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Child Beggars in Malaysia and the Mechanisms of Law

[2021] 1 MLJ as Provided Under the Child Act 2001 ciii

CHILD BEGGARS IN MALAYSIA AND THE

MECHANISMS OF LAW AS PROVIDED UNDER THE
CHILD ACT 2001

by

ZUHAIR BIN ROSLI1

INTRODUCTION

Child beggars on the street with specific locations, sometimes at petrol stations
and restaurants, are a common scene in Malaysia especially at urban areas such
as the Klang Valley.2 The child is, at times dropped on the street by a syndicate
who controlled them since early morning and later are picked up late at night
to hand them the earnings and collection they gathered for the day.3 This
situation has alarmed the authorities and action had been taken to stop this
activity. Data in 2016 by the Women, Family and Community Development
Minister stated that 167 child beggars have been rescued since January until
June 2016 for the whole of Malaysia.4 Recently in 2018, another 11 kids have
been rescued by the police during the busting of a syndicate of child beggars
that involves five Rohingyas as the mastermind.5

The involvement of child for begging activities is not in the best interest of
the child6 and is in direct contravention of article 36 of the Convention on the
Rights of the Child (’CRC’) with regards to an obligation of state members to

1 Judicial Officer at Chief Registrar Office Federal Court of Malaysia formerly served as
Magistrate and Senior Assistant Registrar.
2 Tharanya Arumugam, ‘Selangor Welfare Dept asks public help to stem begging
exploitation’,NewStraitsTimes(23November2017)https://www.nst.com.my/news/nation/
2017/11/306756/selangor-welfare-dept-asks-public-help-stem-begging-exploitation ac-
cessed 26 May 2020.
3 Sabrina Noor, ‘This Kedah Orphanage is allegedly training its kids to act like
‘Entrepreneurs’… By Begging?’, (Cilisos.my, 26 March 2019) https://cilisos.my/this-
kedah-orphanage-is-allegedly-training-its-kids-to-act-like-entrepreneurs-by-begging/ ac-
cessed 10 June 2020.
4 Bernama, ‘Rohani: 167 child beggars rescued between January-June’, Free Malaysia Today
(9 October 2016) https://www.freemalaysiatoday.com/category/nation/2016/10/09/
rohani-167-child-beggars-rescued-between-january-june/ accessed 26 May 2020.
5 ‘Police rescue 11 kids from KL-based begging syndicate’, The Sun Daily (19 March 2018
https://www.thesundaily.my/archive/police-rescue-11-kids-kl-based-begging-syndicate-
LUARCH533793 accessed 26 May 2020.
6 Convention on the Rights of the Child (United Nations) art 3.
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protect the child against all other forms of exploitation prejudicial to any
aspects of the child’s welfare. Malaysia is a signatory for the CRC since 17
February 19957 and due to that, the three different acts8 that dealt with
children separately was repealed to comprehensively combine those laws into
one statute, the Child Act 2001.9 The Child Act 2001 touches on four scope,
which is care and protection from abuse for the children; protection and
rehabilitation; children beyond control and child offender. Generally, child
beggar is not a child offender and they are being abused to do that. Hence, the
proper remedy for them is to be protected and be put in good care which is the
ultimate aim of the laws.

LITERATURE REVIEW

Augustine Paul10 and Abu Bakar Munir11 both wrote about the lack of
protection of laws in dealing with the protection for child abuse in 1993 which
was in the early years of the coming into force of the Child Protection Act
1991, where the Child Act is not yet in existence. The scope of abuse and
neglect is the subject of discussions by both writers although Abu Bakar Munir
has mentioned the introduction of section 27 which is the basis for the current
section 32 of the Child Act 2001 whereby it is an offence to procure or allow a
child to beg. Nithiyanantham Murugesu12 on the other hand gives an overview
of the function of the law and the courts to prevent children from being abused
based on the provisions of the Child Act 2001 in its substances and its
procedural aspects. Recent articles by Mooi and Noor Aziah Mohd Awal13
meanwhile narrowed down the scope of child abuse case with regards to police
investigations in a case study that took place in Petaling Jaya, Selangor. Both
writings on child abuse study are more related to physical, mentally and sexual
abuse hence the novelty of this paper is its focus solely on the abuse through the
begging activity, which is for economic gain of the adults and how the law

