Justice was certainly not served when the alleged police officer was charged on 4 November and received a sentence of a mere RM1,000 fine for the crime of assaulting a deaf ride-hailing driver, Ong Ing Keong, on 28 May, over five months ago.
The incident took place in front of the St Regis Hotel in Kuala Lumpur where Ong was waiting for passengers.
The perpetrator, said to be a police officer, was a part of a security detail of a member of the Malaysian royalty, a VIP.
It is unacceptable the victim was not informed in advance that the perpetrator was going to be charged in court. Malaysian law acknowledges the right for a crime victim to be heard before sentence is decided and imposed on the perpetrator.
In Malaysia today, someone who makes a police report has the right to be informed about the status of the investigation. Reasonably, that right should also include prior information about when the perpetrators of the crime are going to be brought to court to be charged. It is an important right, especially for victims of the crime.
Failure to listen to victim’s suffering
That the victim was not even informed about the prosecution the alleged assailant in court is shocking. The presence of the victim in criminal cases is important. The victim has the right to tell the court about the impact of his suffering due to the offence. The court will take this into account in sentencing.
Section 183A of Malaysia’s Criminal Procedure Code clearly states:
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(1) Before the Court passes sentence according to law under section 183, the Court shall, upon the request of the victim of the offence or the victim’s family, call upon the victim or a member of the victim’s family to make a statement on the impact of the offence on the victim or his family…’
Failure to order compensation
Section 426(1A) of the Criminal Procedure Code states:
Without prejudice to subsection (1), the Court before which an accused is convicted of an offence shall, upon the application of the Public Prosecutor, make an order against the convicted accused for the payment by him, or where the convicted accused is a child, by his parent or guardian, of a sum to be fixed by the Court as compensation to a person who is the victim of the offence committed by the convicted accused in respect of the injury to his person or character, or loss of his income or property, as a result of the offence committed.
In this case, the victim, Ong Ing Keong, besides suffering soft tissue injury following the sudden attack on him with a hard punch on the face – he later had to get treatment at the Kuala Lumpur Hospital – would have reasonably suffered:
- a loss of income as a ride-hailing driver following the incident and in his quest for justice
- mental trauma or anguish
- and other costs including legal fees
Malaysian law provides that the court that heard and convicted this assailant could and should have order payment of compensation to the victim. Compensation to be paid to the victim would have been just. A fine now is just payment to the state – not the victim.
If the public prosecutor failed to apply to the court for the payment of compensation to the victim, it may indicate a lack of concern or even a dereliction of duty to victims of a crime.
Justice demands not just that the perpetrator be sentenced for his crimes, but also payment of compensation to the victim and perhaps even a public apology by the perpetrator to the victim.
When a criminal does not apologise, that will lead to higher sentence. A plea of guilt is not an apology to the victim.
When police break the law…
Police officers are expected to be law-abiding, more so since it is their public duty to enforce the law.
Hence, when law enforcement personnel break the law, it is a very serious matter and warrants a heavy deterrent sentence.
The Court of Appeal, in its decision said:
We would, however, like to take this opportunity to remind the lower courts that they should take cases of police officers assaulting anyone very seriously. When a police officer, be he of whatever rank, is found guilty of assaulting a member of the public and more so of an arrested person as in this case, the courts should send a message of the public abhorrence of such acts – by coming down hard on him and nothing short of a custodial sentence, even for a first offender, would suffice. [Tan Sri Abdul Rahim Mohd Noor v PP (2001) 4 CLJ 9]
What about the other offences?
In this case, there were allegedly other offences and offenders. There was allegedly a threat addressed to the victim to withdraw the first police report.
Ong claimed that the palace representative gave him two choices – retract the case and they will return his phone or go to court.
When the crime happened, did the other persons, including police officers present, make a police report of the crime.
Since March 2017, Section 13 of the Criminal Procedure Code imposes an obligation on:
Every person aware- (a) of the commission of or the intention of any other person to commit any offence punishable under the Penal Code or any other written law; commission of or the intention of any other person to commit any offence punishable under the Penal Code or any other written law…
There are also crimes of obstruction of justice. In short, everyone who committed crimes in connection with the assault or ‘abuse of power’ in Ong Ing Keong’s case must be forthwith charged and tried in court.
In Malaysia, the withdrawal of a police report does not mean the end of the criminal investigation. Once law enforcement is made aware of the alleged crime, they will proceed with the investigation or prosecution of the perpetrator of the crime.
It matters not whether the victim subsequently withdraws his or her police report, or comes to some ‘financial’ settlement with the perpetrator. A crime will still be investigated and prosecuted, irrespective of any ‘settlement’.
In this case, which has been much highlighted and is known by the public, it should not be swept under the carpet, with regard to the other crimes committed by the same or other perpetrators.
Malaysians Against Death Penalty and Torture (Madpet) and others have called for special offences for law enforcement officers as they are expected to be law-abiding, tasked with the enforcing the law.
In this case, the criminal, Lance Corporal Muhammad Taufik Ismail, was charged, convicted and sentenced under Section 323 of the Penal Code, which is for a general offence of voluntarily causing hurt that applies to all. Taufik was fined RM1,000 in default 20 days’ imprisonment.
Madpet is of the opinion that when police or law enforcement officers commit this crime, more so when on duty, they should be subjected to a much higher deterrent sentence.
Laws like Section 323 of the Penal Code should also be amended, to enable the courts to have the discretion of imposing higher sentences depending on the facts and circumstances.
Madpet calls on the prosecution to quickly appeal the sentence to the High Court, as only the prosecution, other than the convicted, have the right and ability to appeal the conviction or sentence.
Alternatively, Madpet calls on any High Court judge to exercise his or her general supervisory and revisionary jurisdiction in the interests of justice.
Section 35 of the Courts of Judicature Act states:
…the High Court shall have general supervisory and revisionary jurisdiction over all subordinate courts, and may in particular, but without prejudice to the generality of the foregoing provision, if it appears desirable in the interests of justice, either of its own motion or at the instance of any party or person interested, at any stage in any matter or proceeding, whether civil or criminal, in any subordinate court, call for the record thereof, and may remove the same into the High Court or may give to the subordinate court such directions as to the further conduct of the same as justice may require…
Madpet also call for the immediate termination of Lance Corporal Taufik to restore the image of and trust in the Malaysian police. Any law enforcement officer who breaks the law, more so while on duty, should be best removed immediately. Police officers on security details for VIPs are also highly trained, and we do not want to retain officers that who to violence rather than words.
Madpet reiterates the call to enact laws that recognise the right of people in Malaysia to be free from torture, cruel, inhuman or degrading treatment, save in accordance with the law.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture.
- Tegakkan maruah serta kualiti kehidupan rakyat
- Galakkan pembangunan saksama, lestari serta tangani krisis alam sekitar
- Raikan kerencaman dan keterangkuman
- Selamatkan demokrasi dan angkatkan keluhuran undang-undang
- Lawan rasuah dan kronisme
