Sentencing Practice In The Subordinate Courts:

[2017] 1 MLRA Getting The Priority Right i

SENTENCING PRACTICE IN THE SUBORDINATE

COURTS: GETTING THE PRIORITY RIGHT
by

Raus Sharif PCA*

Introduction

[1] Good morning. It is a pleasure to be able to speak to all of you on

“Sentencing Practice: Getting the Priority Right”. As you all know, sentencing
is the imposition of penal sanction to those who have infringed the law. And
all of you should know that sentencing is one of the two main responsibilities
entrusted on judicial officers manning the subordinate courts. The other is the
finding of guilt of the accused.

[2] Before going any further, I would like to take this opportunity to remind
the Magistrates and Session Courts Judges that in carrying out the two main
responsibilities that I have just mentioned, ie finding of guilt of the accused and
imposing the sentence, it must be done without fear or favour. It must be done
in accordance with law and based on evidence before you. In other words, your
decision must not be influenced by other considerations which is not provided
by law. Requests for help from friends, colleagues, relatives even your seniors
or your bosses should not be entertained. Most importantly, you yourself must
not try to influence or ask for favours from your colleagues or your juniors, in a
given case. My message is, the Magistrates and Session Courts Judges and for
that matter, all of us in the judiciary must maintain at all times a high degree of
integrity in performing our duties.

[3] The purpose of sentencing have been traditionally said to be for retribution,
deterrent, prevention and rehabilitation. These classical theories have been
features of sentencing policy for many years. These theories underline judicial
responses to two fundamental questions of WHY PUNISH and HOW MUCH
PUNISHMENT should be inflicted.

The Problem

[4] Unfortunately, despite volumes have been written on this subject sentencing
Judges are still preoccupied with the perennial problem of getting it right,
particularly on the issue of HOW MUCH PUNISHMENT should be inflicted.

[5] Based on my own observations and those other judges who have shared
with me, there is a misplaced sense of priority in the sentencing practice in
our courts. This is particularly so when it comes to sentencing offenders in
serious crimes. This misplaced sense of priority has given rise to fertile public
criticisms and reinforces the public perception – albeit not entirely accurate -
that crime and punishment are at real risk of losing a sense of purpose.
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[6] At the root of the problem, there are two false assumptions which have
been muddying up sentencing practice in our courts. The first being there is an
erroneous assumption that the various aims of sentencing should be balanced
in each case. The second being a further erroneous assumption that mitigating
factors carry equal weight with aggravating factors and as such, all aggravating
factors must be offset against all mitigating factors, including personal factors,
in all cases and under all circumstances.

[7] The misconception mentioned above shows that sentencing judges are not
fully conscious of those various theories of punishment and of the fact that
following to the demands of any one of them may lead to conflict with the
demands of another. The misapprehension of proper practice in weighing the
mitigating and aggravating features also manifests failure of the sentencing
judges to turn their mind to that first and foremost consideration in sentencing,
namely the public interest .

[8] In short, in my observation, it appears that sentencing in our courts is not

properly guided or informed by any priority set amongst alternatives theories
and conflicting factors. Without identifying any chief goal in sentencing or
recognising that in certain types of case, one or another rationale might be given
priority, the mechanical practice has often led to evidently inadequate sentence
being meted out by the courts. This has in turn given rise to an impression that
justice concerns only the well-being of the accused person alone.

[9] Another problem which is prevalent is sentencing based on instinct and

intuition. When sentencing is based purely upon instinct and intuition, it
becomes virtually impossible to ascertain the acceptable range of penalties by
which a sentence can be imposed. The danger of this unstructured approach, I
should like to think, is that sentencing judges may act under a misunderstanding
that they are free to switch from one rationale to another as they choose,
according to the case or type of case before them, and to switch sentencing
policy at whim.

Proposal

[10] With that introduction, I turn to the topic at hand. I wish to propose
a way to address the common conceptual pitfall mentioned in the foregoing
paragraphs. The law, guidelines and principles on sentencing have been
variously discussed in case laws, textbooks and academic papers. What I have
in mind instead is to explore a logical structure by which these various laws,
guidelines and principles are to be considered and applied in practice when a
sentencing judge is required to pass sentence.

