The detention of a minor with mental health issues in a prison is illegal under the Child Act, which mandates care in a suitable facility.

JUDGMENT

Mohd Radzi Abdul Hamid J:

Matter Before This Court

[1] This is an application for revision of an order made by the Magistrate on 26 December 2023 ('Order') directing the detainee, who is a minor, to be remanded at the Sungai Udang Prison, Melaka, pending further proceedings in the case. This application is made by way of a letter dated 29 December 2023 ('Application').

Background

[2] MRD ('Detainee') was arrested on 17 July 2023 for the suspicion of committing the offence of murder under s 300 of the Penal Code for causing the death of his younger sibling, MHD, at their family home. At the time the offence was committed, the Detainee was 14 years of age, whilst the victim was 9 years old. He was charged at the Magistrate Court 4, Ayer Keroh, under case number MA-84-45-07-2023.

[3] On 17 July 2023, the Magistrate made an order under s 342(5) of the Criminal Procedure Code for the Detainee to be detained for observation at a psychiatric hospital. He was detained at Hospital Permai for the full period of three months as allowed under that provision and, by the end of that period, a Psychiatry Medical Report dated 11 October 2023 was issued by the attending Psychiatrist, Dr Johari bin Khamis ('Report').

[4] The Report concluded that:

(a) the Detainee was suffering from a mental illness known as schizophrenia, which is characterised by psychosis, that includes hallucinations and delusions, changes in behavior, and deterioration in psychosocial functions;

(b) at the time the offence was committed, the Detainee was of unsound mind and incapable of knowing the nature of his act or that the act he committed was wrong and against the law; and

(c) he is fit to stand trial and capable of making his defence at the time the report was made.

[5] When the case came up for mention again on 13 October 2023, the Counsel for the Detainee sought for an order that the Detainee be placed under the care of the psychiatric ward at Hospital Melaka so that he could continue to receive medical attention and care. That application was allowed on the basis that the Sungai Udang Prison could not cater for minor remand prisoners. When the case came up for mention again on 21 November 2023, the Magistrate allowed the Detainee to remain in the care of Hospital Melaka until the next mention date on 26 December 2023. On that date, the Counsel for the Detainee sought to extend the order for him to remain in the care of Hospital Melaka so that he can continue to receive proper medical care and attention since he had shown some improvements in his mental condition.

[6] Instead of granting the extension, the Magistrate, having observed the Detainee's improvement, ordered for him to be remanded at the Sungai Udang Prison, and that he be separated from adult prisoners.

[7] The Detainee's mother, who is the Applicant here, then made the Application seeking to move this Court to exercise its revisionary powers to set aside and substitute the Magistrate's Order with an order that the Detainee continue to be in the custody and care of the Psychiatric Ward, Hospital Melaka, or alternatively, at Hospital Permai, Johor Bahru, until disposal of this case in accordance with s 86(2)(b) of the Child Act 2001 ('Act').

The Application

[8] In her Application, the Applicant sets out the following main reasons to justify the setting aside and substitution of the Order. They are:

(a) that the Detainee is a minor with a serious mental health condition who requires constant care and attention within a supervised medical facility;

(b) a prison facility cannot provide such medical supervision;

(c) there is no adequate separation of minor and adult remand detainees in prison and this exposes the Detainee to surroundings that may be counter-productive to the Detainee's treatment and progress;

(d) the Magistrate fell into error when she failed to consider the Detainee's continuous need for supervised treatment and administration of medicine within a medical facility;

(e) the Magistrate fell into er