Malayan Law Journal Unreported/2017/Volume/Public Prosecutor v Mohd Azri B Ba’Aduzaman - [2017] MLJU 2191 - 3 October 2017 [2017] MLJu 2191 Public Prosecutor v Mohd Azri B Ba'Aduzaman MAHKAMAH MAJISTRET (SELAYANG) IRIANE ISABELO M CRIMINAL CASE NO BD-1-83RS-11-01 OF 2017 3 October 2017 Irlane Isabelo M: GROUNDS OF JUDGMENT [A] Background of the case [1] The accused was found guilty and convicted upon pleading guilty to an offence under section 380 of the Penal Code for committing theft at Giant Supermarket in Batu Caves, Selangor on 21/01/2017 at about 7.00pm. The facts (Pt) as agreed by the accused show that the latter had, in his possession some items valued at RM144.95, without any proof of payment. The items are as follows: Pantene Shampoo FIM Herb Scissor 10 Blades ‘Chef Knife with cover Loreal Conditioner Fall Repair PHS Oat Milk with almond Body Wash ‘Sensodyne Completion Protection Utility Knife Loreal Eye Cream SNM EENE [2] Upon hearing the submission by the prosecution and the plea in mitigation by the accused's counsel, this Court made an order under section 294 ofthe Criminal Procedure Code (CPC) that the aocused be released on probation of e keep the peace and be of 900d behavior with a surety 2 MESO. rapt of (2 yuna wh far onona ped nde econ 230 gl ars aa, 1. That the accused shall remain 12 supervision of Ba ‘aduzaman bin Rami rz for the period of two (2) years. 2. [2] That the accused shall report at Mantin Police Station, Negeri Sembilan every two (2). months forthe period of two (2) years. [B] Reasons for an order made under section 294 of the Criminal Procedure Code [3] Prior to making such an order, this Court is aware that the provision under section 204 of the Criminal Procedure Code can be applied both in case where mandatory imprisonment is provided. or in an optional imposition of a sentence of imprisonment, as held in the case of PP vs bakar bin Abu (unreported 41-95-2006) , PP vs Lim Hong Chin [1993] 3 MLJ 738, PP vs Yeong Yin Choy {1976} 2 MLJ 267, Winston Rajah vs PP [1999] 1 CLJ 315. With such an. understanding, this Court had, prior to making such an order, considered the whole facts and circumstances of the case in which the offence was committed while taking into account the plea in mitigation by the accused as it was held in the case of PP v Md Rashid bin Harun [2000] 3 MLJ 503 that ‘the courts are duty bound to consider all these matters before deciding upon a suitable sentence’ (Joginder Singh v PP [1984] 2 MLJ 133). The sentence must be one appropriate to the gravity of the offence (Lee Yoke Choong v PP |1964] MLJ 138). Accordingly. the sentence should reflect the seriousness of the offence (PP v Khairuddin [1982] 1 MLJ 331). Mitigating factors are not to be disregarded, even if the offence calls for a deterrent sentence (Lee Peng Kong v PP [1986] 2 CL 139). [4] In the present case, and in the exercise of the judicial function of passing appropriate sentence, this Court is guided by the principles of sentencing that the aggravating and mitigating factors have all been taken into consideration prior to making an order under section 294 of the Criminal Procedure Code as stated by the Court of Appeal in Ng Terk Chai v Public Prosecutor and other appeals {2013} 2 MLJ 375 that “It is acknowledged that sentencing (s purely discretionary and it is the prerogative of the sentencing court fo impose the appropriate sentence. But whatever sentence the sentencing court imposes. it must not overlook justice and faimess. And the sentencer must exercise hisdiscretion judicially” [C] Aggravating Factor The facts and circumstances of the case. [5] The charge under soction 380 of the Penal Code mandated a torm of imprisonment for a maximum of ten years, and shall also be liable to fine, and for @ second or subsequent offence. shall be punished with imprisonment and shall also be liable to fine or to whipping. The fact that the sentence of imprisonment is mandatory indicates the seriousness of the offence. As tendered al P1 and agreed to by the accused, the facts of the case show that the accused had, in his possession eight (8) items valued at a total of RM RM144.95 without any proof of payment. Those items however, have ail been successfully retumed to the complainant. Referring to the case of Liow Siow Long v. Public Prosecutor [1970] 1 MLJ 40/it was held that “in assessing sentence, the primary consideration is the character and magnitude of the offence, but the court cannot lose sight of the proportion which must be maintained between the offence and the penalty and the extenuating circumstances which might exist in the case." Hence, while taking into account the offence committed under section 380 of the Penal Code which provided a mandatory sentence, this Court did consider the mitigating factors that were present in this case as follows:- [D] Mitigating