[11] I would like to advocate, adopting with slight modification, a proposal

admirably advance by Professor Tan Yock Lin in his excellent Criminal
Procedure text book. In the practical binders, the learned author offers a two-
stage approach to sentencing:
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[2017] 1 MLRA Getting The Priority Right iii

“What will facilitate more rational and informed sentencing is recognition

that there is a dichotomy between public interest and aggravating or
mitigating factors. Generally speaking, only the public interest should affect
the type of sentence to be imposed while only aggravating or mitigating
circumstances affect the duration or severity of the sentence imposed. There
is only confusion and chaos when the public principles and the mitigating and
aggravating principles are applied synonymously or interchangeably.”

[12] The common thread of this process involves a sentencing judge first
determine an appropriate sentence commensurate with the severity of
the offence and then proceeds to fine-tune the sentence in light of relevant
aggravating and mitigating circumstances.

[13] Based on this approach, sentencing judges should generally be concerned

with the type of sentence to be imposed in the first step and the duration or
severity of the sentence imposed in the second step. Looking at this two-step
approach from a different perspective, it may be said that the first stage directs
the sentencing judges’ attention to the question of Why Punish and the second
stage How Much to Punish.

[14] Let us now consider in more detail and in more depth on this proposed
two-stage process.

First Step: WHY PUNISH?

[15] In the context of criminal sentencing, the public dimension of criminal

sentencing dictates that since crime is a public wrong, the victim must not just
speak for himself, but for the community as a whole; and the offender must
not speak just to the victim, but through the victim to the whole community.
Thus, in deciding the appropriate sentence the first and foremost consideration
is public interest. Hilbery J in the oft-quoted passage from Rex v. Kenneth John
Ball 35 Cr App R 164 said it in the following words:

“In deciding the appropriate sentence a court should always be guided by

certain considerations. The first and foremost is the public interest. The
criminal law is publicly enforced, not only with the object of punishing
criminal but also in the hope of preventing it.”

[16] Public interest thus conceived, envisages deterrence or at least retribution

principle (Sathiadas v. PP [1970] 1 MLRH 166). There are a few considerations
which may operate as guiding lights in ascertaining the public interest of a case.
The element of seriousness of an offence (PP v. Tunku Mahmood Iskandar [1977]
1 MLRH 11) or dangerousness of an offender (Choh Wai Sung v. PP [1946] 1
MLRA 50) affords some indication on the requisite public interest. Seriousness
of an offence is guided from judicial policy or reflected in maximum penalty
provided by the legislation.
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[17] Section 528 of the Penal Code defines ‘serious offence’ as ‘an offence
punishable with imprisonment for a term of ten years or more’. The term
of imprisonment sets the yardstick reflecting the legislature is view on the
seriousness of an offence. This definition is confined to offences under the
Penal Code.

[18] Whereas Second Schedule to the Anti-Money Laundering, Anti-Terrorism

Financing and Proceeds of Unlawful Activities Act 2001 enumerates a far more
extensive list of offences from various statutes considered as ‘serious offence’
for purpose of the Act. Apart from the conventional offences proscribed under
the Penal Code, the long list of offences include other statute-specific offences
such as money laundering, trafficking in persons, various banking, securities
industries and capital market related offences, customs offences, drugs
offences, firearms offences, kidnapping, corruption, and wildlife conservation
etc. These statutory provisions have jointly established the paramount import
of seriousness as the determinant of public interest. In the light of clear
indication from the legislature that these offences are to be viewed seriously,
it follows that the legislation requires that offenders of these crimes to be dealt
with sternly. (PP v. Sulaiman Ahmad [1992] 2 MLRH 420).

