FACULTY OF LAW

TRI 2, 2017/2018

UCP4622 – CRIMINAL PROCEDURE II

GROUP ASSIGNMENT

DEFENCE

No. ID Name (in CAPITAL LETTER) Signature Group

1 113270010 ANG XIAO HUI T8
9
2 113270020 TEY JASON T8
6

Date Submitted:
Lecturer: Mr Azizie / Ms Rebecca /Mr Avatar

Declaration:
This is our own work. We have not previously submitted this work, in whole or
in part, for assessment. This work complies with all the governing legal and
ethical rules, including those concerning plagiarism and copyright. We have not
plagiarized and have also acknowledged ALL sources which are not our own and
have not merely “cut and paste”. We have retained a copy of this assignment.

Each of us has contributed roughly equally to this assignment. If there are any
complaints about non-contribution then we will abide by the Lecturer’s decision
regarding the allocation of marks for the assignment.

Comments:

Marks (/20):
 IN THE MAGISTRATES’ COURT AT KLANG
IN THE STATE OF SELANGOR
SUIT NO.: ………………………

BETWEEN

PUBLIC PROSECUTOR … COMPLAINANT

AND

LIM BU KWANG … ACCUSED

DEFENDANT’S SUBMISSION

A. Brief Facts
1. The Accused is a male Malaysian, aged 43. He worked as a prawn
noodle seller at a stall in No. 25, Jalan Batai Laut, Taman Intan, 41100
Klang, Selangor. He was married and stayed in his house at No. 5, Jalan
Teluk Pulai 3, Taman Teluk Pulai, 41100 Klang, Selangor with his wife,
two-and-half-year-old son and mother-in-law, Ooi Swan Hong @ Ng
Swan Foong (‘Ooi’) who was the victim aged 70.

2. At around 9pm on 28 October 2017, the Accused’s wife and Ooi were
watching television in the living room while his son was sleeping in his
room. After the Accused came home, he was exhausted and wish to rest
but the volume was very loud. The Accused was provoked by the loud
noise as the Accused’s wife and Ooi failed to turn down the volume, so
he turned off the television set. The Accused and Ooi entered into a
heated argument. Suddenly, the Accused pushed Ooi whose head
knocked on the edge of cabinet.

3. The Accused’s wife immediately rushed Ooi to Hospital Tengku Ampuan

Rahimah Klang after Ooi became unconscious. However, Ooi died about
a week later on 3 November 2017 at the hospital.
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4. The Accused was represented by a counsel. He was originally charged
under Section 302 of the Penal Code for causing the death of Ooi. The
defence counsel sent a letter of representation to the Attorney-General
to plead for a lesser offence. The Attorney-General agreed to reduce the
charge of murder under Section 302 of the Penal Code to one of
culpable homicide not amounting to murder under Section 304(b) of the
Penal Code.

5. The Accused pleaded guilty to the amended charge at the earliest

opportunity on 28 December 2017 and cooperated throughout the
investigation. He admitted the facts as stated by the deputy public
prosecutor (‘DPP’). The court recorded the plea of guilt and convicted
the Accused.

6. The Accused had no previous conviction for any offence and was
remorseful and sobbed about missing his son and relatives and promise
not to commit the offence again. The Accused was also the sole
breadwinner for his family consisting of an infant son, wife and sick
mother.

B. Offence charged
7. The Accused abovenamed was charged in the Magistrates’ Court at
Klang for committing an offence of culpable homicide not amounting to
murder of Ooi Swan Hong @ Ng Swan Foong under Section 304(b) of
the Penal Code.

8. The amended charge reads:

“That you, Lim Bu Kwang, on or about the 28th day of October 2017 at
about 9.30pm at No. 5, Jalan Teluk Pulai 3, Taman Teluk Pulai, 41100
Klang, in the state of Selangor, committed culpable homicide not
amounting to murder, by causing the death of one Ooi Swan Hong @ Ng
Swan Foong, and have thereby committed an offence punishable under
Section 304(b) of the Penal Code”.
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C. Possible Sentence
9. The Accused had voluntarily pleaded guilty to the amended charge
under Section 304(b) of the Penal Code whereby upon conviction shall
be “punished with imprisonment for a term which may extend to ten
years or with fine or with both”.

D. Issue
10. The court should consider the charge, the facts of the case brought
before the court, each evidence, aggravated factors and mitigating
factors to sentencing before imposing the sentence.

