When justice forgets the victim

There is an ongoing debate about whether the perpetrator in a recent fatal drunk driving case should be charged with murder or some other offence.

Whatever the crime, the sentence, only if the accused is convicted, does not do justice to victims unless they are also compensated for their loss and suffering by the convicted criminal.

Compensation for victims by a convicted criminal

Victims of crime, including those who have been killed in drunk driving fatal accidents, deserve to be compensated by the convicted criminal. This right is already enshrined in Malaysian law in Section 426 of the Criminal Procedure Code.

But victims, many a time, do not receive compensations because of the failure of public prosecutors – both Dusuki and those before him – to apply to the court for compensation for victims.

Section 426A states that “the Court before which an accused is convicted of an offence shall, upon the application of the Public Prosecutor, make an order against the convicted accused for the payment by him… of a sum to be fixed by the Court as compensation to a person who is the victim of the offence committed by the convicted accused”.

If and when an application is made by the public prosecutor,

the Court may hold an inquiry as it thinks fit”, and among the things the court will consider are:

(a) the nature of the offence;

(b) the injury sustained by the victim;

(c) the expenses incurred by the victim;

(d) the damage to, or loss of, property suffered by the victim.

Section 432 provides that when the court orders the convicted person to pay the victim compensation:

the Court making the order may in its discretion do all or any of the following things, namely:

(a) allow time for the payment of that sum;

(b) direct payment of that sum to be made by instalments;

(c) issue a warrant for the levy of that sum by distress and sale of any property belonging to that person;

(e) direct that that person be searched and that any money found on him when so searched, or which in the event of his being committed to prison may be found on him when taken to prison, shall be applied towards the payment of that sum, the surplus, if any, being returned to him.

Even when the Court orders the victim to be compensated, the right to sue for more is still preserved in law.

Section 426A(4) states:

To the extent of the amount which has been paid to a person, or to the representatives of a person, under an order for compensation, any claim of such person or representatives for damages sustained by reason of the offence shall be deemed to have been satisfied, but the order for payment shall not prejudice any right to a civil remedy for the recovery of any property or for the recovery of damages beyond the amount of compensation paid under the order.

That means victims can still claim further damages and compensation from the convicted criminal.

Public prosecutors fail to apply for compensation

While there are very few reported cases where the court has ordered victims to be compensated, the norm suggests that public prosecutors have failed to apply to the court for victims to be compensated.

We no longer should only be interested in seeing the convicted criminal punished, we are also concerned about the victim’s right to be compensated.

Restorative justice aims to repair the harm caused by crime by focusing on victim needs, offender accountability and community involvement rather than punishment alone.

While monetary compensation for victims by the perpetrators is the first step, the state needs to look beyond that, including providing support and rehabilitation for victims.

Malaysians Against Death Penalty and Torture (Madpet) calls on public prosecutors to show concern for victims of crime, and to never again fail – intentionally or otherwise – to apply to the court so that victims of crime can be compensated by convicted criminals.

Amending Section 426

Madpet calls for the amendment of Section 426 to give courts the power to act on their own even when the public prosecutor fails to apply for compensation for victims.

Madpet also calls for victims to be given the right to directly apply to the court for an order for compensation by the convicted criminal.

Victims must be informed of trial dates by the public prosecutor.

In many criminal trials, victims today do not even know that the accused has been charged in court or the trial dates. It is important to enact a law requiring the public prosecutor to mandatorily inform all victims that the accused has been charged and of the trial dates.

A victim’s right to know who is the perpetrator of the crime, and the right to attend trials should be a fundamental right. Victims also have a right to know what happened to stolen property – whether it was recovered or not.

It is a sad and unacceptable state of affairs when victims are kept in the dark – not knowing that the perpetrators have been identified, arrested, charged and even convicted. Victims rightly must be informed of the convicted perpetrator’s identity, including their MyKad or passport details and address, sufficient for victims to consider taking legal action to seek compensation and damages.

Section 107A of the Criminal Procedure Code, which came into force in 2007, provides that any person who has given information under Section 107 may request a report on the status of the investigation from the officer in charge of the police station where the information was given.

This provision is meant to ensure that those who lodge reports, including victims, have a right to know the status of an investigation.

But victims of a crime should not be required to make a request. They should automatically be informed, as of right, when the accused is charged, of the trial dates, and of the fact of conviction and sentence.

Victims should also be furnished with charge sheets and the facts of the case that the accused admitted to if a guilty plea is entered, and a copy of the court judgment. Rightly, this duty should fall on the public prosecutor.

Legal presumption of guilt

Malaysia also needs to amend its laws so that a criminal conviction creates a legal presumption of guilt for offences committed by the convicted against victims, making it easier for victims to succeed in claims for compensation.

Today, a criminal conviction is often inadmissible in a subsequent civil case, thus requiring victims to prove liability again in civil suits – an onerous and unnecessary burden that hinders justice for victims.

Madpet also calls for Section 426 to be reviewed and amended so that loss suffered by the families and dependents of a victim who was killed as a result of murder or driving under the influence is also specifically considered by the criminal court judge in determining the amount of compensation the convicted person is ordered to pay.

Justice must be done and must be seen to be done. The administration of criminal justice in Malaysia must ensure that victims of crime get, at the very least, compensation or damages from the convicted. – Madpet

Charles Hector, for and on behalf of MADPET (Malaysians Against Death Penalty and Torture)

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