PUTRAJAYA: The Court of Appeal has ordered a teenager who pleaded guilty to four sex-related offences three years ago to perform 100 hours of community service that includes receiving moral and religious counselling.
Justice Lim Chong Fong noted that the order against the appellant, now 18, who committed the crimes when he was a child, may not be palatable and ideal to everyone.
“We prefer to place our trust on the appellant, that he has learnt from his heinous episode and will not repeat it,” said Lim, who delivered the ruling of a three three-member bench against the sentence.
Lim sat with Justices M Gunalan and Hadhariah Syed Ismail, who chaired the bench.
The panel heard the appeal on April 19.
The bench set aside a High Court ruling that affirmed the order of two magistrates, in Sepang and Petaling Jaya, that the teenager be sent to Henry Gurney School in Melaka, which comes under the purview of the prisons department.
Fong said the judicial commissioner and both magistrates had misdirected themselves on the Child Act 2001.
Previously, lawyer Khairul Azam Abdul Aziz had submitted that the magistrates and the High Court had found the appellant unsuited for rehabilitation in an approved school run by the welfare department.
He had urged the court to impose a non-custodial sentence involving either a good behaviour bond or community service.
However, deputy public prosecutor Ng Siew Wee proposed that the appellant, who turned 18 this year, be sent to the Henry Gurney School and kept there until 21, or to a prison.
Lim, in his judgment, said the task of the lower courts had not been made easy due to the failure of the attending welfare officers to explain in their probation reports why they believe the teenager should not be sent to an approved school.
He said magistrates who preside over courts for children must evaluate the explanation of welfare officers before making the appropriate order.
“In the absence of such explanation in this case, we find the order meted out against the appellant is illegal,” he said.
Lim also said the High Court was overly focused on the appellant’s despicable act and the need for him to be punished by way of a custodial sentence.
“The judicial commissioner had misdirected herself and, as such, appellate intervention is warranted. It follows that we have to make a fresh order,” he said.
Lim said the court wished to strike a balance between rehabilitation and the need to serve the public interest in a manner that would deter the offender from repeating the crime.
He noted that the appellant’s attitude had changed for the better as he now spent more time on his studies rather than his mobile phone.
“He watches animated shows to avoid the urge of surfing pornographic websites,” he said.
Lim said the bench was mindful that he was a first offender, had pleaded guilty and appears remorseful.
He said the appellant could not be sent to an approved school as he was above 18.
“It is our considered view that the appropriate order is to ask him to do community service for 100 hours that includes going for moral and religious counselling,” he said.
Hadhariah warned the appellant that he would not get a second chance should he repeat the offence, and the law would take its course.
She directed the prosecution to report to the court to ensure the order against the appellant is carried out by the welfare officers.
The teen was charged under Section 14(a) of the Sexual Offences Against Children Act 2017 at the court for children in Sepang on two counts of physical sexual assault on his sister and a female friend.
He was also charged with committing carnal intercourse against the order of nature with his sister’s friend under Section 377C of the Penal Code.
In September 2020, he was sent by a magistrate to Henry Gurney School for three years after pleading guilty to the offences.
He also pleaded guilty at the court for children in Petaling Jaya to another charge under Section 14(a) for sexually assaulting another female friend.
In February 2021, he was ordered to be detained at the Henry Gurney School for three years.
The punishments were affirmed by the High Court in November of the same year.
He served three months of his sentence before the Court of Appeal stayed it last year pending his final appeal.
During the previous proceedings, the court was told that the appellant had been sent to a government boarding school where he sat for his SPM examination.