Malaysian children need better protection under law — Hafiz Hassan

SEPTEMBER 16 — Inspector-General of Police (IGP) Tan Sri Razarudin Husain said police would investigate a statement made by Global Ikhwan Service and Business Holdings (GISBH) Executive Chairman and CEO Datuk Nasiruddin Mohd Ali in a recent viral video.

“We will first complete the investigation into child exploitation and then we will address the allegations made by the company’s leader,” he said.

In the video, Nasiruddin said that there have indeed been one or two cases of sodomy involving children in the social homes.

Failure to report sexual offences committed against children to the police is an offence under section 19 of the Sexual Offences Against Children Act 2017 (SOACA). The provision reads as follows:

“(Any person who fails to give information concerning the commission or intention of another person to commit an offence under this Act, or an offence specified in the Schedule where the victim is a child, to the responsible officer at the nearest police station, commits an offence and is liable, on conviction, to a fine not exceeding five thousand ringgit.”

Failure to report sexual offences committed against children to the police is a breach of Section 19 of the Sexual Offences Against Children Act 2017 (SOACA). — Reuters pic

The punishment for the offense makes it a non-seizable offense. In layman’s terms, a non-seizable offense is a less serious offense.

The Code of Criminal Procedure (CPC) categorises offences into, among other things, confiscable and non-confiscable offences. This categorisation is important for the purpose of an investigation.

Specifically for a non-seizable offence, a warrant of investigation (OTI) is required from the Public Prosecutor (PP – the Attorney General) or the Deputy Public Prosecutor (DPP – the alter ego of the Public Prosecutor).

The law on the investigation of non-seizable facts

The law on the investigation of non-seizable offences has been well interpreted in a number of cases in the High Court. Chan Ah Moi vs Phang Wai Ann (1995) 3 MLJ 130, Judge Abdul Malik Ishak (as he was then known) said:

“The police must first determine the nature of the offense before deciding on the next course of action. If the offense cannot be seized, the police will conduct an investigation upon receipt of a warrant of investigation from the deputy public prosecutor. An investigation into an offense that has not been seized without a warrant of investigation from the deputy public prosecutor would render all the evidence collected illegal.”

In a later case of PP vs Cha Chor Kian (1998) 1 MLJ 167, Supreme Court Justice Suriyadi Halim (as he was then known) said:

“No investigation may be carried out for the purpose of non-seizure criminal offences unless permission has first been obtained from the Public Prosecution Service for an ‘investigation order’.”

As to which party has the authority to investigate, the judge said:

“For non-seizable offences, the Public Prosecution Service may not conduct an investigation, as this is done exclusively by the police or other lawful enforcement agencies. It is an established fact that it is the police and not the Public Prosecution Service that has the power to arrest, detain or seize property in an authorised manner.

“When conducting an investigation or performing its duties, the police are bound by all provisions of the Police Act 1967, the Code of Criminal Procedure and the Federal Constitution, for example Article 5(3).”

An OTI can be considered a conditional precedent before an investigation into a non-seizable offence is continued. The police cannot exercise the special powers of investigation granted by the CPC unless and until an OTI is issued.

The reason why an OTI investigates a non-seizable crime is simply because such crimes are generally trivial in nature.

But offenses under SOACA are not trivial by any means. They are impoundable offenses — more serious offenses that allow arrest without a warrant and search without an OTI. All offenses under SOACA should be impoundable offenses, including the offense under Section 19.

Failure to report to the police sexual offences committed against children should not be trivial in nature. It should not be a less serious offence if the information relates to the commission of serious offences.

A fine of up to RM5,000 may be just a slap on the wrist for some offenders. The SOACA needs to be amended to better protect our children.

What do the Minister for Women, Family and Community Development and the Commissioner for Child Protection say?

* This is the personal opinion of the author or publication and does not necessarily represent the views of Malaysian Post.