06 Sentence
SENTENCE
• Punishment which Court orders after person is found
guilty or convicted of offence.
• It refers to “process in a trial” after a person is found
guilty or convicted of offence and has entered his plea
of mitigation.
• Safian bin Abdullah & Anor [1983] 1 CLJ 324:
Wan Yahya J: “Sentencing offender is a complex
process, which depends not on the common
mathematical yardstick but on various consideration
of facts & circumstances relating to the offence, the
offender & public interest.”
• It involves a consideration of pre-sentence report,
mitigating & aggravating circumstances &
consideration of other matters pertaining to
deciding an appropriate punishment.
• Important because it deter future of the offender,
raises the spirit & moral of the law enforcer &
respects from the offender & society in general.
Objective
i. punishment as a mode of rehabilitation
ii. Safeguard security of society
iii. To show abhorrence attitude of society to crime
iv. Deterrence to the offender and the public
Objective/Purpose
• There r at least 3 aims of sentencing:-
Retribution
• It is likened to the “Biblical” ‘eye for an eye’ or ‘tooth
for the tooth’.
• For every hurt received, a hurt is given.
• The Punishment seeks to retaliate against the criminal
for what he has done.
• Expression of society’s natural feeling of revulsion
towards & disapproval of criminal acts/conduct of
offender.
• R v Sargeant [1975] 60 Cr App R 74, Lawton LJ:
“There is another aspect of retribution which
frequently overlooked: society, thru courts, must show
its abhorrence of particular types of crime, & the way
which courts can show this is the sentences they pass.
Courts do not have to reflect public opinion. On the
other hand, courts must not disregard it. Perhaps the
main duty of court is to lead the public opinion”
Law 4311 Criminal Proceedings II
• In Malaysia, retribution takes form of punishments in
penal statutes.
• Best example, S.302PC provides only 1 punishment for
murder which is punishment for death.
Deterrence
• The idea of imposing deterrence sentence is that the
experience, treat or example of punishments
discourages crime.
• 2 types of deterrence sentence:-
i. Specific deterrence (deterrence of the actual
offender)
• It emphasis on offender himself, that he is
punished so that he will not repeat
offence/commit any other offence.
ii. General deterrence (deterrence of likely
offender)
• The motive is to emphasis on public that they
will not commit similar offence as
offender/other offence lest they be similarly
punished.
• Rex v Kenneth John Ball 35 Cr. App R.164
• Held: “A proper sentence, passed in public serves
public interest in 2 ways. Firstly, it may deter others
who might be tempted to try crime & secondly, it
deters particular criminal from committing a crime
again/to induce him to turn from a criminal to
honest life.”
• PP v The Ah Cheng [1976] 2 MLJ 186
Abdoolcader J:
“the sobering effect of a deterrent sentence can b
usefully extended to unlawful an unauthorized
possessors of firearms & ammunition as well as in
view of potential hazard they pose. Sentence in this
case would be that of respondent & likely offender
similarly inclined.”
• Loh Hock Seng v PP [1980] 2 MLJ 13 and PP v Oo
Leng Swee [1981] 1 MLJ 247, the Lordships
reminded themselves of their responsibilities:-
“the Court should not shirk their responsibility &
refrain from imposing max sentence provided by the
law bt in applying principle of deterrence sentencing,
punishment should be reserved for the worst case.”
1
Rehabilitation
• It means restoring to effectiveness by training, restore
to privileges, reputation or proper condition
• Its aim to encourage offender to be a law abiding
citizen.
• R v Ball
• It was observed that in deciding appropriate
sentence, a court should always be guided by certain
considerations. The first and foremost is Public
interest & public interest is indeed served, & best
served if offender is induced to turn from criminal
ways to honest living.
• Abu Bakar v Reg [1953] MLJ 19
• Held: “the importance to call for evidence or
information regarding background, character before
passing sentence.”
• However, the rehabilitative approach has its
limitations. Since rehabilitative approach is necessarily
on individual approach, the individual treatment will
result in unequal treatment for offenders who commit
similar offences hence, disparity in sentencing.
