Written by: Averroes
(1.0) Introduction
An ethnic Rohingyan man escaped a mangistrate's court lock-up in Johor last December in 2021. He was nicknamed as 'Long Tiger'. The Deputy Inspector-General of Police Datuk Razarudin Husain Said said that the escapee real name was Abdul Hamim Ab Hamid aged 32. The man was detained for alleged rape, kidnap and blackmail.
He clarified that the escapee would be charged under section 224 of the Penal Code (PC). The charge will be made the Tangkak Magistrate's Court as he escaped police custody. The man was though to have slithered out from the main gate of the court around 11.55am, when he was supposed to wait for his court case, since he was previously charged under section 388 of the PC.
(1.1) The Escapee's Lawyer rebuttal
According to the lawyer representing the escapee, when he ran away, it was justified, because his life was under threat while being in the lock-up. Lawyer Shaharuddin Ali stated that there were police reports lodged that had attempts to hurt Long Tiger.
The mental health of Long Tiger was also affected, which deteriorated because of the several attempts to hurt him. As such, he had to escape from police custody. This might involve police brutality, but this is a topic which we will discuss later in another article.
(2.0) Law in Malaysia
Yap Teng Chai v Public Prosecutor [1959] 1 MLJ 205;
The appellant was convicted of the offence of attempting to escape from lawful custody as under section 224 of the PC.
He was then sentenced to one month's imprisonment, together with a fine of $300. If he defaults the fine, he will get another three months prison time. The court however believed that he was rightly convicted for the attempt to escape, but did not agree on the sentencing.
The court states that while in custody, he did not incur any violence to person or property in the attempt. It was made on sudden impulse and he was only a first offender. Therefore, the court found the sentencing manifestly wrong.
Court relied on Public Prosecutor v Fam Kim Hock [1957] MLJ 20 that sentencing from the court of instance should not be changed, unless it was illegal or unsuitable for the proven facts and circumstances. Therefore, in Lee v Rex [1948-49] MLJ Supp 87, when fixing a sentence, the nature, circumstances and degree of deliberation must be taken into account.
Loo Peng Kean v Public Prosecutor [1964] 1 MLJ 131;
This case was regarding a police boat on patrol at the Penang Harbour when they halted a speeding boat from the direction of the island towards Prai. The police checked the two persons on the boat, but they had no identity cards.
The boat was also found empty and the police suspected them of smugglers and detained them. In detention, one of them escaped. He was then charged under section 224 of the PC for attempted escape.
Court found that the accused who was detained on suspicion for smuggling was done without reasonable grounds, under the Customs Ordinance 1952 or its regulations whatsoever. There was no clear evidence or the commission of an offence to incriminate the accused.
The conviction under section 224 of the Penal Code is defective, since detaining the accused was unlawful to begin with.
Prison Act 1995;
Under this law, particularly section 22(1)(a), it states that a prison officer may use weapons against a prisoner for escaping or attempting to escape, unless he has reasonable grounds to that he cannot prevent the escape or attempt.
However, this law only applies to shooting prisoners, not those in custody or detained. There is no law under the PC to allow the police to shoot people being detained or under custody. Perhaps in other laws, there might be.
There is a difference between prisoners and persons in custody. Prisoners are already been proven to be guilty, convicted and sentenced to jail. For people in police custody, they are only in remand or detained and are being interrogated or investigated by the police. They are not guilty yet.
(3.0) Law in other countries
For other countries in the world, Mexico, Germany, Austria, Belgium and the Netherlands do not penalise people whom escape from prison. In Mexico's stance, their legislature and judicial system believes that escaping prison is not a crime, unless they commit another crime while escaping.
This includes damaging property bribing the prison guards, conspiring with others among others. If we escape from prison and returned back in Mexico, we have to serve our initial sentence again.
Former Minister for the Mexican Supreme Court, Juventino Victor Castro y Castro said that escaping jail is "The person who tries to escape is seeking liberty and that is deeply respected in the law... The basic desire for freedom is implicit inside every man, so trying to escape cannot be considered a crime."
In Belgium, the law is similar that breaking away from jail is not a crime, but acts conducted in the course of escaping is still a crime.
(4.0) Conclusion
To conclude, Malaysia's position is almost similar to Mexico and Belgium. In these foreign countries, escaping prison is legal while in Malaysia, it is illegal. When a person is convicted for escaping prison in Malaysia, it is similar to foreign countries that they will be charged if they commit other offences in the process. .
In Malaysia however, if they do not commit other offences while escaping, their sentencing should have been reduced only. Should Malaysia decriminalise escaping prison or custody?
If so, this would create a situation where the escapee can cause problems and commit crimes again. In one incident, an Indonesian but born in Singapore named Mas Selamat Kastari escaped prison in 2008 and swam across the Tebrau Strait to Johor, Malaysia.
He is very dangerous, as he is one of the terrorist members of Jemaah Islamiah whom were involved in the Bali Bombings and a group that disseminates radical Islamic teachings. He managed to escape prison through a ventilation shaft.
He could potentially detonate bombs in buildings or hijack airplanes to crash into public spaces. Luckily, the Malaysian authorities managed to detain him and as in Singapore, he is being detained under their Internal Security Act.
(5.0) References;
Bernama. (January, 2022) Long Tiger to be charged on Wednesday. Retrieved from, https://www.nst.com.my/news/crime-courts/2022/01/763448/long-tiger-be-charged-wednesday
FMT Reporters. (December, 2021) Escaped prisoner's life in danger in jail, claims lawyer. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2021/12/17/escaped-prisoners-life-in-danger-in-jail-claims-lawyer/
Ellenbogen. (February, 2020) Why Some Countries Say Escaping Prison is Legal. Retrieved from, https://onepagestories.home.blog/2020/02/01/why-some-countries-say-escaping-prison-is-legal/
The Straits Times. (March, 2017) Mas Selamat hid butter, used water bottles in escape: Malaysia police. Retrieved from, https://www.straitstimes.com/asia/se-asia/mas-selamat-hid-butter-used-mineral-water-bottles-in-escape-malaysia-police
https://districts.ecourts.gov.in/sites/default/files/fct.pdf
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