KUALA LUMPUR, March 8 — A teenage girl in Terengganu will remain behind bars while awaiting trial over the murder of her newborn son, as the High Court in Kuala Terengganu has decided against revising an earlier court ruling which rejected bail for the girl.
The girl, who was 14-years-and-11-months-old at the time of her arrest, is legally still a minor in Malaysia. Her son was said to have been conceived of a rape.
On February 15, the girl was charged with murder of the newborn under Section 302 of the Penal Code at the Magistrates’ Court in Kemaman, Terengganu, and was denied bail while pending trial.
After the bail denial, the girl’s lawyers filed an application to the High Court in Kuala Terengganu to seek a review of the decision to deny bail and to also seek for the girl to be referred for psychiatric evaluation.
High Court judge Datuk Hassan Abdul Ghani had on March 3 heard the application by the girl.
When contacted, the girl’s lawyer Sangeet Kaur Deo told Malay Mail that the High Court in Kuala Terengganu had today allowed part of the revision application by ordering for the girl to be referred for psychiatric evaluation, but deciding not to grant bail.
As bail was not granted, the girl will remain in detention.
“Among others, court said there was no error in the magistrate denying bail as the magistrate has no jurisdiction to grant bail in a murder case,” Sangeet said when explaining part of the reasons for the High Court’s decision today against granting bail to the girl.
Following the High Court’s decision today, Sangeet confirmed that the girl would be sent to a government hospital for psychiatric evaluation.
“Under Section 342 CPC, the court must refer for psychiatric evaluation if they suspect instability,” Sangeet explained, referring to the Criminal Procedure Code.
Among other things, Section 342 states that a judge or magistrate holding a trial shall investigate whether an accused person is of unsound mind, if the judge has reason to suspect that the person is of unsound mind and incapable of making his defence.
Such investigation could include having a medical officer certifying whether the accused person is of unsound mind or suited to be detained in a psychiatric hospital for observation, while judges or magistrates also have the powers to direct for an accused person to be observed at any psychiatric hospital for assessment of the person’s state of mind.
Section 342 also provides that the public prosecutor may — at any stage before a trial — order for an accused person to be sent to a psychiatric hospital for observation and for assessment, if he suspects the accused person to be of unsound mind.
Sangeet stressed the importance of assessing the girl’s mental state at the time of the alleged offence, but confirmed that this was not done before the girl was charged.
“We need to have a clear direction/policy in relation to managing children who come into conflict with the law.
“Also AGC/PDRM must explain why she was not sent for evaluation straight away, before determining the appropriate charge. It’s now been three/four weeks from incident. Mental evaluation at the time of the offence is critical to know her state of mind then,” Sangeet said, referring to the Attorney General’s Chambers (AGC) and the Royal Malaysia Police by their initials.
“I must highlight here that she was a victim of sexual exploitation,” Sangeet said of her teenage client.
When asked if the girl would be filing a further appeal to the Court of Appeal against the decision to reject her bid to be released on bail, Sangeet said the lawyers would seek instructions from the girl as soon as possible.
The next case mention for the girl’s murder case in the Magistrates’ Court in Kemaman is scheduled for March 16. A case mention is only the preliminary stages of a criminal case before trial can begin.
If counted from the day she was charged until today, the girl would have been in detention for 22 days so far.
The murder charge is a non-bailable offence, which means the court can decide whether to grant bail or not.
Under Section 388 of the Criminal Procedure Code, the court can release an accused person — facing a non-bailable offence punishable with death (such as a murder charge) or life imprisonment — on bail if the person charged is sick or female or a minor aged below 16 years old. If an accused person does not fall within these exceptions, the accused person shall not be released on bail.
On February 18, the AGC said there is an ongoing investigation on the girl being raped and said the rape incident was only discovered after her February 8 arrest and her police report on the same day.
With the girl charged with murder following police investigations on the February 8 death of her baby, the AGC however said on February 18 that the prosecution can still review the murder charge against the girl after taking into account additional developments, such as the future outcome of investigations on the rape incident.
While the punishment upon conviction for a murder offence is death, the AGC had also said that the child would be instead ordered to be detained under Section 97(2) of the Child Act if convicted of the murder offence.