Conflict of aims
• Interest of the offender vs interest of the State
Sentencing Principles
1. Proportionality
2. Parity/consistency
3. Totality
4. Parsimony
5. Individualised Justice
• These principles are conceptualised so to arrive at the
objectives of sentencing
06 Sentence
1. Principle of Proportionality
• First consideration of a judge when sentencing
• Requires:
i. the overall punishment must be proportionate
to the gravity of the offending behaviour.
ii. Severity of sanction for serious crime and vice
versa
iii. Inappropriateness punishment results unjust.
[to the offender/people affected by the offence]
iv. Proportionate means sentence is to be custom
tailored to match the particular offender
2. Principle of Parity/Consistency
• Requires:
i. Consistency in sentencing for similar offences
and should not be disparity without
justification.
ii. Sentence should be similar to sentence imposed
on similar offender for similar offence
committed in similar circumstance.
iii. Sentence should be inline with precedent.[stare
decisis]
iv. Fairness between similarly situated cases.
• Exception: does not require equal sentences for
participants in the same offence.
Sharma Kumari a/p Om Prakash v PP
• Held: “Our sense of justice requires that like
offences to be treated alike”.
• Uniformity achieved.
• However cases are not always alike except
superficially.
3. Principle of Parsimony
• This Principle has 2 limbs:
a. Judge chooses the least severe sentencing option
available for the sentence in order to achieve the
objective of sentencing.
b. Sentence achieves the purpose of punishment in
that particular case.
• Parsimony suggests Judge to consider all matters
relevant to the offence and offender, any policy
matters and the relevant purposes for which sentence
is to be imposed.
Law 4311 Criminal Proceedings II
Nor Afrizal Azizan v PP
• Suspended sentence for rape.
• COA legally considered that the case involved a young
offender and how the offence took place. Girl
consented. Offender well behaved and clean record.
4. Principle of Totality
• Requires:
i. more than one offence
ii. risk of serving more than one sentence, the
overall effect of the sentences must be just,
proportionate and appropriate to the overall
criminality of the total offending behaviour [the
crime]
iii. Court may apply concurrent or consecutive
imprisonment sentence
[s.102 Subordinate Courts Act 1948]
However, the period of imprisonment
amounting in the aggregate shall not have a
crushing effect
iv. Court to craft a global sentence of all the
offences that is not excessive. If the total is
excessive the court must adjust the sentence so
that the total sentence is proper.
Abu Seman v PP
• Held: “several offences committed in the same
transaction are tried together, the sentences
imposed for those offences should be made
concurrent.”
• Totality principle is intended to avoid sentences that
are cumulatively out of proportion to the gravity of the
offence.
5. Individualised Justice Principle
• Requires the Court:
i. to impose a sentence that is just and
appropriate in all circumstances of that
particular case.
ii. Judicial officer needs to have sufficient
discretion to consider all the facts when
sentencing an offender.
Eg: common intention/accomplice
2
Sentencing in Process of Administration of Criminal
Justice
• Any punishment must be in accord to law. “Sentence
according to law appears” in S.172(b), (m) , 183 of
CPC & Reg. 18(2) of ESCAR 1975.
• PP v Jafa b Daud [1981] 1 MLJ 315
- Held: sentence must not only be within ambit of
punishable sentence, but it must also be assessed &
passed in accord with establish judicial principle.
• Jafa’s case contains 2 principles:
i. sentencing court must keep within prescribed
maximum punishment as well as within its
sentencing jurisdiction.
ii. sentence imposed must be considered judiciously
in line with sentencing policy for particular
offence.
• When the court finds that accused is guilty of the
crime, the court will invite accused/his counsel to
make plea of mitigation as prescribed by S.176(ii)(r).
• Accused’s plea of mitigation will usually highly factors
which may reduce his sentence such as his personal
antecedents, hardship etc.
• Reply from Prosecutor will usually guide the Court
with regard to sentencing policy appropriate to the
case.
• After hearing all parties, court will then pass sentence
accord to law.
• If a party to the case is aggrieved with decision of
court, may lodge appeal to higher court.
• In cases originating in subordinate court, aggrieved
party in certain circumstance proceeds to invoke
revisionary jurisdiction of High Court.
• S.300 & 301 - aggrieved party may petition the
appropriate pardon body to seek either a full pardon
or a commutation of the sentence pronounced against
him.
