LAW034: INTRODUCTION TO LEGAL THEORIES

(FINAL EXAM)

NAME:

ABDUL MANAF BIN MAHMUD

MATRIC NUMBER:

(2020514971)

CLASS :
PI005U11

PREPARED FOR : MADAM NORSYAZRAH BINTI ZULKIFLI

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 SUBMISSION DATE : 23ND OF APRIL 2020
Introduction

This court case is to appeal against the sentence imposed by the learned Sessions Court
Judge (SCJ) on the case which took place on 27/11/2018. The Johor Bahru sessions court
charged the appellant as followed “Bahawa kamu Amar Sufian bin Sulaiman KPT 870929-
23-5183 pada 05.06.2017 di antara jam lebih kurang 0830 pagi sehingga 1100 pagi di ruang
tamu rumah No. 30 Jalan Kiambang 8, Taman Seri Pandan, di dalam daerah Johor Bahru, di
dalam negeri Johor telah melakukan rogol seorang perempuan Melayu berusia 19 tahun No.
KP. XXX. Oleh yang demikian kamu telah melakukan suatu kesalahan yang boleh dihukum
di bawah seksyen 376 Kanun Keseksaan “. The outcome, after a full court trial has been
carried out, the appellant was found guilty of the charge and sentenced to 15 years of
imprisonment from the date of arrest including 5 strokes. Following the judgment, aggrieved
by the sentence handed down by the SCJ the appellant has appealed to this court to reduce
the sentence. At the same time, the respondent, aggrieved by the sentence imposed by the
SCJ has chosen to appeal to this court as well. Consequently, there is a cross appeal to this
appeal. Based on the outcome of the case, the court has decided having considered the
element of public interest, judicidial precedent, the facts of the case and the principles in
relation to sentences, this court comes to the conclusion that the learned SCJ did not make an
error of decision in terms of the law or facts in imposing the sentence of 15 years of
imprisonment and 5 strokes. As a result, both the appellant’s appeal as well as the
respondent’s appeal is dismissed. Instead of a new sentence being enforced, the sentence
imposed by the learned SCJ is upheld.

Legal Issue and Existing Law

In regards to the case, there are a few legal issues which arise that needs to be discussed.
To begin with, the first legal issue is whether the sentence imposed by the SCJ to the
appellant is considered to be as excessive or too heavy of a punishment for the crime
committed? and the next one, whether the respondent is right in claiming that the sentence
imposed upon the appellant by the sessions court judge is lenient and inadequate? When
deciding on this case, the court relied upon the trends of sentencing submitted by the
appellant and the respondent. An example of the case submitted by the appellant is Zulezri
Ibrahim v PP (supra) while the respondent submitted various cases one of which is Sahrul
Tola v. P (supra). This appeal case falls under the area of law which is criminal law as the
crime that is committed by the accused is rape. The decision of the SCJ for sentencing the
appellant, 15 years of imprisonment and 5 strokes is correct in accordance to the law based
on section 376(1) of the criminal procedure code which entails a maximum of 20 years of
imprisonment including whipping. In the case of Bhandulananda Jayatilake v PP ( 1982) 1
MLJ 83 the Federal Court has set out the principles of sentencing that the very concept of of
judicial discretion involves a right to choose between more than one possible course of

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action upon which there is room for reasonable people to hold differing opinions as to which
is to be preferred. ( refer to Jamieson v. Jamieson (1952) AC 525 at 549). Because of that
reason, some very conscientious judges have thought It their duty to view the same crime
with leniency. Hence, sentences do vary in apparently similar circumstances with the habit of
mind of the particular judge. For a discretionary judgment of this kind to be reversed by this
court, it must be shown to our satisfaction that the learned judge was embarking on some
unauthorized or extraneous or irrelevant exercise of discretion. In a nutshell, the above
mentioned case states that with regard to sentencing, judges are vested with a wide
discretion. In the end, the court sticks with the decision that was made by the sessions court
judge and dismissed both the appellant’s appeal and the respondent’s cross appeal.

