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©The Sun (Used by permission)
by S. Tamarai Chelvi 

PUTRAJAYA (July 19, 2007): The prosecution will submit on Wednesday (July 25) whether English laws are applicable in the case of a convicted 17-year-old murderer who killed an 11-year-old girl when he was only 12 years and nine months old.

Court of Appeal judge Datuk Gopal Sri Ram, who sat with Datuk Zulkefli Makinudin and Datuk Raus Shariff, told DPP Yaacob Mohd Sam to research whether English laws were applicable in a situation when a person is convicted but no punishment is provided under the law.

The judges fixed the new date to allow Yaacob to research Section 5 of the Criminal Procedure Code (CPC).

Yaacob also said he needed time to prepare for the submission. The case was fixed today to hear on consequential orders.

Last Thursday (July 12), the court set aside the boy’s sentence as there is no provision under Section 97 (2) Child Act 2001 for punishment. (Please click here to download the judgment)

However, it ruled that the boy murdered the girl, who was the daughter of his tuition teacher, by stabbing her 20 times. He killed the girl in her house in Setapak on May 30, 2002.

Earlier, Sri Ram asked Yaacob: "Do we have powers to keep him in prison for a long long time?"

Yaacob submitted that Section 302 of the Penal Code (for murder), which carries the death penalty, applies in the case.

"In view of the fact that this court has ruled that Section 97 (2) of the Child Act 2001 is invalid and for foregoing reasons, we have been given that the punishable Section under 302 of the PC (Penal Code) ought to apply," he said.

However, Sri Ram said there are valid restrictions in the law (302 of the PC).

He said a person, who is over 50 years old, children and women cannot be whipped. He said the underage boy cannot be hanged.

"It is a perfectly valid restriction. Valid provision," said Sri Ram, adding that it is bona fide exercise of power. "You cannot send him to death," said Sri Ram.

Sri Ram then asked Yaacob whether Section 5 of the CPC can be applied and English laws be "imported", where life imprisonment is imposed.

He also said that life imprisonment under English law means "natural life" (as in imprisonment until death in prison).

(Section 5 of the CPC : Laws in England, when applicable. As regards matters of criminal procedure to which no special provision has been made by this code or by any other law for the time being in force the law relating to criminal procedure for the time being in force in England shall be applied so far as the same shall not conflict or be inconsistent with this code and can be made auxiliary thereto.)

However, Sri Ram said it was just a thought that came to him this morning and that he had not shared it with his fellow judges.

Karpal Singh said Section 5 cannot apply. "The punishment is not procedural but substantive law. Section 125 of the Child Act should be considered in view of Section 97 (2) and (4) was not unconstitutional," he said.

He said the conviction under Section 97 (1) of the Child Act remains but punishment under section 97 (2) and (4) Child Act is unconstitutional.

Karpal said he is relying on Section 125 under the Child Act and that would be remedy for the case.

"I don’t think we should go to other laws," he argued.

(Section 125 – general penalty. If no penalty is expressively provided for an offence under this Act, a person who commits such offence shall on the conviction be liable to a fine not exceeding RM5,000 or to imprisonment for a term not exceeding two years or both.)

The judges then fixed Wednesday for submissions.

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