Shaik Daud Ismail JCA:

The appellant was convicted on 24 February 1994 by the Sessions Court Kuala Lumpur of a statutory rape of an underage girl, who was then 15 years 11 months, an offence under s. 376 of the Penal Code. The appellant was then 19 years old, a first offender and he had pleaded guilty to the charge. In view of his age the learned Sessions Court Judge called for a probation report on the appellant and after considering the report and the facts of the case, she ordered the appellant to be detained in the Henry Gurney School until he reaches the age of 21 years. Although the learned Sessions Judge did not specifically set out under which provisions of the law she acted, she presumably did so under s. 40 of the Juvenile Courts Act 1947, (hereinafter referred to as 'the Act') . Appellant was accordingly sent to the Henry Gurney School and he served his detention there until he reached 21 years of age and was released on 16 January 1995. In the meantime the Public Prosecutor being dissatisfied with the sentence imposed by the Sessions Court filed a notice of appeal to the High Court on 3 March 1994. Unfortunately the appeal was never heard promptly as it should have been, but was heard on 27 November 1995, by which date the appellant had been released from the Henry Gurney School.

The learned Judge allowed the appeal, set aside the order of the Sessions Court, and imposed the minimum term of imprisonment of 5 years as provided by s. 376 of the Penal Code, which term was to commence from the date of the order that is 27 November 1995. The learned Judge was of the view that pursuant to the mandatory provision of s. 376 of the Penal Code, the Sessions Court was wrong in law to impose any other sentence, and that s. 40 of the Act has no relevance.

The learned Sessions Judge took into consideration the facts of the case, the probation report on the appellant, the fact that he pleaded guilty and was a first offender and also the serious nature of the offence and she concluded in her grounds of judgment as follows:

Walaupun apa yang telah dilakukan oleh Tertuduh adalah sesuatu yang serius yang tidak sepatutnya dimaafkan Mahkamah berpendapat hukuman minima jika disabitkan dengan kesalahan merogol iaitu 5 tahun penjara adalah berat bagi Tertuduh. Tertuduh dalam usianya yang muda seharusnya diberi peluang untuk memperbaiki dirinya. Dengan menghantarkannya ke penjara dalam usia yang begitu muda tidak akan mendatangkan apa-apa kebaikan kepada Tertuduh malahan akan mendatangkan kemudaratan kepadanya.

In view of what she had said above, the learned Sessions Judge while appreciating the serious nature of the offence was of the view that in the circumstances of the case, it would be more appropriate to have the appellant detained in the Henry Gurney School until he reaches the age of 21 years.

The issue before this appeal is whether s. 40 of the Act is applicable in cases of this nature. This section confers special powers of the Juvenile Court on the High Court, a Sessions Court and a Court of a Magistrate of the First Class in respect of juveniles and persons of eighteen years and under twentyone years. It provides that:

Nothing in this Act other than ss. 15 and 16 shall affect the powers of the High Court and all the powers which may be exercised under this Act by a Juvenile Court in respect of a juvenile offender may in like manner be exercised by the High Court; and, in addition, the High Court, a Sessions Court and a Court of Magistrate of the First Class shall have power to order the detention, in a Henry Gurney School, up to but not after his attainment of the age of twenty-one years, of any person who has attained the age of eighteen years but has not attained the age of twenty-one years at the date of making such order.

On our reading of this section we find that there are two limbs to it. The first limb provides that the section does not affect the powers of the High Court and all powers which may be exer