JULY 2017

QUESTION 2

a)

The issue is whether the sentence imposed by Judge Astro on Apel for the offences of raping
and theft is proper.

Apel accosted Adik, a nine-years old on the pretext of asking for her directions and lured her
to an oil palm plantation. After raping her, Apel took RM 50 from Adik’s pocket. On 17
October 2016, he was charged for the following offences which are under Section 376 (2) of
the Penal Code for raping Adik and Section 379 of the Penal Code for theft of RM50 from
Adik. On 13 May 2017, Apel appeared for trial before Judge Astro. On the charge being read,
Apel changed his plea. He pleaded guilty to both charges.

In convicting and sentencing Apel, Judge Astro stated a plea of guilt is not a consideration in
sentencing. Apel has a previous conviction and this is the primary factor in assessing the
sentence. Judge Astro sentenced Apel to 10 years imprisonment for two offences. The
sentencing commenced from the date of arrest.

If the court finds the accused guilty of an offence or if a plea of guilt has been recorded and
accepted the court shall pass sentence according to the law. In Safian bin Abdullah & Anor
[1983] 1 CLJ 324 stated that: “sentencing offender is a complex process, which depends not
on the use of a common mathematical yardstick but on various considerations of facts and
circumstances relating to the offence, the offender and the public interest “

In the present case, Apel pleaded guilty to both charges before the trial. Section 172G of the
CPC stated that if an accused pleads guilty any time before the commencement of the trial, the
court shall sentence him in accordance with Section 172D(1)(c)(ii). The provision said where
there is plea bargaining in relation to the sentence, the court shall sentence the accused to not
more than half of the maximum punishment of imprisonment provided for the offence.
However, according to Sec. 172D(3), Sec. 172D(1)(c)(ii) is inapplicable where the offence is
a sexual related offence and committed against a child below 12 years old.

Based on the case Bachik Abdul Rahman v PP [2004] 1 MLRA 323, the position in law is
that it is generally accepted that an accused person should be given credit or discount for
pleading guilty. The discount that is given is normally a reduction of the sentence by about a
third of what would otherwise have been imposed. However, this is not a strict rule as the court
may, in the exercise of its discretion, refuse to grant any discount in an appropriate case. The
circumstances in which a guilty plea will not have any weight are varied; the severity of the
offence committed, where public interest demands a deterrent sentence in the circumstances of
a particular case, when no defence to the charge is available to the accused, if a plea of guilty
is made too late in the trial and the absence of mitigating factors in favour of the accused.
There can therefore be no automatic rule that a guilty plea on its own entitles an accused to a
lesser punishment. In this case, the accused was charged with raping an 11-year-old. He
pleaded guilty and was sentenced to 18 years’ imprisonment and 12 strokes of the rattan. On
appeal to the High Court, the term of imprisonment was reduced to 15 years on the ground that
the Sessions Court failed to consider the guilty plea of the accused.

Applying the law above to the current facts, in convicting and sentencing Apel, Judge Astro
stated a plea of guilt is not a consideration in sentencing. He is not erred in law based the above
case, in the exercise of its discretion, the judge can refuse to grant any discount in an
appropriate case and guilty plea will not have any weight.

Besides, another factor to impose sentence is previous convictions or bad record of the accused.
In the case of Zaidon Shariff v PP [1996] 4 CLJ 441, a previous conviction should only be
taken into consideration if it is of a similar nature with the current charge. In the present case,
Apel has been sentenced to 3 years term of imprisonment for cheating. Thus, his previous
conviction should not be taken by Judge Astro as the primary factor to impose sentence on
Apela as the current offence has no similar nature with the previous one.

Also, where there are multiple offences, the court must pass sentence for each charge. In
Bujang Johny v PP [1964] 1 MLRA 812, the accused was charged with two offences under
the Forests Ordinance. Upon his conviction, the Magistrate merely stated that he sentenced the
accused to 4 weeks’ imprisonment. On appeal, the High Court held: The Magistrate had erred
in law as it is most important that a separate sentence be passed on each conviction. The
magistrate should then indicate whether the sentences were to run concurrently or not.
Magistrates must realise that if separate sentences were not passed this court would be faced
with difficulty if the appellant successfully appealed against one of the charges. In application,
Judge Astro sentenced Apel to 10 years imprisonment for two offences and not pass sentence
for each charge, thus it is not according to principles of sentencing.
According to Section 282(d) of the CPC, every sentence of imprisonment shall take effect from
the date on which it was passed unless the court passing the sentence otherwise directs. This
provision accords the court with the discretion to backdate a sentence. In Muharam Anson v
PP [1981] 1 MLJ 222, where the accused was detained for a period of time pending trial, such
period was taken into consideration by the court and the sentence of imprisonment was ordered
to take effect from the date of arrest. However, the period of remand must be in relation to the
offence for which the accused is charged with in order for the court to backdate the sentence to
the date of arrest. Judge Astro stated the sentencing commenced from the date of arrest.

