Court DecisionMY-HC

JB-41H-64-11/2019

A Child v Public Prosecutor (JB-41H-64-11/2019)

High Court of Malaysia13 Sept 2020

The written judgment as the court issued it, with the coram, case number, and source links. Every paragraph has its own anchor.

Open official source PDF Report an issue

How this case connects

Citations and treatment detected automatically from later judgments and the authorities this decision relies on.

Cited by

Later cases and laws citing this decision

Not yet cited by a later decision.

Authorities cited

Earlier cases and laws this decision relies on

Refers toChild ActExternal
“dajaya bin Awang Mahmud 2 JUDGMENT [1] INTRODUCTION These are 2 appeals by the Appellant against the Order given by the Learned Magistrate sitting in the Court for Children pursuant to section 90 Child Act 2001.In the first case (JB-41H-64-11/2019) the Child was charged alone while in the case number JB-41H-65-11/2019,”
Refers toChild Protection ActExternal
“nourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 6 2001 which served to consolidate the Juvenile Courts Act 1947 [Act 90], the Women and Girls Protection Act 1973 [Act 106], and the Child Protection Act 1991 [Act 468]. It was enacted to fulfil the country’s obligations under the United Nations Conventio”
Refers toCriminal Procedure CodeExternal
“nish valuable reports in all criminal cases which are of great assistance to Judges when it comes to passing sentence. Although not mentioned specifically as a probation report, sections 293 and 294 Criminal Procedure Code have some procedures that would point in the direction that a Probation Report should be prepared”
Refers toEvidence ActExternal
“ahmud 34 The officer that is being directed to put up the report is treated or accepted as an officer of the Court (“amicus curiae”). He may or may not be an expert within the meaning of section 45 Evidence Act 1950. However, an expert here is one who is skilled in a particular Science or Arts. But he must have some gr”
Refers toGirls Protection ActExternal
“Child Act September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 6 2001 which served to consolidate the Juvenile Courts Act 1947 [Act 90], the Women and Girls Protection Act 1973 [Act 106], and the Child Protection Act 1991 [Act 468]. It was enacted to fulfil the country’s obli”

Show 5 more

Refers toJUVENILE COURTS ACT 1947Legislation
“the Child Act 2001 (“the Act”). In Malaysia, the Child Act September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 6 2001 which served to consolidate the Juvenile Courts Act 1947 [Act 90], the Women and Girls Protection Act 1973 [Act 106], and the Child Protection Act 1991 [Act”
Refers toJuvenile Courts OrdinanceExternal
“Smith in TEH YEW WHATT v PP [1958] MLJ 171 said this, It is always desirable before imposing a sentence of imprisonment on a person below the age of 21 to consider the powers under section 40 of the Juvenile Courts Ordinance, 1947 and to call for a probation officer’s report to establish the background of the person ab”
Refers toPENAL CODELegislation
“ed at RM1,500-00 belonging to one Endang Iriantiningsih NRIC: 580410-71-5214 which you knew the said motorcycle to be a stolen motorcycle and you thereby committed an offence under section 411 of the Penal Code punishable under the same.” The charge against the Appellant in the case no. JB-41H-65-11/2019 is as follows:”
Refers toSocial Workers ActExternal
“y the number of university degrees one possesses but the skill(s) and knowledge that is sufficient to explain properly the niche of science or art (as the case may be). Until a proper law such as the Social Workers Act is in place, it is a little tricky to ascertain an expert in social work. However, if a particular We”
Cites[1958] MLJ 171External
“the accused genuinely desired to turn over a new leaf. I came to the conclusion therefore that my proper course was to bind him over on probation.” His Lordship, Justice Smith in TEH YEW WHATT v PP [1958] MLJ 171 said this, It is always desirable before imposing a sentence of imprisonment on a person below the age of 2”

Auto-detected from judgment text; not a substitute for a citator check.

Content

September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 1 MALAYSIA IN THE HIGH COURT OF MALAYA SITTING AT MUAR CRIMINAL APPEAL NO. JB-41H-64-11/2019 & JB-41H-65-11/2019 BETWEEN A CHILD ..... APPELLANT AND PUBLIC PROSECUTOR ..... RESPONDENT  GROUNDS OF JUDGMENT  September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 2 JUDGMENT [1] INTRODUCTION These are 2 appeals by the Appellant against the Order given by the Learned Magistrate sitting in the Court for Children pursuant to section 90 Child Act 2001.In the first case (JB-41H-64-11/2019) the Child was charged alone while in the case number JB-41H-65-11/2019, the Child was charged with a 2nd and older Child who was 17 years of age when the offence was committed. The charge against the Appellant in the case no. JB-41H-64-11/2019 is as follows: “That you, on 23 August 2019 at about 12.50 pm at a place in front of the playing ground, Jalan Limau 11, Taman Bintang, 86400 Parit Raja, in the district of Batu Pahat, in the State of Johor, dishonestly retained a stolen property, to wit, a motorcycle Honda EX-5, registration no. JKT 8746, Chassis No. GN5-3405052 and Engine number C100E-M4405372 that is valued at RM1,500-00 belonging to one Endang Iriantiningsih NRIC: 580410-71-5214 which you knew the said motorcycle to be a stolen motorcycle and you thereby committed an offence under section 411 of the Penal Code punishable under the same.” The charge against the Appellant in the case no. JB-41H-65-11/2019 is as follows: “That you together on 24 October 2018 at about 2045 hours at the garage of house number 2, PJ 74/6, Jalan Kluang, Parit Jelutong, Parit Raja in the District of Batu Pahat, in the State of Johore stole a motorcycle Honda EX-5, with the registration number JMY7704, Chassis No. PKMHA1320AB127971 September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 3 and Engine number HA13E-4213001 belonging to one Mohd Faiz bin Amin (NRIC 881227-01-5323) and you thereby committed an offence under section 379A(1) Penal Code read together with section 34 of the same Code, which is punishable under section 379A(1) of the same.” The Child pleaded guilty at first instance in both cases and the Court for Children made a finding of guilt against the Child on both counts and ordered him as follows: i. for case no. JB-41H-64-11/2019, to be sent to Henry Gurney School for 3 years with effect from the date of the Order pursuant to section 91(1)(f) Child Act 2001. ii. for case no. JB-41H-65-11/2019, to be sent to an approved school (Asrama Akhlak Kempas) for 1 year with effect from the date of the Order pursuant to section 91(1)(f) Child Act 2001. Dissatisfied, the Appellant filed an appeal against the said Order of sending him to the Henry Gurney School. The Learned Counsel for the Appellant also filed a copy of the Transcripts of the proceedings in the Court for Children because she said the Notes of Proceedings supplied by the Court did not contain details of what transpired in the Court below. The Learned Deputy says that he has no quarrel with the Transcripts provided for by the Learned Counsel for the Appellant. This Court accepts the Transcripts provided for by the Learned Counsel of the Appellant after perusing over both the Appeal Record and the Transcripts. September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 4 For the record, there was no contradiction nor was there any major difference in content. What the Transcripts provide is the word-for-word account of the proceedings but the Appeal Record provides the same account except that the Appeal paraphrase the proceedings for brevity sake without losing the substratum of the proceedings. While it is not a requirement under the law to provide a Transcripts of the proceedings, the Court is not averse to perusing over it (or accepting it) so long as they are accurate and do not contain embellishments. Under the law, the notes of proceedings provided by Court, is the authoritative record unless there are glaring omissions that goes to the substratum of the proceedings. In any event, it was a non-issue for our case, as there were no objections taken by the Learned Deputy. [2] THE ISSUES IN THIS CASE The Learned Counsel for the Appellant, raised a few issues and they are: i. The Court for Children erred in law and in fact, when the Learned Magistrate failed to invite the grandfather and his aunty to address the Court before sentencing and hence there was a serious non-compliance with section 90 Child Act 2001. ii. The Court for Children erred in law and in fact in not asking for the Certificate of Criminal Records to be tendered as proof nor did the Court for Children confirmed it with the Child and hence by taking into account, the previous convictions, the Learned Magistrate has erred in law and in fact in applying the judicial principles in sentencing. September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 5 iii. The Court for Children therefore erred in law and in fact for sending the Child to Henry Gurney School without taking into account the Probation Report and the fact that his grandfather and his aunty who were present in Court were both willing to take care of the Child. iv. What is a Probation / Social Report under the law and the requirements under the law in the preparation of such a report? The issues raised by the Learned Counsel does not vitiate the finding of guilt per see as the issues were more on after finding of guilt procedures but the allegations that the failure of the Court for Children failed to comply with section 90 Child Act 2001, effectively raised the point that if the finding of guilt may be set aside for non-compliance as it has substantially affect the finding of guilt and / or the Order by the Court below. After dealing with the issues, I shall also deal with the Probation Report which becomes central to this appeal by way of the recommendations in the report. I shall address the issues accordingly. i. The Court for Children erred in law and in fact, when the Learned Magistrate failed to invite the grandfather and his aunty to address the Court before sentencing and hence there was a serious non-compliance with section 90 Child Act 2001. The procedures for a Child who has to undergo the judicial process is provided by the Child Act 2001 (“the Act”). In Malaysia, the Child Act September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 6 2001 which served to consolidate the Juvenile Courts Act 1947 [Act 90], the Women and Girls Protection Act 1973 [Act 106], and the Child Protection Act 1991 [Act 468]. It was enacted to fulfil the country’s obligations under the United Nations Convention on the Rights of the Child also known by its acronym “UNCRC”. The Preamble of the Act provides the following recognitions and acknowledgements: RECOGNIZING that the country’s vision of a fully developed nation is one where social justice and moral, ethical and spiritual developments are just as important as economic development in creating a civil Malaysian society which is united, progressive, peaceful, caring, just and humane. RECOGNIZING that a Child is not only a crucial component of such a society but also the key to its survival, development and prosperity. ACKNOWLEDGING that a Child, by reason of his physical, mental and emotional immaturity, is in need of special safeguards, care and assistance, after birth, to enable him to participate in and contribute positively towards the attainment of the ideals of a civil Malaysian society. RECOGNIZING every Child is entitled to protection and assistance in all circumstances without regard to distinction of any kind, such as race, colour, sex, language, religion, social origin or physical, mental or emotional disabilities or any other status. ACKNOWLEDGING the family as the fundamental group in society which provides the natural environment for the growth, support and well-being of all its members, particularly Children, so that they may develop in an environment of peace, happiness, love and understanding in order to attain the full confidence, dignity and worth of the human person. September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 7 RECOGNIZING the role and responsibility of the family in society, that they be afforded the necessary assistance to enable them to fully assume their responsibilities as the source of care, support, rehabilitation and development of Children in society. A Child is defined section 2 of the Act as: “(a) means a person under the age of eighteen years; and

