GLOBAL Ikhwan Service and Business Holding (GISBH) on Saturday revealed that earlier there had been cases of sodomy in the organisation.
In a video posted on the company’s social media account, company CEO Nasiruddin Ali said the cases were addressed internally as GISBH recognised them as legal offences.
It is mind boggling that the cases were addressed internally when they are offences under the law.
Failure to make a police report about sexual crimes being committed against children is an offence under Section 19 of the Sexual Offences Against Children Act (SOACA) 2017.
The punishment for the offence makes it a non-seizable offence. In layman’s terms, a non-seizable offence is a less serious offence.
The Criminal Procedure Code categorises offences, among others, into seizable and non-seizable offences. This categorisation matters for the purposes of investigations. Specifically for non-seizable offences, there must be an order to investigate (OTI) from the public prosecutor or his deputy.
The law on an investigation of non-seizable offences has been well explained in a couple of cases in the High Court. In Chan Ah Moi v Phang Wai Ann [1995] 3 MLJ 130, then-High Court Judge Abdul Malik Ishak said: “The police must first determine the nature of the offence before deciding on the next course of action. If the offence is non-seizable in nature, the police will conduct an investigation upon receipt of an order to investigate from the deputy public prosecutor. An investigation of a non-seizable offence without an order to investigate from the deputy public prosecutor would render whatever evidence collected illegal.”
In a later case of PP v Cha Chor Kian [1998] 1 MLJ 167, then-High Court Judge Suriyadi Halim said: “For purposes of non-seizable offences, no investigation may be carried out unless ‘an order to investigate’ clearance is obtained first from the public prosecutor.”
As to which party had the power to investigate, the learned judge said: “For non-seizable offences, no investigation may be carried out by the prosecution as it is conducted solely by the police or other lawful enforcement agencies. It is trite law that it is the police and not the prosecution who are given the powers to arrest, detain or to seize properties in an authorised manner.
“The police whilst in the process of any investigation or carrying out of their duties will be bound by all the provisions in the Police Act 1967, Criminal Procedure Code (CPC) and the Federal Constitution, e.g. art 5(3).”
An OTI can be said to be a pre-condition for investigating a non-seizable offence. The police cannot exercise the special powers of an investigation provided by the CPC unless and until an OTI is issued.
The rationale for an OTI to investigate a non-seizable offence is the largely trivial nature of such offences.
The offences under SOACA are in no way trivial. They are seizable offences – more serious offences that allow for arrest without warrant and investigation without OTI. All offences under SOACA should be made seizable offences, including the offence under Section 19.
Failure to make a police report about sexual crimes being committed against children should not be trivial in nature. It should not be a less serious offence when the information relates to the commission of serious offences.
A fine not exceeding RM5,000 can be just a slap on wrist for some offenders. The SOACA needs to be amended for the better protection of our children. – September 16, 2024.
* Hafiz Hassan reads The Malaysian Insight.
* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.
