Criminal sentencing principles (Part 1)

The jurisdiction and authority of a criminal court judge to pass sentence in Malaysia can be found within various statutes, not least Article 121 of the Federal Constitution, as well as section 87 of the Subordinate Courts Act 1948 in respect of First Class Magistrates’ Courts, section 64 of the same Act in respect of Sessions Courts, and section 22(2) of the Courts of Judicature Act 1964 in respect of the High Court. According to section 173(f) and 173(m) of the Criminal Procedure Code (section 180 when the Court is a High Court), upon finding the accused guilty, it shall sentence according to law.

It was said by Hashim Yeop Sani J in the case of PP v Loo Choon Fatt [1976] 2 MLJ 256 that while courts generally exercise a discretion when they pass sentence, these ought to be within well established judicial principles and this article will attempt to identify what those are. Split into four parts, the first will discuss the factors to be considered in assessing sentence, the second in fixing sentences, the third in passing such sentences and lastly, the fourth part will identify the kinds of sentences that are in force within Malaysia, and the considerations to be had when the law proscribes for them to be applied.

The court when assessing sentence takes into account the nature of the offence, the circumstances of the commission, degree of deliberation, public interest, the plea entered, the age, the background and other similar factors. But there must be some proportion between the offence and the penalty. It must be proportion to the guilt of the offender and the nature and gravity of the offence. Each sentence must be an individual one, personal to the offender, assessed with regard to his moral and financial circumstances and the nature of the offence even when public interest demands a deterrent sentence to be passed, each case must be judged according to its own individual merits. These considerations may be categorized into three, namely public interest, circumstances in which the offence was committed and the background of the offender.

1. Public interest

Public interest is not necessarily the prime consideration in assessing sentence but it is an important one. Another thing to remember is that a major element of public interest is that it is not only justice for the accused but also justice for the society. Society through the courts must show its abhorrence to the occurrence to a particular type of crime and the only way the courts can show this is by the sentence they pass, as held in the case of R v Sargeant [1974] 60 Cr App R 74 by Lawton LJ.

Although it was said in Kenneth John Ball [1951] 35 Cri App Reports 164 that the first and foremost consideration is public interest, it was however added in New Tuck Shen [1982] 1 MLJ 27 that public interest varies necessarily according to time, place and circumstances What is public interest in one place may differ in another place and when passing sentence in public interest, the court bears in mind the theories of sentencing, the principles of which are namely retribution, deterrence, prevention and reformation.

Retribution as an object in sentencing is now said to play no part and the courts have since progressed from an ‘eye for an eye’ type of justice or to exact from victims of aggression their pound of flesh. However there is another aspect of retribution emphasized by the courts and it is to show abhorrence of particular types of crimes and criminal conduct in the length of the sentence passed. Abdullah Mohd Am [1988] 2 MLJ 368

A deterrent sentence means a sentence higher than what would normally be passed not necessarily because of the facts of the case but in order that others should be dissuaded from commission of offences of a similar kind. This necessarily involves some unfairness to the accused, since in receiving such a sentence, he is being punished more than what he would have been, having been assessed on the facts alone. This may not necessarily be incorrect because past sentences may have been too low and the time may have come for imposing those type of sentences. Yau Kau Kui [1989] 2 MLJ 139. General deterrent sentences however are of little value where offences are unpremeditated, committed on the spur of the moment.

The principle of prevention is effected by taking away from the offender the power of offending. This element is reflected in sentences such as life imprisonment and minimum sentences and orders of police supervision, the last of which serves to inhibit the offender from offending.

Reformation as a principle is generally held in favor in public interest in that it serves public interest by helping the offender turn to honest living.Teo Siew Peng [1985] 2 MLJ 25

2. Circumstances in which the offence is committed

It is universally recognized that in fixing sentence, the court would consider the nature and circumstances. Mohd Jalani [1997] 5 MLJ 551. This would encompass within its ambit its manner of commission, the type and nature of offence and rampancy of the offence.