7 ‘Convention on the Rights of the Child’, United Nations Treaty Collection https://treaties.
un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&chapter=4#EndDec ac-
cessed 26 May 2020.
8 Juvenile Courts Act 1947 (Act 90), Women and Girls Protection Act 1973 (Act 106) and
Child Protection Act 1991 (Act 468).
9 (Act 611).
10 Augustine Paul S., ‘Child Abuse: The New Law’ [1993] 3 CLJ lxxiii.
11 Abu Bakar Munir, ‘Child Abuse: Facing the Inadequacies of Protection Afforded by the
Law’ [1993] 1 MLJ xv.
12 Nithiyanantham Murugesu, ‘The Role of the Law and the Courts in Preventing the Abuse
of Children — The Malaysian Perspective’ [2010] 5 MLJ cxxv.
13 Mooi TG & Noor Aziah Mohd Awal, ‘A Case Study of Police Investigation of Child Abuse’
[2018] 3 MLJ i.
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[2021] 1 MLJ as Provided Under the Child Act 2001 cv

should be used to overcome this problem.

CHILD BEGGING UNDER THE CHILD ACT 2001

Back to the provisions of the law in relation to child beggars, historically the law
clearly mentioned that a child who is found begging is a child in need of
protection. This can be seen in section 2(2)(k) of the repealed Child Protection
Act 1991. The spirit and the protection for child beggars has since being
adopted in the Child Act 2001 and recent amendment to the Act in 2016
further strengthened the intervention of the state to protect and safeguard
Malaysian kids from this social illness. The current law under section17(1)(k),
that is reproduced here, stated that:
A child is in need of care and protection if … the child is allowed to be on any street,
premises or place for the purposes of —
(i) begging or receiving alms, whether or not there is any pretence of singing,
playing, performing or offering anything for sale;
(ii) carrying out illegal hawking, illegal lotteries, gambling or other illegal activities
detrimental to the health and welfare of the child; or
(iii) carrying out any other illegal activities.14

Subparagraph (iii), with regards to carrying out any other illegal activities, is a
new subsection that was inserted through the Child (Amendment) Act 201615
that widen the scope of protection for the child on any street, premises or place
which are indeed need care and protection.

APPLICATION OF THE LAW

Applying the provision, it is clearly a legal obligation for the authorities,

especially the police and welfare department, to shield children from being on
the street for begging or receiving alms. The children found begging on the
street, even though accompanied by adults, either the parents or guardian,
must be rescued immediately, and the due process of the law must be taken into
effect. A police report must be made to protect the children as it will act as a
basis for first information report under the Criminal Procedure Code.16

14 Child Act 2001 s 17(1)(k).

15 Child (Amendment) Act 2016 (Act A1511) s 18.
16 Criminal Procedure Code (Act 593) s 107.
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The next course of action would be for the Protector,17 which means the
Director General (DG); the Deputy Director General (DDG); a Divisional
Director of Social Welfare, Department of Social Welfare; and any Social
Welfare Officer appointed under section 8 of the Child Act 2001 or the
Assistant Protector18 to take the child into temporary custody.19 The provisions
for Assistant Protector under the new section 8A gives the Minister of Welfare
Department power to appoint any person from any class of society to be
appointed as Assistant Protector through Gazette notification to help the
welfare officers in carrying out duties under sections 18, 19 and 20 of the Child
Act 2001. By virtue of this section, non-governmental agencies (NGO),
especially the Child Rights Coalition Malaysia20 which consists of Malaysian
Care, Childline Malaysia, Yayasan Chow Kit and Women’s Centre for Change
(WCC) Penang, among others has been given an opportunity to assist and help
the authority, especially the Welfare Department, to work hand-in-hand to
safeguard the wellbeing of the child. The Minister also has passed the
regulations21 for the assistant protector in accordance of section 128 of the
Child Act 2001.

