Pendakwa Raya v Asmarani Bt Ghazali [2019] MLJU 1719

PENDAKWA RAYA V ASMARANI BT GHAZALI [2019] MLJU 1719

Court of Appeal (Putrajaya)

The Severity of Child Abuse’s Punishment

Facts 1.     This was an appeal by the prosecution (Appellant) against the sentence imposed by the learned High Court Judge to the Accused (Respondent).

2.     The Respondent was entrusted with the care of a child named Muhammad Afif bin Kamarol Azli (the Deceased) while his mother was at work. At the time of the incident, the deceased was about 2 years and 7 months old.

3.     On 13.6.2018, around 8 a.m., the Deceased’s mother sent him and his brother to the Respondent’s house as usual.

4.     The Deceased expressed reluctance to visit the Respondent’s residence. Nonetheless, the Deceased’s mother sent the Deceased to the Respondent. The facts revealed that the Deceased was not feeling well at that time.

5.     At around 9 a.m., as the Respondent was giving food to one of the babies which was under her care, the Deceased cried. Despite giving toys to pacify him, the Deceased still continued whining and crying.

6.     The Respondent told the Deceased to throw away his soiled diapers into the dustbin in the kitchen. After doing as he was told, the Deceased was still whining and crying as he was unwell.

7.     The Deceased then came over to the Respondent while crying very loudly. The Respondent told him not to cry however it was to no avail.

8.     In her attempt to stop the Respondent from crying, the Respondent went over to the kitchen and opened the refrigerator, where she got a green chilli and showed to the Deceased the green chilli. However, the Deceased continued crying loudly.

9.     The Respondent then popped the green chilli into the mouth of the Deceased when the mouth of the Deceased was gaped opened as he was crying.

10.  Subsequently, the Respondent saw the Deceased had difficulty in breathing. The Respondent gave some water to the Deceased to drink however the Deceased could not swallowed the water.

11.  The Respondent then asked her child to wake up her husband to bring the Deceased to the clinic. On the way to the clinic, the Respondent attempted to help the Deceased to breathe.

12.  The Respondent brought the Deceased to Klinik Baiduri however as the clinic did not have any oxygen, the Respondent was then brought to Radhiyah Klinik.

13.  There, the doctor at the clinic tried to treat the Deceased and asked her staff to contact 999 but they took some time to come. The staff at the clinic advised the husband of the Respondent to send the Deceased to the hospital.

14.  The husband to the Respondent drove the Deceased to Hospital Tuanku Jaafar, Seremban. On the way to the hospital, the Respondent has asked her child to contact the mother of the Deceased but her phone went unanswered.

15.  Subsequently the Mother of the Deceased called back the Respondent and the Respondent told the mother of the Deceased to go to the emergency department of Hospital Tuanku Jaafar, Seremban.

16.  However, the Deceased subsequently passed away despite attempts were made to treat him.

17.  Later, the Respondent admitted to ASP Razimah binti Razali, one of the police officers, that she had placed chilli in the Deceased’s mouth at around 9 a.m. on the day of the incident.

18.  At the High Court, the learned High Court Judge found that the Respondent had been taking care of the Deceased well.

19.  The learned High Court Judge’s findings was premised on the fact that the Mother to the Deceased did not wish to change to another child minder although the Respondent did tell the mother of the Deceased not to send the Deceased to her house anymore.

20.  In addition, the relationship between the brother of the Deceased and the Respondent’s family were close.

21.  According to the court, it is most unfortunate that the incident happened and it cannot be said that the Respondent had the intention to cause death to the Deceased.

22.  The death was caused due to the momentary foolishness of the Respondent and that she did not anticipate that such act would have caused death to the Deceased.

23.  The plea of guilt by the Respondent showed that the Respondent had been remorseful as to what had happened and it had saved the court’s time if it were to go on for full trial.

24.  The learned High Court Judge also took into account the seriousness of the offence and that an appropriate sentence ought to be imposed and justice ought to be accorded to the mother of the Deceased.

Issue 1.     Whether the learned High Court Judge’s sentence of 18 months was manifestly insufficient?
Ratios 1.     Punishment for the Offence of Child Abuse.

(a)  The Appellant contended that the sentence imposed by the learned High Court Judge was manifestly inadequate in comparison to the maximum imprisonment sentence provided by the law, which is 20 years in prison.

(b)  In addition, it was submitted that the learned High Court Judge had erred when he failed to consider the public interest and the facts which calls for a deterrent sentence.

(c)  Section 31(1) of the Child Act 2001 (Act 611) stated as follows:

“Any person who, being a person having the care of a child–

(a)abuses, neglects, abandons or exposes the child or acts negligently in a manner likely to cause him physical or emotional injury or causes or permits him to be so abused, neglected, abandoned or exposed; or

(b)sexually abuses the child or causes or permits him to be so abused, commits an offence and shall on conviction be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding twenty years or to both.”

(d)  Given that the charge against the Respondent is based on the Child Act 2001, it is critical that the intent of the legislation be considered when imposing sentence.

(e) The charge against the Respondent is “Abusing” by putting chili in the mouth of the Deceased which led to his death.