Case Analysis
Based on the outcome of this case, in my personal opinion I do think that the decision that
was made by the high court to not change the weightage of the punishment put upon the
accused is fair. I would say however, that it is utterly unnecessary for the sentence to be
reduced since rape after all is an extremely serious offense due to the fact that the act itself
can cause harm towards another individual, the victim. The victim could potentially suffer
from injuries as well as psychological damage from the traumatic experience which may or
may not haunt the victim for the rest of their lives. There is also the risk of the victim
becoming pregnant which is not something to be taken lightly as in this case, the victim has
already has reached the age of majority. On the other hand, to increase the weightage of the
sentence imposed, in my perspective is also acceptable just as long as it stays within the
limitations of the punishment set by the law. This is because, justice in law differs from one
individual to another so there isn’t really a clear line of distinction between what is just and
what is unjust when it comes to imposing punishments to criminals. When deciding on a case
which involves crimes of sexual offenses, the approach that was used by the judge in this
case is a heavy sentence needs to be imposed because the court functions as the custodian of
law. The rationale or reasoning behind a heavy sentence is pivotal as it serves as a lesson for
the offender plus functions as a deterrent for society.

After that, I would like to analyze the arguments from both parties the appellant as well as
the respondent. According to the appellant’s submission, the claims that the SCJ made a
blunder when he imposed a sentence of 15 years of imprisonment from the date of arrest and
5 strokes upon him therefore he asked for his punishment to be reduced as the appellant
deemed his punishment to be excessive. Furthermore, following his argument he submitted
that sentencing should be based on legal principles such as the practice of mitigation to
reduce the sentence as referred to the case of Raja Izzuddin Shah v. PP [1998] 1 LNS 165.
Aside from that, an important fact was raised by the appellant which refers to the fact that he
had no previous criminal record as well as the fact that he is regretful and remorseful due to
his act of crime. This apparently was not taken into consideration by the court. The appellant
supported his argument with judicial precedent that can be obtained from the case [2019] 1
LNS 65, PP v. Abdul Rahman Mohamad [2005] 1 CLJ 700 and Mohd Salleh Mk Mohd

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Yusof v. PP [2005] 2 CLJ 655) where both in these cases the accused fulfilled three criterias
which are no previous criminal record, the accused was both regretful and remorseful and the
fact that years of imprisonment differs for each case. In my point of view, it is a must
according to law for all mitigating factors to be taken into consideration when imposing a
sentence, in order to ensure justice and equality in court. It would be immoral and unfair if a
judge disregards these mitigating factors when deciding. Finally, the appellant’s last
argument is, based on the case law of (PP v Dato’ Seri Anwar Ibrahim ( Bo 3) (1999) 2 CLJ
215) it has been established that the reluctance of an accused to advance a plea in mitigation
must be constructed as a reflection of his absence of remorse. Following his claims, he
provided sentencing trends from cases such as Zulzeri Ibrahim v. PP [2019] 1 LNS 65, PP v.
Abdul Rahman Mohamad (2005) 1 CLJ 700 and Mohd Salleh Mk Mohd Yusof v. PP (2005)
2 CLJ 655. Moving on to the respondent’s arguments, first and foremost the respondent
argued that according to the provision of law the punishment imposed by the learned SCJ was
too low which then they backed up their argument with section 376(1) of the Criminal
Procedure Code. Besides that, the respondent also submitted that, due to the nature and the
severity of the crime committed by the accused, the sentence which was originally put upon
him was deemed to be insufficient considering the fact that the case went through a full trial.
Moreover, another argument brought to the attention of the court by the respondent is, the
appellant claims that the element of public interest was failed to be taken into consideration
by the learned SCJ. As supporting evidence, the respondent proceeded to refer to the case of
Public Prosecutor v. Teh Ah Cheng (1976) 2 MLJ 186. Then, the respondent also brought up
that, the learned SCJ did not take into account that rape is a rampant crime and as a result, has
asked for the court to give judicial notice to the prevalence of rape in society. Subsequently,
the respondent presented three cases which shows the trends of sentencing that supports their
argument to increase the sentence such as, Elias Abdul Kasem v. PP (2017) 1 LNS 2047,
Sahrul Tolar v. PP (2018) 1 LNS 731 and Cumaidi Ghani v. PP (2018) 1 LNS 980.