06 Sentence Law 4311 Criminal Proceedings II 3

Power of the Courts in passing Sentence • S26 CJA bestowed appellate jurisdiction over matters Imprisonment
originating from subordinate court. • for life
2nd Class Magistrate • S.31 CJA speaks of reversionary jurisdiction over - S.3 Criminal Justice Act defines the phrase “a
matters originating from subordinate court. sentence of life imprisonment” mean sentence of
Trial Jurisdiction Sentence Power imprisonment for term of 30 years unless statute
- S.88 SCA - S.89 SCA Shall Be Liable v Shall be Punished defines life imprisonment as imprisonment for
- offence punishable with - Not exceeding 6 months • Jayanathan v PP [1973] 2 MLJ 68 defined “shall be duration of his natural life or until his death as in
imprisonment not imprisonment liable” as non-mandatory legal requirement. S130A PC (aiding escape of prisoner) or s2 of FIPA
exceeding 12 months 1971.
- offence punishable with - Fine RM 1000.00 Possible Sentences - Che Ani bin Itam v PP [1984] 1 MLJ 113.
fine only • Death Sentence
- mandatory • for fixed period
 S.302 PC - S.282 CPC - every sentence of imprisonment shall
1st class Magistrate  S.39B DDA 1952 take effect from date on which the same was passed
 S.57 ISA 1960 unless Court passing such sentence otherwise
Trial Jurisdiction Sentence Power - Alternative directs.
- S.85 SCA - S.87 SCA  S.121 PC (waging war v DYMM) - Court may order imprisonment from date of arrest
- offence punishable with - Not exceeding 5 years  S.364 PC (kidnap to murder) or from date of judgment.
imprisonment not imprisonment  S.396 PC (Gang robbery with murder)
exceeding 10 years  S.3 Kidnapping Act. Concurrent or Consecutive
- offence punishable with - Fine RM 10,000.00 • When there are more than 1 sentence of
fine • 2 exceptions which may escape death sentence: imprisonment, S.102 SCA confers discretion on
- offence under ss.392 & - Whipping up to 12 i. Convict is a pregnant woman: S.275 PC – in Magistrate to order imprisonment to commence
457 of PC strokes such case the sentence to be passed upon her shall consecutively/concurrent.
- Combination of any be imprisonment for life. • However proviso in s.102 SCA, in no case shall person
above sentences ii. Where accused person is below 18 years old be sentenced to periods of imprisonment amounting in
but has attained age of 10 years at the time of aggregate to more than 20 yrs.
Sessions Court commission of the offence. The convict shall be - If convict is serving a term of imprisonment for a
detained during pleasure of YDPA or State previous offence, s.292(1) gives discretion on
Trial Jurisdiction Sentence Power Authority, as case may be. sentencing court to order imprisonment term
- S.63 SCA - S.64 SCA imposed for present offence to run either
- all offences other than - any sentence except • With exception to offence committed under ESCAR. immediately or at expiration of imprisonment of
punishable with death death sentence - Reg. 3(3) “Where a person is accused of a charged previous offence.
with a security offence, he shall, regardless of age, be
dealt with & tried in accordance with provisions of In deciding whether to decide on concurrent/
these regulations & the Child Act 2001 shall not consecutively, court is normally guided by 2
High Court
apply to this person.” sentencing principle:-
Trial Jurisdiction Sentence Power
• Lim Hang Seoh v PP [1978] 1 MLJ 68 1 transaction principle
- S.22(1) CJA - S.22(2) CJA
Held: The accused was 14 years old and sentenced to • Where 2 or more offences are committed in course of a
- all offences committed - any sentence allowed by
death for security offences under s.57 ISA 1960. single transaction, all sentences in respect of these
within its local law
offences should be concurrent rather than
jurisdiction, on high seas
consecutively.
on board any ship or any
• Rationale - infringements would be in respect of same
aircraft registered in
interest & a person should not be punished 2 or 3
Malaysia etc.
times over in respect of same blameworthiness.
06 Sentence
• Abu Seman v PP [1982] 2 MLJ 338
Held: “where several offences committed in same
transaction are tried together the sentences imposed
for offences should be made concurrent.”
Totality principle
• 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 aggregate & decide
whether in totality, the aggregate is excessive.
• If so, the court can then order either 2/more of such
offence to run concurrently so as to reduce its overall
excessiveness.
