R. v. Gervas and Selestine Crim. Rev. 56-M-70; 17/2/71; El-Kindy Ag. J.
The accuseds were jointly charged and convicted of stealing c/s 265 of the Penal Code. The trial magistrate accepted medical evidence as per s. 16 (1) of the Children and Young Persons Ordinance Cap. 13 for purposes of making findings on the ages of the accuseds. The age was given a s being between 15 and 16 years old and this was accepted by the court. On the recommendations of the Probation Officer who was in court, Gervas was placed on probation for 12 months while Selestine committed to an approved school. The case was brought for revision.
Held: (1) “With due respect, this mode of reference to the age is least satisfactory, and the learned magistrate, in the circumstances of this case, should have found in favour of the accused i. e. that each one of them was about 15 years
Old, if he could not have clear medical evidence.” (2) “It would appear that the learned magistrate did not direct his mind to the provisions of section 24 of the children and Young person Ord. Cap. 13 before he made the approved school order. Section 24 (1) provides that an approve school order can be made against any child or young person, but the proviso thereof states that such order cannot be made before inquiries have been made from the intended approved school to ascertain whether or not there would be available a vacancy for the intended juvenile offender.” (3) Order against Selestine set aside. Case sent back to trial court to deal with sentence in respect of Selestine.
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