[19] Insofar as judicial policy is concerned, it may be inferred from guideline

judgments pronounced by superior courts. For this purpose, sentencing policy
relevant to specific offence has been consistently declared by the superior
courts, which the subordinate courts had no discretion to deviate from. In other
words, subordinate courts by binding precedent must follow. For instance, it
is established that protection of community as the overreaching public interest
dictates a strong case to impose deterrent sentence in cases of:

(i) Armed robbery (Leong Ka Kong v. PP [1975] 1 MLRA 636; Low

Thim Fatt v. PP [1988] 3 MLRH 136, PP v. Abdul Halim Abd Samat
[2014] MLRAU 38; Saizaitumuhiddin Ab Rashid v. PP [2014]
MLRAU 130);

(ii) Robbery (PP v. Lee Tak Keong [1988] 3 MLRH 134);

(iii) Serious crime involving violence (Ong Lai Kim & Ors v. PP [1991] 2
MLRH 102), extortion (Yong Pak Yong v. PP [1959] 1 MLRH 536);

(iv) Burglary of private dwelling houses (Hasanuddin Abd Hamid v. PP

[2002] 1 MLRH 454);

(v) Motorcar theft (PP v. Wong Chak Heng [1985] 1 MLRH 292);

(vi) Purse and handbag snatching in the street or in stores (Chua Chin
Hau & Satu Lagi v. PP [2009] 10 MLRH 905, Mohd Ridwan Bin
Mohd Yusof v. PP [2014] MLRAU 496;

(vii) Dangerous drugs (Tia Ah Leng v. PP [2004] 2 MLRA 284, Mohd

Shaiful Saad v. PP [2015] MLRAU 38);
 Sentencing Practice In The Subordinate Courts:
[2017] 1 MLRA Getting The Priority Right v

(viii) Act of terrorist (PP v. Hassan Hj Ali Basari [2014] 1 MLRH 145;
Pendakwa Raya lwn. Ummi Kalsom Bahak [2015] MLRHU 870;
Pendakwa Raya lwn. Muhammad Kasyfullah Kassim [2016] MLRHU
1002); and

(ix) Corruption (PP v. Dato’ Waad Mansor [2005] 1 MLRA 1).

[20] By determining the type of punishment suitable to an offence, you

basically answer the question of WHY punish. At this stage, you need not
concern yourself with any aggravating or mitigating factors yet. Then your
next consideration would be the length of punishment, which will depend on
the presence or absence of aggravating or mitigating features. Therefore, as a
starting point, the task of sentencing judges is to find out which of the principles
of sentencing is most pertinent to the factual matrix of a case at hand.

[21] Ultimately, the choice between a custodial and non-custodial sentence

must be made in relation to the gravity of the crime and the circumstances
under which it was committed. Criminal law adheres in general to the principle
of proportionality in prescribing liability according to the culpability of each
kind of criminal conduct. Proportion between crime and punishment remains
an important consideration in the determination of sentence (Rikky Purba v.
PP [2014] 2 MLRA 140). In exercising their sentencing discretion, sentencing
judges must be guided by the principle of proportionality. So, when deciding
between custodial and non-custodial sanctions, the harshness of the type of
sentence imposed must respects the principle of proportionality (PP v. Muhari
Mohd Jani & Anor [1996] 3 MLRH 717).

Second Step: HOW MUCH PUNISHMENT TO BE INFLICTED?

[22] Insofar as the second stage is concerned, the process of reasoning revolves
on the quantum of punishment, be it in terms of length of a custodial sentence
or extent of other alternative sentencing options. In this respect, the fact that a
sentence of imprisonment is imposed as a deterrence does not justify passing
a sentence of greater length than the facts of the offence warrant. The gravity
of the type of offence involved must be considered in the light of the particular
facts of the offence. The court, in fixing the punishment for any particular
crime, will take into consideration the nature of the offence, the circumstances
in which it was committed, the provocation which he had received, if the crime
is one of violence, the antecedents of the prisoner up to the time of the sentence,
his age and character.