When there is more than one sentence of imprisonment, Sect 102 of the Subordinate Court Act
1948 confers the discretion on the Magistrate to order the imprisonment to commence
consecutively or concurrent provides that the court shall record. In deciding whether to decide
on concurrent or consecutively, the court is normally guided by 2 sentencing principle which
are one transaction principle and totality principle.

One transaction principle is where two or more offences are committed in the course of a single
transaction, all sentences in respect of these offences should be concurrent rather than
consecutively. The rationale of this principle is that the infringements would be in respect of
the same interest and a person should not be punished two or three times over in respect of the
same blameworthiness. The above principle was applied in Abu Seman v PP [1982] 2 MLJ
338 wherein the court of the view that where several offences committed in the same
transaction are tried together the sentences imposed for the offences should be made
concurrent.

Totality principle is where the court is required to decide on what would be the appropriate
sentence for each of the several offences. Then the court would look at the aggregate and decide
whether in totality, the aggregate is excessive. If so, the court can then order either two or more
of such offence to run concurrently so as to reduce its overall excessiveness.
c)

IN THE HIGH COURT OF MALAYA IN SHAH ALAM

IN THE STATE OF SELANGOR

CRIMINAL TRIAL NO:

PUBLIC PROSECUTOR

OREN

Your Honor,

High Court,

SHAH ALAM.

AGGRAVATING FACTORS BY THE PROSECUTION.

If it pleases Your Honor,

The prosecution humbly prays for the Court to pass heavy sentence to the accused upon these
factors;

1) Type of offence

The accused committed rape and theft offences. These offences committed by the offender
warrant a deterrent sentence because they are viewed as capable of causing anxiety to the
society.

2) Rampancy of offence

The prevalence of rape and theft offences urges that a deterrent sentence be imposed. Such
offence is now one of most popular offence in the courtroom nowadays. Hence, the sentence
that will be passed on the accused should be high as to deter not just himself but other people
too from committing such offence. In Lee Chow Meng v PP [1976] 1 MLJ 238, this was an
appeal against sentences imposed in the Sessions Court for the offences of armed robbery,
possession of arms and possession of ammunition. On appeal to the High Court, the main
grounds of appeal were that the President had erred in law (i) when she allowed herself to be
influenced by the alleged increase of late of armed robberies in the city when no such evidence
was ever led by witness or witnesses for the prosecution on record, and (ii) when she took
judicial notice of the fact that hardly a day has passed without such incidents being reported in
the newspapers when there was no evidence on record to support such a finding. In dismissing
the appeal, the High Court held: There is absolutely no merit in the appeal. The President took
the view that it was in the public interest that deterrent sentences be imposed. The prosecution
submitted in the trial court that there were 677 robberies within a period of 4 months in Kuala
Lumpur alone and half of them were armed robberies, a fact which the President took into
account. Although she allowed herself to be influenced by such fact, it is a matter of common
knowledge and a notorious fact that there have been of late an increase in armed robberies. The
President therefore acted correctly when she took this fact into account and there is absolutely
no valid ground to say that she had erred in law.

3) Previous convictions

The accused has previous convictions on rape on March 2015. Thus, it shows that the accused
has not repent and remorse. In the case of PP v Jafa Daud [1981] 1 MLJ 222, the accused
was charged under the Dangerous Drugs Act for being in possession of heroin. He pleaded
guilty to the charge and was convicted and sentenced to 8 months’ imprisonment. The
prosecution appealed against the sentence and argued that the sentence was grossly inadequate
on the ground that the Magistrate had failed to appreciate the seriousness of the offence and
also had failed to consider that the respondent had five previous convictions, two of which
were connected with drugs. Held: The accused’s previous convictions should have been taken
against him on the ground that despite the sentence of imprisonment on the two previous drug
offences, he had continued to flout the law by promoting himself from being an illegal
possessor of opium to one of heroin. The Magistrate had misdirected herself on the facts and
the law, and the sentence of 8 months’ imprisonment was manifestly wrong and inadequate as
a deterrent for the accused as well as for would-be offenders. Thus, the sentence was enhanced
from 8 months’ imprisonment to 18 months’ imprisonment.
The accused also escaped from prison after serving one month of his sentence. He was on the
police ‘wanted list’.
d)

The issue is what would be the proper sentence for Oren?

