CRIMINAL LAW I (LAC3103)

4- EXCUSE ACCORDED TO MINORS IN RESPECT OF CRIMINAL LIABILITIES IN MALAYSIA

TUTORIAL: 3

NURULATIKA (1122032)

NOOR SYAMIMI (1122035)

NABIHAH AQILAH (1122038)

SITI NOOR AMIRAH (1122041)

DEFINITION

• Liability? - Something that is a hindrance or puts an individual or group at a disadvantage, or something that someone is responsible for

• Criminal Liability? - Responsibility for any illegal behaviour that causes harm or damage to someone or something.

INFANCY

• A person cannot be guilty of the requisite mensrea to commit criminal acts until they have reached a pre-defined age of criminal responsibility.

• Black’s Law Dictionary (Gardner, 1999) defines “minor” as “someone who has not reached full legal age”.

• Minors in Malaysia? – Section 2 of Child Act 2001

PROVISIONS & REASONS RELATING TO THE DEFENCE OF INFANCY UNDER PENAL CODE

Penal Code

• Section 82 : Act of a child under 10 years of age. Nothing is an offence which is done by a child under ten years of age.

This section gives complete immunity to person under age of 10 from being prosecuted and punished for his offence.

• Section 83 : Act of a child above 10 and under 12 years of age. Nothing is an offence which is done by a child above ten years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequence of his conduct on that occasion.

The child will be liable if he has sufficient maturity to understand the nature and consequence of his conduct

Reason :

They were incapable of understanding what he had done of the wrongfulness of his conduct.

Section 113 of Malaysian Evidence Act

• It shall be an irrebuttable presumption of law that a boy under the age of 13 years is incapable of committing rape.

COMPARISON TO ENGLISH LAW

• Presumption of Doli Incapax

1) Child under 7 y/o incapable of being guilty

2) Child between 7-14 y/o not guilty unless prosecution proved that the child know that the act was wrong.

Differences with Malaysian Law

Malaysian Law English Law

The age limit on criminal responsibility

10 7

The burden of proof Lies on the accused Lies on the prosecutor

The abolition of presumption of Doli Incapax

1) Children know the different between right and wrong.2) Children do not need protection for the criminal law.3) The doctrine was an unfair practice.

Pp v Lim Ah Leng [1967] 1 MLJ 284

• The accused, who was 24 years old at the trial, had been convicted of theft. The magistrate took into account the fact that the accused had two previous convictions, one of which was for theft when he was 10 years old, and sentenced him to two years’ imprisonment.

• On appeal, Ong J reduced the prison sentence by a year after quoting section 83 and ‘wonder [ing] if the lad had sufficient maturity’ when he committed theft as a 10-year-old. With respect, Ong J was disallowed from doing this since s 83 is a defence which had to be proved by the accused. Accordingly, his Honour had to assume that the trial court hearing the theft charge those many years ago had not been persuaded by the accused by the accused to apply s 83 in his favour. Ong J’s approach amounted to paying lip service to s 83 but effectively invoking the English common law presumption that the accused was incapable of committing theft unless proved otherwise by the prosecution.

Ulla Mahapatra v King (1950) Cut 293

• An 11-year-old boy had picked up a knife and advanced

towards the victim saying that he would cut him to bits and

did actually cut him. The court held that the boy’s entire

conduct led to the one inference which was that he knew

that a cut inflicted by the knife would effectuate his

intention of hurting the victim. Although, the s 83 defence

failed, the court prepared to recognise the offender’s youth

as a mitigating factor in sentencing.