[23] As said earlier, it is well-recognised that the fixing by the legislature of

a maximum sentence for a particular crime provides a legislative view of the
seriousness of the crime in question. A legislative policy so indicated, as with
any other legislative policy should guide the court in the determination of
the appropriate sentence to be imposed in a particular case. In order to give
effect to this policy, it will normally be necessary to reserve the maximum
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for the more serious cases of the crime in question with the less serious cases
being dealt with by imposition of a less penalty which pays due regard to the
seriousness of the class of crime, so indicated by the legislation. If there is a
legislative amendment increasing the maximum sentence, this new view of the
seriousness of the crime should be reflected in the sentence imposed.

[24] To answer the second question of HOW MUCH to punish, be it in term of

length of a custodial sentence or extent of other alternative sentencing options,
the relevant aggravating and mitigating factors should be considered. While
it is generally true that no plea in mitigation should be thrown aside lightly
but must be examined and considered equally with the facts presented by the
prosecution. Both aspects of the case must be considered in their true perspective
so as to strike if possible, a true balance in the scale of justice (Raja Izzuddin
Shah v. PP [1978] 1 MLRH 248). But that does not mean mitigating factors
alone should feature prominently in sentencing. In certain circumstances,
certain mitigating factors can be of no mitigation value (Kesavan Baskaran v. PP
[2008] 2 MLRA 213) or cannot count for much (PP v. Ismail Shah Abdul Wahab
[2007] 1 MLRH 374). In every case, the court must be realistic and rational (PP
v. Loo Choon Fatt [1976] 1 MLRH 23).

[25] In this regard, the most common mistakes are in relation to sentencing
repeat offender, credit on account of a guilty plea, and consideration of
personal or family hardship of the offender. To better facilitate our discussion
within the time allocated to me, I will reduce the scope to focus on four aspects,
vis-a-vis repeat offenders, plea of guilt, concurrent or consecutive sentence, plea
bargaining and sentencing of youthful or child offenders.

[26] First among the identified shortcomings is in relation to sentencing repeat

offender. When the convicted person has previous records and admits them
as correct, the court must consider whether the offence or offences committed
previously were of similar nature as the one with which he is presently charged.
Where he is found to be a persistent offender for a similar type of offences,
then it is in the public interest that a deterrent sentence should be passed and,
in such a case, unless there are exceptional circumstances, the quantity, nature
or value of the subject-matter of the offence with which he is currently charged
can very rarely constitute a mitigating factor (PP v. Jafa Bin Daud [1981] 1
MLRA 413).

[27] When dealing with repeat offender, the Magistrate in particular must
be mindful of the provision in s 87(2) of the Subordinate Courts Act 1948.
Section 87(2) of the Act empowers a magistrate to impose the full punishment
prescribed for an offence on a convicted person if he is satisfied that the previous
conviction or antecedents of that person warrant such a punishment. Thus, the
previous conviction and antecedents of a convicted person play a vital role in
sentencing (Abdul Wahab v. PP [1970] 1 MLRH 1; PP v. Govindnan Chinden Nair
[1998] 2 MLRH 48).
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[28] Now I move on to plea of guilt. It is an accepted rule of practice that an

accused should be given credit or discount for pleading guilty. The credit or
discount to be given to an accused person is not on the maximum sentence
imposed by law, but rather on the sentence which would have been imposed
on the accused if he would have claimed trial and been found guilty. This
important observation was made by the then Supreme Court in the case of
Mohd Abdullah Ang Swee Kang v. PP [1987] 1 MLRA 43.

[29] The accused here was charged for an offence of criminal breach of trust
under s 409 Penal Code. The subject matter of his charge was RM338,808.80.
After hearing a plea in mitigation from his counsel, the accused was sentenced
to eight years’ imprisonment and a fine of RM100,000.00 in default another
six months’ imprisonment. Pertinent to note that s 409 at that time of the Penal
Code provides for 20 years maximum custodial sentence.

[30] The accused appealed to the Supreme Court against the sentence imposed
against him. The issue before the Supreme Court was whether the learned
judge had given adequate discounts for mitigating factors to as to justify the
sentence imposed. In short, was the sentence imposed manifestly excessive?