E. The Defence’s Case

11. Procedure on mitigation of sentence is set out in Raja Izzudin Shah v
PP [1978] 1 LNS 165 [TAB A, 10] whereby it was held that when
mitigation is concerned the court is guided by CPC and case law. In
Raja Izzudin Shah v PP [1978] 1 LNS 165 [TAB A, 10] the court held
that where there were matters pleaded in mitigation, such matters should
have been considered by the court in imposing sentence. Also, no plea
of mitigation should be thrown aside lightly but must be examined and
considered equally with the facts presented by the prosecution.

12. As such, it is trite law that the court should consider all the mitigating
factors raised by the accused in imposing sentence.

13. The defence submits that the Accused pleaded guilty and showed
cooperation. The general rule is that the plea of guilty is held to be a
mitigating factor as seen in Sau Soo Kim v PP (1975) 2 MLJ 134 [TAB
B, 13] which provides that regardless of whether a person is a hardened
criminal or not, a plea of guilty should be treated as a mitigating factor.
Meanwhile in Mohamed Abdullah Ang Swee Kang v PP (1988) 1 MLJ
167 [TAB C, 18] the court held that in considering the discount pursuant
to a guilty plea, it is generally accepted that the reduction would be
between one-quarter or one-third of the original sentence.
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14. On the facts, the Accused had pleaded guilty to the charge under
S.304(b) and have thereby save the time and cost of the court. As such,
the defence submits that a proportional discount should be given when
imposing sentence.

15. In Zaidon Sharif v PP [1996] 4 CLJ 441 [TAB D, 22] the court accepted
the position that a plea of guilty is a mitigating factor as it saves the
country’s time and money. As such the accused’s sentence should be
reduced. Also relevant is Pendakwa Raya lwn Jagetis a/l Murugasoo
dan lain-lain [2017] 10 MLJ 148 [TAB E, 28 & 29] where the court took
into account the fact that the accused pleaded guilty at the earliest
opportunity and that the accused cooperated with the police throughout
the investigation as mitigating factor.

16. On the facts, the Accused had pleaded guilty as soon as it was an option
and the Accused cooperated with the authorities, saving time and cost.
As such, the defence submits that these amounted to mitigating factors.

17. In Pendakwa Raya v Dasandran Al Muniandy & Ors [1999] MLJU

583 [TAB F, 33] provides that the court should consider the remorse
shown by the accused. Similarly, in Pendakwa Raya v Roslee bin
Tamrin [2007] MLJU 645 [TAB G, 38] the accused expressed remorse
for the events giving rise to loss of his son. The court found that this is
relevant factors for the purpose of mitigation.

18. The fact show that the Accused was genuinely remorseful as the
Accused sobbed about missing his son and relatives who were present
in court. Also, the accused had made promised not to repeat the offence.
Hence, Accused’s sentence should be reduced as he is genuinely
remorseful.

19. The defence submits that consideration for leniency is statutorily

recognised in S.173A [TAB M, 55] and S.294 [TAB N, 60] of CPC which
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 provides that the court can consider any antecedents of the person
charged to inflict any punishment other than a nominal punishment and
the Accused is a first-time offender.

20. In Pendakwa Raya lwn Jagetis a/l Murugasoo dan lain-lain [2017] 10
MLJ 148 [TAB E, 24] the court considered the accused was a first-time
offender and sentence them to five years imprisonment for causing death
under S.304.

21. Based on these authorities, the court should reduce the sentence as the
Accused is a first-time offender and is generally of good character.

22. It is trite law that long custodial sentence will have effect of punishing the
family members of the accused, especially so when the accused is the
sole breadwinner of the respective family as seen PP v Thiyagrajan
Munaindy [2016] 1 LNS 1436 [TAB H, 41]. In this case, the court
reduce the sentence of thirteen years imprisonment to ten years
imprisonment.

23. On the facts, the Accused is the sole breadwinner for the family and has
an infant son, a wife and a mother who is sick. Also, it is likely that
Accused’s son will not be able to start schooling because the Accused
had stop working. This is exacerbated by the fact that the accused must
continue paying medical expenses of the accused’s hospitalised mother.
As such, a long custodial sentence would drastically jeopardise welfare
of the Accused’s family. Hence, the defence urge the court to consider
the hardships of the Accused during sentencing so that public interest is
best served by giving accused chance to rehabilitate and at the same
time ensure that the dependants’ welfare are taken care of.