Circumstances surrounding the manner of offence is a principle determinant and is best understood when the facts of the particular cases are known such as in the cases of Safiah Abdullah [1983] 1 MLJ 324, Joginder Singh [1984] 2 MLJ 133 and Imran Nasir [1987] 1 MLJ 166. The facts of these case were particularly repulsing and justifies the court in adopting a deterrent sentence. In Safiah Abdullah, two young offenders strangled to death a man who they had already mortally wounded. In Joginder Singh, the accused had framed the owners of two rival restaurants for possession of drugs while in Imran Nasir, the accused was a policeman who raped a young girl in a police station. Sometimes the circumstances of the case can operate as a mitigating factor. In the case of Seah Ah Kew [1974] 1 MLJ 125  based on the facts where the victim of a kidnap was not ill treated, the court did not impose a death penalty for the offence under the Kidnapping Act. Circumstances of the case include whether the offence was premeditated as in Vanaga Mootho [2003] 1 CLJ 78  and whether the accused was intoxicated as in Raja Izzaudin Shah [1979] 1 MLJ 270.

There are certain offences that the courts view seriously. Among offences that normally attract custodial sentence, even for a first offender and despite a plea of guilty would be offences of house breaking because of the traumatic effect on the occupiers. Hassan Nordin [2002] 3 CLJ 495 Other offences would include breach of trust by people holding relatively high positions in society such as in Tan Koon Suan [1987] 1 MLJ 18 and possession of firearms and ammunition because of what was said in Chong Kwong Huah [1981] 1 MLJ 316 that a man who carries a gun has a capacity to use it and it is too easy to make a transition from possession to use with disastrous results.

The court is entitled to take judicial notice of what is notorious and prevalent. Mustapha Abdullah [1997] 2 MLJ 45. For example, this could include taking notice that the area in which the offence was committed in is notorious for that particular offence.

3. Background of the offender

In sentencing the court requires knowledge of background of the accused to strike a balance, so to speak, between the interest of the public and interest of the accused Mohd Fuad [2001] 5 MLJ 549.

There are a number of factors usually advanced to support a plea for leniency. However the court must balance these matters with other factors which may require consideration for severity. The position is best explained in Loh Oi Lin [1949] MLJ 120 that there are factors such as prevalence, difficulty of detection and injury to public revenue which operate in the direction of severity and others such as leniency to first offenders which operate in the other direction and where as frequently happens a number of these factors applied in one case. The court must balance them as best as it can. Among the factors more commonly advanced are age, antecedence, family hardship, conduct subsequent to the offence, impact of conviction, health, and delay in disposal of cases.

Age, particularly youth, is an effective mitigating factor and this is recognised in section 96(2) of the Child Act 2001 that a child aged 14 or above shall not be imprisoned if they can be suitably dealt with in any other way. However, where circumstances so warrant, the court would disregard the age of the offender particularly where the nature of the crime requires the dare, the dash and the defiance of youth in its commission Teh Ah Cheng [1976] 2 MLJ 186. Old age on the other hand is not a mitigating factor because if old age is accepted as an ingredient to light sentence, the court will give the wrong description to the public that old people are given special treatment if found guilty and by right, old age should make one more mature in taking power and experience Yahya Salaman [2006] 2 MLJ 475.

The fact the accused is a first offender is a consideration for leniency and provision is recognized in sec 173(a) and 294 that the court may proceed to buy over an offender because of his antecedence or that he is a first offender Winston Raja [1999] 1 CLJ 315. However the fact that the accused has a clean record may not necessarily operate as a factor in mitigation where there are no mitigation factors in the circumstances of the offence as in the cases of Garner [1973] 1 MLJ 106 and Leo Say [1985] 2 CLJ 155.

The view of the courts in relation to family hardship is that the accused is pleading hardship from the consequences of his own conduct and he should not expect to excite or harness any sympathy by taking the stance of a youth to kill his parents and then pleases in mitigation he is an orphan. Teh Ah Cheng [1976] 2 MLJ 186. However family difficulties have been recognized and given consideration in Mohd Hashim [1961] MLJ 11. The position of family hardship may be encapsulated in what was said in Amir Hamzah [2003] 3 AMR 626. The effect of the conviction on the accused’s family does not automatically become a mitigating factor. The accused cannot be allowed to commit offences only to hide behind the possible repercussions of a lengthy custodial sentence on his family to lighten the sentence imposed. The needs of the accused are far outweighed by issues of public interest.

A valid factor in mitigation is whether the accused regrets what he has done. There are many ways to show regret such as by cooperating in the investigations, pleading guilty and making amends with the victim of the crime such as paying of compensation. Kasavan Seenderan [1999] 1 CLJ 347. Restitution of property would also attract a lenient sentence Loo Cheng Hock [1988] 1 MLJ 316.

