Your Cheating Heart

Following on from the last post, what is the offence of cheating? If I borrow money from you and I fail to pay despite promising to do so, this is not necessarily cheating. Similarly, If I sell you my land then refuse to sign the transfer form after you paid me, again this may not be cheating. You may sue me for the loan or for the purchase price. If you report the matter to the Police however, you may be advised not to bother.

But why, you may ask? Well, in law a breach of promise on its own is not sufficient to make the conduct an offence. The law requires that when the promise or representation was made, there was also an intention to deceive. To put it simply, it would be cheating if the land I'm selling does not exist or if when I get the loan, I have already booked a one way ticket to Bora-Bora. Paying a bounce check is only an offence when I know that balance in my account is insufficient to cover the amount stated in the cheque. Now you know why many shops refuse to accept personal cheques. Cash wins every time.

Civil or Criminal?

In a previous post I have touched on the doctrine of double jeopardy which states that a person cannot be punished twice for the same offence. It must be noted however that an act may be both a crime and a civil wrong and the responsible person may be liable for both. A common example is a car accident resulting from the carelessness of a driver. The driver may be charged in a criminal court for careless driving. This action is brought by the state (in Brunei, the Public Prosecutor). The driver will be known as the defendant. If the prosecutor proves the case, the defendant will be convicted and may be punished as provided for under the law with fine or imprisonment.

If injuries are caused to another person due to the same accident, the careless driver might also be sued (brought action against). The injured person will be known as the plantiff and the driver is referred to as a defendant. A successful civil action will result in judgement for the plantiff and the plantiff is usually ordered to pay a sum of money or damages.

Both action are distinct from each other and the outcome of one does not in law affect the other. You may recall the case of OJ Simpson in the USA. He was acquitted of murdering his wife and her friend but was still found to be liable for their wrongful deaths and ordered to pay a substantial amount of money to the deceased persons' families.

A civil wrong is not necessarily a criminal offence and vice versa. For example, I agree with person to buy his car and paid a deposit. He subsequently changes his mind and sells the car to someone else. Although this is a civil wong (the seller may be sued), this is not a criminal offence even if I claim to the Police I was "kena tipu"(cheated). The definition of cheating in criminal law is quite different.

Latin Lovers

If the use of fancy English words such as "Hereuntobefore" does not confuse the lay person, lawyers will resort to using archaic legal words, preferably in Latin. The previous post brought back memories of my time at law school whereby latin words were thrown at us constantly.

One of the most well known phrases is caveat emptor which means "buyers beware". This is a warning to buyers to be aware that in most cases, they get what they pay for. That nice gleaming second hand car is usually sold without any warranty as to its condition. So if it breaks down as soon as you pay for it and drives it out of the stockyard, you're out of luck mate.

Suppose you signed a document without reading it. This is unfortunately quite common. I have known people who became guarantors for loans without realising its implications. When asked, the common reply is "aku mana tahu, aku sain saja". This is in law a plea known as scriptum predictum non est factum sum which translates to"he did not in truth consent to what he has done". Nowadays this plea is very rarely successful to deny liability. The law expects a a resonable person to take care what he signs. If he does not understand a legally binding document, then he should not sign first but seek legal advice. This is also true for a person who signs a blank document which the other party will fill in. So don't be too trusting. Read before you sign.Don't sign a blank document.That one signature might be a one way ticket to a whole lot of trouble and aggravation.

Double Jeopardy

Does anyone recall a movie by this name? If I am not mistaken, the story goes like this. The husband faked his own death to be with his mistress and the wife was convicted for his "murder". Ater serving her imprisonment sentence, the wife killed the husband for real. But here's the catch. She cannot be punished again for the real murder as she had already been convicted previously. That is the doctrine of double jeopardy. You can only be convicted once for the same offence. The fancy phrase for this doctrine is autrefois convict.

Similarly if a person has been acquitted of an offence, he cannot be re-tried for the same offence even if subsequently there is new evidence to show that he did commit the offence. He can claim legal immunity through the doctrine of autrefois acquit. This prevents a kalah-kalahan (vindictive) prosecutor from bringing the same charges time and time again until he gets a conviction. You only have one bite of the cherry Mr. Prosecutor!

It must be noted that this doctrine only applies to the matters arising from the same fact. If a person charged for murder is acquitted, he cannot be charged subsequently for causing the death of the same person.However if during the killing, he commits robbery, he can still be charged for that offence.

