Chapter 16 - Sentencing Flashcards
1
Q
SENTENCING
Overview
A
1) Objective of sentencing
2) General principles on sentencing
3) Sentencing in Summary Trials
4) Sentencing in High Court trials
5) Types of sentence
6) Mitigation plea
7) Aggravating factors
2
Q
OBJECTIVE OF SENTENCING
Overview
A
1) Retribution
2) Deterrence
3) Rehabilitation
4) Conflict of aims
3
Q
OBJECTIVE OF SENTENCING
Retribution
A
1) R v Sargeant:
- society through the courts must show its abhorrence of particular types of crime.
2) Reg v Davies:
- courts have to make it clear that crime does not pay.
4
Q
OBJECTIVE OF SENTENCING
Deterrence
A
1) R v Ball:
- sentence serves the public interest by deterring others who are likely tempted to try crime and deter the criminal
2) Reg v Davies:
- deterrence sentences are of little value in respect of offences which are committed on the spur of the movement.
5
Q
OBJECTIVE OF SENTENCING
Rehabilitation
A
1) What is rehabilitation:
- punishment such as community service / undergo certain programmes may be more conducive towards attaining this purpose.
2) Example:
- e.g. Drug Dependants (Treatment & Rehabilitation) Act 1983
6
Q
OBJECTIVE OF SENTENCING
Conflict of aims
A
1) R v Ball:
- Public interest must be the utmost priority.
2) Balance must be strike-off - Chandra Sekaran a/l Ramiyah v PP:
- Apart from the interests of the offender, the judge must consider the interests of the public as well in order to strike a balance.
3) Application - PP v Najib Razak:
- the sentencing court must be mindful of the four key principles and objectives of sentencing – retribution, deterrence, prevention and rehabilitation.
- Public interest as such should not only reflect the abhorrence of the society against the crime by the imposition of elements of retribution and deterrence in the sentence, but should also ensure the promotion of rehabilitation and reformation on the part of an accused himself.
7
Q
GENERAL PRINCIPLES ON SENTENCING
Overview
A
1) Importance of public interest
2) Sentencing & public interest
3) Primary purposes of sentencing
4) Exercise of discretion
5) Proportionality of sentencing to gravity of offence
6) Appellate intervention
7) Effect of mitigating factors
8) Sentencing multiple accused
9) Equality before the law
8
Q
GENERAL PRINCIPLES ON SENTENCING
Importance of public interest
A
PP v Najib Razak:
- the courts are the guardians of the public interest.
- In deciding the appropriate sentence a court should always be guided by certain considerations - the first and foremost is the public interest.
9
Q
GENERAL PRINCIPLES ON SENTENCING
Sentencing & public interest
A
PP v Najib Razak:
- A proper sentence, passed in public, serves the public interest in two ways;
- i.e. by deterring the public who tempted to try the crime;
- i.e. deterring the offender from repeating the offence.
- The public interest is best served if the offender is induced to turn from criminal ways to honest living.
10
Q
GENERAL PRINCIPLES ON SENTENCING
Primary purposes of sentencing
A
Norsharizan bin Junaidi v PP (CA, 2014):
- to punish the offender for the offence that he or she had committed and found guilty of.
- to serve as deterrent to others so that the public is protected from would be future offenders of the same offence or any other offence.
11
Q
GENERAL PRINCIPLES ON SENTENCING
Exercise of discretion in sentencing
A
Norsharizan bin Junaidi v PP (CA, 2014):
- Sentencing is an exercise of discretion by the trial Judge.
The trial Court has to choose the appropriate sentence in each case within the spectrum allowed by law.
12
Q
GENERAL PRINCIPLES ON SENTENCING
Principles of proportionality
A
PP v Najib Razak:
- Sentence is to be proportionate to the gravity of the offence;
- Proportionality is the sine quo non (essence) of a just sentence
- Proportionality ensures that a sentence reflects the gravity of the offence.
- Proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender.