The child beggar that has been rescued and be put under temporary custody
must be referred to the Court for Children (’CFC’) within 24 hours for the
next course of action to take place.22 In practical aspects, child beggars who are
brought to the court for the first time will have their case mention before the
Magistrate who then direct the child to be placed temporarily in a place of
safety23 gazetted such as Rumah Kanak-Kanak or centre approved by the
Minister24 for such purposes; or to the care of a fit and proper person.25 This
will be based on early investigations on the child by the Protector to decide
between the two choices available. The duration of the stay or the interim order
in safety places or centre will take effect for a month period pending the
production of report prepared by Protector.26 The court who granted a
temporary custody order under section 19(2) will produce an Order as

17 Child Act 2001 s 2.

18 Child Act 2001 s 8A.
19 Child Act 2001 s 18.
20 Child Rights Coalition Malaysia, ‘Status Report on Children’s Rights in Malaysia’, Child
RightsCoalitionMalaysia(December2013)http://www.mcri.org.my/wp-content/uploads/
20131230-CRC-Report-English-FINAL.pdf accessed 26 May 2020.
21 Child (Assistant Protector) Regulations 2017 (PU(A) 154/2017).
22 Child Act 2001 s 19(1).
23 Child Act 2001 s 54.
24 Child Act 2001 s 53A.
25 Child Act 2001 s 19(2).
26 Child Act 2001 s 30(7).
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provided under Form 1 of the regulations.27 If the children are to be given to fit
and proper person as provided under section 19(2), the Protector report is still
required for the hearing later on.

The last step for the child beggar who was put in temporary custody or
being released to be taken care by fit and proper person was to attend the
hearing at CFC28 for determination of the child fate. In this regard, the method
prescribed by must be strictly followed during the hearing to ensure the Order
given is proper and in accordance with established principles of law with
paramount consideration is to the best interests of the child.29 CFC must
decide on the case involving child beggars brought by the Protector where the
proceedings must be conducted in a closed court with the requirement and
prohibition stated under Part IV of the Child Act 2001 must be complied
with.30 The Magistrate must be assisted by two advisers31 and one of the two
must be a woman32 while there must be a restriction on media reporting and
publication.33 The powers of CFC as provided under section 30 must be
practiced by the presiding Magistrate and an order make under subsection (1)
or (4) that the child beggar will be placed in a family based care either through
the care by parent, guardian or relative with bond attached to it; care by foster
parent or fit and proper person, or in centre. The Order given shall consider the
Protector report34 submitted during the hearing35 and also chance by the
parent or guardian to be heard36 as part of natural justice principles of audi
alteram partem.37 Participation of the child in the procedure for their
protection is important aspects to be adhered to so that it is incompliance with
the article 40 of the CRC.

The Protector report will guide the CFC to determine what is the best
interests of the child because it must contain in depth information about the
child family background including home and locality surrounding the child
together with his school and medical history if any plus the child general
conduct. This may also include written report prepared by Social Welfare

27 Child (Prescribed Forms and Register) Regulations 2007 (PU(A) 360/2007).

28 Child Act 2001 s 11.
29 Child Act 2001 s 30(5).
30 Eng TS, Pendakwaan Jenayah di Mahkamah Rendah (2nd edn, LexisNexis 2008).
31 Child Act 2001 s 11(2).
32 Child Act 2001 s 11(3).
33 Child Act 2001 s 15.
34 Child Act 2001 s 30(6).
35 Child Act 2001 s 30(7).
36 Child Act 2001 s 30(10).
37 The right to be heard under the principles of fair hearing is to be applied by listening to
both sides.
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Officer whose is in charge of the center where the child is temporarily being
held, a registered medical practitioner or any other person such as the school
teacher or counsellor of the child so that the Court of Children has a complete
and comprehensive information about the child in order to give an appropriate
order. In a case of Jankins Louis v Public Prosecutor38 the High Court allowed
the appeal by setting aside the order made by CFC due to the failure of the
Welfare Department to inform of the new development in the case which
amounted to a miscarriage of justice, hence a new hearing to be heard before a
new Magistrate sitting in the CFC.

