NON-CUSTODIAL SENTENCING OPTIONS IN MALAYSIA
Runjit Singh a/l Jaswant Singh*
I. INTRODUCTION
An important development of The United Nations Standard Minimum Rules for the Treatment of
Prisoners (1955) was the adoption by the General Assembly1 on 14 December 1990 of the United Nations
Standard Minimum Rules for Non-custodial Measures. Since these Rules were defined by the work of theUnited Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders(UNAFEI) based in Tokyo, the General Assembly approved that the Rules should be known as “the Tokyo
Rules”. In adopting the Tokyo Rules, the General Assembly expressed its conviction ‘that alternatives toimprisonment can be an effective means of treating offenders within the community to the best advantage ofboth the offenders and society’. The Tokyo Rules reflect the current sentiment that the ultimate goal of thecriminal justice system is the reintegration of the offender into society and the restriction of liberty is only
justifiable from the view points of public safety, crime prevention, just retribution and deterrence. The
General Assembly recommended member states to implement the Tokyo Rules at the national and regional
levels2.
Malaysia has its own share of the universal problem of a swelling prison population. There has beenmuch discourse on the negative consequences of prison overpopulation especially with the advent of AIDS.
Fortunately, the criminal justice process is provided with clear alternatives to imprisonment. In a similar
spirit to that of the Tokyo Rules, these alternatives enable offenders to be processed or diverted away fromthe traditional prison system. Malaysian penal laws contain a broad spectrum of non-custodial punishmentsthat enhance the rehabilitation/reintegration function of criminal justice. This paper gives a comprehensive
overview of the existing non-custodial measures used in law enforcement.

II. SENTENCING OPTIONS
The main repository of non-custodial sentencing orders is the Criminal Procedure Code (Act 593 in theLaws of Malaysia series) relating to criminal procedure. Since 10 January 1976, the Criminal Procedure
Code is applicable throughout Malaysia having superseded the four separate Codes that existed earlier,namely, one each for the Federated Malay States, the Straits Settlements, Sabah and Sarawak. Various otherpenal statutes provide for the usual punishment of fine as an alternative to imprisonment but a default to pay
the fine, however, would still lead to imprisonment.
The foremost provision in the Criminal Procedure Code (CPC) providing for the non-institutional
treatment of offenders is the power to discharge an offender conditionally or unconditionally. A conditional
discharge is commonly known as a good behaviour bond. The power to discharge is set out in section 173A,
CPC. When a charge is proved against an offender, the Court can make an order under section 173A ‘…
having regard to the character, antecedents, age, health or mental condition of the person charged, or to thetrivial nature of the offence, or to the extenuating circumstances under which the offence was committed…’.
For minor infractions of the law or compelling mitigating circumstances the Court does no more than give anadmonition or a caution to the offender. The Court may alternatively discharge the offender conditionally on
a bond of good behaviour; the conditions imposed are geared towards ensuring the offender practices good
behaviour during the period of the bond. Such bond shall not exceed three years although the Court canorder a shorter period. If the offender remains on good behaviour during the specified period, he will not becalled back to the Court. No conviction on the charge is recorded under section 173A and the offender isthereby assured of a ‘clean slate’. Other than the charge and possible trial the offender continues living andworking in the community. More importantly there is no lasting stigma as a result of the offending.
A variation of the bond of good behaviour under section 173A is provided under section 294, CPC. The
sub-stratum for the consideration of the Court is similar to the one set out in section 173A (in italics above).
* Senior Federal Counsel, Attorney General’s Chambers, Prime Minister’s Department, Malaysia.
1 Resolution 45/110.
2 Ibid, Para. 2.