[31] The Supreme Court after due deliberation allowed the accused appeal by
reducing the sentence imposed on him to four years’ imprisonment from the
date of his arrest, and by setting aside the fine of RM100,000.00.

[32] The Supreme Court ordered a reduction of sentence on account of a plea

of guilty of the accused between one-quarter and one-third of what otherwise
would have been the sentence. In this particular case apart from plea of guilty,
the Supreme Court also held that the sentence must also be discounted to
reflect the full restitution made and the other mitigating factors. The Supreme
Court took into account of the fact that the accused was 40 years old, and
was married with three children. He had made no financial gain at all himself
from the criminal breach of trust. The charge indicated a loss of RM338,808.80
to Malaysia Overseas Corporation Sdn Bhd (MOIC) of which he was the
managing director at the relevant time. But, it was common ground that not
a single cent of that sum entered his pocket. The money misappropriated
was for the benefit of the National Rubber Small Holders Product Sdn. Bhd.
(NARSPRO) who were in need of financial aid to buy machineries without
which their factory could not operate. Full restitution with interests had been
made by NARSPRO on 2 May 1986. It was therefore fair to say that MOIC
had been deprived of their money from 9 April 1985 to 2 May 1986 – a period
of just over a year. As a result of the financial assistance, NARSPRO became
a successful business venture.

[33] Speaking for the Supreme Court, Mohd Azmi SCJ had this to say:

“….. the appropriate sentence if the appellant had claimed trial would have
been around eight years, regard being had to the amount of money defalcated
and the other circumstances of the case. Clearly on this test, the sentence
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imposed on the appellant was manifestly excessive. It is generally accepted

that the extent of the reduction on account of a plea of guilty would be
between one-quarter and one-third of what otherwise would have been the
sentence. In this particular case apart from plea of guilty, the sentence must
also be discounted to reflect the full restitution made and the other mitigating
factors.”

[34] However, there are circumstances in which a guilty plea will have little
weight. The severity of the offence committed may outweigh the mitigating
effect of a guilty plea (Loh Hock Seng v. PP [1979] 1 MLRA 264; PP v. Oo Leng
Swee [1981] 1 MLRA 234 ). Where public interest demands a deterrent sentence
in the circumstances of a particular case, then the effect of a guilty plea must
also give way (Che Hasan bin Senawi v. PP [2008] 2 MLRA 31; PP v. Govindnan
Chinden Nair [1998] 2 MLRH 48). A guilty plea cannot be a powerful mitigating
factor when effectively no defence to the charge is available to the accused (PP
v. Low Kok Wai [1988] 1 MLRH 353).

[35] If a plea of guilty is made too late in the trial, it may also cease to have
mitigating effect (PP v. Dato Nallakaruppan Solaimalai [1999] 1 MLRH 319).
The absence of mitigating factors in favour of the offender like, for instance,
the existence of previous convictions may also deprive the guilty plea of its
effect. There can therefore be no automatic rule that a guilty plea on its own
entitles an accused to a lesser punishment (PP v. Tia Ah Leng [2000] 2 MLRH
151). Where there is a departure from the general rule, the reason for not
treating the guilty plea as a mitigating factor must be reflected in the grounds
of judgment (Tan Lay Chen v. PP [2000] 1 MLRH 646; Aisyah bt Mohd Rose v.
PP [2016] 1 MLJ 840).

[36] Finally, on consideration of personal hardship suffered by the offender as

mitigating factor, the correct approach to sentencing is that sentencing judges
should not be over-sympathetic to the accused (PP v. Loo Choon Fatt [1976] 1
MLRH 23). You should not lean towards the accused, being over sympathetic
and swaying towards the offender’s family and expressing personal sentiments
and feelings and in total disregard to the established judicial principles. In
other words, sentencing judges ought not to be over sympathetic towards
offender who commit serious and grave offences and instead should keep
personal sentiment and feelings aside when exercising judicial discretion (PP v.
Kamaruzaman Mahmud & Anor [2006] 2 MLRH 60).