in relation to criminal proceedings, means a person who has attained the age of criminal responsibility as prescribed in section 82 of the Penal Code [Act 574];” Hence any law that is of general application must be subject to modifications when it comes to Children as defined under section 2. This is because of the maxim “Generalia Specialibus Non Derogant” meaning a specific provision in a specific law overrides a general provision in a general law. The general principle to be applied to the construction of acts of Parliament is that a general act is not to be construed to repeal a previous particular act, unless there is some express reference to the previous legislation on the subject, or unless there is a necessary inconsistency in the two acts standing together. And the reason is that the legislature having had its attention directed to a special subject, and having observed all the circumstances of the case and provided for them, does not intend by a general enactment afterwards to derogate from its own act when it makes no special mention of its intention so to do. As a corollary from the doctrine that implied repeals are not favoured, it has come to be an established rule in the construction of statutes that a September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 8 subsequent act, treating a subject in general terms and not expressly contradicting the provisions of a prior special statute, is not to be considered as intended to affect the more particular and specific provisions of the earlier act, unless it is absolutely necessary so to construe it in order to give its words any meaning at all. The reason and philosophy of the rule is, that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms or treating the subject in a general manner and not expressly contradicting the original act, shall not be considered as intended to affect the more particular or positive previous provisions, unless it is absolutely necessary to give the latter act such a construction, in order that its words shall have any meaning at all. As an example, section 97 of the Act provides for punishment for an offence where the death penalty is provided for non Child (such as the offence of murder under section 302 Penal Code), but in the case of a Child, it shall be “(1) A sentence of death shall not be pronounced or recorded against a person convicted of an offence if it appears to the Court that at the time when the offence was committed he was a Child.” The punishment shall be as provided under section 97(2) of the Act which reads as follows:

In lieu of a sentence of death, the Court shall order a person convicted of an offence to be detained in a prison during the pleasure of-September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 9

the Yang di-Pertuan Agong if the offence was committed in the Federal Territory of Kuala Lumpur or the Federal Territory of Labuan; or

the Ruler or the Yang di-Pertua Negeri, if the offence was committed in the State. However, the Child Act 2001 does not render the offence of murder under section 302 Penal Code, otiose. What it does is, the offence of murder still exist in every sense of the definition as provided for under section 300 Penal Code. It is the penalty for the commission of murder that it overrides. Generalia Specialibus Non Derogant, in this context, does not make the offence of murder (as defined under section 300 Penal Code) as legal. It is illegal, without a doubt. The only part that it supersedes is the punishment. Section 90 of the Act provides for the procedures to be followed by the Court for Children is hearing and trying a Child. It is reproduced for ease of reference. 90 Procedure in Court For Children

If a Child is brought before a Court For Children for any offence, it shall be the duty of the Court to explain to him in simple language suitable to his age, maturity and understanding the substance of the alleged offence.

The duty referred to in subsection (1) may be undertaken, under the supervision of the Court by-

the defence counsel acting for the Child; or September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 10

any other responsible person as determined by the Court.

After the substance of the alleged offence has been explained to the Child, the Court shall ask the Child whether he admits the facts constituting the offence.

If the Child admits the facts constituting the offence, the Court shall-

ascertain that the Child understands the nature and consequences of his admission; and

record a finding of guilt.

If the Child does not admit the facts constituting the offence, the Court shall then hear the evidence of the witnesses in support thereof.

At the close of the evidence in chief of each witness, the witness may be cross-examined by or on behalf of the Child.

The Court For Children shall, except if the Child is legally represented, allow the Child's parents or guardian or any relative or other responsible person to assist him in conducting his defence.

If in any case where the Child is not legally represented or assisted in his defence as provided for in subsection (7), the Child, instead of asking questions by way of cross-examination, makes assertions, the Court For Children-

may put to the Child such questions as may be necessary in order to bring out, or explain anything in, the assertions of the Child; and

shall then put to the witness such questions as the Court thinks necessary on behalf of the Child. September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 11

If it appears to the Court that a prima facie case is made out-

the Court shall explain to the Child the substance of the evidence against him and, in particular, any points in the evidence which specially tell against him or require his explanation;

the Child shall be allowed to-

give evidence upon oath or affirmation; or

(ii) make any statement if he so desires; and

the evidence of any witness for the defence shall be heard.

If the Court For Children finds the Child is not guilty, the Court shall record an order of acquittal.

If-

a finding of guilt has been recorded; or

the Court is satisfied that the offence is proved, the Child and the Child's parent or guardian or other responsible person, if present, shall then be asked if they desire to say anything in extenuation or mitigation of the penalty or otherwise.

A probation report referred to in subsection (12) shall be prepared and submitted by the probation officer within thirty days from the date the direction September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 12 is given by the Court For Children to the probation officer to prepare and submit the probation report and the report-

shall contain such information as to the Child's general conduct, home surroundings, school record and medical history as may enable the Court For Children to deal with the case in the best interests of the Child; and may put to him any question arising out of the probation report; and

may include any written report of a Social Welfare Officer, a registered medical practitioner or any other person whom the Court For Children thinks fit to provide a report on the Child.

For the purpose of obtaining a probation report, the Court For Children may from time to time release the Child on bail or remand him in a place of detention.

If the Court For Children has considered the probation report, the Court shall explain to-

the Child the substance of any part of the report bearing on his character or conduct which the Court considers to be material to the manner in which he should be dealt with; and

If the Child or his parent or guardian, having been explained the substance of any part of any such probation report under subsection (15), desires to produce information with respect to the report, the Court shall, if it thinks that the information is material-September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 13

adjourn the hearing for the production of further information; and

if necessary, require the person who made the report to attend the hearing when it resumes.

