Thursday, May 7, 2015

No law to deal with Nur Fitri if he views kiddie porn here, lawyers say


Student Nur Fitri Azmeer Nordin is serving an 18-month jail sentence in the UK for possessing more than 30,000 images of child porn. Malaysia does not have a law to deal with possession of pornographic material. – pic, May 7, 2015.

Student Nur Fitri Azmeer Nordin is serving an 18-month jail sentence in the UK for possessing more than 30,000 images of child porn. Malaysia does not have a law to deal with possession of pornographic material. – pic, May 7, 2015.
What would happen if Malaysian student Nur Fitri Azmeer Nordin were to resume his consumption of child pornography upon his return to Malaysia after serving his sentence in the UK?
There appears to be no laws in the country to tackle possession of porn if the scholarship holder or anyone else here were to view obscene material, lawyers say.
This is because while Section 292 of the Penal Code deals with sale and distribution of obscene material, and Section 233 of the Communications and Multimedia Act (CMA) deal with the making, creating and transmitting of such material, they do not touch the issue of possession and viewing, lawyers said.
Criminal lawyer Amer Hamzah Arshad said there appeared to be limited context on using the Internet for disseminating obscene materials under Section 233 of the CMA.
As for Section 292 of the Penal Code, he said it was more targeted towards preventing distribution of obscene material or selling for profit.
"Section 233 seems to be limited in its application. There is nothing on having possession. There seems to be a loophole there.
"So it appears as though there is nothing to deal with this specific situation," he told The Malaysian Insider.
The lawyer was commenting on the case of Imperial College student Nur Fitri who was convicted of possessing more than 30,000 images of child porn and had been sentenced to 18 months’ jail by the Southwark Crown Court in London last month.
The images were classified by UK police as "Category A", being some of the worst images of child porn which included sexual penetration of children.
Following that, Rural and Regional Development Minister Datuk Seri Mohd Shafie Apdal was quoted as saying the ministry was considering whether or not to appeal against Nur Fitri’s sentence.
It was also reported that Majlis Amanah Rakyat (Mara) council member, Nazir Hussin Akhtar Hussin had said that the 23-year-old should be given a "second chance" to continue his studies and rebuild his character. Shafie, however, said Nazir's views were not the final decision by Mara.
Given the poser about the lack of laws to deal with Nur Fitri if he repeats his offence upon returning to Malaysia, Amer said supported the idea that there should be specific legislation to deal with this type of crimes.
"I'm all for it because it's for the protection of minors, we cannot allow any activity that would encourage or allow for minors to be exploited," he added.
Human rights lawyer Honey Tan agreed with Amer, adding that as far as she knew, Malaysia did not have specific laws to deal with viewing child pornography.
Need for sex offenders’ registry
She also supported the call to have a sex offenders’ registry to list down those who have been convicted of sexual offences, adding that it should be made public.
"I believe research has shown that there is a high recidivism rate for sexual offenders," she said, adding that details as to how this register should be maintained must be studied.
What was currently available in Malaysia was the registration certain offenders under the Registration of Criminals and Undesirable Persons Act 1969.
These included, among others, those convicted of rape, buggery with animals and carnal intercourse against the order of nature (oral and anal sex by consent). Tan added that it was "astonishing" that those convicted of committing oral and anal sex without consent or against another person's will, were not subject to registration. 
Other countries include public disclosure of sex offenders.
But a senior police officer in charge of sexual crimes at the Bukit Aman police headquarters said that police have a record of all convicted criminals, which would naturally include sex offenders.
When asked if members of the public could check if a certain person was a sex offender, the officer said that it was not meant for public consumption.
Association of Women Lawyers committee member Meera Samanther said it was important to have a sex offenders’ registry similar to the ones used in the UK and Australia to ensure that convicted criminals were not hired in places which dealt with children, such as nurseries, kindergartens, day care centres and boarding schools.
"You can expect that a child sex offender would naturally try and apply for these jobs.
"So if there is such a register, employers could check if the person they are hiring is on the register. This is necessary for the protection of children.”
Women's Aid Organisation (WAO) executive director Sumitra Visvanathan (pic) also supports such a register, saying that there were ample examples outside Malaysia of how such lists can be managed.
She said the registry was important as research has shown that those who viewed child porn were likely to actually commit these acts.
In Nur Fitri's case, the UK police found a life-sized mannequin of a boy next to him when they raided his room.
Why appeal?
Lawyers also lashed out at the government for even considering appealing for a lesser sentence for Nur Fitri, saying taxpayers' money should not be wasted.
"It is his right to appeal, and he should engage his own lawyer or get some legal aid in UK. Under no circumstances should the Malaysian government get involved," Amer said.
Tan agreed, saying that she was puzzled why Shafie was getting involved.
"The government should stay out of a matter that is committed by a private citizen, and allow the law in England to run its course.
"I would be most annoyed if my tax ringgit is being used for such a matter."
Meera said the thought of the government considering an appeal was "downright ridiculous", adding that the student had pleaded guilty to the offences.
"It is a waste of government funds if the state puts in an appeal and it would send out the wrong message which undermines the seriousness of the crime.
"And my money as a taxpayer should not be used to appeal. He should use his own money if he wants to appeal.”
On the matter of a "second chance" for Nur Fitri, Sumitra said that any such leeway should only be given after the convict had clearly proven that he was not a threat to children in society.
"When we talk about a second chance, it should be after he has undergone the punishment for the crime he committed and also gone through a rehabilitation process.
"There cannot be a second chance without going through the punishment."
Also of concern was that talk of a second chance indicated that many were unaware of the seriousness of the crime, Sumitra added.
"From the statements coming out over the incident, we question if there is a deep and proper understanding of the act committed.
"Category A porn basically means at the very minimum sexual penetrative acts were committed against children and even babies.
"So he is in serious need of a punishment and rehab.” – May 7, 2015.
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