A person conviction suffers not only from loss of employment. He carries the stigma of being a convicted person and in assessing sentence, the court considers these factors a substantial part of the punishment. Vijaya Raj [1981] 1 MLJ 43. However these considerations was disregarded by the court in Datuk Haji Harun [1978] 1 MLJ 240 because of the impact on members of the bank who were poor people from rural areas and who expected their leaders not to touch their money entrusted to his care.

Health is another valid consideration and it was considered in the cases of Tay Chuan Beng [1989] 1 MLJ 403 and Dato Nala Karuppan [1999] 2 CLJ 59 but it was not considered in Liew Kim Yong [1989] 3 MLJ 323 who appealed not to be imposed whipping as part of the punishment for an offence of rape on the grounds that he was allergic to painkilling drugs consequential to the whipping.

The next part in will consider how sentences are fixed so stay tuned.

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Criminal appeals and revisions in Malaysia

In this article the processes a case undergoes after determination on the first instance are discussed. There is after determination in the first instance on any criminal matter provision to courts of a higher jurisdiction by way of, firstly, an appeal and secondly, revision.

First we will discuss appeal. A two tier system of appeal is practiced. The first is that subordinate courts appeal in the first instance to the high court and then to the court of appeal. However appeals proceeding from the magistrate to the court of appeal must be with leave of the court of appeal and on a question of law. The second is that trials of the high court proceeds in the first instance to the court of appeal and then to the federal court.

The appeal is commenced by the filing of notice of appeal and after service of the grounds of judgment or the notes of evidence if requested for by the filing of the petition of appeal which shall contain particulars of law and fact as regard to which the trial court is alleged to have erred. Wirasingam [1958] MLJ 76. The procedure encompasses the filing of the notice and of the petition of the appeal. Within 14 days from the date of judgment, in the case of the notice, and in the case of the petition, 14 days after service of the grounds of the decision. There is no prescribed form used for the notice but where notice is against sentence specific reference should be made whether appeal is against extent or legality of the sentence. Specific reference would not only go to clarity but also to bring to notice of the magistrate what he is required to state in his grounds of decision.

While it is accepted that it does not invalidate a notice for it to merely say that appeal is against sentence, a clear form of notice is desirable. It must also be stated in the notice that the appellant is desirous of appealing.

In the case of Sarikei District Council [1997] 5 MLJ 328 the notice omitted the words “desirous of appealing” and stated “take notice that the Sarikei District Council, the complainant in these cases, is dissatisfied with the order of the honorable magistrate En. Awang dated 19 June 1995 dismissing the judges against the accused persons on the grounds that the proceedings against them had been a nullity. The appellant court found that the words “appeals to the high court against the said order” had been omitted after the word “nullity”. It was held the omission was material and that this had rendered the notice defective and bad in law.

The second document is the petition of appeal prescribed in Form 51 of the 2nd schedule of the CPC. Section 307(6) of the Criminal Procedure Code states that a petition must state the substance of the judgment appealed against containing definite particulars points of law or fact in regard to which the court was alleged to have erred.

Where the petition alleges that a conviction is against the weight of evidence, the petition must state in what way the conviction was against the weight. Ong Chee Ho [1933] MLJ 39. Where the allegation that the conviction was unreasonable or could not be supported having regard to the evidence, this must be shown in the petition. Ooi Teck Chien 1971 1 MLJ 51

The prescribed time limit for the filing of the documents are 14 days from the date of judgment with respect to the notice and14 days from service of the grounds of decision or where the notes of evidence have been requested for from the date having been informed the notes are available.

The grounds of decision is essential to the filing of decision because the grounds of appeal would be culled from the grounds of decision and/or the notes of evidence.

The calculation of the 14 days when the last day of the time period falls on a weekly or public holiday was discussed in the case of Kentucky Fried Chicken [1976] 2 MLJ 145 that the date which the sentence is passed is excluded and where the last day falls on a Sunday or weekly holiday, the last date to file would then be Monday, the next working day.