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However, unlike section 173A, the offender has to be convicted first before a bond of good behaviour isconsidered under section 294. Naturally section 294 is applicable to offences of a more serious category
where a record of the offending is necessary. Nevertheless, the offender yet again remains in the community
and will be free from any fetters once the bond period expires and he has complied with all the conditions
therein. Under section 294A, CPC the Court can require that there is included in the bond one or more of
the following conditions:(a) a condition that the person shall remain under the supervision of some other person named in thebond during such period as may be specified in it;(b) such conditions for securing the supervision as the Court may think it desirable to impose;(c) such conditions with respect to residence, employment, association, abstention from intoxicating
liquors or with respect to any other matter whatsoever as the Court may think it desirable toimpose.
In case of any breach of a bond of good behaviour executed under section 173A or section 294, CPC the
Court may issue a warrant for the apprehension of the offender. Once apprehended the offender is brought
before the Court which dealt with his original offence. If the Court accepts his explanation or answer to his
conduct relating to the alleged breach of the bond, the bond of good behaviour earlier executed continues.
Where such a breach is clearly made out, the bond of good behaviour is cancelled and the Court can proceed
to sentence the offender as it deems appropriate.
The length of a prison sentence may be reduced by having resort to an order of police supervision under
section 295, CPC. Immediately after serving a sentence of imprisonment an offender can be ordered to be
subject to the supervision of the police for a period of not more than three years or not more than one year
depending on the jurisdiction of the Court issuing the order. Section 296, CPC lists the obligation of persons
subject to police supervision as follows:(a) notify the place of his residence to the officer in charge of the police district in which his residence issituated;(b) whenever he changes his residence within the same police district notify such change of residence
to the officer in charge of the police district;(c) whenever he changes his residence from one police district to another notify such change ofresidence to the officer in charge of the police district which he is leaving and to the officer in chargeof the police district into which he goes to reside;(d) whenever he changes his residence to a place beyond the limits of Malaysia notify such change ofresidence and the place to which he is going to reside to the officer in charge of the police district
which he is leaving;(e) if having changed his residence to a place beyond the limits of Malaysia he subsequently returns to
Malaysia notify such return and his place of residence in Malaysia to the officer in charge of thepolice district in which his residence is situated.
The principle of restitution in sentencing is addressed in the CPC by the provisions relating to thepayment of compensation by the offender to the victim of the crime. Such compensation can be ordered by
the Court in addition to the bond under section 173A, CPC or generally for all convictions under the powerof section 426, CPC. It is interesting to note that under section 426 the court is empowered to fix the sum of
the compensation. This provides an avenue for a just and fair compensation to be ordered in an appropriatecase. In addition to the payment of compensation, the Court can also order the offender to pay the costs of
his prosecution.
Besides compensation, the power to compound offences under the CPC is another example of restorative
justice in Malaysia. Section 260, CPC tabulates the offences that are compoundable. A total of 23 offences
under the Penal Code (Act 574) are compoundable, the abetment of these offences or attempt to commit
them are also compoundable in the like manner. Examples of compoundable offences are causing hurt,
wrongful restraint, use of criminal force, house-trespass and criminal defamation. For all compoundable
offences, the victim of these offences may compound them provided there is no prosecution pending for suchoffence. If a prosecution is pending, the consent of the Court is also required for the compound, presumably
because action has been taken by the Court, for example, registering the charge and issuing a summons.
When an offence is compounded it does not mean that no offence is committed, it means that the victim is

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prepared to forgive the offender and will accept compensation. Sub-section (4) of section 260 makes specificreference to the contractual nature of composition of offences. It authorises any person competent tocontract on behalf of the victim to compound the offence. The effect of a composition under section 260 isthat of an acquittal of the accused. Again, the ‘clean state’ result is achieved enabling the uninterrupted
social integration of the accused.
Another statute that provides an alternative to a sentence of imprisonment is the Offenders Compulsory
Attendance Act 1954 (Act 461). As the name suggests, the Court makes a Compulsory Attendance Order.
With this order the offender has to attend daily at a Centre to be specified in the order and to undertake
compulsory work for a period not exceeding 3 months and for such hours, not exceeding 4, as may be
specified in such order. Section 5 of the Act states that where a person has been convicted of an offence forwhich he is liable to be sentenced to imprisonment or is liable to be committed to prison for failure to pay afine or debt , and the Court is of the opinion that such person would have been adequately punished by asentence of imprisonment for a period not exceeding three months, and having regard to the character ofsuch person, the nature and seriousness of the offence or the circumstances of such person’s failure to pay(as the case may be) and all the other circumstances of the case, it is inexpedient to commit him, the Court
may, in lieu of such sentence or committal, make a Compulsory Attendance Order. The obligations ofoffenders under a Compulsory Attendance Order as set out in section 6 of the Act are as follows:

6. (1) Subject to the provisions of any Rules made under this Act and to the terms of the Compulsory
Attendance Order, an offender shall, during the continuance in force of such Order report daily atsuch time and place as, having regard to the offender’s circumstances, the Compulsory
Attendance Centre Officer may specify.
(2) An offender shall each day undertake such compulsory work as may be ordered by theCompulsory Attendance Centre Officer, which shall be such work as can, in the opinion of that
Officer, be completed by the offender having regard to his physical capacity during the number ofhours specified in the Compulsory Attendance Order.
(3) If an offender is gainfully occupied in employment, the time at which he is ordered to report daily
under subsection (1) shall be such as not to interfere with such employment.
Sub-paragraph (3) is important in that an offender subject to this Order continues to be gainfully
employed.
Being in close proximity to the golden triangle, Malaysia has been fighting the scourge of drugs.
Although capital punishment is imposed for drug trafficking under the Dangerous Drugs Act 1952 (Act 234),
on the other hand, as is consistent with international standards, Malaysia also realises that drug dependants
have to be treated for their dependency. Hence, under the Drug Dependants (Treatment and Rehabilitation)
Act 1983 (Act 283), the government has established Rehabilitation Centres for the residence, treatment andrehabilitation of drug dependants. A proven drug dependant need not be processed through the criminal
justice system but may be immediately processed for his dependency. A Magistrate can order a drug
dependant to undergo treatment and rehabilitation at a specified Rehabilitation Centre for a period of two
years and thereafter to undergo supervision by a Rehabilitation Officer or any police officer at the place
specified in the order for a further period of two years. Alternatively, the drug dependant can be ordered toundergo only supervision at the place specified in the order for a period of not less than two and not morethan three years. Even section 38A of the Dangerous Drugs Act 1952, empowers the Court to orderoffenders who are below the age of eighteen and certified to be drug dependants to be sent to these
Rehabilitation Centres to be followed by two years of after-care supervision. This provision, however, does
not apply where the drug dependant is found guilty of a serious category of offence like drug trafficking andcultivation of drug-extracting plants.
For child offenders, in tandem with worldwide trends, Malaysia is equally concerned with their welfare
and rehabilitation. It is a recognized fact that even the modern prison system is deemed harmful to children
and special laws have to be enacted for the treatment of child offenders. In Malaysia, child offenders aregoverned by the provisions of the Child Act 2001 (Act 611). This Act superseded the old Juvenile Courts Act
1947 and has been in force since 1 August 2002. A child is defined as a person aged above 10 years andunder 18 years. The courts constituted under this Act are known as the Courts For Children and are vested
with jurisdiction to try all offences except offences punishable with death. Where an offence has been proven90127TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

the Court for Children has the power to make the following orders:(i) admonish and discharge the child;(ii) discharge the child under a bond of good behaviour with such conditions as may be imposed by the
Court;(iii) order the child to be placed in the care of a relative or other fit and proper person with suchconditions as may be imposed by the Court;(iv) order the child to pay a fine, compensation or costs.
One special feature of the Child Act 2001 is the power of the Court to order the parent or guardian of thechild to execute a bond for the child’s good behaviour. The conditions attached to this bond make itimperative that the parent or guardian plays an interactive role in the supervision and care of the child.
Failure by the parent or guardian to comply with the conditions of the bond constitute an offence punishable
with a fine of up to RM5,000. Such provisions have a semblance to the ‘parenting order’ made under section
8 of the Crime and Disorder Act 1998 of England.
Further provisions of the Child Act 2001 provide for the probation of child offenders. A probation ordershall have effect for a period not less than one year and not more than three years from the date of the order.
Under section 98 of the Child Act 2001, a probation order is made for the purposes of securing the good
conduct and supervision of the probationer or preventing the repetition by him of the same offence orcommission of other offences. The Court for Children is empowered to include any one or more of thefollowing requirements in a probation order:(i) that the probationer shall reside at a probation hostel, at the home of his parent or guardian orrelative or at some other place;(ii) that the probationer shall attend an educational institution to be recommended by the probation
officer;(iii) that the probationer shall remain indoors at his place of residence, be it at the probation hostel or athome, during hours to be specified.
Before making a probation order containing requirements as to residence, the Court shall consider thehome surroundings of a child.
Perhaps mention should also be made that the Child Act 2001 contains provisions relating to theprotection and rehabilitation of children which are pre-emptive to any offending by a child.