It must be noted that since the beginning of the whole process when the
child beggar was rescued by the authorities up until the final order by the CFC,
the terms best interests of the child was mentioned once under section 18(1)(a)
and three times under section 30, which is under section 30(5), (6)(a), (13)(aa).
This consistent steps by the legislature in drafting the Child Act 2001 to be in
accordance with the article 3 of the CRC that put high regards to the best
interests of the child in every aspect of laws from the investigation stage up to
the order made by the CFC. The terms ‘best interests of the child’ are not
defined under the Act and it must be read subjectively by the presiding
Magistrates on a case-by-case basis through the evidence produced before him,
such as the protector report and his notes of proceedings. In Nur Hidayah
Salahuddin v Department of Social Welfare & Anor,39 the High Court upheld
the decision of the Magistrate because there was no error committed by the
CFC because there was a thorough and correct appreciation of both facts and
law with regards to the best interests of the child.

COMPARATIVE STUDY WITH INDONESIA

A comparative study has been done on the child protection law between
Malaysia and Indonesia by Iman Jauhari40 whereby it was concluded that
Indonesia has diverse law on child protection unlike Malaysia where Malaysia
synthesised it all under Child Act 2001. However, Indonesia lacked the
implementation as executing bodies in Indonesia is in the forms of
Government Regulation, President’s Decision, Minister’s Decision or Local
Regulation which are not coherent and consistent with each other. The various
laws stand in isolation and different which makes it harder for the authority in

38 Jankins Louis v Public Prosecutor [2009] 5 MLJ 814.

39 Nur Hidayah Salahuddin v Department of Social Welfare & Anor [2019] 5 CLJ 244.
40 Iman Jauhari, (2014). ‘Comparison of Child Protection Law between Indonesia and
Malaysia’ (2014) J Int’l L, 12, 84 http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.
1.1.963.1641&rep=rep1&type=pdf accessed 25 May 2020.
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Indonesia to combat the activity of child beggar in the country. It was

emphasised by Iman Jauhari that Malaysia has very few child beggars and even
where there is, Malaysian authorities are quick to ensure the children are
brought to the children and social welfare houses as stated previously.

PENAL PROVISIONS

In dealing with penal provisions of child beggars under the Child Act 2001, the
Act clearly made it an offence that children are not to be used for begging, etc
and the scope and the interpretation of begging has been widened to
characterise into three as provided under section 32(1)(a), (b) and (c). The
exact words of section 32(1)(a), (b) and (c) is impari materia with section
17(k)(i)(ii)(iii) whereby the proof of commission of the offence will permit the
court to sentence the accused to a fine not exceeding RM20,000 or to
imprisonment for a term not exceeding five years or both.41 This shows the
seriousness of the offence where the actual punishment from RM5,000 has
been increased to four times and also the new section 32(2) provides for the
court upon conviction to order the person convicted to perform community
service prescribed under subsection 3 of the same section which is inserted
through the amendment under the Child (Amendment) Act 2016.42
It must be noted that the amendment to the Child Act 2001 in 2016 brings
a lot of new perspectives. The Amendment Act consists of 79 sections in total
changed the landscape of child protection to keep abreast with the current era.
Although the amendment to section 32 has been in force for four years since
2016, unfortunately there are no reported cases in the law journals as of now. It
must be noted that the charge brought by the Public Prosecutor for section
32(1) must be in accordance with section 126(1) where the consent in writing
is essential and only the Deputy Public Prosecutor may conduct the
prosecution for the offences. The prosecution also will be carried out in normal
magistrate or sessions court for the adult accused alleged to commit an offence
under section 32 until and unless it was a child then CFC is in session.
The Federal Constitution of Malaysia gives discretionary power to the
Attorney General to initiate, conduct and discontinue43 any criminal
proceedings. The Attorney General, who is also a Public Prosecutor,44 may
decide under what section and what law the accused may be charged through