Oren had been convicted for offence under section 376 (2) of the Penal Code (PC) for raping
Adik. He also had been convicted for theft of Adik’s gold bracelet under Section 379 of the
PC. Before a sentence is passed by the court, the sentence must first be fixed. In fixing
sentences, the nature of the sentence, the choice of the sentence and the quantum need to be
considered.

There are several principles can be applied in relation to sentencing, as stated R v Sargeant
(1974) 60 Cr App R 74:

(a) sentencing as a form of retribution on behalf of the victim;

(b) sentencing as a form of deterrence and to serves as a warning for other people not to
commit the same offence;

(c) sentencing as a form of rehabilitating the offender;

(d) sentencing as a form of prevention; and

(e) sentencing as a form of protection to the society at large.

Here, Oren had committed a few offences and all those offences were done after he was escaped
from prison after serving one month of his sentence for offence rape. He was on the police
‘wanted list’. A form of deterrence sentence should be passed against Oren to serve as a
warning not only for him, but for other people not to commit the same offence. This form of
sentencing should be passed based on the following reasons.

Oren is not a first-time offender. Before, he had been convicted for offences under section 376
of PC. In taking into account a person’s previous conviction, the earlier case of PP v Jafa bin
Daud laid down the principle:

“Where the convicted person has previous records and admits them as correct, the court must
consider whether the offence or offences committed previously were of a similar nature as the
one which he is previously charged”.

Here, it can be seen that some of the offences committed by Oren were of a similar nature as
the one which he is previously charged. He had before this, committed the raping offence Now,
the same offence had been committed against Adik. Thus, Oren’s previous convictions need to
be taken into account in passing sentence against him.

Besides, it is argued that a deterrence sentence should be given as the offence committed by
Oren (theft and rape) are rampant offences. Such offence is now one of most popular offence
in the courtroom nowadays. Hence, the sentence that will be passed on Oren should be high as
to deter not just himself but other people too from committing such offence. Such principle
was applied in Ong Lai Kim v PP [1991] 3 MLJ 111 and other appeals where the High Court
upheld the severe deterrent sentences imposed on the accused persons on the ground that the
offences committed by them were rampant offences.

Here, the offence of rape and theft are rampant as it was committed daily and at an alarming
rate. Being a machinery of law, it is judiciary’s duty to play its part in trying to curb these ever-
increasing numbers of offences. A deterrent sentenced should be imposed on whoever is found
guilty of committing such offences. Therefore, deterrence sentence should be imposed on Oren,
for committing the offences of rape, in which was not committed for the first time, punishable
under section 376 (2) PC and also committing the offence of theft punishable under Section
379 PC.

Then, another factor that needs to be taken into consideration on passing a sentence is the effect
of the offence on the victim. Being an adult man of 30 years old, Oren should bear in mind that
he should not rape children. Adik would be traumatized by that incident. This alone would
warrant the need to impose a deterrent sentence on Oren.

Based on the facts given, the sentence passed must be the one which can safeguard the public
interest. The sentence passed should not be the one which would be a mockery to the judiciary
system and the public as a whole. Therefore, by imposing a deterrent sentence, it will protect
the public as a whole from a threat of having people like Oren live freely among them.

In the present case at hand, for the offence under section 376 (2) of the Penal Code, Oren shall
be punished with imprisonment term of not less than ten years and not more than thirty years
and shall also be liable to whipping. For offence under section 379, he shall be punished with
imprisonment for a term which may extend to seven years or with fine or with both.

In determining the quantum of the sentence, a few principles may be applied as a guideline. In
the case of Kesavan Senderan v Public Prosecutor [1998] 3 MLRH 277, it was stated that
if the circumstances show that the offence was very much planned, it would indicate a degree
of deliberateness of the offender in committing the crime. The sentence should warrant higher
than 40% of the maximum sentence. Other than that, the nature and seriousness of the offence
also warrant a sentence higher than 40% to 50% of the maximum sentence. However, the
principle of maximum sentence does allow court to pass a maximum sentence if the case is
worse of his kind.

