Recently, an incident involving two underaged children shocked Malaysians after they went out late at night without their parents’ knowledge, drove the family car and crashed it into a lamppost after travelling 2.5km.
More shocking is the fact that the two brothers are well below the age of being able to legally drive, as they are only aged 6 and 3 respectively. A follow-up to the incident by the Royal Malaysia Police (PDRM) revealed that they learned how to drive by watching YouTube and ironically, both went out driving to buy a toy car.
While the car suffered damages, the two boys thankfully escaped mostly unharmed, except for the older brother who suffered a cut on his chin. With that in mind, many have expressed concern for the children and questioned where the parents were during the whole incident.
Furthermore, do the children and their parents face action by the authorities for what has transpired? Even though no one was harmed, the incident could’ve ended up way worse with either the children or other road users being seriously injured or worse, losing their lives.
Children aged 10 and below can’t be charged in court
First up, given the two boys’ age, they are exempt from any criminal liability. This is because children below the age of 10 are deemed to not understand the consequences of their actions.
Section 82 of the Penal Code deals specifically with this matter as below:
Based on the above provision, it is clear that any criminal offence by a child under 10 years old is not considered an offence in our country. In relation to minors, those aged between 10 and 12 may face criminal liability as per Section 83 of the Penal Code below:
The presumption in law in such circumstances is that children of this age are “incapable of criminal intent”, hence the onus is on the prosecution to rebut such a presumption. In other words, the prosecution must prove that the child aged as young as 10 is indeed capable of criminal intent. This is actually called the doctrine of doli incapax which is applicable in many countries around the world, such as the United States.
However, such a doctrine is no longer applicable in the United Kingdom, whereby Section 34 of the country’s Crime and Disorder Act abolished the rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence.
In Malaysia, as per the Section 83 of the Penal Code, should an offence be committed by children between 10 and 12, the prosecution must first prove that they have attained sufficient maturity or understanding of the nature and consequences of their actions.
Nevertheless, this is simply academic though, as the children in the subject matter at hand are well below the age of 10.
The parents can be charged under the Child Act 2001
However, given the circumstances of the case, the parents or guardians of the children may face action for child neglect. This is because they exposed the two boys in a manner that is likely to cause physical or emotional injuries.
Section 31 of the Child Act 2001 prescribed as below:
Applied to the case at hand, the parents may be liable under Section 31(1)(a) for neglecting the children and abandoning them in a manner likely to cause them physical or emotional injury. It can be argued that the parents’ action, or rather, inaction in leaving the children unattended until they were able to drive the family car was them acting negligently in a manner likely to cause them physical or emotional damage.
As per Section 31 of the Child Act 2001, the parents can be charged with child neglect and face a fine of up to RM50,000 or imprisonment of up to 20 years or both upon conviction.
Furthermore, as per Section 31(2) of the same Act, those charged under Section 31 may also be ordered by the Court to execute a bond with sureties to be of good behaviour for such period and on such conditions as the Court thinks fit and to perform community service. Those who fail to comply with the orders of the bond shall be liable to a further fine of up to RM10,000 or to an additional jail sentence not exceeding 5 years or both.
As for the aforementioned community service, it shall be between 36 hours and 246 hours in aggregate, as well as be performed within the period not exceeding 6 months from the date of order. It’s also subject to any other conditions specified by the Court and those who fail to perform the community service may be liable to a fine of up to RM10,000.
Another possible charge faced by the parents if they weren’t around during the incident is under Section 33 of the same Act for leaving their children without reasonable supervision. The provision defines the offence as below:
Those convicted of an offence to leave a child without reasonable supervision may face a fine of up to RM20,000 or up to 5-year jail or both. Moreover, just like Section 31, the Court may also additionally order the person to undergo community service.
The length of the community service may be between 36 and 246 hours in aggregate, to be performed within the period not exceeding 6 months from the date of order and subject to certain conditions as specified by the Court.
Furthermore, any person who fails to comply with the order of the Court to perform community service is deemed to have committed an offence and shall on conviction be liable to a fine of up to RM10,000.
Moving forward, all eyes would be on the action and potential charges being faced by the children’s parents. Until then, let this be a lesson and reminder to all parents and guardians out there to always know the whereabouts of children under your care as well as provide for them to the best of your abilities.