This is a continuation of Part 1 – Civil Remedies.
Written by Cynthia Lee* and Amanda Pang.
.
CRIMINAL COURT REMEDIES
4. Lodge a Police Report
Some acts of bullying/harassment may even constitute criminal offences, warranting a punishment of imprisonment, fine or even both on the perpetrator.
Should any of these situations arise at the workplace, the first step for employee victims would usually be to lodge a report with the police, following which the Prosecution will decide whether to charge the offender under the Penal Code. The following are a few examples of potentially relevant sections:
Criminal Intimidation (sections 503 & 506)
Under section 503 of the Penal Code, whoever threatens another person with injury to his person, reputation or property, with intent to cause alarm to that person or cause that person to do any act against his will, commits criminal intimidation.
Here, it is the threat of injury rather than actual injury itself that gives rise to liability. As an example, in the case of Lee Yoke Choong v Public Prosecutor [1964] MLJ 138, an accused gave a complainant two alternatives viz to withdraw a police report lodged against the accused, or else acid would be thrown on the complainant to blind him. This was sufficient to bring the accused within the offence under section 503.
As another example, in the case of Sinnasamy A/L Kaliappan v Public Prosecutor [2005] 7 MLJ 570, the accused had used a ‘parang’ (a Malayan machete) to hit the metal gate of the house and threatened the complainant to pay a sum of RM50,000 in 5 days, failing which he would kill the complainant.
Although the Sinnasamy case involved a weapon, Ong J held that “it is not essential that a weapon must be produced in order to sustain a charge under section 503 as mere words would suffice”. Instead, the essential ingredients of criminal intimidation under section 503 are:
(i) threatening another with any injury to his/her person; and
(ii) intent to cause alarm to that person
Insult & Annoyance (section 504)
If the accused intentionally insults another, knowing that such insult will provoke/cause the other person to break the public peace or commit an offence, that is an offence under section 504 of the Penal Code, punishable with imprisonment for a term which may extend to two years or with fine or with both.
As a case example, in Liau Choy Wan v Public Prosecutor [2018] 10 MLJ 374, the appellant, a bank officer had hurled certain abusive insults at a customer of the bank. The customer complained that the insults or racial slurs were provoking enough to cause a breach of the peace. The appellant was charged with intentionally insulting the customer of the bank to provoke a breach of the peace, an offence under s 504 of the Penal Code. The appellant claimed trial to the charge. At the conclusion of the trial, the appellant was found guilty, convicted and sentenced to six months imprisonment.
(Note: It is likely that the accused will only be liable under this section if the offence contemplated by the victim is serious.)
Gestures amounting to assault (section 351)
Under Section 351 of the Penal Code, it is a crime for any person to make a gesture/preparation that causes the other person to apprehend he/she is about to use criminal force. The Penal Code gives illustrations of what amounts to assault under the section:
Under this section, although, mere words would not suffice, the ‘assault’ requires no contact with the body.
Unlike criminal intimidation, it appears that force must in fact be used before the accused is liable under this section. In the case of Mohamed Abdul Kader v Public Prosecutor [1976] 1 MLJ 86, it was held that because no force was in fact used, the appellant could not be convicted for using criminal force. Here, the appellant had a chopper in his hand and said “If you go in, I will hammer you”. However, the gesture followed by words could amount to criminal intimidation instead (per Ong J).
PART B: COMPARISION WITH OTHER COUNTRIES
In the United Kingdom and more recently, in Singapore, remedies for ‘harassment’ is provided for by a standalone legislation known as the Protection from Harassment Act (“POHA“). The POHA criminalises a wide range of behaviour including harassment, stalking and other anti-social behaviour. It also contains provisions for victims to pursue civil remedies.
Singapore
Singapore introduced the Protection from Harassment Act, Cap 256 in 2014. This is despite the country already having a Penal Code, which similar to Malaysia, criminalizes gestures amounting to assault, intentional insult and criminal intimidation.
In addition to criminal offences, section 11 of the Act ‘action for statutory tort’ expressly allows victims to ‘bring civil proceedings in a court against the respondent’, thus paving the way for victims of harassment to seek civil remedies against the offender.
The enactment of POHA in Singapore suggests that safeguards against harassment which is provided by the Penal Code alone is inadequate.
United Kingdom
Similarly, in England & Wales, the Protection from Harassment Act 1997 (or Protection from Harassment (Northern Ireland) Order 1997 in Northern Ireland) makes it an offence for a person to pursue a “course of conduct” which amounts to harassment and which he knows or ought to know amounts to harassment. A “course of conduct” includes speech and must normally involve conduct on at least two occasions (section 7). Section 3 of the POHA allows the victim of the course of conduct in question to pursue civil proceedings.
Below is a case study provided by the The Law Society, which gives some flavour as to what the United Kingdom considers is workplace harassment :
Discriminatory harassment
Additionally, in the UK, if the harassment is related to a “protected characteristic”, it may constitute unlawful discrimination under the Equality Act 2010. The relevant protected characteristics are age; disability; gender reassignment; race; religion or belief; sex; and sexual orientation.
By comparison, protection against discriminatory practices in Malaysia are subsumed (lightly protected) under section 5 of the Industrial Relations Act 1967, section 60L of the Employment Act 1955 and Article 8 of the Federal Constitution. This is, in our view, far from adequate given the rise of protection against harassment at the international level.
CONCLUSION
The purpose of writing this article is twofold: One, it seeks to raise awareness of the potential remedies available to victims of harassment. Two, it seeks to promote ethical standards at the workplace, one which is facing extinction in light of tough economic times.
Employees complain of non-sexual harassment more often than it is challenged in the courts as a result of factors such as (a) fear of losing jobs; (b) social conditioning; and (c) an absence of laws parameterizing what is considered acceptable and abusive conduct.
The presence of a separate legislation governing harassment laws such as the POHA in the United Kingdom and in Singapore can allow for easier, if not quicker development of harassment laws. In addition to supporting the importation of a Protection from Harassment Act into Malaysia, we propose that the POHA should provide sections relating specifically to employment/workplace harassment.
___________________________________________________
*Cynthia Lee completed her studies in law at Cardiff University with an LLB Law (Hons) and the Bar Professional Training Certificate (BPTC). She is a dispute resolution lawyer at Messrs Chai & Co. and a member of the Kuala Lumpur Bar Women’s Rights Committee.
For section 504 of the Penal Code to apply, must it be shown that the insults resulted in the complainant actually committing some sort of breach of the peace or is a mere likelihood of that happening sufficient?
Likelihood is enough.
To quote section 504 verbatim ´Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both.’
Comments are closed.