You're Forgiven

Will all criminal cases go to court? Under the law certain offences can be compounded. There are two types of composition (the fancy name for "kompaun"). The one many of us is familiar with( especially you fast drivers along Damuan) is the payment of a penalty. For certain road traffic offences such as speeding, illegal parking and failure to comply with the directions of a police officer, the offender may choose to compound the case by paying a penalty which is usually $50 but which may be up to $500. If the penalty is paid, then the case will not go to court. Of course if the driver thinks he is not guilty, he may choose to fight his case in court though he risks being fined a higher amount if found guilty. Other offences which may be compounded include certain immigration offences for example overstaying and some customs offences such as importing certain prohibited items into the country.

Another type of compound is actually the forgiving of the offender by the victim. This is usually done in court for a limited number of offences such as causing hurt and causing damage to property. Both the offender and the victim will appear before a Magistrate. If the victim indicates his or her intention to withdraw the complaint, the offender will be acquitted. The type of compound is quite common in spousal abuse cases.

For other offences, the victim's forgiveness will not end the case. A thief maybe forgiven by the person from whom he stole but he can still be charged nonetheless. A "runding luar" (outside settlement) in a traffic case will similarly not make the offender immune to prosecution. So you will end up paying for the damages you caused and also a fine. You have been warned.

I agree

In criminal law the concept of agreement or consent is an important one. For example, if a person were to punch another, it would usually be an offence. However if this is the case everytime, Muhammad Ali would have a long list of criminal record for assault. In a boxing match or indeed any physical sport, the law recognises that there is implied consent by the participants to harm being inflicted. This consent is of course not to all harm but harm inflicted in fair play. If during a football match, the striker is tackled as he approaches the goal with the ball, that would be fair play. If the bintih occurred as he was walking to the dressing room then there cannot implied consent.

A "consent" is obtained under fear of injury or under misrepresentation of facts is not a valid consent in law. Thus a bogus bomoh, promising a micracle cure by "special urut "cannot claim that the victim has consented as clearly the consent was obtained by fraud. There was once a local so called bomoh who placed daun sireh on "no go"areas of his victims. Despite this rather unusual(to say the least) "treatment" he was apparently quite popular! A word of advice. Go to a proper doctor or healer and save yourself a lot of grief.

We will catch you

In Brunei, it is an offence to buy lottery tickets. Never mind, you can always buy them in Miri during your weekend shopping trip right? Err, no. Well not if you are a Bruneian that is. The jurisdiction of the criminal courts in this country extends to all offences committed by a citizen, wherever the offence may be pepetrated.

This law of course does not apply to non citizens . There are exceptions. Say a foreigner gives a bribe to a Brunei official in relation to a project here. The bribe is paid in a foreign country. Our courts will still have jurisdiction in this case in respect of the foreigner as the subject matter of the offence relates to this country even though the offence is committed overseas.

Brunei courts also have jurisdiction if the offence is committed on Brunei registered aircrafts and ships. Even if the RBA plane is flying 20000 feet over Turkey or the Brunei LNG ship is berthing in Japan, the offender of any air rage or sea rage(?) can still be hauled to our court. So don't hit our female cabin crew. If you are married, don't hit on her as well. And keep the "jangkau saja" joke to yourself. She would have heard it a thousand times before.

Can't touch me

Is anyone above the law? The legal jargon is "legal immunity". Heads of States are traditionally immune to any legal action. Under the Vienna Convention on Diplomatic Relations, diplomatic agents properly accredited to a country are in general immune to any criminal, civil or administrative jurisdiction of the host country. A "naughty" diplomat can only be prosecuted or sued if his immunity is waived by the sending country. Otherwise the only real action is to request for him to be removed. Some years back, a local bank was unable to recover credit card debts incurred by a foreign diplomat despite going to court because of this immunity. Free money!

The law also excludes a child under 7 from criminal liability. Children between 7 and12 can only be liable if he has "attained sufficient maturity of understanding to judge of the nature and consequences of his conduct". The malay word for the rather convoluted language would be "berakal". If he is "berakal" then he is criminally liable.