• Sau Soo Kim [1975] 2 MLJ 134
- Held: the aggregate of 18 years imprisonment
comprising consecutive terms of 10 years on 1st
charge under s.307 PC & another 4 years each on
remaining charges for unlawful possession of
firearms & ammunition under s.3 Arms Act 1960
was excessive. Federal Court varied sentence by
ordering imprisonment on 2nd & 3rd charges to run
concurrently with each other but both to still run
consecutively to that on the 1st charge, the reduced
aggregate being 14 yrs.
Default payment of fine
• The Courts in imposing fines have discretion to
stipulate default term of imprisonment & in event of
default, the convict can be made to undergo the
stipulated term.
Whipping
• SS.286 & 287 CPC.
• Court orders the place of whipping.
• Certain person not liable to whipping as stated in
s.289 CPC:
- females
- males sentenced to death
- males above 50 years old (except sexual offences)
• PP v Tan Kim Chok [1969] 1 MLJ 211
• Held: sentenced 2 strokes of rattan on a man above 50
years old was held in breach of S.289 CPC.
• S.87(1) or (2) of SCA.
Law 4311 Criminal Proceedings II
Number of strokes
• S.288(1) CPC set out number of strokes that can be
imposed.
• An adult, stroke should not be more than 24 strokes
and not more than 10 strokes for youthful offender
(10 but below 16 years old)
• Chai Ah Kau v PP [1974] 2 MLJ 191
- Accused aged 18 years old was sentenced to 18
months imprisonment & 10 strokes of rattan.
- In another court, he was sentenced to 3 years & 10
strokes of rattan.
- The counsel on appeal argued that being a youthful
offender the permitted number of rattan should not
be more than 10.
- Held: the accused was not a youthful offender by
definition of statute. Even if he was, applicable
s.288(v); since there were in essence 2 distinct
trials, accused should be liable to a total of 10 + 10,
but since he was an adult, the aggregate of 20
strokes were within the maximum of 24 + 24 of
which he was liable to by virtue of s.288(v).
Whipping cannot be executed by way of installments
as stated in s.289 CPC
• Liaw Kwai Wah v PP [1987] 2 MLJ 69
- Facts: The whipping imposed by Magistrate Court
had already been executed when High Court in
revision increased the stroke from 1 to 5.
- Abdul Hamid CJ, SC: “the Code prohibits whipping
to be executed in installment”
• Policy of sentencing that whipping is usually
reserved for offenders who commit crimes involving
use of violence. Lim Thien Hin & Ors v R [1953] MLJ
213 and Mohammed Ali v PP [1956] MLJ 84.
Fine
• S.283(1)(a) CPC, where no sum is expressed to which
the fine may extend, amount which offender is liable is
unlimited but shall not be excessive.
• Sentencing jurisdiction of court as guideline eg;
Magistrate jurisdiction to fine not exceeding
RM10,000.00 as empowered under s.87(1) SCA unless
the case fall under exception set out under proviso of
4
• it is a court’s practice to stipulate the term of
imprisonment in the event of default of payment..
• However certain principles must be borne in mind;-
the default term of imprisonment must bear some
proportion to the amount of fine imposed : R v Lim
Cheng Thong [1956] MLJ 77
in computing the term of default sentence, the court must
adhere to the scale set out under sect 283 (1)(c)
• R v Teo Woo Tin [1932] MLJ 124, sentencing court
has to take into account certain factors:
i. profit arising from offence
ii. value of subject matter involved
iii. amount of injury caused &
iv. financial position of offender.
• In imposing a fine, it is court’s practice to stipulate
term of imprisonment in event of default of payment
[S.283(1)(b)(iv)].
• However certain principle must be borne in mind;-
i. The default term of imprisonment must bear
some proportion to amount of fine imposed : R v
Lim Cheng Thong [1956] MLJ 77
ii. in computing term of default sentence, court must
adhere to scale set out under s.283(1)(c)
Compensation
• S.426(1)(b) CPC governs payment of compensation to
any person, or to representative, injured in respect of
his person, character or property by crime or offence
for which sentence is passed.
• Raja Izzuddin Shah v PP [1979] 1 MLJ 270,
compensation was paid to a complainant who was
injured by accused in addition to the binding over
order made by Court under s.294 CPC.
Police Supervision
• Usually ordered by the court in addition to some form
of imprisonment in respect of recalcitrant offenders
who need to be watched over when they come out
from prison to min possibility of being involved in
crime again.
