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The probation reports did not contain the required explanation that the child was unsuitable for rehabilitation in an approved school as mandated by s.75(1)(b) Child Act 2001; that procedural illegality rendered the orders sending the appellant to Henry Gurney School unlawful, justifying appellate intervention and re-sentencing to a community service order of 100 hours supervised by the Social Welfare Department under s.91(1)(da).

Citation
B-05(H)-35-01/2022 (Mahkamah Rayuan)
Parties
Appellant: M.N.Z.M.N.; Respondent: Public Prosecutor
Court
H
Jurisdiction
Malaysia
Judgment Date
25 May 2023
Case Number
B-05(H)-35-01/2022 (Mahkamah Rayuan)
Procedural Posture
Criminal Appeal (child Offences) / Court of Appeal Judgment on Merits; Leave Granted on Points of Law
Outcome
Appeal allowed; High Court order set aside and substituted
Legal Topics
Child Act 2001 Interpretation, Probation Report Requirements Under S.75(1)(b), Henry Gurney School Detention, Community Service Orders Under S.91(1)(da), Appellate Re Sentencing
Source Language
Malay/English
Child Law Criminal Law Sentencing Sexual Offences Administrative Law (procedure) Child Act 2001 Interpretation Probation Report Requirements Under S.75(1)(b) Henry Gurney School Detention +2 more

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Parties

M.N.Z.M.N.

Appellant

Public Prosecutor

Respondent

Procedural Posture

Criminal Appeal (child Offences) / Court of Appeal Judgment on Merits; Leave Granted on Points of Law

Legal Issues

  1. 1 Whether probation report complied with s.75(1)(b) Child Act 2001 by showing child not suitable for approved school
  2. 2 Whether Magistrates and Judicial Commissioner misdirected in applying s.75(1)(c) to order detention at Henry Gurney School
  3. 3 Whether appellate court may intervene and re-sentence de novo

Ratio Decidendi

The probation reports did not contain the required explanation that the child was unsuitable for rehabilitation in an approved school as mandated by s.75(1)(b) Child Act 2001; that procedural illegality rendered the orders sending the appellant to Henry Gurney School unlawful, justifying appellate intervention and re-sentencing to a community service order of 100 hours supervised by the Social Welfare Department under s.91(1)(da).

Court Disposition

Appeal allowed; High Court order set aside and substituted

Orders

  • High Court order sending appellant to Henry Gurney School set aside
  • Appellant ordered to perform 100 hours community service supervised by the Social Welfare Department, which may include counselling, religious and moral education