[37] In this connection, the mitigation submitted by an offender will also

normally bring up problems of family hardship and the other usual problems
of living. In such a situation, the courts might perhaps find it difficult to decide
as to what sentence should be imposed so that the offender may not be further
burdened with additional hardship. This is a wrong approach. The correct
approach is to strike a balance, as far as possible, between the interests of the
public and the interests of the accused. Invariably, as stated earlier insofar as
serious crime is concerned, the public interest far outweighs the mitigating
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factors of the offender (Koay Teng Soon v. PP [2000] 1 MLRA 15). Where the
interest of the public and the interest of the offender collide, the interest of the
public must take precedence over the interest of the offender (PP v. Shahrul
Azuwan Adanan & Anor [2012] MLRHU 1720).

[38] At the risk of repeating, interests of justice does not mean only the
interests of the offender (PP v. Loo Choon Fatt [1976] 1 MLRH 23). In a serious
offence, the court must draw a line between sympathy for the offender and
the need to deter others from becoming copycats especially where there is no
mitigation to the crime itself (PP v. Shahrul Azuwan bin Adanan [2012] MLRHU
1720. In a serious offence, personal hardship should carry little weight or no
weight (PP v. Samsudin Manap [2013] 4 MLRH 306).

[39] Moving on, I notice that there is a disturbing trend amongst Magistrates
and Sessions Court Judges with regard to granting of bound over/good
behavioural bond under s 294 of the CPC. Section 294 of the CPC comes
into practice in cases involving youthful offenders and first offenders. It is a
well-accepted principle of sentencing that young offenders, wherever possible
and depending on the nature of the offences committed, should be kept out of
prison, especially when there are other adequate means of dealing with them.
Bellamy J in Tukiran Taib v. PP [1955] 1 MLRH 480, held that it is desirable
that young offenders, who are also first offenders should be kept out of prison,
if possible. The pronouncement made by Bellamy J in Tukiran Taib v. PP,
albeit made in 1955 has become the guiding principle for courts in exercising
its discretion when assessing the appropriate sentence for young offenders.

[40] For s 294 of the CPC to apply regard must be made to the character,
antecedents, age, health or mental condition of the offender or to the trivial
nature of the offence or to any extenuating circumstances under which the
offence was committed, that it is expedient that the offender be released on
probation of good conduct. Although there are plethora of case laws to suggest
the guiding factors such as first offenders and youthful offenders must be given
leverage in sentencing through the imposition of bond or probation, this must
be done so only if circumstances so warrants. Whether or not an accused is to
be dealt with under s 294 of the CPC is at the discretion of the Court.

[41] Each case must be viewed based on its own peculiar facts. If you remember
the case of Nor Afizal Azizan v. PP [2012] 5 MLRA 20, the Court of Appeal
inserted a rider to its decision. I had the misfortune of presiding over this case
on appeal and I stated in no uncertain terms that sentences imposed on this
type of cases must be based on the facts of the case. I said it in the following
words:

“[23] For completeness, we would like to add a proviso to our decision: that
whatever sentence to be imposed on this type of cases must be based on the
facts of each individual case. Each case depends on its own facts and it is
neither feasible nor desirable to attempt to lay down any fixed sentence that
is meant to govern this type of cases. Therefore, these observations made by
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this court should not be misconstrued as intending to have blanket application

or applying to all cases involving young offenders charged with the similar
offence as the appellant herein.

[24] In the present case, if the appellant had been older, or he had used force,
coercion or violence on the victim, or he had tricked the victim into submitting
to him or he had not cooperated with the police and he had not shown any
remorse to his act or there is no guarantee that he will not be committing the
same offence in the future, we would not have any hesitation, as we have done
in many other cases of similar nature, to impose a lengthy custodial sentence.
But before us is a young boy who was extremely remorseful for what he had
done and had thrown himself to the mercy of the court by pleading guilty to
the charge.”

[42] The long and short of the rider in Nor Afizal Azizan v. PP was that the
provisions of s 294 of the CPC do not allow any court to go to the length of
saying that in every case of a first offender or youthful offender, it is expedient
to bind him over. Each individual case must be considered based on its own
merits.