24. The Accused committed the crime under great personal stress as he
was exhausted after work. In Pendakwa Raya lwn Jagetis a/l
Murugasoo dan lain-lain [2017] 10 MLJ 148 [TAB E, 27] the court
consider the fact that the deceased started the argument and the fact
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 that the Accused lacked the intention for his action to caused death as
mitigating factors.

25. The defence submits that the facts showed Ooi started the argument by
refusing to turn down the volume.

26. In Mustapha Alias v PP [2016] 1 LNS 1426 [TAB I, 43] the court in
passing sentence under S.323 PC the court considered the fact that the
appellant was provoked by the complainant, provocation arose from
complainant’s act and the nature of altercation was more of a family
dispute to reduce the sentence from two years imprisonment to two
months.

27. In PP v Selvi a/p Sundrum [2006] 6 MLJ 488 [TAB J, 45] the court
found that the accused was provoked and committed murder
unintentionally. The accused had shown remorse by pleading guilty and
was sentenced to four years imprisonment to ensure a speedy return.

28. On the facts, the Accused was provoked by the refusal of Ooi to turn
down the volume. The facts showed that the Accused was tired after
work and only intended to cause hurt when he pushed Ooi. Hence, the
defence submit that the court shall consider such provocation as a
mitigating factor.

29. In Public Prosecutor v Jessica Lim Lu Ping [2004] 2 CLJ 763 [TAB
K, 51 & 52] it was held that the accused had endure emotional
punishment of being sentence to death from the date of his arrest. Such
mental state is likely to have destroy a person mentally and physically
and will leave a mental scar for the rest of the accused’s life.

30. The defence submits that the court should consider before sentencing
the accused based on the fact that the Accused had to endure the fact
that there was a possibility he will face the death penalty, and this had
left a mental scar for the rest of the accused’s life.
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F. Conclusion
31. In Zaidon Shariff v PP [1996] 4 CLJ 441 [TAB D, 20] the court held
that a mitigation plea should not be treated as a ritualistic step by an
accused following a conviction only to be rejected the moment it is
uttered. Such plea merits due consideration.

32. The defence submits that all the mitigating factors put forward should be
given due consideration in determining the sentence of the Accused.

33. In Pendakwa Raya v Roslee bin Tamrin [2007] MLJU 645 [TAB G,
38] it was held that the discount accorded was on the sentence that
would have been imposed on the accused if he had pleaded not guilty
and gone to trial, rather than on the maximum sentence available to be
imposed in law. The same position was observed in PP v Ravindran &
Ors [1993] 1 MLJ 45 [TAB L, 53].

34. In conclusion, the defence submits that the discount accorded should be
based on the sentence that would have been imposed on the accused if
he had gone to trial. Hence, the defence submits that the Accused
should be sentence to seven (7) years of imprisonment.

(1724 words)

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G. Bundles of Authorities / Appendix
TAB. CASE NAME
A RAJA IZZUDDIN SHAH v PUBLIC PROSECUTOR
[1978] 1 MLJ 270
B SAU SOO KIM v PUBLIC PROSECUTOR
[1975] 1 LNS 158
C MOHAMED ABDULLAH ANG SWEE KANG v PUBLIC
PROSECUTOR
[1988] 1 MLJ 167
D ZAIDON SHARIFF v PUBLIC PROSECUTOR
[1996] 4 CLJ 441
E PENDAKWA RAYA v JAGETIS A/L MURUGASOON DAN LAIN-
LAIN
[2017] 10 MLJ 148
F PENDAKWA RAYA v DASANDRAN A/L MUNIANDY & ORS
[1999] MLJU 583
G PENDAKWA RAYA v ROSLEE BIN TAMRIN
[2007] MLJU 645
H PENDAKWA RAYA LAWAN THIYAGARAJAN DAN LAIN-LAIN
[2016] 1 LNS 1436
I MUSTAPHA BIN ALIAS v PUBLIC PROSECUTOR
[2016] 1 LNS 1426
J PUBLIC PROSECUTOR V SELVI A/P SUNDRUM
[2006] 6 MLJ 488
K PP V JESICCA LIM LU PING & ANOR
[2004] 2 CLJ 763
L PUBLIC PROSECUTOR v RANDRAN & ORS
[1993] 1 MLJ 45
M SECTION 173A CRIMINAL PRODECURE CODE

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N SECTION 294 CRIMINAL PROCEDURE CODE