Putik Lada: Gaping loopholes in the law
Contributed by Angeline Cheah Yin Leng
Thursday, 19 February 2009 12:12pm
©The Star (Used by permission)
Instances of disproportionate sentences in the statute books need to be reviewed to ensure the rights of all citizens are adequately protected.
On Feb 12, a 28-year-old man was fined a measly RM100 for taking a photograph of a 17-year-old girl urinating in a shopping mall toilet (“RM100 fine for taking photo of girl in toilet” – The Star, Feb 13).
And just two days earlier, the very same magistrate had slapped a RM3,500 fine each on an 83-year-old-man and three others for gambling during Chinese New Year or three months’ jail in default (“83-year-old slapped with hefty sum for gambling during CNY” – The Star, Feb 11).
In the first case, Johor Baru magistrate Hafizah Johor Ariff Johor was reported to be “visibly upset” that the maximum penalty she could impose on the peeping tom was only a RM100 fine.
Reading these two reported cases, there seems to be something very wrong with certain laws in our country.
For example, in the case of the aged gambler, he was probably charged under Section 6(1) of the Common Gaming Houses Act 1953 which carries a penalty of not more than a RM5,000 fine or not more than six months’ imprisonment or both.
We all know that gambling is an offence which not only affects the gambler himself, but his close family members and relatives as well. When people fall prey to gambling, they often resort to borrowing money from loan sharks and this can lead to disastrous consequences – even suicide – when they are unable to pay up.
However, can we seriously say that gambling is a more serious offence than taking photos of people doing their business in public toilets?
Many Chinese would admit to gambling within the confines of their own homes during the Chinese New Year period. It can be said to be part and parcel of the annual celebration. While technically a crime under the law, such gambling causes no serious harm to those involved.
In fact, in an earlier case before another Johor Baru magistrate, Nor Shahid Abd Malik, seven men who were caught playing mahjong were fined RM1,000 each (“Seven mahjong playing men fined RM1,000 each” – The Star, Feb 4). The men were reported to have told the magistrate that they were old and were merely playing mahjong to pass time.
But what surprises me is that the pervert who snapped the picture of the girl urinating was charged under the Minor Offences Act, 1955 for peeping, which carries a maximum penalty of a RM100 fine.
I find it rather mind-boggling that an act as serious as this had been treated merely as “insulting behaviour” under section 14 of the 1955 Act. This is indeed adding insult to injury, as the pervert virtually had a free show for a mere RM100!
Section 14 of the 1955 Act reads: “Any person who uses any indecent, threatening, abusive or insulting words, or behaves in a threatening or insulting manner, or posts up or affixes or exhibits any indecent, threatening, abusive or insulting written paper or drawing with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be occasioned, shall be liable to a fine not exceeding one hundred ringgit.”
Is this how we deal with such an act of grave invasion of one’s privacy, which can have a traumatising effect on a girl so young?
Could he not have been dealt with under another legislation such as the Penal Code?
However, flipping through the Penal Code, I could not find any section under which this man could be charged.
He could not be charged under section 354 of the Penal Code for assault or use of criminal force with intent to outrage a person’s modesty because no assault or criminal force took place in this case.
A person found guilty under section 354 can be punished with imprisonment for a term which may extend to 10 years, or with a fine, or with whipping, or with any two of such punishments, and this is what a peeping tom should deserve, and not a fine of just RM100.
This points to gaping loopholes in our legislation. In fact, there are other instances of disproportionate sentences in our legislation.
For example, Section 377A of the Penal Code stipulates that oral and anal sex is a criminal offence punishable by imprisonment which may extend to 20 years, and the offender shall also be liable to whipping (section 377B).
On the other hand, the act of inciting a child under the age of 14 years to any act of gross indecency with the offender or another person is only punishable with imprisonment of up to five years together with whipping (section 377E).
Comparing these two sections, it appears to be that two homosexual men having consensual sex are committing a more heinous crime than a paedophile or child molester. Can this be?
There are many laws in our country which reflect lopsidedness, and something has to be done. All our archaic and antiquated laws must be revamped to adequately protect the rights of all citizens.
When punishment does not fit the crime, justice cannot and will not prevail.
The writer is a member of the Bar Council’s National Young Lawyers Committee (NYLC). Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society.
For more information about the young lawyers, please visit www.malaysianbar.org.my/nylc.
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