13
Q
GENERAL PRINCIPLES ON SENTENCING
Appellate intervention
A
Norshahrizan bin Junaidi v PP:
1) General rule:
- Appellate Court will not interfere with the sentence imposed by the trial Court as it is an exercise of discretion.
2) Exceptions:
- if the sentence passed is found to be manifestly inadequate or manifestly excessive
- if it can be shown that the trial Court had applied the wrong principles in passing the sentence.
14
Q
GENERAL PRINCIPLES ON SENTENCING
Effect of mitigating factors in sentencing
A
Mohamed Abdullah Ang Swee Kang lwn PP:
- when evaluating the appropriate punishment to be passed, including when examining the length of custodial sentence, the court should consider the overall picture;
court shall take into account especially the gravity of the type of offence committed, the facts concerning the commission of the offence and the involvement of the accused, any mitigating factors, and sentences that have been imposed in the past for similar offences.
15
Q
GENERAL PRINCIPLES ON SENTENCING
Sentencing multiple accused
A
1) Whether there can be disparity - R v Ball:
- there can be disparity in the matter of sentencing between persons who may be charged together.
- It all depends on the respective particular circumstances.
2) Principle - PP v Tan Chee Seng:
General:
- the sentence to be passed on them should be the same;
Exception:
- when there is a relevant difference in their responsibility for the offence or their personal circumstances.
16
Q
SENTENCING PROCESS IN SUMMARY TRIALS
Overview
A
1) The law & scope
2) Particulars to be recorded
3) VIS
17
Q
SENTENCING PROCESS IN SUMMARY TRIALS
The law & scope
A
1) The law:
- S.173(m)(ii) CPC
2) Scope:
- pass sentence according to law.
3) Meaning of sentence according to law - PP v Jafa bin Daud:
- the sentence must be within the ambit of punishable section;
- sentence must be assessed and passed according to established judicial principles.
4) Meaning of “sentence according to law” - Re Ching Cheng Hoe & Ors:
sentence be within the ambit of the punishable section;
be assessed and passed in accordance with established judicial principles.
5) Meaning of established judicial principle - PP v Tan Fook Sum:
- these are retribution, deterrence, prevention & rehabilitation.
- established judicial principles require the court to balance the diverse and competing policy considerations.
18
Q
SENTENCING PROCESS IN SUMMARY TRIALS
Particulars to be recorded
A
1) The law:
- S.176(2)(r)
2) Scope, inter alia:
- Plea in mitigation;
- Factors which may aggravate sentence;
- Probation report.
- Impact statement.
19
Q
SENTENCING PROCESS IN SUMMARY TRIALS
VIS
A
1) The law:
- S.173(m)(ii)
2) Meaning:
- Statement that explains how the crime has impacted the victim physically, mentally & financially.
- Allows the court to recognise the rights of the victim.
- Allows victim to describe the impact & assist with the process of sentencing.
3) Object of VIS - Public Prosecutor v. Shahrul Azuwan Adanan & Anor:
- VIS will give the court a sense of what the victim or his family went through as a result of the offender’s transgression into their private lives and to pass the appropriate sentence accordingly.
4) Whether presence of victim is mandatory - Muhammad Nuzul Ikhram & Ors v PP:
- VIS is admissible via police record and without the presence of the victim.
20
Q
SENTENCING PROCESS IN HIGH COURT TRIALS
Overview
A
1) The law & scope
2) Appeal
3) Revision
4) Pardons, commutation
21
Q
SENTENCING PROCESS IN HIGH COURT TRIALS
The law & scope
A
1) The law:
- S.183
2) Scope
- pass sentence according to law.
3) Meaning of sentence according to law - PP v Jafa bin Daud:
- the sentence must be within the ambit of punishable section;
- sentence must be assessed and passed according to established judicial principles.
4) Meaning of “sentence according to law” - Re Ching Cheng Hoe & Ors:
sentence be within the ambit of the punishable section;
be assessed and passed in accordance with established judicial principles.