Before deciding on the order to be imposed, the Court shall ascertain from each of the advisers his opinion and all such opinions shall be recorded.

After having recorded and considered the opinions of the advisers, the Court shall decide on the order to be imposed, but in so doing the Court-

shall not be bound to conform to the opinions of the advisers or either of them; and

shall record its reasons for dissenting from such opinions. When a Child is brought before a Court For Children for any offence, the Court must: i. explain to him in simple language ii. the explanation must be suitable to his age, maturity and understanding of the substance of the alleged offence. iii. The Court may seek the assistance of the defence counsel acting for the Child; or any other responsible person as determined by the Court. The purpose of this procedure is to ensure the Child knows what he is facing. Therefore in seeking assistance of the defence counsel or other responsible persons, the Court must supervise the process or ensure that the parties that are rendering such assistance must extend the assistance in the best manner possible given the facts and September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 14 circumstances of the case. Other responsible persons include (but not limited to) pediatrician or Child psychologist or guardian or even parents when and if the need arises. Objectivity must be maintained at all times as well as a high level of professionalism. In sub section (7), there is a departure from the general rule that no one except a counsel or the accused person himself may assist in court in the conduct of defence. The Court For Children shall allow the Child's parents or guardian or any relative or other responsible person to assist him in conducting his defence. The only exception is when the Child has legal representation. The duty of a defence counsel for a Child is a little more onerous than his adult client. He must, as best as he can, explain the facts and circumstances of the case to the Child. This include explaining the proceedings of the day (or days) failing which, the Counsel would be considered as not fulfilling his duties properly. It is only if and when the Child refused such assistance that the Counsel may abstain himself from so doing. It has been brought to the attention of the Court that when there was finding of guilt, the grandfather or aunty (both of whom were in attendance) were not ask of what they wish to say, to the Court for Children as reproduced what is in the Appeal Records. The proceedings as reflected in Volume 2(a) at pages 1-2 are as follows: (English translation). 23 Oct 2019 Magistrate : Mohd Syafiq bin Mustaza September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 15 Deputy Public Prosecutor : Dewi Jasmine Amalina binti Ahmad Defence Counsel : (none) Welfare Officer : Silanorasismawati binti Mohd Zin Advisor 1 : Saidatol Aini bt Jafri Advisor 2 : Mohd Khairul Azlan bin Mahbob Child offender present with grandfather and aunty Charge read and explained to the Child Offender in Malay Language. Child Offender understands the charge and pleaded guilty to the charge and understands the nature and consequences of the plea of guilty. Facts of the case – P1 (read and admitted as correct) Police Report Parit Raja 1276/19 – P2 Police Report Parit Raja 1639/19 – P3 Police Report Parit Raja 1675/19 – P4 3 photographs of the scene of incident P5(a)-(c) 6 photographs of exhibits P6(a)-(f) 2 photographs of Motorcycle P7(a)-(b) Motorcycle Grant / Ownership Certificate – P8 Probation Report - P9 Advisor 1: Agree with the Welfare Officer’s recommendations Advisor 2: Send to Sungai Buloh Deputy Public Prosecutor: Loss valued at RM1500-00. 2nd offence. Ask for the Child Offender under section 91(1)(f) of the Act to be sent to Henry Gurney School. Mitigation: I will turn over a new leaf. Give a chance. September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 16 Court: Child Offender is found guilty and ordered to be sent to Henry Gurney School under section 91(1)(f) the Act for a period of 3 years from the date of the Order. Signed Mohd Syafiq bin Mustaza The allegation now is that according to the Appeal Record at Volume 3(a) there was no invitation to the grandfather and / or aunty to address the Court before sentencing but the Transcripts (Enclosure A) prepared by the Learned Counsel for the Appellant at page 12 clearly shows as follows: (I took the liberty of translating the proceedings which was conducted in the Malay Language into English). Line 18 Judge (Magistrate) : (to the grandfather) do you wish to say anything? What do you wish to say? Grandfather : (inaudible) please send to Approved School (Asrama Akhlak in Kempas) sir. Judge (Magistrate) : (to the aunty) Madam, do you wish to say anything? Aunty : I hope that he can be sent to an approved school and he can continue his studies. …. Page 13 line 8 Judge (Magistrate) : so isn’t it better for you to be in Henry Gurney School? Anything else? (to the grandfather) please speak. You can also say something (if you want) I will allow you to speak. Grandfather : I only ask for the sentence. September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 17 Having read the Transcripts which both the Learned Deputy and the Learned Counsel have no objection to, I found both the grandfather and aunty were not estopped from speaking. On the contrary, the Learned Magistrate actually allowed the grandfather to speak twice, not just once. Even the aunty was allowed to say something. What is the position of the law in respect of this? Section 90(11) stipulates “(11) If-(a) a finding of guilt has been recorded; or (b) the Court is satisfied that the offence is proved, the Child and the Child's parent or guardian or other responsible person, if present, shall then be asked if they desire to say anything in extenuation or mitigation of the penalty or otherwise.” The parties that are allowed to address the Court are: i. The Child ii. The Child’s parents or guardian or other responsible person (if any of them are present) In our instant appeal, it is on record that the biological mother is away in prison serving time for drugs related offences. Hence the Child has been taken care of by the aunty (who was present) and the grandfather (who attended Court as well). I have asked the Learned Counsel for the Appellant whether the aunty (who took care of the Child ever since the mother served time in prison) September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 18 or the grandfather have officially adopted the Child as their adopted son (ward). The Learned Counsel replied in the negative. Under section 2 of the Act, there are a few terminologies that this Act uses and this Court must consider them. a. “Guardian” is defined as “in relation to a Child, includes any person who, in the opinion of the Court For Children having cognizance of any case in relation to the Child or in which the Child is concerned, has for the time being the charge of or control over the Child; b. "member of the family" includes “a parent or a guardian, or a relative;” c. "foster parent" means “a person, not being a parent or a relative of a Child-

to whom the care, custody and control of a Child has been given by order of a Court under subparagraph 30(1)(c)(i); or

