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Caning and Criminal Breach of Trust
In a recent news report in Malaysia, an ex-Minister was charged with criminal breach of trust. I was surprised to note that caning was included in a list of punishments beside imprisonment and a fine if found guilty.
The discussion here on caning is for general information only, not specifically related to any case and not meant to be a legal advice.
Caning is a legacy of the British colonial rule. It was abolished in 1948 in mainland Britain but is still being applied in Malaysia, Singapore and Brunei.
In Malaysia, judicial caning is referred to as whipping even though the implement used to inflict the pain is a cane.
Legally, caning is divided into at least four contexts, namely judicial, under Syariah law, in the schools and domestically.
Of the four, judicial caning is the most painful and severe of the lot. However, females and those above 50 years old are exempted.
Caning by Syariah law is less severe as it is designed to humiliate the offender rather than to inflict physical pain.
In schools, a lighter rattan cane is used on students on the buttocks over clothing.
In the domestic setting, it is legally and culturally acceptable for parents to punish their children with a light cane for misbehavior.
Even though I experienced domestic caning when I was a kid, I have mixed feelings about its effectiveness. More than 50% of parents approve of it as an effective deterrent to bad behavior.
Asian culture often used caning as a means to instil discipline although there are some who would classify it abuse, I am glad more parents today shun this practice and are more inclined towards reasoning with their children.
Legal Basis of Judicial Caning
A person who is charged for criminal breach of trust is liable under Section 405 of the Penal Code and punishable under Section 406 of the same Code. He faces up to 10 years imprisonment and whipping and liable to a fine.
Sections 286-291 of the Criminal Procedure Code provides the procedures governing caning or whipping as being referred to in the Code. The procedures include the following:
- The whipping shall not exceed 24 strokes of the cane in a single trial. In the case of a youthful offender, the number of strokes is limited to 10.
- The rattan cane used shall not be more than half an inch in diameter.
- Females or males sentenced to death and males above 50 years of age are exempted except for the other 4 more serious sexual crimes.
- A medical Officer must be present to certify that the offender is fit to undergo the whipping.
Boys aged between 10 and 18 may be sentenced to a maximum of 10 strokes with a light rattan cane
Caning Officers
Caning Officers are specially selected and they undergo special training. They are trained to swing a cane to produce a force upon impact of at least 90 kg or 198 pounds of force. They are paid RM10 for each stroke.
Two types of rattan canes are used for judicial caning:
- Thinner cane, used on white-collar criminals who committed offences such as bribery and criminal breach of trust.
- Thicker cane, used on offenders who committed serious and violent crimes, such as drug trafficking, causing grievous hurt, armed robbery and rape.
Conclusion
Malaysia has been criticized by human rights groups for using caning as a form of punishment for certain crimes. Amnesty International describes this as a form of ‘systematic torture and ill-treatment’.
The Malaysian Bar opposed judicial caning on 5th October 2018 when the MACC (Malaysian Anti-Corruption Commission) and the Royal Malaysian Customs Department sought to introduce this punishment for corruption and smuggling offences.