Does this mean it is ok if you ask your little 6 year old nephew to steal a phone from Incomm? After all Papalaw says there is no offence. Well, shame on you. He cannot be charged but under the law you can be charged for instigating the offence. It is as if you are stealing the phone yourself. Leave that kid alone and teach him good things instead!

Whip 'em

One of the more controversial punishments still practiced today in Brunei is whipping (also known as caning in Singapore). We retain this form of punishment with our neighbours, Malaysia and Singapore as as a legacy from Britain. Another legacy is capital punishment by hanging though in Brunei no convict has been hanged for over 10 years. The British have of course practically banished such punishments from its statute books deeming them "cruel".

In Brunei, whipping is imposed as a mandatory sentence for a number of offences such as drug trafficking, robbery and rape. Some offences provide for a minimum number of strokes to be imposed, for example, in the case aggravated rape a minimum of 12 strokes is mandated. The maximum number of strokes to which an adult offender may be sentenced is 24. All the lashes will be inflicted in one session subject to any medical advice to the contrary. Ouch!

Some people cannot be whipped. Women, males sentenced to death and males over 50 are excluded.

From time to time, the Prison Department holds demonstrations in schools on how whipping is conducted. The responsible prison officer half spins as if he is hitting a baseball and lashes the half inch in diameter rattan on the bare buttocks of the convict (a mannequin in this case) with all his might. It sounds like thunder. Something certainly not forgotten in a hurry by the shocked audience.

Legal Jargons Defined

Lawyers are well known for using at least 10 words when 1 is sufficient and even then the meaning may still be unclear. From time to time, I will attempt to explain the legal jargons so beloved by lawyers and still used in legislation and in the courts.

Let us start with the word "and". Sounds simple right? Even a primary 1 kid knows what it means. However, if you see it in relation to the punishment for a criminal offence, it can mean either "and" or "or". For example, the punishment for cheating is imprisonment for 3 years and a fine. This means that the convicted person can either be imprisoned or fined or punished with both imprisonment and fine.

Confused? There's more. The punishment is to be read as the maximum punishment. In the example above, 3 years' imprisonment is not a fixed sentence but the maximum a court may impose. In other words, a court may imprison a cheat for a period ranging from 1 day to 3 years. Got it? Even after all these years, the absurdity still astounds me.

Hands up ! - Part 2

A thief breaks into your house. All the years of watching 'Stone Cold' Steve Austin on TV will be put into good effect. You are ready to give the penyamun your version of the "Stone Cold Stunner". For added protection, you also carry your new Nike Sumo driver with the really massive club head (more forgiving, the ad says but you are not in a forgiving mood). Then what? Well it depends.

If you are built like Andre the Giant (remember him?) and the thief immediately surrenders in fear, he may be confined until the Police arrive. Keep the driver in the golf bag Tiger! If however you are more 'Cicakman' than 'Superman' and he tries to escape or beat you up with his kungfu, the law allows you "all means necessary" to effect the arrest. However, the person arrested is not to be subjected to more restraint than is necessary to prevent his escape.

So much for the law. A word of advice. You can always replace your property. A few years back, a foreign doctor was killed when he confronted thieves who broke into his house. He was killed with his own knife. The reality is that desperate people will react desperately. Violence begets violence. Your Ferrari (or Vios) is really, really not worth dying for.

Hands up!

Can someone other than a police or an enforcement officer arrest another person? Remember that a wrongful arrest may be a crime. You may arrest a person who in your presence has committed a "non bailable and seizable" offence. This category includes offences such as murder, rape, robbery or theft but not offences such as assault, cheating or careless driving. You cannot arrest a person if you did not actually see him commiting the offence, so don't go round knocking on doors just because your cousin told you that 'Penyamun Tarbus' stole his Ipod. The person arrested MUST without any unnecessary delay be handed over to a police officer or taken to the nearest Police station. So none of the 'waterboarding' or 'dikerajakan' nonsense or you will be the one facing arrest. Got that Dirty Harry?

Next post- How is an arrest made?

Oh no! Another blog?

Want to know more about Brunei laws? Lots of local blogs but none that I can find which deals with this topic. Why is the system based on English common law? Has Islamic law any place at all in the current system? Can you arrest another person? What are your rights if you are arrested? Can killing another person ever be legal? Can the Police enter a house without a search warrant? How are court proceedings conducted? Do you need a lawyer everytime? Want to know more about the offences you read in the papers? Please bookmark this page!