permitted by the Protector under section 35 or 37, as the case may be, to receive a Child into his care, custody and control;” In comparison, the other laws in the Country have slightly different definitions of the word “Guardian” The MUSLIM WILLS ENACTMENT 2017 defines “Guardian” as “means a person who is entitled to act as a guardian of property for a Child September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 19 under the age of eighteen or a person of unsound mind and includes a person appointed as a guardian by a Judge;” A Guardian is defined as: i. a person who is entitled to act as a guardian of property for a Child under the age of eighteen or a person of unsound mind and ii. includes a person appointed as a guardian by a Judge;” The LEGAL AID ACT 1971 defines “Guardian” as “in relation to an infant includes without prejudice to the generality of the expression, such person as the Director General considers might properly be appointed to be the next friend or guardian ad litem of the infant;” A Guardian is defined as: i. such person as the Director General considers might properly be appointed to be the next friend or guardian ad litem of the infant; ii. includes without prejudice to the generality of the expression The JUVENILE COURTS ACT 1947 (REVISED 1972) (REPEALED BY THE CHILD ACT 2001 [ACT 611]) defined “Guardian” as “in relation to a Child or young person, includes any person who, in the opinion of the court having cognizance of any case in relation to the Child or young person or in which the Child or young person is concerned, has for the time being the charge of or control over the Child or young person;” A guardian is defined as: September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 20 i. includes any person who, in the opinion of the court having cognizance of any case in relation to the Child or young person or ii. in which the Child or young person is concerned, has for the time being the charge of or control over the Child or young person;” The POST OFFICE SAVINGS BANK ACT 1948 (REVISED 1973) (REPEALED BY THE BANK SIMPANAN NASIONAL ACT 1974 [ACT 146]) defined “Guardian” as “means the father of a minor, or if the father is dead, the mother, or, if both parents are dead, absent from Malaysia or are incapable of acting owing to disability or other cause and no guardian of the minor has been appointed by will or deed, or under any written law for the time being in force, or by ant competent court, any adult person with whom the minor is residing and by whom he is being maintained;” A Guardian is defined as: i. the father of a minor, or ii. if the father is dead, the mother, or, iii. if both parents are dead, absent from Malaysia or are incapable of acting owing to disability or other cause and no guardian of the minor has been appointed by will or deed, or under any written law for the time being in force, or by ant competent court, any adult person with whom the minor is residing and by whom he is being maintained;” In the ARMED FORCES (TERMS OF SERVICE OF REGULAR FORCES) REGULATIONS 2013 defines “Guardian” as “in relation to a Child, means any person or association or persons, other than his September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 21 natural parents, who has legal custody of the Child according to the law;” A Guardian is defined as: i. any person or association or persons, other than his natural parents, and ii. who has legal custody of the Child according to the law In the REGISTRATION OF ADOPTIONS ACT 1952 (REVISED 1981 defines “Guardian” as “means the person having the legal right to the custody of the Child;” A Guardian is defined as: i. the person having the legal right to the custody of the Child; and ii. is other than the natural parent In the ADOPTION ACT 1952 (REVISED 1981) “Guardian” is defined as “in relation to a Child, means any person or body of persons other than its natural parents, who has custody of the Child;” A Guardian is defined as: i. any person or body of persons other than its natural parents, ii. who has custody of the Child;” In the CHILDREN AND YOUNG PERSONS (EMPLOYMENT) ACT 1966 (REVISED 1988), “Guardian” is defined as “in relation to Child or young person, includes any person who, in the opinion of the court having cognizance of any case in relation to the Child or young person or in which the Child or young person is concerned, has for September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 22 the time being the charge of or control over the Child or young person;” The Guardian is defined as: i. includes any person who, in the opinion of the court having cognizance of any case in relation to the Child or young person or in which the Child or young person is concerned, ii. has for the time being the charge of iii. or control over the Child or young person; In the CHILD PROTECTION ACT 1991 (REPEALED BY THE CHILD ACT 2001 [ACT 611], “guardian” is defined as “of a Child means a parent of the Child, or any person lawfully appointed by deed or will or by the order of a competent Court to be the guardian of the Child, or a person who has lawfully adopted the Child, and includes any person who has lawful custody of the Child;” The Guardian is defined as: i. a parent of the Child, or ii. any person lawfully appointed by deed or will or by the order of a competent Court to be the guardian of the Child, or iii. a person who has lawfully adopted the Child, and iv. includes any person who has lawful custody of the Child;” In the MENTAL HEALTH ACT 2001, “Guardian” is defined as “in relation to a minor, means the parent or parents of the minor, or a person lawfully appointed by will or by an order of a competent Court to be the guardian of the minor, or a person who has lawful custody of the minor;” September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 23 Guardian is defined as: i. the parent or parents of the minor, or ii. a person lawfully appointed by will or iii. by an order of a competent Court to be the guardian of the minor, or iv. a person who has lawful custody of the minor; There is a difference between a legal guardian and a guardian per see. A legal guardian is a person who has the legal authority (and the corresponding duty) to care for the personal and property interests of another person, called a ward. A Guardian per see is one who has effective control or is in charge of a Child, whether or not, the guardian is given the legal guardianship. Most of the laws in Malaysia take cognizance of person or persons who is in control or is in charge of the Child. In the Child Act 2001, this specifically mentioned as “in relation to the Child or in which the Child is concerned, has for the time being the charge of or control over the Child;” It is not in dispute that the Aunty and / or grandfather has had the charge of or control over the Child while his mother is either serving sentence or away for one reason or the other. It is the view of this Court that since the aunty and / or the grandfather has had the control of or charge of the Child, while there are no formal September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 24 adoption or legal custody being granted by a Court of Law, they are the Guardian(s) per se of the Child and may act as such before any Court in the Country. Suffice that I say, the Court recognises them as such. Since, in the Transcripts (Enclosure A) as supplied by the Learned Defence Counsel and not objected to by the Learned Deputy, I found that the Aunty and the grandfather were both invited by the Learned Magistrate presiding over the Court for Children to address the Court, the provisions of section 90(11) of the Act has been fulfilled. There has been full compliance with the law and no miscarriage of justice has been occasioned. ii. The Court for Children erred in law and in fact in not explaining the Probation Report to the Child and hence by taking it into account, the Learned Magistrate has erred in law and in fact in applying the judicial principles in sentencing. In Enclosure A and B, the Transcripts that both parties have agreed to be accepted as Court Records of the proceedings and I declare it to be so, I have perused over the proceedings for the admission of the Probation Report. Puan Silanorasismawati binti Mohd Zin is the Welfare Officer, who prepared the Probation Report. According to the Transcripts at 10.46 am, she affirmed on oath, of the Report she prepared. She explained the contents of her report and that she was informed by the guardians of the Child that they are unable to take care of the Child and they are agreeable for the Child to be sent to an approved school (Asrama Akhlak Kempas). The Child addressed the Court and ask for the same. September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 25 Both the aunty and his grandfather, echoed the same views when invited by the Court. The Child said in Court that he has family problems, and he was influenced by friends outside the house. For the 1st case, JB-41H-65-11/2019, the Learned Magistrate, having heard all parties and the 2 Advisors, ordered that the Child be send to an approved school i.e. Asrama Akhlak Kempas for a year. The Child’s grandfather and his aunty who were present in Court were both the person who took care of the Child, also ask for Asrama Akhlak Kempas. For the 2nd case, JB-41H-64-11/2019, one of the Advisors, Encik Mohd Khairul Azlan bin Mahbob changed his mind and is of the view that Henry Gurney School is more appropriate. The reason is that after coming to know that the Child had other cases of stealing, keeping and disassembling motorcycle parts, he is of the view that Henry Gurney School is more appropriate (Enclosure B page 6 line 34 and 7 line 1-7) As the Child, both his Guardians (the grandfather and aunty) were all in Court when the Welfare Officer testified on oath of the Probation Report she prepared and tendered, they were able to hear what was said by the Welfare Officer. All of them could understand the language and they all addressed the Court. I found that they understood the meaning and contents of the Probation Report. Section 90(15) of the Act reads as follows:

If the Court For Children has considered the probation report, the Court shall explain to-September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 26

the Child the substance of any part of the report bearing on his character or conduct which the Court considers to be material to the manner in which he should be dealt with; and

the parent or guardian, if present, the substance of any part of the report which the Court considers to be material to the manner in which the Child should be dealt with and which has reference to the character, conduct, home surroundings, or health of the Child. In my view, since the Welfare Officer spoke in Malay and the Child and his 2 guardians are also Malay speaking people, the fact that the Welfare Officer tendered in Court and explained the contents of the Probation Report (P10) it is sufficient for the purpose of section 90(15) of the Act. The Welfare Officer who prepared the report, is the same person who interviewed the Child and the guardians and other witnesses, and gave evidence on oath in Court on the Probation Report she prepared. She is trained to explain the contents of her report. Hence by calling the Welfare Officer to the witness stand, it is sufficient for the fulfilment of section 90(15) of the Act. This is especially important if the Learned Magistrate wishes to take in account the Probation Report in his decision. I found that he did. I also find that he was right is calling the very officer who prepared the report. No miscarriage of justice that warranted appellate intervention has occurred. iii. The Court for Children therefore erred in law and in fact for sending the Child to Henry Gurney School without taking into account the Probation Report. September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 27 It is on record that for the 2nd case which is JB-41H-64-11/2019, one of the Advisors, Encik Mohd Khairul Azlan bin Mahbob changed his mind and is of the view that Henry Gurney School is more appropriate. The reason is that after coming to know that the Child had other cases of stealing, keeping and disassembling motorcycle parts, he is of the view that Henry Gurney School is more appropriate (Enclosure B page 6 line 34 and 7 line 1-7) The Learned Magistrate in his written judgment, inter alia, considered the following grounds: i. The Child is 16 years of age. He is not schooling although based on the age, he should be in Form 4. ii. In the Probation Report, the Child told the Welfare Officer that he is lazy and / refused to go to school. iii. The guardians, did not insist on the Child being in School but instead allowed him to be absent from school. iv. In the Learned Magistrate’s view, the guardians are unable to take charge of the Child that resulted in the crimes committed and that the System must come in to assist the Child in getting an education. I have perused over P10 which is the Probation Report and I am satisfied that the Learned Magistrate has taken into account of the Probation Report although for the 2nd case which is JB-41H-64-11/2019, the view of an Advisor is that the Child should be placed in Henry Gurney School. September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 28 In reading section 91 of the Act, it has been provided for by the law. I reproduced the provision for ease of reference. 91 Powers of Court For Children on proof of offence

If a Court For Children is satisfied that an offence has been proved the Court shall, in addition to any other powers exercisable by virtue of this Act, have power to-

admonish and discharge the Child;

discharge the Child upon his executing a bond to be of good behaviour and to comply with such conditions as may be imposed by the Court;

order the Child to be placed in the care of a relative or other fit and proper person-

for such period to be specified by the Court; and

(ii) with such conditions as may be imposed by the Court;

order the Child to pay a fine, compensation or costs; (da) make a community service order;

make a probation order under section 98;

order the Child to be sent to an approved school or a Henry

Gurney School;

(Deleted by Act A1511: s.66)

impose on the Child, if he is aged fourteen years and above and the offence is punishable with imprisonment and subject to subsection September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 29 96(2), any term of imprisonment which could be awarded by a Sessions Court.

