JUDGMENT

IanChin J:

Two juveniles were charged with the theft of a motor vehicle, an offence under s. 379A of the Penal Code and they both pleaded guilty. A probation report was tendered and the two advisers were of the view that both the juveniles should be sent to the Henry Gurney School for a period of three years. On 17 April 2001, the magistrate made an order of detention for three years. The present appeal is by the second juvenile who has no parents and his known relative could not afford to come to Kota Kinabalu from Sandakan. A stay of the order was only granted on 3 January 2002 after he had served the detention order for about seven months already. He has since obtained the service of an advocate to argue his appeal against the detention order.

The first ground of appeal was that, the magistrate of the first class has no jurisdiction over the matter as only a Sessions Court judge can sit in a Juvenile Court in view of s. 111 of the Subordinate Courts Act 1948 which provided the substitution of any reference in any written law passed before 1 June 1981 to a magistrate of the first class with a President of a Sessions Court and that consequently only a Sessions Court judge can preside over a Juvenile Court. A little of the legislative history must be gone into.

In North Borneo (as Sabah was then known), there was the Courts Ordinance (Cap. 29) which was in force from 1951. It established courts of magistrates of three classes, first, second and third and the said Ordinance spelt out their criminal and civil jurisdiction. Their powers in criminal jurisdiction "shall be as provided in this Ordinance and in the Criminal Procedure Code" and such courts are constituted by magistrates of the respective class. The North Borneo Criminal Procedure Code was also in existence and it spelt out the jurisdiction of the various courts and it confers upon the courts (including the High Court) the powers to try cases under the North Borneo Penal Code. The courts also have powers to try cases under other laws and that provision says:

9(1) Subject to the other provisions of this Code, any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court. (2) When no Court is so mentioned it may be tried by the High Court or any other Court to which this Code applies: Provided that (a) no Court of a Magistrate of the First Class shall try an offence which is punishable with imprisonment for a term which may exceed two years or by a fine which may exceed five thousand dollars; (b)... (c) ...

In 1961, the North Borneo Criminal Procedure Code was amended to include the definition for a "Stipendiary Magistrate" and it means "any magistrate declared to be a Stipendiary Magistrate by warrant under the provisions of the proviso to s. 8." That proviso reads:

Provided that the Governor, on the recommendation of the Chief Justice, may by warrant which shall be published in the Gazette, declare any magistrate to be a Stipendiary Magistrate and authorize any such magistrate to try any offence specified in such warrant notwithstanding the limitations set forth in the eighth column of the First Schedule, and in the event of such Magistrate exercising any jurisdiction which by the provisions of the eight column of the First Schedule is to be exercised by the High Court the provisions relating to trials and matters incidental to trials of offences by the High Court shall apply mutates mutandis to all such trials and incidental matters where a Magistrate is exercising such powers conferred upon him by such warrant.

This office of a Stipendiary Magistrate carried with it enhanced jurisdiction and try certain offences which otherwise were triable by a judge of the High Court. The appointment of magistrates were made by the Governor which in those days consisted of government officers like junior administrative officers (see for example GN 689 of 1956, the appointment of Lim Thien Kwang "to exercise the powers of a ma