5) Meaning of established judicial principle - PP v Tan Fook Sum:
- these are retribution, deterrence, prevention & rehabilitation.
- established judicial principles require the court to balance the diverse and competing policy considerations.
22
Q
SENTENCING PROCESS IN HIGH COURT TRIALS
Appeal
A
1) S.50 CJA:
- can be made after sentence.
23
Q
SENTENCING PROCESS IN HIGH COURT TRIALS
Revision
A
Chapter XXXI CPC
24
Q
SENTENCING PROCESS IN HIGH COURT TRIALS
Pardons & commutation
A
1) Art. 42 FC
2) S.300
3) S.301
25
TYPES OF SENTENCE
Overview
1) Imprisonment
2) Whipping
3) Death sentence
4) Fine, compensation & costs
5) Good behaviour bonds
6) Police supervision
26
IMPRISONMENT
Overview
1) Category of imprisonment
2) Execution of imprisonment
3) Shall be punished & shall be liable
4) Concurrent or consecutive
5) Stay of execution for imprisonment
27
CATEGORY OF IMPRISONMENT
Overview
1) Imprisonment for life
2) Life sentence
3) Imprisonment for a fixed term by court
4) Imprisonment in default of payment of fine
28
CATEGORY OF IMPRISONMENT
Imprisonment for life
1) Meaning of imprisonment for life - S.3 Criminal Justice Act:
- sentence of imprisonment for thirty years.
2) Meaning of imprisonment for life - for offences under FIPA - S.2 FIPA:
- imprisonment for the duration of the natural life of the person sentenced.
3) Meaning of imprisonment for life - S.57 PC:
- imprisonment for thirty years.
29
CATEGORY OF IMPRISONMENT
Life sentence
1) Meaning of life sentence - Penal Code (Amendment & Extension) Act 1976:
- Life sentence means a sentence till death.
2) Meaning of imprisonment for life - for the purpose of offences against the state in Ch. VI Penal Code - 130A PC:
- imprisonment until the death of the person on whom the sentence is imposed.
- i.e. life sentence.
30
EXECUTION OF IMPRISONMENT
Effective date of imprisonment
1) General rule: S.282(d)
- the date it was passed.
2) Exceptions: S.282(d)
- unless Court directs otherwise.
3) Include period of detention - Muharam bin Anson v PP:
- period of detention ought to be taken into account for the purpose of passing sentence & discount must be given.
4) Power to backdate - PP v DSAI:
- the power to backdate the effective date of imprisonment is purely discretionary and not as of right.
5) For convicted person who is currently serving term - S.292(1):
- court has discretion to order the imprisonment to run immediately or after expiration of the current imprisonment term he has been previously sentenced.
31
EXECUTION OF IMPRISONMENT
Interference of appellate court
PP v Loo Choon Fatt:
- appellate court will not normally alter the sentence;
- unless it is satisfied that the sentence passed by the lower court is;
1) manifestly inadequate or excessive; or
2) it is illegal; or
3) it is not a proper sentence having regard to all the facts disclosed; or
4) the court has clearly erred in applying the correct principles in the assessment of sentence.
32
SHALL BE PUNISHED & SHALL BE LIABLE
Meaning of shall be punished
1) whether mandatory - PP v Leonard Glenn Francis:
- imprisonment is mandatory.
S.294 cannot be invoked when it is provided that the accused "shall be punished with imprisonment”.
2) whether mandatory - cf. PP v Mohamed Noor:
- ‘shall be punished with imprisonment’ does not remove the discretion to apply s. 294 of the CPC.
- If a minimum sentence of imprisonment is featured in the provision, the court is obliged to abide by the same but only if the court decides pass a jail sentence in the first place.
3) PP v Agambaran:
- it is mandatory in law for the court to impose a sentence of imprisonment where the penalty is preceded by phrase “shall be punished”.
33
SHALL BE PUNISHED & SHALL BE LIABLE
Meaning of shall be liable
1) Public Prosecutor v Mohd Salim Hamiddulrahman:
- the words ‘shall be liable’ do not make the prescribed form of punishment mandatory.