The words "conviction" and "sentence" shall not be used in relation to a Child dealt with by the Court For Children and any reference in any written law to a person convicted, a conviction and a sentence shall, in the case of a Child, be construed as a Child found guilty, a finding of guilt and an order made upon a finding of guilt respectively.

A finding of guilt of a Child shall be disregarded for the purposes of any written law which-

imposes any disqualification or disability upon a convicted person; or

authorizes or requires the imposition of any such disqualification or disability. The Law provide for the following Orders in respect of the Child upon the finding of guilt:

admonish and discharge the Child;

discharge the Child upon his executing a bond to be of good behaviour and to comply with such conditions as may be imposed by the Court;

order the Child to be placed in the care of a relative or other fit and proper person-

for such period to be specified by the Court; and

(ii) with such conditions as may be imposed by the Court;

order the Child to pay a fine, compensation or costs;

(da) make a community service order;

make a probation order under section 98; September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 30

order the Child to be sent to an approved school or a Henry

Gurney School;

(Deleted by Act A1511: s.66)

impose on the Child, if he is aged fourteen years and above and the offence is punishable with imprisonment and subject to subsection 96(2), any term of imprisonment which could be awarded by a Sessions Court. I found (a), (b) and (c) unsuitable on the followings grounds; The Child has committed an offence with an older Child. The offences that he committed are of a nature that carries a minimum of 1-year imprisonment and a maximum of 7 years and whipping (to a maximum of 24 strokes). His biological mother is obviously unable and equally unsuitable to take care of him, for reasons among others, she is personally serving sentence for drugs related offences, had just delivered a baby and has not taken care of the Child for quite a while. The 2 Guardians, on the other hand, are unable to guide the Child by not ensuring his education continues as well as unable to know his activities. They admitted to the Welfare Officer (as per the content of P10) that they are unable to control the Child. Further they are agreeable to the notion that the Child is send to an approved school (Asrama Akhlak Kempas). Even in the Transcripts taken from the CRT recordings they said the same thing to the Court for Children. I am also of the view that Section 91 (da) and (e) are unsuitable because all these Orders requires a strong and stable family / guardians that ensure compliance with the Order(s) and the support system or September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 31 environment for the Child to complete the rehabilitation. Since this is either weak or absent, these options are unsuitable. I am also of the view that Section 91(d) is also unsuitable because the Child and the family will not be able to raise the sum needed and the result is that the Child will serve time in custodial sentence in default of the fine. The compensation will be at best, a paper judgment. Both will not be rehabilitating the Child, something he needs the most. Hence section 90(f) is the most suitable. I find the Child to have certain skills such as opening locks of motorcycles and disassembling the parts of the motorcycle but he needs education to show him the way to use his skills in a manner that does not offend the law and he will reap the benefits in the years to come. I know for a fact that in approved schools, the Child will stay in a hostel under strict supervision but will attend normal schools. Of course, he could play truant and more may come but the modules and programmes that are in place in approved schools would be sufficient to handle the situation. Hence, I am more inclined towards the approved schools. Of course, he says that he can change for the better at home with the Guardians in check but as the maxim goes “nemo judex in causa sua”. I am quite satisfied that approved Schools will afford the guidance and supervision that the Child needs. However, I am of the considered view that, on the facts and circumstances of the Child and the case, Henry Gurney School could not afford better rehabilitating conditions for the Child. September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 32 While I find no fault in the reasoning of the Learned Magistrate and the view of the Advisor (at least one of them). I have my reservations on the suitability of Henry Gurney School. I find imprisonment under section 90(h) of the Act, a little too harsh and is unproductive if we wish to rehabilitate the Child. I will not consider it any more. iv. What is a Probation / Social Report under the law and the requirements under the law in the preparation of such a report. The word “probation report” is found in section 2 Child Act 2001 as it is defined as “"probation report" means “a report prepared by a probation officer under subsection 90(13);” In section 90(13) of the Act, it mentioned the report in the following terms, “(13) A probation report referred to in subsection (12) shall be prepared and submitted by the probation officer within thirty days from the date the direction is given by the Court For Children to the probation officer to prepare and submit the probation report and the report-

may include any written report of a Social Welfare Officer, a registered medical practitioner or any other person whom the Court For Children thinks fit to provide a report on the Child. “Probation Report” comes from 2 words i.e. “probation” and “report”. “Probation” here comes from the root word “probe”. The Malay Language used the term “laporan Akhlak” for Children and “laporan social” for youthful offenders. It does not detract from the fact that the word “probation report” which is used in the English language version of the laws and I shall use the term “Probation Report” to mean the same, throughout this judgment. The Cambridge Dictionary (Cambridge University Press 2020) defines “probe” as the following: i. to try to discover information that other people do not want you to know, by asking questions carefully and not directly: ii. to examine something with a tool, especially in order to find something that is hidden: Hence a probation report (“the report”) is a report prepared by an officer of the Court to assist the Court by finding out or examining information about the probationer which is either previously unknown to many or to discover what is hidden about the probationer. In Malaysia, that task falls upon the shoulders of Welfare Officers who are trained for the purpose. There are 2 parts to the report namely: a. fact finding part (as per section 90(13) (a) of the Act). b. interpretation of the facts. (as per section 90(13) (b) of the Act). September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 34 The officer that is being directed to put up the report is treated or accepted as an officer of the Court (“amicus curiae”). He may or may not be an expert within the meaning of section 45 Evidence Act 1950. However, an expert here is one who is skilled in a particular Science or Arts. But he must have some grounding on a discipline called “Social Work”. The term “Social Work” is an academic discipline and practice-based profession that concerns itself with individuals, families, groups, and communities in an effort to enhance social functioning and overall well-being. This is based on the definition given by the Canadian Association of Social Workers on their website (www.casw-acts.ca.) In a working paper "Global Definition of Social Work | International Federation of Social Workers". (www.ifsw.org), the following definition was approved by the IFSW General Meeting and the IASSW General Assembly in July 2014: [...] 'Social work is a practice-based profession and an academic discipline that promotes social change and development, social cohesion, and the empowerment and liberation of people. Social functioning is defined as the ability of an individual to perform their social roles within their own self, their immediate social environment, and the society at large. Social work applies social sciences, such as sociology, psychology, political science, public health, community development, law, and economics, to engage with client systems, conduct assessments, and develop interventions to solve social and personal problems; and to bring about social change. Social work practice is often divided into micro-work, which involves working directly with individuals or small groups; and macro-work, which involves September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 35 working with communities, and - within social policy - fostering change on a larger scale. There are some variations of the definition of social work. “Social work is a practice-based profession and an academic discipline that promotes social change and development, social cohesion, and the empowerment and liberation of people. Principles of social justice, human rights, collective responsibility and respect for diversities are central to social work. Underpinned by theories of social work, social sciences, humanities, and indigenous knowledge, social work engages people and structures to address life challenges and enhance well-being." –International Federation of Social Workers (website : www.ifsw.org ) "Social work is a profession concerned with helping individuals, families, groups and communities to enhance their individual and collective well-being. It aims to help people develop their skills and their ability to use their resources and those of the community to resolve problems. Social work is concerned with individual and personal problems but also with broader social issues such as poverty, unemployment, and domestic violence." –Canadian Association of Social Workers (website : www.casw-acts.ca. ) “Social work practice consists of the professional application of social work values, principles, and techniques to one or more of the following ends: helping people obtain tangible services; counseling and psychotherapy with individuals, families, and groups; helping communities or groups provide or improve social and health services, September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 36 and participating in legislative processes. The practice of social work requires knowledge of human development and behavior; of social and economic, and cultural institutions; and the interaction of all these factors." –National Association of Social Workers (website : www.https://www.socialworkers.org/ ) "Social workers work with individuals and families to help improve outcomes in their lives. This may be helping to protect vulnerable people from harm or abuse or supporting people to live independently. Social workers support people, act as advocates and direct people to the services they may require. Social workers often work in multi-disciplinary teams alongside health and education professionals." –British Association of Social Workers (website : https://www.basw.co.uk/ ) Social work law is a general term that refers to the legal aspects of social work practice, such as understanding the general relationship between the justice system and social work, having a working knowledge of the laws and regulatory agencies that affect one's particular area of social work, and being prepared to serve as a witness in courtroom cases. Hence in carrying out the task of preparing a Probation Report which is part and parcel of social work, a social worker (in this context a Welfare Officer) must to be honest, objective, knowledgeable and diligent. His Report will affect the lives of many as the Court who directed such a report be prepared to assist the Court in making an appropriate. This is because section 90(12) of the act reads as follows: September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 37

