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THE LEGAL ASPECT OF BABY DUMPING IN MALAYSIA
Ramalinggam RajamanickamFaculty of Law
Universiti Kebangsaan Malaysia (UKM)
Criminal Offence
Penal Code
INTRODUCTION
No specific law on baby
dumping in MalaysiaReference must be made to
Malaysian criminal law
Ramalinggam RajamanickamFaculty of LawUniversiti Kebangsaan Malaysia (UKM)
STATISTICS OF CASES ACCORDING TO STATES IN MALAYSIA
Ramalinggam RajamanickamFaculty of LawUniversiti Kebangsaan Malaysia (UKM)
STATES 2015 2016 2017 (Jan –March)
Perlis 1 0 1
Kedah 14 3 1
Pulau Pinang 3 5 4
Perak 6 5 1
Selangor 21 23 8
Kuala Lumpur 12 16 4
Negeri Sembilan 8 6 1
Melaka 1 1 0
Johor 13 19 2
Pahang 7 8 2
Terengganu 3 3 0
Kelantan 5 7 1
Sabah 11 9 2
Sarawak 6 10 0
TOTAL 111 115 27
THE POSITION OF BABY DUMPING IN MALAYSIAN CRIMINAL LAW
Penal Code is the primary legislation governing the criminalactivities in Malaysia.
The elements of crime i.e. actus reus (commission) and mens rea(intention).
Baby dumping is illegal if it is provided for in the law.
It is to be noted that cases of baby dumping which cause the deathof babies are significantly different from cases of baby dumpingwhich do not cause the death of the baby.
Ramalinggam RajamanickamFaculty of LawUniversiti Kebangsaan Malaysia (UKM)
SECTION 317 OF PENAL CODE
Exposure and abandonment of a child under twelve years by parentor person having care of it
Whoever, being the father or mother of a child under the age oftwelve years, or having the care of such child, exposes or leavessuch child in any place with the intention of wholly abandoningsuch child, shall be punished with imprisonment for a term whichmay extend to seven years or with fine or with both.
Ramalinggam RajamanickamFaculty of LawUniversiti Kebangsaan Malaysia (UKM)
SECTION 317 OF PENAL CODE
A similar provision of law pertaining to the act of abandoning orexposing a child can also be found in section 31 of the Child Act2001.
The punishment for this offence in the Child Act 2001 is heavier thansection 317 of the Penal Code.
If the child is found dead in consequence of the exposure orabandonment - the doer be charged with the offence of murder(Explanation of Section 317)
Ramalinggam RajamanickamFaculty of LawUniversiti Kebangsaan Malaysia (UKM)
SECTION 318 OF PENAL CODE
Concealment of birth by secret disposal of dead body
Whoever by secretly burying or otherwise disposing of the deadbody of a child, whether such child dies before or after or during itsbirth, intentionally conceals or endeavours to conceal the birth ofsuch child shall be punished with imprisonment for a term whichmay extend to two years or with fine or with both.
Ramalinggam RajamanickamFaculty of LawUniversiti Kebangsaan Malaysia (UKM)
SECTION 318 OF PENAL CODE This particular provision of law differs from section 317 because it relates to the
act of dumping a newly born baby, by secretly burying or disposing the deadbody of the baby.
Either a baby dies before or after or during its birth, the offence is completewhenever there is an intention on the part of the perpetrator to conceal the birthby burying or disposing the baby.
The application of the section is different with section 312 of the Penal Coderelating to causing miscarriage whereby section 312 deals with the act of causingdeath of unborn child, whereas this section deals with babies who have been
born but died on delivery either before, during or after birth.
Ramalinggam RajamanickamFaculty of LawUniversiti Kebangsaan Malaysia (UKM)
SECTION 309A OF PENAL CODE
Infanticide
When any woman by any wilful act or omission causes the death of hernewly-born child, but at the time of the act or omission she had not fullyrecovered from the effect of giving birth to such child, and by reasonthereof the balance of her mind was then disturbed, she shall,notwithstanding that the circumstances were such that but for this sectionthe offence would have amounted to murder, be guilty of the offence ofinfanticide.
Ramalinggam RajamanickamFaculty of LawUniversiti Kebangsaan Malaysia (UKM)
SECTION 309A OF PENAL CODE
The offence of infanticide is not similar to the offence of babydumping that causes the death of a newly-born baby.
However, in certain circumstances both offences may be overlapped.
This section is very specific and only covers the mother.
Ramalinggam RajamanickamFaculty of LawUniversiti Kebangsaan Malaysia (UKM)
SECTION 309B OF PENAL CODE
Punishment for Infanticide
Whoever commits the offence of infanticide shall bepunished at the discretion of the Court, with imprisonmentfor a term which may extend to twenty years, and shall alsobe liable to fine.
