2017 Nov sentencing concurrent consecutive previous conviction irrelevant one

Aru may be charged under s.417 of the Penal Code of the offence of cheating. The punishment will be
imprisonment for five years, or fine or both.

Previous conviction

Although there are 4 previous convictions. This may not necessarily an aggravating factor or relevant.

In Soosainathan v PP [2001] 2 MLJ 377, it was held that not every previous conviction is considered
relevant in the sentencing process. Previous conviction that are significantly different from the
current offence, or are regarded as uncharacteristic of the accused, may be given little or no weight.

The court further held that the sentence imposed in the current offence was disproportionate to the
gravity of the offence based on the view that this must be as a result of the accused not having
repented since the imposition of 2months imprisonment in relation to the last conviction. Otherwise,
this amounted to the imposition of a fresh penalty for past conviction.

Non-possession of identity care, assault, possession of 0.11gram of heroin and extortion may not
relevant to the current offence of cheating.

Consecutive or concurrently

Baljit Singh Sidhu - Criminal Litigation Process, (2015), Third Edition, Sweet & Maxwell

If there is more than one sentence of imprisonment, the court must make it clear whether they run
concurrently or consecutively as in Bujang Johny v PP (1965) 1 MLJ 72. In determining whether the
charges are concurrent or consecutive, the courts may use the one transaction principle or totality
principle.

PP v Yap Huat Heng (1985) 2 MLJ 414

It was held that the sentences are to run concurrently if the accused is convicted of primary and
subsidiary offence. In this case, the accused was convicted on two counts of rape which were distinct
offences and on two count of robbery which were also distinct offences. The court allowed the appeal
and enhanced the sentences from concurrently to consecutively.

In Abu Seman v PP (1982) 2 MLJ 338, on appeal, it was held that if several offenses were committed
in the same transaction, the sentences are to run concurrently as in this case. The order was
altered to a concurrent sentence from a consecutive sentence.

On the other hand, in the totality principle the court looks at all the sentence imposed and decides
whether in totality they are excessive. If the total sentence is excessive then the court may order
two or more sentences to run concurrently.
The totality principle was applied in the Federal Court case of Sau Soo Kim v PP (1975) 2 MLJ 134. The
Federal Court held that the consecutive sentences of 18 years imprisonment were too excessive and
ordered the sentences for the second and third charges to run concurrently as they were offences
which in similar in nature, thus making the total sentence a sentence of 14 year’s imprisonment.

In the Court of Appeal case of Bachik Abdul Rahman v PP (2004) 2 MLJ 534 (CA), it was held that
although both the offences were committed in the same manner and were of the same severity, they
were unrelated. The cumulative effect of the consecutive sentences might well be “crushing” upon
the accused but this had to be balanced out against the seriousness of the offenses he
committed and the need to protect young females against him.

The facts are not clear whether the 3 counts of cheating is committed in the same transaction, if this
is the case, then the sentences should run concurrently and instead of consecutively. However, if the
court think that the total imprisonment of 49months which is 4years 1months is too excessive, then
the second and third charge may run concurrently.