There is need to strictly comply with the prescribed time limit for the filing of the documents of appeal. This strict time limit is moderated by recourse to Section 310 where the order that substantial justice may be done, a judge may permit an appeal which is time barred. Section 310 is only invoked on application. An aid should be sought with all convenience speed. Only in exceptional cases would be rule be relaxed Nagalingam [1935] MLJ 29 and an application for an enlargement of time is not given as a matter of course. Jumari Mohd [1982] 1 MLJ 282

Section 310 is exercised at the court’s discretion. An exercise of this discretion depends on the facts and circumstances of each case. In Wirasingam [1958] MLJ 76 the view was that the applicant must satisfy the court that circumstances exist which justify an extension of time and that the applicant has a reasonable prospect of success on his appeal.

Identical views were expressed in Zulkifli Puasa [1985] 1 MLJ 461 where the court of appeal said “..there are 2 factors to consider on an application for an extension of time:

i) The length of the delay and whether it can be satisfactorily explained.

ii) Whether the out of time application is likely to succeed.

Where the delay is of short duration the court may if it thinks fit, disregard the delay even in the absence of satisfactory reasons but where a substantial amount of time has elapsed, say a month or more, an extension of time will not be granted as a matter of course without a satisfactory explanation. Where the delay is minimal, the court will still not grant an extension of time if the application for which the extension is sought is bound to fail. There must be an arguable case. However, even though the subsequent application may be likely to succeed as for example when a fellow prisoner’s conviction has been quashed, the court will not grant an extension of time as a matter of course. The entire circumstances would be considered.

Next we will discuss revisions. The powers of revision is contained in Sections 323 to 327 of the Criminal Procedure Code and are given to high court judges. Muhari Mohd Jani [1996] 3 MLJ 116 The object of revision is to confer on criminal courts a kind of supervisory jurisdiction to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of precautions or apparent harshness of treatment resulting on one hand in some injury to law and order or on the other some undeserved hardship to some individuals. Liaw Kwai Wah [1987] 2 MLJ 69

The power of revision must be used sparingly and exercised judicially. Sukma Dermawan [1999] 3 CLJ 361. Revision may only be exercised for good reasons and between the limits and spirit of the legislation. There can be no recourse to revision when the matter is appealable and no appeal is lodged. Mohd Dalhar [1995] 1 MLJ 645. The court will not act in revision where the matter is pending appeal. Soon Seng Sia Heng [1974] 2 MLJ 170. The court would not allow efforts to go around provisions which bar appeals by attempting to get cases reviewed unless there are obvious illegalities or miscarriages of justice and revision is not an alternative to an appeal.  Rajendran [2000] 4 MLJ 369

When the court acts in revision, it is not confined to matters raised by the parties alone. Yen Wing Lee [1994] 3 CLJ 453 In appropriate circumstances, the court would go into the deeper aspects of the matter to ensure substantial justice subsist between the accuser and the accused and also between the accused and others who might have suffered. The court is also not precluded from revision when the matter has been brought on appeal as long as it has come to its knowledge or even if the matter at hand did not arise from the record of proceedings.

There are many ways in which a court’s attention may be drawn to cases where the decisions may have to be revised through newspaper reports, through letters from members of the public, aggrieved parties or their relatives, through requests by magistrates or revision of decisions made and through formal applications. Muhari Mohd Jani’s case.

Criminal jurisdiction of Malaysian courts (Part 1)

In this article we will discuss the jurisdiction of the courts in Malaysia with respect to criminal matters. Before discussion can commence however we need to look at the hierarchy of Malaysian courts, which can breifly be illustrated by the following diagram;

Courts Hierachy in Malaysia

Going by the diagram above, quite obviously the lowest court that exists is the Penghulu’s court (with respect to Peninsula Malaysia) and the Native’s court (in the case of Sabah and Sarawak). This is followed by the Magistrates’ courts (consisting of First and Second class Magistrates) and the Sessions court. Together these courts constitute what are called the lower courts and are governed with reference to the Subordinate Courts Act 1948 (formerly the Courts Ordinance, 1948).

Above the courts hereto mentioned, there is the High Court, the Court of Appeal and finally the country’s apex court, the Federal Court. These are superior courts that are created by the Federal Constitution of Malaysia (specifically by Article 121 and the few Articles following) and organised by the Courts of Judicature Act 1964.