- Instead there are construed as merely permissive or directory.
2) Jayanathan v PP:
- imprisonment is not mandatory.
S.294 can be invoked & court is entitled to bind-over the accused instead of holding the accused "liable for imprisonment".
34
CONCURRENT OR CONSECUTIVE
Overview
1) Discretion of court
2) One transaction principle
3) Totality principle
4) Recent application
35
CONCURRENT OR CONSECUTIVE
Discretion of court
1) The law:
- S.292(1) & S.102 SCA
2) Scope of discretion:
i) S.292(1) CPC:
- Imprisonment for prisoner already undergoing imprisonment;
- Court shall direct the sentence to run either immediately (concurrent) or at the expiration of the imprisonment he is currently undergoing (consecutive).
ii) S.102 SCA:
- Sentencing power in the case of conviction for several offences at one trial;
- Court may direct the sentence to run concurrent or consecutively in case of conviction for several offences.
3) When no direction is given - Datuk Haji Harun Idris v Officer-In-Charge of Pudu Prison:
- assumption on the grounds of fairness is that, they were to run concurrently or simultaneously.
36
ONE TRANSACTION PRINCIPLE
Overview
1) The principle
2) Meaning of one transaction
3) Example of one transaction
4) Recent application
37
ONE TRANSACTION PRINCIPLE
Meaning of one transaction
Bachik Abdul Rahman v PP:
- for there to be one transaction, elements that must be present are:
- - proximity of time & place and continuity of action & purpose or design.
38
ONE TRANSACTION PRINCIPLE
Example of one transaction
Offence tried together:
1) Abu Seman v PP:
- when the offences are tried together, the sentence imposed for those offences should be made concurrent.
2) cf. Iwan Bujang Dara v PP:
- "Where two or more distinct offences had been committed, sentences of imprisonment should be made to run consecutively.” (i.e. even when it is tried together).
- It should only be made concurrent when an offender had been convicted of a principal and subsidiary offence.
39
ONE TRANSACTION PRINCIPLE
Recent application
CA, 2015
Yap You Jee v. Public Prosecutor & Other Appeals (CA, 2015):
- in determining whether the sentences should be concurrent or consecutive, courts are guided by the one transaction rule;
- four elements must be present, that is to say, proximity of time, proximity of place, continuity of action and continuity of purpose or design.
40
TOTALITY PRINCIPLE
Overview
1) The principle
2) Meaning of totality principle
3) Example of application on totality principle
41
TOTALITY PRINCIPLE
Overview
1) The principle
2) Meaning of totality principle
3) Example of application on totality principle
4) Recent application
42
TOTALITY PRINCIPLE
The principle
- court decide the appropriate sentence for each of the several offences.
- court look at the aggregate and decide whether, in totality, the aggregate is excessive.
- if it is excessive, sentence is to be run concurrently to reduce its excessiveness.
43
TOTALITY PRINCIPLE
Meaning of totality principle
Bachik Abdul Rahman v PP:
- where consecutive sentence is imposed, the sentence must have regard to the total length of the sentence passed.
- this is to ensure that the sentence properly reflects the overall seriousness of the behaviour.
44
TOTALITY PRINCIPLE
Example of application of totality principle
Hashim bin Pawanchee & Anor v PP:
- court ordered the reduced term of one year for six offences to run consecutively in view of gravity of offences.
45
TOTALITY PRINCIPLE
Recent application
HC, 2013
P v Abdul Malik Abdullah (HC, 2013):
- Where two or more offences committed by the accused are distinct offences, the appropriate sentence should be consecutive rather than concurrent.
- However, the totality principle must also be taken into consideration;
- The totality principle requires the court to look at all the sentence imposed and decide whether in totality they are excessive.
- The court has to consider an appropriate punishment for each offence and then look back to view them in totality.