06 Sentence
• Before such order made, s295(1) CPC requires
fulfillment of:-
- The offender must have been previously convicted
of offence punishable with imprisonment for a term
of 2 years/upwards; &
- The present conviction must also be in respect of
offence punishable with imprisonment for a term of
2 years/upwards.
- S.295(1)(a) & (b) empowers High Court & Session
Court to subject the accused to police supervision
for a period not more than 3 years but a Magistrate
can make such order not exceeding 1 year.
- S.295(1A) states that irrespective whether the
person has no criminal records, he shall be
subjected to police supervision had he committed an
offence under s.376,377c,377cA or 377E
- The court order the convict to attend a rehabilitative
counseling within the period of detention
Bond of good behaviour
• Provisions for bound over on a bond of good behaviour
found in ss.173A, 293(1)(b) & 294 CPC
• A convict will not have a criminal record if he is bound
over under s.173A CPC unlike bond under s.293(i)(b)
& 294 CPC
• S.173A is an order of dismissal & non recording of
conviction whereas S.293(1)(b) & 294 require a
conviction to be recorded.
• S.293(1)(b) applies in respect of youthful offender
whereas S.294 applies to adult offender.
• S.294: punishment is suspended
• PP v Yeong Yin Choy [1976] 2 MLJ 267
- Held: The accused must have a deserving case
before court would invoke s.173A.
• In either case, court would have to have regard to
factors such as character, antecedents, age, health,
mental condition, nature of the offence extenuating
circumstances under which offence was committed.
• Debate over S.294 application in mandatory sentence
offences (shall be punished with imprisonment).
• PP v Idris [1955] MLJ 234,
- Held: s.294 applied to offences punishable with
imprisonment only without option of fine or any
other option. Oppose to PP v Yeong Yin Choy
Law 4311 Criminal Proceedings II
• H Child Act 2001 - an order under s.91
Victim’s impact Statement [VIS]
• S.173 (m)(ii) and s.183A CPC
• Before the court passes sentence according to law, the
court shall call upon the victim or member of the
family to make statement on the impact of the offence
committed against the victim or his family.
• Only on full trial
• Participation of the victim in the judicial process of
decision making.
• A therapeutic process and part of restorative justice
Factors for Consideration Before Sentencing
Mitigating Factors
• Pleaded by Defence in seeking lighter
sentence/leniency.
• In Summary Trials procedure, plea of mitigation is
mentioned in S.176(2)(r), such plea must be
recorded in record of proceedings.
• In High Court proceedings, plea of mitigation is a
matter of judicial practice to allow accused to mitigate
for the purpose of consideration for pardons.
Important of Mitigation
• Sim Boon Chai v PP [1982] 1 MLJ 353
- Held: failure to accord the opportunity to mitigate
would affect sentence on appeal.
• Plea of mitigation in HC proceedings is for purposes of
consideration for pardons.
• Although accused/ counsel representing accused may
be allowed to submit in mitigation, it is court’s
discretion to give discount/lighter sentence as it is sole
concern of Court.
• Zaidon Shariff v PP [1996] 4 CLJ 441
Augustine Paul J :
“a mitigation plea should not be treated as a ritualistic
step to be summarily rejected the moment it is made.
It is a constituent element of the sentencing process.
Its merit due consideration in the light of the facts of
each case.”
5
PP v Raja Izzuddin Shah v PP [1979] 1 MLJ 70
Hashim Yeop Sani J: “No plea in mitigation should be
thrown aside lightly but must be examined &
considered equally with facts presented by
prosecution.”
Age of Offender
• Youthful Offender: always a good mitigating factor.
• Youthful offender should be kept away from prison.
• Tukiran v PP [1955] MLJ 24
Held: a first offender aged between 17-21 yrs old
should b kept away from prison.
• Re Johari bin Ramli [1956] MLJ 127
Held: age of accused who was 22 years old & had
previous record was given great consideration before
sentencing.
• Teo Siew Peng v PP [1985] 2 MLJ 127
Held: “in a case of a young offender there can hardly
ever be any conflict between public interest & that of
the offender. The public have no greater interest than
that he should become a good citizen.
Elderly Offender
• Mustapha bin Abdullah [1997] 2 MLJ 424
Held: the court took account age of elderly offender
as there is possibility that the offender may not survive
prison sentence.
Age v Serious Offence
• When offence is serious, deterrence sentence is to be
melted & age of offender shall not be given due
consideration.