(f)   The term “abuse” refers to any violation of an individual’s human and civil rights by another person. “Child Abuse” is defined as any act or acts committed by a parent or guardian or any other person that endangers or impairs the child’s physical or emotional well-being or that are deemed inappropriate by a combination of community values and professionals.

(g)  With the aforementioned background in mind, the Court then proceeded to consider the sentence imposed by the learned High Court Judge.

(h)  The principles of sentencing enunciated by the case of PP v Loo Choon Fatt [1976] 2 MLJ 256 guide the Court in determining what should be the appropriate sentence to be imposed whereby the Court held that:-

“The High Court sitting in exercise of its reversionary powers will not normally alter the sentence unless it is satisfied that the sentence of the lower court is either manifestly inadequate or grossly excessive or illegal or otherwise not a proper sentence having regard to all the facts disclosed on the record or to all the facts which the court ought to take judicial notice of, that is to say, that the lower court clearly has erred in applying the correct principles in the assessment of the sentence. It is firmly established practice that the court will not alter a sentence merely because it might have passed a different sentence.”

(i)   In the present case, the Court took note of the fact that the learned High Court Judge did consider the issue of public interest, the seriousness of the offence, plea of guilt, the fact that the Respondent was remorseful of her act and that there was no intention to cause death to the Deceased.

(j)  However, the Court found that such mention of the factors by the learned High Court Judge was merely lip service which did not translate into the appropriate sentence that ought to be imposed on the Respondent so as to commensurate with the offence committed.

(k) True, the learned High Court Judge stated that the incident was most unfortunate; however, the deciding Court made a serious error upon staying that no one would benefit if the Respondent to be committed to prison.

(l)   The Court also acknowledges that the Respondent has her own children. But that cannot be used to excuse her from receiving the appropriate sentence.

(m)  Although the act of the Respondent which resulted in the death of the Deceased was unfortunate, to say the least, but from the facts, it was a deliberate act on the part of the respondent.

(n)  The act of putting chilli into the mouth of the Deceased while his mouth was gaped opened crying is an act to cause pain and suffering. The Court take judicial notice that chillies are “hot”, which gives a burning sensation to the palate, even to an adult, what more to a child. The facts showed that initially the Respondent kept on showing the chilli to the Deceased.

(o)  When that attempt failed, the Respondent put the chilli into the Deceased’s throat, while his mouth was gaping crying. The Court was of the view that would not need to be a rocket scientist to guess the likelihood what it would cause to a child who was in the midst of crying, of such an act on the part of the Respondent.

(p) Although it was not established, as to why the Respondent had earlier kept showing to the Deceased                                                                                                                                                                                                                                                      the chilli when he continued crying, but in all probability, it was to create fear on the Deceased that if he refused to stop crying the Respondent would use chilli on the Deceased.

(q)  A reasonable person, particularly the Respondent, who is a mother in her own right, would know better than to put something in the mouth of a crying child because the child could choke to death.

(r)   The Court of Appeal went on to say that doing such a thing to an adult could result in serious consequences, let alone a child who was only three years old! These are facts that the learned High Court Judge did not take into account when passing sentence on the Respondent.

(s)    In addition, the learned High Court Judge said that long imprisonment sentence on the Respondent would not benefit anybody, especially when the Respondent herself has 3 children of her own. This is where the issue of public interest comes into play, and the learned High Court Judge had erred in his application of this principle.

(t)   Here, the Court affirmed that when dealing with the issue of public interest, the balancing aspect of the interest of the accused person and the interest of the public have to be taken into account.

(u)  The learned High Court Judge used the Respondent’s remorse as justification for not imposing a long prison sentence. Furthermore, the learned High Court Judge appeared to be overly sympathetic on the Respondent without considering the devastating effect on the parents due to the loss of their child, the Deceased which they have entrusted to be under the care of the Respondent.

(v) Clearly the learned High Court Judge erred in failing to carry out the balancing exercise between the public interest and the interest of the Respondent.

(w)  The sentence must therefore reflect the seriousness and gravity of the offence and it must convey to the public more so, parents, guardians and child minders not to take safety and welfare of children lightly. A sentence of 18 months is disproportionate to the gravity of the offence and would be ineffective as a deterrent to future offenders.

(x)  As a result, an 18-month sentence is disproportionate to the gravity of the offence and would not serve as a deterrent to future offenders.

Decision 1.     The Court of Appeal allowed the appeal by the Appellant and set aside the sentence imposed by the learned High Court Judge and substituted it with an imprisonment sentence of 10 years.
Key Take Away

1.     “Child Abuse” is defined as any act of commission or commission by a parent or guardian or any other person which would endanger or impair the child’s physical or emotional wellbeing or that judged by a mixture of community values and professionals as being inappropriate.

2.     Section 31(1) of the Child Act 2001 (Act 611) highlighted that anyone convicted of child abuse faces a fine of not more than 50,000.00 ringgit or imprisonment for a term not exceeding twenty years, or both.

3.      It should be noted that when Parliament amended Section 31 of Act 611 in 2015 to provide for harsher penalties for those found abusing, exploiting, or neglecting children, it demonstrated its intention to emphasise the seriousness of child abuse.

4.      As a result, the penalty for child abuse was raised from RM20,000.00 to RM50,000.00 and the maximum prison sentence was increased from 10 to 20 years.

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