The Court For Children shall, before deciding how to deal with the Child, direct a probation officer to prepare and submit a probation report to the Court for the Court to consider the probation report. The 1st reported case in Malaya on the impact of the probation report is ONG AH THOO v R [1949] 1 MLJ 36 where his Lordship, Chief Justice Murray-Aynsley said, inter alia, In this case the appellant, a boy of about 16 years of age, had been convicted of stealing two tins of petrol. He was ordered by the learned Magistrate in charge of the Juvenile Court to be detained in the Boys' Home at Bukit Timah for two years. He appeals against conviction and sentence. As regards the conviction, there was nothing to be said. As regards sentence, I was very much assisted by a valuable report by the Probation Officer which contained information as to the circumstances of the appellant. He had the misfortune to lose his father early in life and, probably owing to the Japanese occupation, he had received very little education. In spite of this he seems to have worked as opportunity offered and to have helped to support his mother. At the time the offence was committed he had quite a good job, and seems to have been a good worker and to have given satisfaction to his employers. He had an uncle willing to stand surety for his good behaviour. In the circumstances, although I realised that a stay in the Boys' Home might remedy the lack of education of the appellant, I considered that the case might be dealt with less drastically and that binding-over might be usefully resorted to; I therefore ordered accordingly. There seems to have been some doubt in the mind of the learned Magistrate as to the proper method of bringing in the report of the Probation Officer. I think that the right way is for the Probation Officer to be called as a witness and to give the substance of the report as evidence. This is September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 38 done by police officers who are able to furnish valuable reports in all criminal cases which are of great assistance to Judges when it comes to passing sentence. Although not mentioned specifically as a probation report, sections 293 and 294 Criminal Procedure Code have some procedures that would point in the direction that a Probation Report should be prepared. Section 293 reads,

When any youthful offender is convicted before any Criminal Court of any offence punishable by fine or imprisonment, the Court may, instead of awarding any term of imprisonment in default of payment of the fine or passing a sentence of imprisonment- ...

deal with the offender in the manner provided by the Child Act 2001 [Act 611]; or Section 294 reads as follows,

When any person has been convicted of any offence before any Court if it appears to the Court that regard being had to the character, antecedents, age, health or mental condition of the offender or to the trivial nature of the offence or to any extenuating circumstances under which the offence was committed it is expedient that the offender be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond with or without sureties and during such period as the Court may direct to appear and receive judgment if and when called upon and in the meantime to keep the peace and be of good behaviour. In order for the Court to ascertain, the character, antecedents, age, health or mental condition of the offender or to the trivial nature of the offence or to any extenuating circumstances under which the offence was committed, the Court must obtain the assistance of the Welfare September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 39 Officer to probe on these facts. This too comes in the form of a Probation Report. In the oft-cited case of TUKIRAN BIN TAIB v PUBLIC PROSECUTOR [1955] 1 MLJ 24, his Lordship Justice Bellamy, talks of the need for a probation report in the following words, In this case Tukiran bin Taib was charged in the Magistrate's Court at Tanjong Karang with the theft of 167 coconuts under Section 379 of the Penal Code. He pleaded guilty and was sentenced to four months' imprisonment. As the accused is 17 or 18 years old, I called for the record of the proceedings to satisfy myself as to the propriety of the prison sentence imposed by the Magistrate. The facts, which I am assured by the Deputy Public Prosecutor were admitted in Court by the accused, briefly were these. On 1st December, 1954 about 3 p.m. a watchman patrolling Banjor Estate, a coconut plantation at Kampong Batu Lima, caught the accused red-handed on the estate unhusking coconuts which he had recently plucked by means of a bamboo pole from two lines of twelve coconut trees on the estate. When asked for an explanation, the accused glibly stated that he was merely working for a Chinese who had purchased the coconuts in question from the clerk in charge of the estate. So saying, he put the coconuts he had already unhusked into a sack and sauntered off into a neighbouring plantation. The watchman then made enquiries concerning what the accused had told him, and it was then discovered his story was false and that in fact the accused had plucked, and removed, the coconuts without the consent of the owner of the estate or the clerk in charge thereof. The theft was reported to the police who arrested the accused on the following day. In mitigation, the accused told the Magistrate that he had "no 'wang'; (money) for expenses. – …. Secondly, before passing sentence Magistrates should first make careful inquiries "regarding the background, antecedents and September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 40 character– of the convicted undefined person, (See ABU BAKAR BIN ALIF V R (1953) MLJ 19), and this is particularly of importance when the convicted person is a young offender and it is contemplated imposing a sentence of imprisonment. A probation officer's report should always be called for, and a Magistrate should not hesitate to adjourn the case in order to obtain such a report before passing sentence. Inexperienced Magistrates sometimes are in doubt as to the proper manner of bringing in such a report. The probation officer should be called as a witness and give the substance of this report in evidence. In RE JOHARI BIN RAMLI [1956] 1 MLJ 56, his Lordship Justice Wilkinson explained that “I therefore adjourned the case in order to obtain a full report from the Probation Officer. It appeared from this report that the accused had been a driver of heavy motor vehicles; and upon inquiry it has been ascertained that although his driving license has expired he will be able to obtain a new one without further test. The Probation Officer was of opinion that the accused genuinely desired to turn over a new leaf. I came to the conclusion therefore that my proper course was to bind him over on probation.” His Lordship, Justice Smith in TEH YEW WHATT v PP [1958] MLJ 171 said this, It is always desirable before imposing a sentence of imprisonment on a person below the age of 21 to consider the powers under section 40 of the Juvenile Courts Ordinance, 1947 and to call for a probation officer’s report to establish the background of the person about to be sentenced. In this case the appellant had pleaded guilty to and was convicted of an offence of kidnapping contrary to section 365 of the Penal Code. The learned Judge called for a probation officer’s report and from it he was satisfied September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 41 that the proper order in the case was that the appellant should be detained in a Henry Gurney School until he attained the age of 21 years. This Probation Report has indeed, a hugh impact on the life of the young offender / Child. As in medical prescriptions, a doctor diagnoses a patient of the nature and the extent of the illness suffered by the patient. Then the good doctor prescribes the proper treatment with or without medication. Unlike a medical treatment, the diagnosis is done by the probation officer (in our case, a Welfare Officer) but the final treatment or medication is decided by the Court. It is utmost importance to realised the contents of the Probation Report must be admissible, relevant and of good value. The Probation Officer is very much like a medical doctor in treating patients but in the context of social engineering and rehabilitation. The importance of the Probation Officer is akin to a social “medical doctor”. Hence in the yesteryears, a probation report had a hugh influence on the decisions of the Courts. Coming back to the contents of a probation report, as alluded to earlier there are two parts to the report, namely, the fact-finding part and the interpretation of the facts part. For the facts-finding part, it must be remembered and strongly too, that it is facts that is needed and it shall be used in a court of law. It must be totally objective and shall be fully governed by the Evidence Laws (among others but not limited to, the Evidence Act 1950) Hence, the legal principles such as Rule against Hearsay must be strictly observed. Hence both oral and documentary evidence must comply with section 60, which reads, September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 42 60 Oral evidence must be direct

Oral evidence shall in all cases whatever be direct, that is to say-

if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;

if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.