• Court should give priority to deterrence & public
interest.
• PP v Yeoh Eng Khuan [1976] 1 MLJ 238
- Accused aged 20 years old was released on bail
under s.294 after he was found guilty under
S.39A(2) DDA.
- On appeal, the order was substituted to
imprisonment.
06 Sentence
• PP v Teh Ah Cheng [1976] 2 MLJ 186
- The offender aged 18 years old and was ordered to
be bound over under s.294 for the offences of
possession of firearm & ammunition.
- On appeal
- Held:
- in sentencing generally the public interest must
necessarily be one of the prime considerations
- in offences involving the unlawful use or possession
of firearms the public interest should never be
relegated to the background and must of necessity
assume the foremost importance
- if a person is not too young to have in his possession
& to handle firearms & does so unlawfully, then he is
certainly not too young to suffer penalties
prescribed by law.
- Bound over set aside, and sentenced to three years
imprisonment on each charge, the sentences to run
concurrently.
• Safian bin Abdullah v PP [1983] 1 CLJ 324
- Accused aged 20 & 21 years respectively had Plead
Guilty to culpable homicide not amounting to
murder. On sentencing court considered nature of
the crime was executed.
- Held: in spite of their ages, accused were dangerous
young criminals of aggressive propensity.
- Wan Yahya J (as he then was) said: “a stint in prison
would be beneficial to them and the public for the
court must protect the society from such
propensity.”
- Sentenced the 1st and 2nd accused to 14 years
imprisonment from the date of their arrest. His
Lordship said inter alia, "a sufficiently long period of
detention will be required for their correction,
reformation and rehabilitation before they can be
allowed to return to society"
Record of the Offender
• Criminal record contains particular of offences
committed by offender since he attained age of 18
years old.
• Normally, a 1st offender/ who has no criminal record
shall be given a lighter sentence.
• Abdul Kareem v Reg [1954] MLJ 86
Held: 3 months imprisonment to fine.
Law 4311 Criminal Proceedings II
• Shanmuganathan v PP [1967] 1 MLJ 204:
- CBT. Aged 24. Held: 4 months to binding over for
good behaviour.
Clean record v Serious crime
• However, when court is facing with grave offence,
public interest shall be given priority over clean
record.
• Ng Ah Tak v PP [1959] MLJ 19
- High Court reversed decision from imposing fine to
3 years imprisonment & 6 whippings against
offender who threw acid on ground that the
offender deserved no mercy as he has shown no
mercy to people he has attacked.
Plead Guilty (PG)
• PG achieves disposal of a criminal case with lightening
speed.
• Every trial leads to a backlog of indisposed criminal
cases clogging the courts & prisons with remand
prisoners.
• Sau Soo Kim [1975] 2 MLJ 134
- Court has recognized that it as a valid mitigating
factor because it saves expenses on lengthy trial,
saves time & inconvenience of many, particularly
witness.
• Melvani v PP [1971] 1 MLJ 137
Held: Court ought to consider PG as a mitigating
factor.
• PG could be rewarded with a discount on sentence
which would otherwise have been imposed upon a
finding of guilt after a full trial.
• A discount to be given could be between 1/4th to
1/3rd following Supreme Court’s decision in
Mohamad Abdullah Ang Swee Keng v PP [1987] 2
CLJ 405.
• Applying above principle, Court of Appeal in
Christopher Khoo Ewe Cheng v PP [1998] 3 MLJ
881 confirmed decision of High Court in considering a
reduction of 1/3rd of sentence of 20 years
imprisonment for offence of culpable homicide not
amounting to murder.
6
Conditions before Commissions of Offence
• Tunku Mahmood Iskandar [1977] 2 MLJ 123
defence of provocation was succeeded
• Raja Izzuddin Shah [1979] 1 MLJ 270, defence of
drunkenness was raised and succeeded.
Effects of conviction & sentence
• Works 2 ways ie against the offender and against the
family.
• Sole bread winner in his family/aged parents to
support
• PP v Loo Choon Fatt[1976] 2 MLJ 256
- Presiding judicial officer not to be over sympathetic
but to strike a balance between public interest and
the interest of the accused.
• Teh Ah Cheng v PP [1976] 2 MLJ 186
- Accused’s plea of mitigation in that he had to
support his aged mother and step-brothers on was
brushed aside by the High Court on the ground that
the accused person should have thought of the effect
of his action before committing the offences and not
after.