Here, for the first conviction under section 376 (2), after considering all the factors and the
principle, Oren will be punished with 15 years’ imprisonment and 2 strokes of whipping. This
is because, his action warrants a deterrence punishment. Since such offence can be extend to
thirty years of imprisonment and applying the calculation in Kesavan’s case, 15 years is
appropriate. Furthermore, this was not his first commission of causing a grievous hurt towards
other. So, this warrant higher than 50% of the maximum sentence. In addition, 2 strokes of
whipping should be imposed on him to enhance the punishment. As for the conviction under
section 379, Oren should be punished 1-year imprisonment and RM 6,000. A fine was given
to replace the punishment of whipping.

In addition, it is also important to consider whether the sentence of imprisonment should run
consecutively or concurrently. To determine this, the court must first identify whether or not
the offences amount to a single transaction. When the offences are committed in the same
transaction as under Sec. 165, the sentences of imprisonment ought to run concurrently. In
Amrita Lal Hazra v Emperor: Offences are committed in the same transaction if it fulfils the
tests of proximity of time, unity or proximity of place, continuity of action, and continuity of
purpose or design.

As per Oren’s case, he committed all those offences within one single transaction that
occurred on 15th October 2016. Therefore, the sentence of imprisonment may run
coconcurrently.

Therefore, by adding the period of imprisonment and also taking into account the principle of
totality (Lee Chow Meng v Public Prosecutor), the total period of imprisonment should be
served by Oren are 16 years and 2 strokes of whipping.
b)

The issue is whether Oren’s defence of alibi is complied.

On his defence being called, Oren stated on 15 October 2016 at about 5.00 p.m, he was in
Kedai Kopi, Jalan Raja when he saw a gold bracelet on the road. He picked it up and while he
was examining it, he was arrested and accused of committing rape in a nearby oil palm
plantation.

Alibi is a defence that places the accused at the relevant time of the crime in a different place
than the scene of the crime and thus, renders it impossible for him to be the guilty party. Section
402A (1) of the Criminal Procedure Code (CPC) stated that at the time the accused is charged,
he shall be informed of his right to put forward a defence of alibi. The defence must go beyond
a bare denial or of mistaken identity and show that by reason of his presence at a particular
place, he was not or was unlikely to have been at the place where the offence was alleged.

A defence of alibi is only admissible where there is compliance with the requirements of Sec.
402A. Sec. 402A(2) & (3): Where the accused puts forward a defence of alibi, he must give a
notice of the alibi to the prosecution in order for the evidence in support of the alibi to be
investigated within reasonable time. The requirement for a notice is mandatory.

Where no notice has been served:

In Vasan Singh v PP: A distinction should be drawn between a bare denial and an alibi defence.
Evidence of a bare denial is in any case always admissible. In order to distinguish one from the
other the court must know the nature of the evidence after having heard the evidence. If it is
only evidence of a bare denial, the evidence stays (but the court must then decide how much
weight to accord to the evidence). If it is evidence in support of an alibi and no notice under
Sec. 402A has been given, then the court must exclude that part of the evidence from its
consideration.

In this case the accused was charged with voluntarily causing hurt and in his defence he said
that “he was asleep at the time of the incident. He heard noises and came out and saw some
persons injured.” The Supreme Court held that the lower courts had erred in its findings as the
evidence was not that of an alibi but a mere denial. Where the accused sought to give evidence
on his own behalf but had failed to give a notice, the Supreme Court ruled that an accused
person who gives evidence on his own behalf of a defence of alibi and proposes to call no other
witnesses in support of the alibi is still obliged to give notice under Sec. 402A.
Thus, the prosecution can only object where there is no compliance with Sec. 402A. Where a
notice is not served, the accused’s defence remains a bare denial and the prosecution cannot
object to it as there are no procedural requirements needed to be complied with. In order for a
defence of alibi to be admissible, Sec. 402A must be complied with.

In the present case, Oren did not serve written notice to the Public Prosecutor at least 10 days
before the commencement of the trial while the notice must contains particulars of the place
the accused claims to have been at the time of the offence together with the names and
addresses of his alibi witnesses. Thus, defence of the alibi cannot be used by Oren.