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.,
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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.