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The probation reports failed to state or explain that the appellant was unsuitable for rehabilitation in an approved school as required by s.75(1)(b) Child Act 2001; absent that explanation the orders sending the appellant to Henry Gurney were unlawful and the Judicial Commissioner misdirected herself; appellate court substituted a non-custodial disposition and imposed 100 hours community service under s.91(1)(da).

Citation
B-05(H)-37-01/2022 (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)-37-01/2022 (Mahkamah Rayuan)
Procedural Posture
Criminal Appeal (child Offences) / Court of Appeal Judgment on Appeal From High Court and Courts for Children
Outcome
Appeals allowed; High Court order set aside
Legal Topics
Sentencing, Probation Report Requirements, Detention in Henry Gurney School, Community Service Order, Child Act 2001 Interpretation
Source Language
Malay/English
Criminal Law Juvenile Justice Child Protection Sentencing Probation Report Requirements Detention in Henry Gurney School Community Service Order Child Act 2001 Interpretation

Case Brief

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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 Appeal From High Court and Courts for Children

Legal Issues

  1. 1 Whether probation reports complied with s.75(1)(b) Child Act 2001 by showing child not suitable for approved school
  2. 2 Whether the learned Magistrates and Judicial Commissioner misdirected themselves in applying s.75(1)(c) regarding seriousness and criminal habits
  3. 3 Whether detention in Henry Gurney School was lawful and proportionate

Ratio Decidendi

The probation reports failed to state or explain that the appellant was unsuitable for rehabilitation in an approved school as required by s.75(1)(b) Child Act 2001; absent that explanation the orders sending the appellant to Henry Gurney were unlawful and the Judicial Commissioner misdirected herself; appellate court substituted a non-custodial disposition and imposed 100 hours community service under s.91(1)(da).

Court Disposition

Appeals allowed; High Court order set aside

Orders

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