Factor Plea of guilt [6] itis a well established principle of sentencing that a plea of guilt is one of the mitigating factors that must be considered as decided by the case of Melvani[1971] 1 MLJ 137 and Ravindra: & Ors [1992] 4 CLJ 2043. As stated in the case of Sau Soo Kim v. PP [1975] 2 MLJ 134, ‘Whether a person is a hardened criminal or not, | feel that a ploa of guilty should be treated as a mitigating factor. It not only saves the country a great expense of a lenathy trial but also Saves time and inconvenience of many, particularly the witnesses’. Simitarly, the Court in Raja lzzuddin Shah v. Public Prosecutor [1979] 1 MLJ 270 clearly stated that ‘No plea in mitigation should be thrown aside lightly but must be examined and considered equally with tho facts presonted by the prosecution. Both aspects of the case must be considered in their rue perspective so as to strike if possible. a true balance in the scale of justice’ First Offender [7] The accused was a first offender, and this fact alone mitigates the sentence that should be imposed, as it was held in the case of PP v. Jafa bin Daud [1981] 1 MLJ 315 that “In assessing sentence, one of the main factors to be considered is whether the convicted person is a frst offender. It is for this purpose that before passing sentence, @ Magistrate is required to call for evidence or information regarding the background, antecedent and character of the accuse”, [8] In the case of PP vs Shanmuganathan [1967] 1 MLJ 204, the accused as a first offender who was found guilty under section 408 of the Penal Code which provided mandatory imprisonment, wes ordered, on appeal to High Court, to be released on a bond of good behavior under section 294 of the Criminal Procedure Code, while the original sentence of four (4) months imprisonment by the lower court was set aside. The background of the accused [9] The accused aged 52 years, was previously working with Perodua eaming at RM2016.00 per month. Currently however, the accused is full time studentin the Bachelor of Art in Business Administration at Linton University College. Being a student 2t the tertiary leaming centre, the counsel submitted that the accused be spared from the imprisonment as this would affect the future of the accused, who had committed the offence out of impulse’ and without any thoughtful consideration of the effect of his action. He is remorseful and this was apparent in the manner the accused was present in Court. He was in tear when admitting the biggest mistake he made throughout his life. [10] In considering the aggravating and mitigating factors mentioned above, and in assessing whether or not a term of imprisonment is suitable and proper, this Court refers to the case of Taib bin Gemok v. Public Prosecutor [1984] 1 MLJ 313, where itwas held that ‘The modern tendency in sentencing, as | understand it, is not to try to fl the jails at every conceivable opportunity, but only to send people io prison where this is essential in the interest of society’ [11] And while each case, of necessity, must depend upon its own facts and upon the character and antecedents of the accused, Hilbery J. in R v Ball 25 Cr App R 164 is quoted to have held that the interest of society is best served if the offender is induced to turn from criminal ways to honest living. * The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living” [12] In this case, the accused, being a first offender had been remanded for seven (7) days. This period of detention has been appropriately taken into account in deciding the proper sentence as decided in the case of Muharam binAnson v Public Prosecutor [1981] 1 MLJ 222 that 'In our view this period of detention, briof though it may appear, ought fo have been taken into account by the leamed trial judge for the purpose of passing sentence. [13] In the present case, while taking into account the fact that this offence under section 380 of the Penal Code mandated a mandatory imprisonment, this Court also acknowledged that the items seized from the accused were all successfully retumed back, hence no real loss caused to the complainant. Considering the guilly plea, the fact that the accused is a first offender who has a bright future as he being currently an undergraduate student in a tertiary learning centre and that he had been in remand for seven (7) days, this Court is of opinion that giving the accused a chance to lead an honest living and be a law abiding citizen does serve the interest of the public. Moreover, a bond of good behavior is not an escape from the punishment. it merely a suspension for two (2) years Period with further conditions as directed by this Court, within which, the accused must keep peace and of good behavior, failure which, he would be dealt with for his orginal offence as held in PP vs Idris [1955] MLJ 234.