• PP v Vijaya Raj [1981] 1 MLJ 43
- A headmaster was charged with 3 charges of
misappropriation of school funds. In the High Court
however, the accused was convicted on the third
charge.
- The High Court, in sentencing the accused took into
consideration all the mitigating factors especially
the accused’s loss of career and humiliation suffered
by the conviction.
Health of the offender
• S.173A and s. 294 of the Criminal Procedure Code
• PP v Chot Saik Kam [1991] 1 MLJ 193
- Accused was charged under Section 308 of the Penal
Code and convicted. High Court acknowledged that
at the time of commission the accused had
depression and imposed 16 years imprisonment
instead of life imprisonment.
06 Sentence
Aggravating Factors
1. Previous Convictions/bad record.
• Failure to respond to earlier sentences is good
reason for imposing a more serious sentence.
• Where the convicted person has previous records
and admits as correct, the court must consider
whether the offence(s) committed previously were
of similar nature as the one with which he is
presently charged.
• The Court must then consider the sentence imposed
in the previous conviction for similar type of offence
to determine whether it has any deterrent effect on
him.
• If the persistent offender commits a similar type of
offence, then for the interest of justice, the court may
pass deterrent sentence.
• In Soosainathan v PP [2001] 2 MLJ 377, it was
held that not every previous conviction was relevant
in the sentencing process.
2. Prevalence of offence.
• Where the particular offence is common and
rampant, the court may impose a deterrent
sentence.
• This is legitimate factor to determine the length of
the sentence to be imposed.
• In Lee Chow Meng v PP [1976] 1 MLJ 287, the
accused was charged for committing an armed
robbery and in possession of arms. He was
sentenced to 24 years after taking judicial notice of
the fact of prevalence and increased of armed
robberies in Kuala Lumpur.
• Similar sentiment reflected in PP v Low Thim Fatt
[1989] 1 MLJ 304 wherein a deterrence sentence
was imposed for armed robbery.
3. Position of the offender.
• Offence involving abuse of position of trust or power
tend to be severely sentenced.
• In Datuk Harun Idris v PP [1978] 1 MLJ 240, he
was found guilty for forgery, criminal breach of trust
and abetment. Prior to his conviction, he held the
Law 4311 Criminal Proceedings II
post of Menteri Besar Selangor, Chairman of Bank
Rakyat, the President of UMNO Youth and V.P of
UMNO. In passing the sentence, the Court rightly
pointed out that as “a leader, he should not touch a
penny of the money entrusted to him.”
• PP v Dato’ Seri Anwar Ibrahim [1999] 2 MLJ 1
- The accused was charged for committing 5 counts
of corrupt practiced under sect 2(1) of the
Emergency (Essential Power) Ordinance NO 22 of
1970. He was found guilty for corrupt practice by
directing Special Branch Director and his Deputy
to obtain a written statement to deny allegation of
sodomy.
4. Use of force.
• PP v Mustapha bin Abdullah [1997] 2 MLJ 424,
- the accused person was fine RM 2000 after
pleading guilty to a charged of causing grievous
hurt under S.324 of the Penal Code.
- The fact of the case, which was admitted by him,
reflected that the accused had used and iron chain
to voluntarily cause hurt to a pregnant woman.
- On appeal, the High Court enhanced the sentence
to imprisonment as the Court took judicial notice
of cases of aggression on road over trivial matters
becoming serious.
5. Sentence to Specific Offence.
• Since 19/9/1993, Criminal Breach of Trust under
s.406 - 409 of PC comprised mandatory minimum
term of imprisonment together with mandatory
whipping. The judge is also given the discretion to
impose fine.
• The harsh punishment is because of public outcry
against lenient punishments passed by the court. In
CBT, public interest demands that such offence be
punished severely to discourage other from
committing the same.
• In PP v Ang Swee Kang, Mohd Abdullah [1987] 1
CLJ 292,
- 2 factors must be considered by the court before
passing sentence and they are retributive and
deterrent factors. In such situation, an immediate
imprisonment would be inevitable.
7
Dangerous Drug Act
Tia Ah Leng v PP [2004] 4 MLJ 249 CA
• High Court: life imprisonment and ten strokes of
whipping under s 39A(2) of the Dangerous Drugs Act
1952 ('the Act').