The opinions of experts expressed in any treatise commonly offered for sale and the grounds on which such opinions are held may be proved by the production of the treatise if the author is dead or cannot be found or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable.

If oral evidence refers to the existence or condition of any material thing including a document, the court may, if it thinks fit, require the production of that material thing or the document for its inspection. Exceptions are such as those in sections 32, 45, 56, 57, 58, 63, 74, 90A, Evidence Act and a few others in the Malaysian Law. Allowances may be given to the extent, if it is obtained from a source, the source must be named in the report (akin to Or 41(5)(2) which September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 43 stipulates “(2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information of belief with the sources and grounds hereof.”) Hence, words to the like effect, “it is understood that …” (“adalah difahamkan..”) must be totally banished from the Probation Report as it invites hearsay and prevents the effort to ascertain the source and truthfulness of the source. As an example, if the Probation Officer wishes to mention about comments from teachers of the Child’s former school, the names of the teachers must be mentioned in full and when or what did, the teachers concerned, teach the Child and the observations of the said teachers of the Child. This allows the Court, in satisfying itself as to the truthfulness of that piece of evidence or if the Court finds it necessary to elicit further evidence, the Court is able to trace the whereabouts of the teachers concerned and issue subpoena for the teachers’ presence in court. Likewise, the same rules apply to friends of the Child, neighbours, family members or anyone mentioned in the Probation Report. The 2nd part of the Report, is the Interpretation of the Facts. Here, section 45 and 60(3) Evidence Act 1950 comes into play. Section 45 reads as follows, 45 Opinions of experts

When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 44 finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts.

Such persons are called experts. ILLUSTRATIONS

The question is whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died are relevant.

The question is whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The opinions of experts upon the question whether symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do or of knowing that what they do is either wrong or contrary to law, are relevant. …. An expert is not defined by the number of university degrees one possesses but the skill(s) and knowledge that is sufficient to explain properly the niche of science or art (as the case may be). Until a proper law such as the Social Workers Act is in place, it is a little tricky to ascertain an expert in social work. However, if a particular Welfare Officer by virtue of his diligence, knowledge and skill is able to show to the Court that his knowledge of social work is indeed in-depth and his understanding and command is September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 45 sound, his application of the knowledge is skillful, the Court is prepared to recognise him as an expert. I used to know personally, a retired Welfare Officer by the name of Tuan Haji Zaimi bin Abdul Rani, whose knowledge and skill were put into good use in setting up the Community Service Division of the Welfare Department of Malaysia. Theories on human psychology belonging to different schools of thoughts such as Carl Gustav Jung (more popularly known as Carl Jung) or Sigmund Freud or Abraham Harold Maslow (more well known as Abraham Maslow) to name but a few. Eastern thinkers on psychology such as Al Ghazzali or Al Ash'ath Bin Qais Al-Kindi (well known by the name of Al Kindi) or Ali Ibn Sahl Rabban At-Tabari or Abu Bakr Mohammad Ibn Zakariya Al-Razi (known in the West as “Rhazes”) may equally be applied. It is the skill of applying the knowledge of human psychology (both applied or pure) into the facts (which has been sieved by the Law of Evidence) that would lead to the recommendations for the wellbeing of the Child. In R. V JAMES HENRY SARGEANT (1974) 60 Cr. App. R. 74, Lord Justice Lawton succinctly puts it in this way, What ought the proper penalty to be? We have thought it necessary not only to analyse the facts, but to apply to those facts the classical principles of sentencing. Those classical principles are summed up in four words: retribution, deterrence, prevention and rehabilitation. Any judge who comes to sentence ought always to have those four classical principles in mind and to apply them to the facts of the case to see which of them has the greatest importance in the case with which he is dealing. September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 46 I will start with retribution. The Old Testament concept of an eye for an eye and tooth for tooth no longer plays any part in our criminal law. There is, however, another aspect of retribution which is frequently overlooked: it is that society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass. The courts do not have to reflect public opinion. On the other hand, courts must not disregard it. Perhaps the main duty of the court is to lead public opinion. Anyone who surveys the criminal scene at the present time must be alive to the appalling problem of violence. Society, we are satisfied, expects the courts to deal with violence. The weapons which the courts have at their disposal for doing so are few. We are satisfied that in most cases fines are not sufficient punishment for senseless violence. The time has come, in the opinion of this Court, when those who indulge in the kind of violence with which we are concerned in this case must expect custodial sentences. But we are also satisfied that, although society expects the courts to impose punishment for violence which really hurts, it does not expect the courts to go on hurting for a long time, which is what this sentence is likely to do. We agree with the trial judge that the kind of violence which occurred in this case called for a custodial sentence. This young man has had a custodial sentence. Despite his good character, despite the excellent background from which he comes, very deservedly he has had the humiliation of hearing prison gates closing behind him. We take the view that for men of good character the very fact that prison gates have closed is the main punishment. It does not necessarily follow that they should remain closed for a long time. I turn now to the element of deterrence, because it seems to us the trial judge probably passed this sentence as a deterrent one. There are two aspects of deterrence: deterrence of the offender and deterrence of likely offenders. Experience has shown over the years that deterrence of the offender is not a very useful approach, because those who have their wits about them usually find the closing of prison gates an experience September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 47 which they do not want again. If they do not learn that lesson, there is likely to be a high degree of recidivism anyway. So far as deterrence of others is concerned, it is the experience of the courts that deterrent sentences are of little value in respect of offences which are committed on the spur of the moment, either in hot blood or in drink or both. Deterrent sentences may very well be of considerable value where crime is premeditated. Burglars, robbers and users of firearms and weapons may very well be put off by deterrent sentences. We think it unlikely that deterrence would be of any value in this case. We come now to the element of prevention. Unfortunately, it is one of the facts of life that there are some offenders for whom neither deterrence nor rehabilitation works. They will go on committing crimes as long as they are able to do so. In those cases, the only protection which the public has is that such persons should be locked up for a long period. This case does not call for a preventive sentence. Finally, there is the principle of rehabilitation. Some 20 to 25 years ago there was a view abroad, held by many people in executive authority, that short sentences were of little value, because there was not enough time to give in prison the benefit of training. That view is no longer held as firmly as it was. This young man does not want prison training. It is not going to do him any good. It is his memory of the clanging of prison gates which is likely to keep him from crime in the future. I am of the view that since this Child is a little reluctant to go to school and he needs to be taken away from the company that he has been keeping, I find (as I have said earlier) fines or family care are but insufficient to assist the Child to turn over a new leaf. I find that notwithstanding the 2nd charge was of the same nature and both the 1st and 2nd charges are on different dates; the Child has never September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 48 been charged in Court before this. As such, it must be taken that there are no previous records prior to these 2 cases. As for Asrama Akhlak Kempas (or elsewhere), my little research showed that these are meant for those Children who are beyond the control of their parents and the parents made an application to have the Child admitted to this Asrama Akhlak. As such, in my view, for an offender like the Appellant, it is unsuitable. I find that since the offences committed does not involve violence nor does the Probation Report show that rehabilitation is but impossible, I am of the view that Henry Gurney School is a little harsh. As such, after giving my most anxious consideration, I find that Sekolah Tunas Bakti (an approved school dealing with offenders) is more appropriate. I am aware that, it is trite law that an appellate court will be slow to interfere with the sentence of the trial court merely because the appellate court would have imposed a different sentence. In this regard, in the case of BHANDULANANDA JAYATILAKE V. PP [1982] 1 MLJ 83 it was held: "Therefore sentences do vary in apparently similar circumstances with the habit of mind of the particular judge. It is for that reason also that this court has said it again and again that it will not normally interfere with sentences, and the possibility or even the probability, that another court would have imposed different sentence is not sufficient, per se, to warrant this court's interference." September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 49 The case of REX V BALL [1951] 35 Cr App R 164 is often mentioned when it comes to choose from different sentences having been imposed upon two prisoners convicted of the same crime at the same time. The principles of punishment set out in the judgment in that case are so important that I think it right to quote further from that judgment at some length. The judgment proceeds as follows: — "In deciding the appropriate sentence a Court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition, that if the offender is caught and brought to justice, the punishment will be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living. Our law does not, therefore, fix the sentence for a particular crime, but fixes a maximum sentence and leaves it to the Court to decide what is, within that maximum, the appropriate sentence for each criminal in the particular circumstances of each case. Not only in regard to each crime, but in regard to each criminal, the Court has the right and the duty to decide whether to be lenient or severe. "It is for these reasons, and with these purposes in view, that before passing sentence the Court hears evidence of the antecedents and character of every convicted person. It follows that when two persons are convicted together of a crime or series of crimes in which they have been acting in concert, it may be right, and very often is right, to discriminate between the two and to be lenient to the one and not to the other. The background, antecedents and character of the one and his whole bearing in Court may indicate a chance of reform if leniency is extended, whereas it may seem that only a harsh lesson is likely to make the other stop in his criminal career. – September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 50 Public Interest cannot be better served if a Child, repentant of his criminal ways, decided to turn over a new leaf, seek a path of reform and come back to society, a useful citizen of the country and a good member of his family. I must say, that this is when the Child is deserving and society and the Courts must afford him that opportunity. I have no hesitation to do so where the facts and circumstances warrants it. [3] CONCLUSION For the reasons aforesaid, I affirmed the findings of guilt of the Child on both charges but substituted the Order of sending the Child to Henry Gurney School for 3 years and the Order of sending him to Asrama Akhlak Kempas for one year with an Order (for both cases) that the Child be sent to Sekolah Tunas Bakti in Sungai Besi, Kuala Lumpur with effect from 23 October 2019 for a period of 3 years. Dated at Muar in the State of Johore this 13th day of September 2020 t.t. AWG ARMADAJAYA BIN AWG MAHMUD Judicial Commissioner High Court of Malaya Muar Johor Darul Ta’zim Curia Advisari Vult Counsels: September 13, 2020 Before the Honourable Judicial Commissioner Awang Armadajaya bin Awang Mahmud 51 For the Applicants : Safiah A. Aziz For the Respondent : Mustaqim bin Sukarno, Deputy Public Prosecutor Solicitors: For the Applicant Tetuan Safiah Aziz & Co. Batu 3 ¾, Jalan Bakri Lorong Abdul Karim 84000 Muar Johor. For the Respondent Timbalan Pendakwa Raya Pejabat Timbalan Pendakwa Raya Mezzanine Floor Muar Trade Centre, Jalan Petrie 84000 Muar Johor. Hearing Date : 16 August 2020 Decision Date : 13 September 2020

