The arrest and detention of a child should be in conformity with the Child Act, and should be used only as a measure of last resort and for the shortest appropriate period of time.

Instead of that, section 83A(4) of the act – inserted in 2016 vide the Child (Amendment) Act 2016 (Act A1511) – provides that the act shall not affect the powers of a police officer to deal with a child arrested in accordance with the CPC.

The first preamble of the act clearly recognises that the country’s vision of a fully developed nation is one where social justice and moral, ethical and spiritual developments are just as important as economic development in creating a civil Malaysian society which is united, progressive, peaceful, caring, just and humane.

Let’s ponder how the 15-year-old girl who recently made headlines in Terengganu for stabbing her new-born baby was being held on a seven-day remand order for investigation under section 302 of the penal code for murder.

Is it in the interest of the child? Does it reflect the country’s vision? – February 14, 2022.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.