[43] Now, I move on to the issue of concurrent and consecutive sentences. As

you all know, an accused person may be convicted of difference offences in the
same trial. The court will then have to decide whether to impose concurrent
or consecutive sentences. A concurrent sentence operates at the same time as
another sentence whilst a consecutive sentence is the sentence that commence
at the expiry of another sentence.

[44] When do you order concurrent or consecutive sentences. Where the

offences are committed in one transaction with regard to proximity of
time, place or continuity of action, purpose or design, concurrent sentence
should be imposed or ordered. Where separate or distinct offences were
committed, consecutive sentences are appropriate (Abu Seman v. PP [1981]
1 MLRA 375, Hashim Bin Pawanchee & Anor v. PP [1987] 2 MLRH 255, PP
v. Yap Huat Heng [1985] 1 MLRH 576). In addition to this one transaction
principle, the court is also guided by the totality principle meaning the court
looks at the totality of the sentences passed and consider if there are overall
excessiveness (Sau Soo Kim v. PP [1975] 1 MLRA 176).

[45] Now I move on to another issue of interest in sentencing that is plea

bargaining. On 1 June 2012, the provisions in the Criminal Procedure Code
relating to plea bargaining vide s 172C came into operation to facilitate the trial
and disposal of criminal cases. This practice permits an accused to plead guilty
to a certain charge with reasonable expectation of some consideration from the
prosecution in doing so. The amendment to s 172C of the CPC clarifies that
the lighter sentence that the court is empowered to impose in a plea bargaining
of sentence is only in respect of imprisonment. It does not extend to offenders
who commit offences which are punishable only with a fine, or are punishable
with life imprisonment. Plea bargaining also does not apply to sexual offences,
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offences against children, offenders who have previous convictions for serious
offences or offences to be prescribed by the public prosecutor by order published
in the Gazette. Depending on the offence, charge and sentencing provisions the
accused may seek one or more of the concessions in his case discussed below.

(i) Charge Reduction – A very common use of plea bargaining is

with respect to the charge whereby the accused and the prosecutor
agree that the accused should be allowed to plead guilty to a less
serious charge than disclosed by evidence. This kind of deal is
in the interest of the accused as well as of the prosecution. The
accused may avoid a higher sentence to which he may be subject
to if charged for the original offence committed by him. The job of
the prosecution becomes easier as they are relieved of the arduous
task of digging for evidence to secure conviction.

(ii) Sentence Discount – Plea bargaining also takes place with

regard to sentencing, whereby the accused pleads to the original
charge in exchange for some kind of discount by the prosecutor
in relation to the sentence to be imposed. The prosecutor may
give an undertaking in a general way to recommend the court
to be lenient in sentences or there may be some kind of promise
of non-custodial sentences. In this type of bargaining, there is a
risk that the trial judge may decline to act on the prosecutor’s
recommendation.

[46] I had the opportunity to discuss the principles applicable to plea bargaining
in the case of PP v. Manimaran Manickam [2011] 1 MLRA 636. This case
was decided before the amendment was made to the CPC to introduce plea
bargaining. More pertinently, this case took the important stand to depart from
the decision of New Tuck Shen v. PP [1981] 1 MLRH 227 in prohibiting the
courts from being involved in plea bargaining.

[47] Now, plea bargaining is given statutory force. The plea bargaining process
starts with the application made by the accused person in form 26A as provided
under s 172C(3) of the CPC. The form must mention: (1) a declaration that the
application is made voluntarily; (2) a brief description of the offence that the
accused is charged with; (3) contain a declaration by the accused stating that
the application is voluntarily made by him after understanding the nature and
extent of the punishment provided under the law for the offence for which the
accused is charged; and (4) information as to plea bargaining applied for is in
respect of the sentence or the charge for the offence that the accused is charged
with. The CPC comprehensively lays down certain steps to be followed when
the court embarks upon a plea bargaining process. This can be explained as
follows:
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(i) Section 172C(4) of the CPC – Notice to the Public Prosecutor

Upon receiving the application from the accused, the court shall
issue a notice to the Public Prosecutor and the accused must
be present on the date fixed for hearing of the plea bargaining.
The format of the notice is as per Form B, attached to Practice
Direction No 2 of 2012.