Proceeding with the application of law by the High Court, when deciding on this appeal
the court considered on the trends of sentencing submitted by the appellant such as from the
case PP v. Abdul Rahman Mohamed (supra) and Moh Salleh Mk Mohd Yusop v. PP (supra).
Referring to these cases however, there were multiple charges of rape where in the case of the
appellant there’s only one charge. In the case of Zulezri Ibrahim v. PP (supra) the victim was
14 years old whereas in the appellant’s case, the victim is 19 years of age. As a result, the
court comes to the conclusion that the cases that was submitted can be distinguished from the
current case before this court. Similarly, the cases submitted by the respondent for cross
appeal can also be distinguished . For instance, in Elias Abdul Kasem (supra) the offender
and the victim were lovers, and in the case of Sahrul Tola v. PP (supra) the offender was a
family member to the victim. Another case is, Cumaidi Ghani v. PP (supra) the victim was 13
years of age which makes the victim a minor but in this case, the victim is 19 years of age. In
my opinion, I think that the court was smart in making comparisons for this case to other
cases of rape. Despite the fact that all these cases fall under the same crime, the
circumstances and the facts for each case is different thus resulting to different sentences.
Then, this court recognizes that the learned SCJ has in fact taken into account of the
appellant’s mitigating factors. Subsequently, the learned SCJ referred to the case of Chia Kim
Heng Federick v PP [1992] 1 SLR 361 where the Singapore Court of Appeal held: “In our

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opinion, for a rape committed without any aggravating or mitigating factors, a figure of ten
years imprisonment should be taken as the starting point in a contested case, in addition to
caning”. The court should then consider in turn the mitigating factors which merit a reduction
of the sentence. Some of the mitigating factors which were taken into account are the
convicted is a 32 year old mechanic with no previous criminal history and has repented, the
element of public interest and finally the seriousness of the crime of rape. Following these
mitigating factors, the court referred to previous cases as guidance for instance the case of PP
v. Loo Choon Fatt [1976] 1 LNS 102 which consequently causes for this court to agree with
the learned SCJ’s point of view that public interest outweighs the interest of the appellant
specifically when concerning offences of sexual nature in this particular case which is rape.
After that, a reference to the case of Manuava Venkareswarlu v. State of High Court of Andra
Pradesh [1995] 2 crimes (AP) 854 was made and in this case it was stated that the offence of
rape must be dealt as the greatest crime against the human dignity. In my opinion, I
completely agree with the fact that the interest of the public is far greater than the interest of
the appellant, which is why it is essential for a heavy sentence to be imposed in order to teach
the offender a lesson as well as to curb the crime of rape from spreading in society due to the
fear of sanction enforced by the law. Ultimately, this court has come to the decision that, the
learned SCJ did not make an error in the original sentence that was imposed as he had given
due consideration to the principles of sentencing as enumerated in Yusmarin Samsudin v. PP
[1999] 1 MLRA 477.

Conclusion
To sum up, overall I would say that enforcement of sentences when it concerns rape cases
must be in accordance to the law and the principles of sentencing set by the authorities.
Sanctions imposed upon offenders must be within the limitations that is set by the law in
order to uphold justice and fairness of the court system. The rights of the accused to be heard
in court must be fulfilled in order for them to defend themselves to the fullest however
ultimately the decision lies in the hands of the judge. If the accused is unsatisfied with the
sentence imposed, he or she has the right to appeal. But, the appeal must be made to the
higher court as only these courts have the power to hear appeal cases which are the high
court, court of appeal and the highest of them all the federal court. The judge however should
always remain neutral when hearing the argument of both parties to avoid favouritism or bias.
When deciding on a case, a judge cannot do as he pleases, he must assess all the facts, refer to
the primary sources of law as well as the judicial precedent. Not to mention, the principle of
stare decisis must be applied when deciding on a case. Nevertheless, the decision between
judges may vary from one another depending on the situation of each case because the same
sentence cannot be applied to all cases of rape due to its different circumstances. The decision
or sentence made by the judge has to be backed up with factual evidence and logical
reasoning based on previous cases. If the same amount of sentence or punishment were to be
imposed to all rape offenders, regardless of the severity of each case this and the different
circumstances this in itself is a form of injustice and is totally unfair. Therefore, a strict
guideline needs to be followed when imposing a sentence to avoid any inconsistencies in the
future as cases in the past will be used as reference or judicial precedent for future cases.

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Thus, it is the duty of the judge to impose a sentence that is just as the punishment needs to fit
the crime that has been committed. This is to prevent the offender from repeating the same
offense again in the future.