INSPECTOR-GENERAL of police (IGP) Tan Sri Razarudin Husain reportedly said police would investigate a statement made by Global Ikhwan Service and Business (GISB) Holdings executive chairman and chief executive officer Datuk Nasiruddin Mohd Ali in a recent viral video.
In the video, Nasiruddin said there have indeed been one or two cases of sodomy involving children at the welfare homes.
It is mind boggling that Nasiruddin said the police should have “discussed the matter” with GISB instead of taking the children away.
Failure to make a police report about sexual crimes being committed against children is an offence under Section 19 of the Sexual Offences Against Children Act 2017 (SOACA). The provision says as follows:
“[A]ny person who fails to give information of the commission of or the intention of any other person to commit any offence under this Act, or any offence specified in the Schedule where the victim is a child, to the officer in charge of the nearest police station, commits an offence and shall, on conviction, be liable to a fine not exceeding five thousand ringgit.”
The punishment for the offence makes failure to report sexual crimes against children a non-seizable offence. In layman’s terms, a non-seizable offence is a less serious offence.
Order to investigate needed
The Criminal Procedure Code (CPC) categorises offences, among others, into seizable and non-seizable offences. This categorisation matters for the purpose of an investigation.
For a non-seizable offence, there has to be an order to investigate (OTI) from the public prosecutor (PP – who is the Attorney General) or the Deputy Public Prosecutor (DPP).
The law on investigation of non-seizable offences has been well explained in a couple of cases in the High Court. In Chan Ah Moi v Phang Wai Ann [1995] 3 MLJ 130, High Court Judge Abdul Malik Ishak (as he then was) said:
“The police must first determine the nature of the offence before deciding on the next course of action. If the offence is non-seizable in nature, the police will conduct an investigation upon receipt of an order to investigate from the deputy public prosecutor. An investigation of a non-seizable offence without an order to investigate from the deputy public prosecutor would render whatever evidence collected illegal.”
In a later case of PP v Cha Chor Kian [1998] 1 MLJ 167, High Court Judge Suriyadi Halim (as he then was), said:
“For purposes of non-seizable offences, no investigation may be carried out unless ‘an order to investigate’ clearance is obtained first from the PP.”
As to which party having the power to investigate, the learned judge said:
“For non-seizable offences, no investigation may be carried out by the prosecution as it is conducted solely by the police or other lawful enforcement agencies. It is trite law that it is the police and not the prosecution who are given the powers to arrest, detain or to seize properties in an authorised manner.
“The police whilst in the process of any investigation or carrying out of their duties will be bound by all the provisions in the Police Act 1967, Criminal Procedure Code and the Federal Constitution, eg art 5(3).”
An OTI can be said to be a condition precedent before an investigation proceeds on a non-seizable offence. The police cannot exercise the special powers of an investigation provided by the CPC unless and until an OTI is issued.
The rationale for an OTI to investigate a non-seizable offence is simply because such offences are by and large trivial in nature.
But offences under SOACA are in no way trivial. They are seizable offences – more serious offences which allow for arrest without warrant and investigation without OTI.
All offences under SOACA should be made seizable offences, including the offence under Section 19.
Failure to make a police report about sexual crimes being committed against children should not be trivial in nature. It should not be a less serious offence when the information relates to the commission of serious offences.
A fine not exceeding RM5,000 can be but a slap on wrist for some offenders. The SOACA needs to be amended for the better protection of our children.
What say Women, Family and Community Development Minister and the Children’s Commissioner? — September 16, 2024
Hafiz Hassan reads Scoop.