III. POST-SENTENCING OPTIONS
Included in the Tokyo Rules3 are guidelines for post-sentencing dispositions that should be available tothe competent domestic authorities. Rule 9.2 refers to some specific post-sentencing dispositions such as:(a) Furlough and halfway houses(b) Work or education release(c) Various forms of parole(d) Remission(e) Pardon
In Malaysia offenders sentenced to imprisonment have resort to remission and pardon to avoid further
incarceration.
The remission system applicable to prisoners in Malaysia is provided under Part 6 of the Prisons
Regulations 2000 (made under the Prison Act 1955). The relevant provisions set out the rationale for the
grant of remission i.e. with a view to encouraging good conduct and industry and to facilitate reformative
treatment. A convicted prisoner sentenced to a term of imprisonment exceeding one month may be granted
a one-third remission of his sentence. The remission system is explained to all prisoners on admission andwhen, for any reason, remission is forfeited the prisoner is made fully aware of such forfeiture. At stipulated
intervals the Officer-in-Charge of the prison is required to prepare a report on the work and conduct of the
3 Rule 9.

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prisoner.
Article 42 of the Federal Constitution gives power to the Yang di-Pertuan Agong (the King) to grantpardons in respect of all offences committed in the Federal Territories. The Ruler or Governor of a State has
power to grant pardon in respect of all offences committed in his State. To implement the power of pardon,
Pardons Boards are constituted for each state and a single Pardons Board exists for the Federal Territories.
All cases of offenders sentenced to capital punishment are as of right referred to the Pardons Board.

IV. FUTURE DIRECTIONSRule 9.4 of the Tokyo Rules states:

Any form of release from an institution to a non-custodial programme shall be considered at theearliest possible stage.
Malaysia takes a proactive approach in searching for alternatives to incarceration in prison. One suchsuggestion is for the introduction of community service. In fact, as early as 19794 the Minister of Social
Welfare and Services suggested that community service in Malaysia should be implemented in lieu of shortterm imprisonment. Clearly then the search for alternatives to custodial penalties has been on for the lasttwo decades. Of late, the Law Reform Unit of the Attorney-General’s Chambers conducted research to study
the rationale and introduction of the community service scheme. The study is looking into possible rationale
such as cost savings, deterrence, reparation to the community and rehabilitation of offenders. The study
shows the spirit of the legal system to consider improvements in the treatment of offenders. Indeed, themain concern of any modern sentencing policy should be the circumstances of the offender involved and how
best they can be addressed by non-custodial measures such as community service5.
Another area being looked at is the possible introduction of the parole system. Again the Law Reform
Unit of the Attorney-General’s Chambers has prepared the relevant paper which studies the parole system
in other jurisdictions with a view to explore the possibility of the implementation of parole in Malaysia. For
that matter, the Prisons Department too has prepared a paper6 detailing the logistics of the parole system.
Among other reasons, this paper stresses the social re-integration of the offender as the main justification
for parole. Parole affords an opportunity to continue the correction of the offender in a ‘real’ environment.

V. CONCLUSION
Incarcerated offenders who leave prison face stigma, ostracism, suspicion and isolation and hence despair,which may very well spur them to return to prison. Statistics in Malaysia show that about 50% of offenders
in prison are recidivist offenders. It is to avoid the undesirable effects of imprisonment that the Tokyo Rules
encourage the promotion of non-custodial measures with due regard to an equilibrium between the rights ofindividual offenders, the rights of victims and the concern of society for public safety and crime prevention.
The laws referred to in this paper provide a range of non-custodial measures at both ends of imprisonment.
Provided all necessary conditions are met an offender has access to these measures as part of the criminal
justice process. The treatment of offenders in this manner ensures that they continue being part of thecommunity. Law enforcement and social service agencies can provide the requisite framework to assist theoffender to lead a law-abiding and self-supporting life. Of course, the biggest challenge is to promote among
offenders a sense of responsibility towards society and to restore their dignity in order for them to function
productively. To that end the search for suitable alternatives to incarceration continues.
In the final analysis, prison and custodial institutions should remain only for offenders of grave crimes,
recidivists and hard-core criminals.

4 See New Straits Times, 9 November 1979 and 28 August 1979.
5 Community service: A Rationale. (1981) 2 MLJCXXXV.
6 Proposal for the Parole System in Malaysia.
7 Ibid, note 6.

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