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So you got caught by the PDRM for making out in public... What now?

4 months ago Derek Kho

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This article is for general informational purposes only and is not meant to be used or construed as legal advice in any manner whatsoever. All articles have been scrutinized by a practicing lawyer to ensure accuracy.

The story goes the same way most of the time – a couple in a park or a car, just somewhere quiet and alone. And then one of you decides to engage in, you know. Couple-like behaviour. Carpe diem

All of a sudden there’s the dreaded knock on the window, a blinding beam from a flashlight, and (sometimes) righteous throat clearing. Party-time’s over. You’ve just been busted by the cops for indecent behavior

The big questions here are, what constitutes indecent behavior in the first place; and is it actually illegal? 

With regards to indecent acts, it might seem a little difficult to figure out what is acceptable and what is not. Is kissing okay? How about hugging? How about public displays of affection so… affectionate, it’ll make your grandmother cringe? It’s not an easy question to answer, but we will look at a case a little later to help understand what is thought of as decent, or not.

 So let’s break this down into the specific sections starting with... 

 

Is it actually illegal?

The short answer is yes – Acts of public indecency will get you in trouble with the law. This article we’ve written covers a similar topic, which explains indecency with regards to public nudity. It goes more in depth with regards to the laws governing indecent acts.  But for the purposes of this article, let’s assume it’s something more ‘conventional’, like kissing and hugging.

Most laws require you to have been indecent with intention for another person to see it, as stated in Section 509 of the Penal Code and Section 28(e) of Minor Offences Act 1955. Flashers come to mind as a suitable example.  

However, there is a possible exception here. If you did your best to scope out a secluded spot for some truly private time because your parents are home and the walls are thin, you may still be charged under Section 294(a) of the Penal Code which states:

“Whoever, to the annoyance of others— (a) does any obscene act in any public place…shall be punished with imprisonment for a term which may extend to three months or with fine or with both.”

In which case, your intention is irrelevant and you might still be in trouble. This is further clarified by lawyer Fahri Azzat from legal firm Fahri & Co. explains:

 “294(a) is a strict liability offence that does not require intention to be proved. It means that if you did it then it’s an offence. You do not have to “intend” to do it.” - Fahri Azzat, in interview with ASKLEGAL

Of course, this leads to the next question:

 

What is “public”?

The general versus legal understanding of ‘public’ is not very different. Public areas include but are not limited to theatres, parks, footways, roads. Some of these places are defined in the Minor Offences Act 1955, for example :

“place  of  public  resort”  means  any  place  licensed  under  any written  law  in  force  in  Malaysia  relating  to  theatres  and  includes an  amusement  park;

“public footway” means any footway made or set apart for the use or accommodation of foot passengers over which the public have a  right  of  way;

“public road” includes every road, street, bridge, passage, footway or  square  over  which  the  public  have  a  right  of  way...

What this means is that arguably, most places that aren’t in a building or completely secluded can be reasonably justified to fall within the ambit of “public”. And now for the part that you’ve probably been wondering about since the start of the article – 

 

What’s “indecent”?

We left this for last since indecency is tricky business, in that it can be quite subjective.

See, I might think it’s perfectly decent to run naked down Petaling Street screaming profanities. However, most Malaysians probably won’t agree with me, nor do they wish to see me (or anyone) running naked down Petaling Street screaming profanities. Same with kissing, hugging, and other public displays of affection. The point is, that what is decent to you may not be decent to someone else!

To understand the meat (no pun intended) of the argument, lets have a look at the case of Ooi Kean Thong & Siow Ai Wei v DPP 2006 [FC], which some of you may remember as it generated a lot of discussion on public morality and decency back in 2006.

In short, a local couple were found behaving in a “disorderly” manner (kissing and hugging under a tree in a park) and charged under Section 8(1) of the Parks (Federal Territory of Putrajaya) By-Laws, 2002 which states:

No person shall behave in an indecent manner in any park.

They were convicted (found guilty) but appealed against the ruling. This case generated a huge discussion on the line between decent or indecent, and how it’s enforced; two examples being a letter published in Malaysiakini, and a media statement by Bandar Kuching DAPSY Deputy Chief Member of Parliament Chong Chieng Jen who asked:

“Where is the limitation of these legal enforcement of morality?  Will it come a day where shaking hands with an opposite sex or even sitting too close, for example within 3 feet, will also be deemed indecent by some over-zealous moral-cum-law enforcers?” – Chong Chieng Jen, as quoted from his media statement.

The takeaway from this is that defining indecency can be a rather tough affair with no clear black-or-white answer, and it may perhaps be advisable to be more conscientious when out in public.

 

But what if you get asked for duit kopi?

Okay so lets set the scene: You and your, let’s say, “close friend” get caught for, let’s say, “hanging out” in a park… if you know what we mean. You’re nervous, knees weak and palms are sweaty, spine’s spaghetti whilst getting lectured by scary men in uniforms about your bad behavior. Actually, most of them aren’t really all that scary, and you’re more likely to get a sound warning and be asked to leave.

But what if you get asked for a bribe?

Let’s be clear. If you’ve been caught performing acts that can be justified as being indecent (like literally with your pants down) you may very well be in legal trouble. However, it doesn’t mean that you should pay a bribe either for reasons that we’ll get into in an upcoming article. 

Instead, you should note down which agency/department the officers are from, and lodge a report. If there was no action taken, you may also be able to make a follow-up complaint against the agency or department with the Enforcement Agency Integrity Commission (EAIC), a body that’s been set up to receive and investigate public complaints about any enforcement officers or agencies that misbehave. Reports can be made several ways:

  • In person – At their HQ in Putrajaya
  • Via email – aduan@eaic.gov.my
  • Website – e-Aduan
  • Phone call – 03-8880 5651 / 5627 / 5625
  • Snail mail – Addressed to their HQ (in the link above)

For more information about the agencies/departments under their jurisdiction as well as things you’ll need to prepare, check out our article here.

So there you have it. The best answer to this problem is don’t get caught don’t do it! Despite what you or I may believe is decent or fair, it seems wiser to simply do what you need to do in private, away from potential trouble.

Tags:
public
indecent
kissing
hugging
park
ooi kean thong & siow ai wei v dpp 2006

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