• He had pleaded guilty to the amended charge under s
12(2) of the Act. In his plea of mitigation, the appellant
stated that he was 47 years of age then, married with
four children and he was the sole breadwinner in the
family. He prayed the court to take into consideration
the fact that he had pleaded guilty to the amended
charge and also stated that he would have pleaded
guilty earlier if the charge had been amended before
the commencement of the trial and that would save the
court's time. The counsel for the appellant submitted
that the appellant should be given some discount on
the sentence of life imprisonment which was the
maximum sentence and argued that the trial judge was
in error.
Held, dismissing the appeal:
(1) It is the general rule that when imposing a
sentence, the court should take into consideration
the fact that an accused person who has pleaded
guilty be given certain credit and discount.
However, there are exceptions to this rule, ie
offences under the Dangerous Drugs Act 1952.
The Government and the legislature have taken
various steps to curb drug activities and the
courts should also help to curb these activities by
imposing stringent punishments provided by the
law (see paras 9 and 14); Loh Hock Seng & Anor v
Public Prosecutor [1980] 2 MLJ 13 followed.
(2) The appellant had pleaded guilty to the lesser
charge under s 12(2) of the Act. In admitting the
facts, he also admitted that the heroin amounting
to 13,749.80g (13.74kg) was found in his car. This
was a huge amount. In this case, no credit or
discount should be given even though the
appellant had pleaded guilty to the amended
charge. The trial judge made no error in his
judgment when he imposed the maximum
punishment available under s 39A(2) of the Act
06 Sentence
Child Act 2001
• The Child Act came into force on 1/8/2002 and it
consolidate and amends laws relating children.
• Thus, the Women and Girls Protection Act 1973, the
Child Protection Act 1991 and the Juvenile Act 1947
were repealed by the Child Act 2001. (CA)
• S.2 of the CA defines child as follows:-
- a person who is under the age of 18; and
- in matter relating to criminal proceeding, a person
who has attained the age of criminal responsibility,
as stated in s.82 of the Penal Code.
Composition of the court
• The court shall consist of a Magistrate and shall be
assisted by two advisors to be appointed by the
Minister from a panel of persons resident in the state.
Jurisdiction of the Court for Children
• S.11(5) of the CA states that the Court for children
shall have jurisdiction to try all offences except those
punishable with death.
• Under s.30 of the CA, the Court may impose any of the
orders stated therein.
• S.96(1) of the CA states that no children under the age
of 14 shall be ordered to be imprisoned for any offence
or be committed to prison in default of payment of a
fine, compensation or loss.
• S.96(2) states that a child of 14 years and above shall
not be ordered to be imprisoned if he can be suitably
dealt with in any other way, whether through
probation, being sent or detained in an approved
school.
• If a child of 14 years and above, if imprisoned, shall not
be allowed to associates with adult prisoners.
• S.97 of the CA bars the sentence of death against a
person convicted of an offence if at the time of the
commission of the offence he was a child. However, he
shall be detained under the pleasure of the Yang
DiPertuan Agong or Ruler of the relevant state.
• The Court of Children will not have jurisdiction where
the child is charged for an offence under the Essential
Security Case and Regulations, murder or where a
child is charged jointly with an adult.
Law 4311 Criminal Proceedings II 8
• Pursuant to s.90(10) CA, if the Court of Children finds
the child not guilty, the Court shall record an order of
acquittal.
• S.90(11) CA states that if the court makes a finding of
guilt, the court will decide on a suitable disposition.
• By virtue of s.90(12) CA, the child shall be allowed to
put forward mitigating factors before the Court and
the court shall examine the probation report before
deciding the manner to dealt with the child.
Power and Orders of the Court
• S.91 of the CA provides the orders in the form of
disposition namely;-
- admonish and discharge
- discharge upon the offender entering a bond of a
good behaviour
- order for the care of the child by a relative and
conditions imposed by the court
- order to pay fine, compensation or cost
- probation under s.98 that the child be sent to an
approved school or Henry Gurney School
- if male child, be whipped not more than 10 strokes
of light cane within the court premises and in the
presence of parents or guardians, if the child is so
desires.
- Prison sentence subject to s.96(2) CA
• Under section 91(2) of the CA, a conviction is
construed as a finding of quilt and a sentence is an
order made upon the finding of guilt.