Something wrong on this page?

Wrong text, a broken link, out-of-date content, or a removal request — tell us and we'll check it against the official source.

Report an issue Request removal

Malaysian judgment

Case metadata

Court: High Court of Malaysia
Decision date: 13 Sept 2020
Case number: JB-41H-64-11/2019
Coram: YA TUAN AWANG ARMADAJAYA BIN AWANG MAHMUD
Practice area: 2 appeals against the Orders of the Court for Children pursuant to section 90 Child Act 2001 - charges of section 411 and 379A Penal Code - Pleaded guilty on both counts - 1st charge - sent to Henry Gurney School for 3 years pursuant to section 91(1)(f) Child Act 2001 - sent to an approved school (Asrama Akhlak Kempas) for 1 year pursuant to section 91(1)(f) Child Act 2001 - Learned Counsel filed a copy of the Transcripts of the proceedings - because she said the Notes of Proceedings supplied by the Court did not contain details of what transpired - no objection by the DPP - While it is not a requirement to provide a Transcripts of the proceedings, the Court is not averse to perusing over it (or accepting it) - so long as they are accurate and do not contain embellishments.-the notes of proceedings provided by Court - is the authoritative record - the judicial process is provided by the Child Act 2001 - enacted to fulfil the country’s obligations under the United Nations Convention on the Rights of the Child - “Generalia Specialibus Non Derogant” - The general principle to be applied to the construction of acts of Parliament - general act is not to be construed to repeal a previous particular act, - unless there is some express reference to the previous legislation on the subject, or unless there is a necessary inconsistency in the two acts standing together - When a Child is brought before a Court - the Court must explain to him in simple language that the Child may understand- the explanation must be suitable to his age, maturity and understanding of the substance of the alleged offence.-The Court may seek the assistance of the defence counsel acting for the Child
Version: 11088_jb-41h-64-11-2019.pdf 1
Published: 12 Sept 2020
Source ID: 0eb21dd7-7f33-4281-8eb3-2c186ededfb5

Catchwords

2 appeals against the Orders of the Court for Children pursuant to section 90 Child Act 2001 - charges of section 411 and 379A Penal Code - Pleaded guilty on both counts - 1st charge - sent to Henry Gurney School for 3 years pursuant to section 91(1)(f) Child Act 2001 - sent to an approved school (Asrama Akhlak Kempas) for 1 year pursuant to section 91(1)(f) Child Act 2001 - Learned Counsel filed a copy of the Transcripts of the proceedings - because she said the Notes of Proceedings supplied by the Court did not contain details of what transpired - no objection by the DPP - While it is not a requirement to provide a Transcripts of the proceedings, the Court is not averse to perusing over it (or accepting it) - so long as they are accurate and do not contain embellishments.-the notes of proceedings provided by Court - is the authoritative record - the judicial process is provided by the Child Act 2001 - enacted to fulfil the country’s obligations under the United Nations Convention on the Rights of the Child - “Generalia Specialibus Non Derogant” - The general principle to be applied to the construction of acts of Parliament - general act is not to be construed to repeal a previous particular act, - unless there is some express reference to the previous legislation on the subject, or unless there is a necessary inconsistency in the two acts standing together - When a Child is brought before a Court - the Court must explain to him in simple language that the Child may understand- the explanation must be suitable to his age, maturity and understanding of the substance of the alleged offence.-The Court may seek the assistance of the defence counsel acting for the Childor any other responsible person as determined by the Court - The parties that are allowed to address the Court -The Child- The Child’s parents or guardian or other responsible person (if any of them are present)- the biological mother is away in prison serving time for drugs related offences. - taken care of by the aunty (who was present) and the grandfather (who attended Court as well) - A Guardian per se is one who has effective control or is in charge of a Child, whether or not, the guardian is given the legal guardianship - order pursuant to section 91 - The 2 Guardians unable to guide the Child - eliminating the choices - section 90(f) is the most suitable - probation report" means “a report prepared by a probation officer under subsection 90(13)- to try to discover information that other people do not want you to know, by asking questions carefully and not directly:-to examine something with a tool, especially in order to find something that is hidden - 2 parts to the report -fact finding part (as per section 90(13) (a) of the Act).- interpretation of the facts. (as per section 90(13) (b) of the Act) - “Social Work” is an academic discipline and practice-based profession that concerns itself with individuals, families, groups, and communities in an effort to enhance social functioning and overall well-being - Social work law is a general term that refers to the legal aspects of social work practice, such as understanding the general relationship between the justice system and social work, having a working knowledge of the laws and regulatory agencies that affect one's particular area of social work, and being prepared to serve as a witness in courtroom cases.- the legal principles such as Rule against Hearsay must be strictly observed - An expert is not defined by the number of university degrees one possesses but the skill(s) and knowledge that is sufficient to explain properly the niche of science or art (as the case may be) - this Child is a little reluctant to go to school and he needs to be taken away from the company that he has been keeping, I find (as I have said earlier) fines or family care are but insufficient to assist the Child to turn over a new leaf - Public Interest cannot be better served if a Child, repentant of his criminal ways, decided to turn over a new leaf, seeking a path of reform and to come back to society, a useful citizen of the country and a good member of his family. - when the Child is deserving and society - the Courts must afford him that opportunity

Parties

A CHILD - applicant - ejudgment_parties
PUBLIC PROSECUTOR - respondent - ejudgment_parties

Primary source

Compare this reader text against the official judgment source.

Open source PDF

Catchwords