41 Child Act 2001 s 32(1).

42 Child (Amendment) Act 2016 s 30.
43 Federal Constitution art 145(3).
44 Criminal Procedure Code (Act 593) s 376(1).
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his alter ego as the Deputy Public Prosecutor.45 Similar type of offence and
weighing in the evidence will give the prosecution exclusive and flexibility to
proof their case under appropriate offence beyond reasonable doubt in
convicting the accused.46

It is argued that by abusing the child to beg on behalf of the adult is a form
of an exploitation hence will trigger for an offence under the Anti-Trafficking
in Persons and Anti-Smuggling of Migrants Act 200747 (’ATIPSOM’) which
carries a heavier punishment for the accused. Section 14 states that ’any person,
who traffics in persons being a child, for the purpose of exploitation, commits an
offence and shall on conviction be punished with imprisonment for a term not less
than three years but not exceeding twenty years and shall also be liable to fine’.
Through the sentencing provisions, all ATIPSOM prosecution will be
conducted at Sessions Court which indicate the seriousness of the offence
because the mandatory imprisonment sentence minimum of three years and
up to 20 years.

The provisions under ATIPSOM gives a wide definition of exploitation and

forced labor to include illegal activity and begging is considered as illegal
activity. In a decided case of Public Prosecutor v Benedict Chai Jun Siang48 the
Judge define that exploitation need not necessarily include the physical act of
restraining and forcing a person to do an act but can include even threats to
intimidate one into submission. As children do not have the capacity to decide
on their own because of their childhood they are not ready for life and must be
subjected,49 it is said they will submit to the orders and instructions by the
adults. The principles have been adopted in a case of Mohamad Nizam
Mohamad Selihi & Anor v Public Prosecutor50 hence the conviction and
sentence by the Sessions Court for trafficking the children is upheld.

CONCLUSION

In conclusion, the Child Act 2001 through sections 18,19, 30 and 32 has put
a solid framework of application for the protection and care for the children
not to be used and abused especially for begging by any syndicates or adults.

45 Criminal Procedure Code s 376(3).

46 Nuraisyah Chua Abdullah, ‘Questions and Answers on Malaysian Courts, Statutes, Cases
& Contract, Tort and Criminal Law’ (International Law Book Services, 2004).
47 Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (Act 670) s 14.
48 Public Prosecutor v Benedict Chai Jun Siang [2017] MLJU 577.
49 Aries, Philippe, ‘Centuries of childhood; a social history of family life’ (Knopf, 1962).
50 Mohamad Nizam Mohamad Selihi & Anor v Public Prosecutor [2018] 1 LNS 67.
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The caution by former deputy minister in 2019 that the government should
not hesitate to take the full force of laws to punish the perpetrator who use
children to beg51 must be executed after the child being rescued and proper
prosecution must be carried out under section 32. On the other hand the
public and society at large must played an active role in helping the authority to
combat this menace by providing information for instance through the ‘talian
Nur 15999’ which is in operation 24 hours, seven days a week if they see
children begging so that the children can be saved soonest possible and treated
in accordance with the law provided under the Child Act 2001.

51 Carvalho M, Hemananthani Sivanandam, Rahimy Rahim & Tarrence Tan, (2019) ‘No
mercy for those who use children to beg, says Hannah’, The Star (27 March 2019)
https://www.thestar.com.my/news/nation/2019/03/27/no-mercy-for-those-who-use-children-to-beg-says-hannah/
.