Ramalinggam RajamanickamFaculty of LawUniversiti Kebangsaan Malaysia (UKM)
CASES ACCORDING TO PROVISIONS IN THE PENAL CODE
Ramalinggam RajamanickamFaculty of LawUniversiti Kebangsaan Malaysia (UKM)
PROVISIONS 2015 2016 2017 (Jan –March)
Section 317 42 38 10
Section 318 57 64 16
Section 309A 0 2 0
TOTAL 99 104 26
THE POSITION OF PATHOLOGICAL
EVIDENCE IN MALAYSIA
• The primary legislation governing evidence law in Malaysia is the Evidence
Act 1950.
• The Evidence Act 1950 provides the relevancy of facts which may be given
in any cases.
• Generally, only relevant facts can be adduced in the courtroom as relevancy
is the precondition to admissibility.
• Evidence of pathologist is relevant as expert evidence.
WHO IS AN EXPERT?
• Lord Russell CJ in the case of The Queen v Silverlock [1894] 2 QB766, p.771 stated that:
“someone who is skilled and has adequate knowledge in an area ofexpertise.
• In the Public Prosecutor v Lee Ee Teong [1953] MLJ 244, the courtheld that:
‘A person who is skilled or knowledgeable on certain matters by reasonof his experience and exposure may be an expert.’
RELEVANCY OF EXPERT EVIDENCE IN
MALAYSIA
• Section 45. Opinions of Experts
(1) When the court has to form an opinion upon a point of foreign law or ofscience or art, or as to identity or genuineness of handwriting or fingerimpressions, the opinions upon that point of persons specially skilled in thatforeign law, science or art, or in questions as to identity or genuineness ofhandwriting or finger impressions, are relevant facts.
(2) Such persons are called experts.
ROLE OF EXPERT
• Saunders J in the case of Buckley v Rice-Thomas 75 E.R. 182; (1554) 1 Plow. 118 stated that:
... if matters arise in our law which concern other sciences or faculties,we commonly apply for the aid of that science or faculty which itconcerns. Which is.an honourable and commendable thing in our law. Forthereby it appears that we do not despise all other sciences but our own,but we approve of them and encourage them as things worthy ofcommendation.
• Dickson J in the case of R v. Abbey [1982] 2 S.C.R. 24 held that:
“Witnesses testify as to facts. The judge or jury draws inferencesfrom facts. With respect to matters calling for special knowledge, anexpert in the field may draw inferences and state his opinion. Anexpert’s function is precisely this: to provide the judge and jury with theready-made inference which the judge and jury, due to the technicalnature of the facts, are unable to formulate. An expert’s opinion isadmissible to furnish the court with scientific information, which islikely to be outside the experience and knowledge of a judge orjury.”
ROLE OF EXPERT
• In the case of Metropolitan Properties Co. Ltd. v. London, the court held that:“Experts give evidence and do not decide the issue.”
• In the case of Ong Chan Tow v R [1963] MLJ 160, the High Court of Singaporevia Winslow J held that: “Experts should not be asked to give conclusions onmatters which eminently matters for the court to decide.”
• In the case of Chin Sen Wah v Public Prosecutor [1958] 24 MLJ 154, it washeld that: “The ultimate decision on any issue is with court.”
ROLE OF EXPERT
WHEN EXPERT CAN BE CALLED?
(TEST???)
• In the case of Junaidi bin Abdullah v Public Prosecutor [1993] 3 MLJ217, Supreme Court (Mohamed Azmi SCJ) held that:
“In our view, the test to be applied for the purpose of s 45 of theEvidence Act 1950 is this. First, does the nature of the evidence requirespecial skill? Second, if so, has the witness acquired the necessaryskill either by academic qualification or experience so that he has adequateknowledge to express an opinion on the matter under enquiry? The answerto both questions must necessarily depend on the facts of each particularcase.”
• In R v Turner [1975], Lawton LJ held that the experts can only be called when theissue which the court has to decide is “beyond common knowledge andexperience of the judge.”
“If on the proven facts a judge or jury can form their own conclusionswithout help, then the opinion of an expert is unnecessary. In such a case ifit is given dressed up in scientific jargon it may make judgment more difficult.The fact that an expert witness had impressive qualifications does not by that factalone make his opinion on matters of human nature any more helpful than thejurors themselves; but there is a danger that they may think it does.”
WHEN EXPERT CAN BE CALLED?
ROLE OF PATHOLOGIST
• May help in proving actus reus and mens rea (commission of
crime).
• Assist the court to decide on any issues which outside the
common knowledge and experience of judges.
• Give expert evidence in court.