(ii) Section 172C(5) of the CPC – Examination of the accused in

camera

Where the accused appears on the date fixed under subsection

(3), the court shall examine the accused without the presence of
the Public Prosecutor, to satisfy itself that the request for plea
bargaining is made voluntarily by the accused. This procedure
is similar under the Indian CCrP (s 265(4)). However, where
the accused is represented by the counsel, then it is permissible
for the Public Prosecutor to be present when the court embarks
on an inquiry to satisfy itself that the application has been filed
voluntarily.

(iii) Section 172C (6) of the CPC – The duty of the court

The court has a duty to ensure that the accused has made the
application for plea bargaining voluntarily. The court must ensure
that the process is done voluntarily between the Public Prosecutor
and the accused. Once the issue of voluntariness is resolved, the
accused and the Public Prosecutor shall then proceed to mutually
agree on satisfactory disposition of the case. Where the accused
and the Public Prosecutor cannot come to satisfactory disposition
of the case, the case must then proceed to trial before another
court so as not to prejudice the accused.

(iv) Section 172(7) of the CPC provides that the word “court” means
the High Court, a Sessions Court, or a Magistrates’ Court [CPC.
s 2 and Practice Direction No 2 of 2012].

(v) Section 172(8) of the CPC lists down the type of plea bargaining

Practice Direction No 2 of 2012, para C states that there may be

two types of plea bargaining: (1) plea bargaining relating to the
charge; and (2) plea bargaining relating to the sentence.

(vi) Section 172C(9) provides for the state of plea bargaining process

A plea bargaining can take place during; (1) pre-trial process

(CPC, s 172A(4) 9(f); 172B (2)(i)); or (2) through Form 28A at
any time before the trial commences
 Sentencing Practice In The Subordinate Courts:
[2017] 1 MLRA Getting The Priority Right xiii

(vii) Where no satisfactory disposition has been agreed upon by the

accused and the Public Prosecutor, the court must record such
observation and the case must be remitted to another court for
trial and disposal. The format of the observation of the trial judge
and request to transfer the case to another judge is provided for
the under in Practice Direction No 2 of 2012, Form D.

Since plea bargaining is statutorily provided, it must be done or the steps taken
must be in accordance to what is provided by law. The procedure must be
followed strictly. So it is helpful for you all to familiarise yourself with the
provision of plea bargaining as illustrated in s 172C of the Criminal Procedure
Code.

Conclusion

[48] Sentencing an offender is an important responsibility. Parliament had

entrusted the responsibility to the courts. It is incumbent for the Magistrates
and Session Courts Judges to get it right. To get it right, you must consider
carefully what should be the appropriate sentence. To get it right, you just
apply the right principles of sentencing. To get it right, you must equip
yourselves by reading the judgments pronounced by the superior courts on
sentencing policies. To get it right, you must not be hasty, emotional or to get
excited unnecessarily. You must control your mouth and your brains especially
in dealing with cases of public interest. Do not lecture or conduct sermons
(khutbah) to an accused person.

[49] The Magistrates and Sessions Court Judges engaging in sentencing are
required to reveal their processes of reasoning. Simply to assert that they have
considered a list of relevant matters, without identifying, in general terms,
the weight that has been given to the most important of them, may represent
an error in sentencing. Further, the Magistrates and Sessions Court Judges
cannot and should not be unmindful of the important public dimension of
criminal sentencing and the importance of maintaining public confidence in
the sentencing system. Thus, sentences meted out by the court should not,
therefore, portray that you are not out of touch with the realities of crime and
sentencing.

Thank you.

*President Court of Appeal Malaysia, the lecture on sentencing was delivered during
Judicial Officers Conference Malaysia, July 2016 at Sunway Putra Hotel Kuala Lumpur
xiv [2017] 1 MLRA

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