Victim Remedy in Malaysia Andrew Khoo Co-Chair, Human Rights Committee Bar Council Malaysia

Legislation (1) In trials before a Magistrates’ Court. Criminal Procedure Code Section 173. Victim’s impact statement. “Provided that before the Court passes sentence, the Court shall, upon the request of the victim of the offence or the victim’s family, call upon the victim or a member of the victim’s family to make a statement on the impact of the offence on the victim or his family; and where the victim or a member of the victim’s family is for any reason unable to attend the proceedings after being called by the Court, the Court may at its discretion admit a written statement of the victim or a member of the victim’s family.”

Legislation (2) Criminal Procedure Code Section 173A(3). “The Court may, in addition to any such order, order the offender to pay such compensation for injury or for loss (not exceeding the sum of fifty ringgit) or to pay the costs of the proceedings as the Court thinks reasonable or to pay both compensation and costs.” But this is only when a conviction is not recorded. Where nominal punishment/probation is ordered.

Legislation (3) Prior to sentencing in a trial in the High Court under CPC Section 183. Criminal Procedure Code Section 183A. “Before the Court passes sentence according to law under section 183, the Court shall, upon the request of the victim of the offence or the victim’s family, call upon the victim or a member of the victim’s family to make a statement on the impact of the offence on the victim or his family.”

Legislation (4) Alternatively, “Where the victim or a member of the victim’s family is for any reason unable to attend the proceedings after being called by the Court under subsection (1), the Court may at its discretion admit a written statement of the victim or a member of the victim’s family.” Does not specify the contents of the statement by the victim or a member of the victim’s family. But clear that it is a statement that the Court considers prior to sentencing. So in all likelihood it is a statement as to how the victim or the family of the victim has been affected by the commission of the offence.

Legislation (5) Criminal Procedure Code Section 426(1A). “….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, or where the convicted accused is a child, by his parent or guardian, 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 in respect of the injury to his person or character, or loss of his income or proerty, as a result of the offence committed.”

Legislation (6) Things to be taken into account in determining amount of compensation – Criminal Procedure Code Section 426(1C). Nature of the offence. Injury sustained by the victim. Expenses incurred by the victim. Damage to, or loss of, property suffered by the victim. Loss of income incurred by the victim. Ability of the convicted accused to pay. Any other factors which the Court deems relevant.

Other issues No legal aid for victim’s participation. Specific situation of victims of human trafficking – what form of remedy available?

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