Having despensed with elaboration as to what courts exist in Malaysia we will proceed to examine the criminal jurisdictions conferred on each court in respect thereof. There exist three types of jurisdiction, firstly subject matter jurisdiction, secondly local jurisdiction, thirdly sentencing jurisdiction and finally extraterritorial jurisdiction. It is mainly the first and the third kind that concern criminal law. Common sense of course dictates that the lower courts would have more limits in terms of what subject matters they are able to ajudicate upon compared to the higher courts.

Previously, prior to 1978 in respect of criminal matters, the Judicial Committee of the Privy Council, UK was the apex court of Malaysia, like so many other Commonwealth realms. Those judgments made by the court while it was still a Malaysian court are still binding, see the decision of the Federal Court in Dalip Bhagwan Singh v PP [1998] 1 MLJ 1.

There is also a seperate Court for Children constituted under the Child Act 2001. This court replaced the Juvenile Court constituted for trying minors previously.

First we shall start with the Penghulu’s Court. Section 95 of the Subordinate Courts Act 1948 states that the penghulu shall have jurisdiction to try offences of a minor nature, enumerated in his Kuasa, and can impose a fine of not more than RM25 (Section 96). The offender must be one of an Asian race and able to speak the Malay tongue. The offender also has a right to be tried by a Magistrate instead (Section 95(3)).

When talking about the Magistrates’ Court, one must bear in mind that there exist Magistrates of two types, First class and Second class. The jurisdiction of offences to be tried by the two are of course, different. The jurisdiction of the Second class Magistrate, contained within section 88 of the Subordinate Courts Act 1948, is with respect to trying offences punishable with a term of imprisonment not exceeding twelve months or punishable with fine only, and sentencing to a term of not more than six months jail or a fine not exceeding RM1,000 (Section 89). Should the Second class Magistrate opine that he does not have enough in terms of jurisdictional or sentencing power, he may take the necessary steps to adjourn the case for trial  by a First class Magistrate, as provided for in the proviso to section 88 of the Act.

The First class Magistrate of course, has much more in terms of sentencing and jurisdictional power, and these are provided for within sections 87 and 85 of the Subordinate Courts Act 1948 respectively. The First class Magistrate is vested with the power to try offences punishable with a term of imprisonment not exceeding ten years or punishable with fine only, as well as the power to sentence to a term of imprisonment not exceeding five years or a fine not exceeding RM10,000 or whipping not exceeding 12 strokes, or any combination of the three. There are also exceptions to the limitation on the First class Magistrate’s power. The proviso to section 87(1) for example, states that the Magistrate may award in excess of the power proscribed where any law gives him the authority, and some examples include section 118 of the Customs Act 1967, section 41 of the Dangerous Drugs Act 1952 and section 6(3) of the Betting Act 1953 (formerly the Betting Ordinance, 1953 or Ordinance No. 47 of 1953) where the Magistrate has power to impose a fine of not less then RM 20,000 and not more than RM 200,000 and up to five years imprisonment or both. The exercise of this power was seen in the case of Cheong Ah Cheow v PP[1985] 2 MLJ 257 and the case of PP v Yap Sin Peng [1986] 2 MLJ 66 wherein the Magistrate had awarded the maximum RM20,000 fine in both cases respectively, and these decisions were upheld. Section 87(2) gives the Magistrate further authority to punish in excess of his jurisdiction where the accused has previous convictions and provided that the Magistrate records his reasons for doing so. However, cases such as PP v Tengku Hitam [1962] MLJ 414 and Abdul Wahab v PP [1970] 2 MLJ 203 given the said provision an unnecessarily restrictive construction by stating that the Prosecution has a duty to choose with care as to which court possesses the requisite sentencing jurisdiction sought by the Public Prosecutor before going on to prosecute his case, and that section 87(2) can only be invoked when the case takes an unexpected turn and that the Magistrate’s basic sentencing powers are found wanting and furthermore knowledge of previous convictions can only be adduced after trial. With respect, such a construction does not serve the true intention of the provision which makes no mention of such limitations, and only serves to inhibit the Prosecutor’s unfettered discretion to prosecute in a Court of his choice under Article 145 of the Federal Constitution. It must be noted however, that a Magistrate does not have jurisdiction over Constitutional matters, as acknowledged in the case of Repco Holdings Bhd v PP [1997] 3 MLJ 681.

The criminal jurisdiction of other Malaysian courts, namely the Sessions Court, the High Court and the Court of Appeal will be examined in the next part.