46
CONCURRENT OR CONSECUTIVE
Recent application
1) PP v Muhammad Fauzi Abdul Razak & Anor (CA, 2012):
- The concurrent sentence of imprisonment is appropriate only if both the offences have connection with one another.
2) PP v Ooi Sim Yin:
- kami berpendapat bahawa hukuman penjara secara serentak (concurrent) hanya wajar dikenakan sekiranya kedua-dua kesalahan itu mempunyai kaitan di antara satu sama lain, iaitu kesalahan kedua merupakan kesalahan subsidiari kepada kesalahan utama.
47
IMPRISONMENT IN DEFAULT OF PAYMENT OF FINE
Overview
1) The law
2) Discretionary power of the court
3) Date of imprisonment
48
IMPRISONMENT IN DEFAULT OF PAYMENT OF FINE
The law
S.283(1)(b)(iv) & (c)
49
IMPRISONMENT IN DEFAULT OF PAYMENT OF FINE
Discretionary power of the court
PP v Amir bin Mahmood:
- The word “may” gives the court discretionary power to exercise discretion according to common sense and justice.
50
IMPRISONMENT IN DEFAULT OF PAYMENT OF FINE
Date of imprisonment
Irwan Abdullah & Ors v PP:
- When the accused is sentenced to imprisonment in default of fine, court has the discretion to order imprisonment run either from the date which the order was passed or some other date;
- This is to be decided depending on the particular facts & circumstances.
51
STAY OF EXECUTION FOR IMPRISONMENT
The law
Bail pending appeal:
S.311 CPC + S.57 CJA
52
xx
xx
53
xx
xx
54
WHIPPING
Overview
1) Circumstances where it cannot be passed;
2) Males sentenced to death;
3) Execution of whipping;
4) Stay of whipping
55
WHIPPING
Circumstances where it cannot be passed
1) The law - S.289:
- woman;
- males above 50 y/o with some exceptions under S.289(c);
- males sentenced to death;
2) Scope of 50 years old - PP v Anuar Layani Saidon:
- 50 years old is considered as referred to the age of the person at the time of imposition of the sentence of whipping & the time of its infliction;
- i.e. whipping cannot be passed when the accused is 50 years old at the time sentence is passed;
- i.e. if whipping is passed when the accused is less than 50 years old, it cannot be inflicted when the accused has reached 50 years old at the time of infliction.
3) Setting-aside on revision - PP v Tan Kim Chok:
- HC acting on revision set aside the sentence of whipping as the accused was over 50 years old.
4) Exceptions - S.289(c):
- Males convicted under convicted under 376, 377C, 377CA, 377E can be passed with sentence of whipping regardless of his age.
56
WHIPPING
Males sentenced to death
1) Suzimi Shaari v PP (CA, 2011):
- as the accused had been sentenced to death for his first offence, CA refused to impose the mandatory whipping for an offence under DDA;
- This is so as to impose sentence of whipping will offend against S.289.
2) cf. Ang Meng Leong v PP (CA, 2014):
- A precedent in Ahmad Najib Aris by FC had already been set that a person facing the death penalty must also be liable to the mandatory sentence of whipping.
57
EXECUTION OF WHIPPING
Overview
1) Number of strokes
2) Youthful offender
3) At one trial
4) Cannot be by instalment
58
EXECUTION OF WHIPPING
Number of strokes
1) The law:
- S.288(1)
2) Must not exceed 24 - Tuan Mat Tuan Lonik v PP:
- For offences legally punishable by whipping, the combined sentences of whipping should not exceed a total number of 24 strokes for adults.
3) Additional strokes - Liaw Kwai Wah v PP:
- appellate or revisionary court cannot impose additional strokes after a sentence of whipping by the lower courts have been executed.
59
EXECUTION OF WHIPPING
Youthful offender
S.288(4)
60
EXECUTION OF WHIPPING
At one trial
1) The law:
- S.288(5)
2) Meaning of at one trial - Chai Ah Kau v PP:
- since there were two separate trials, the total of 20 strokes was well within the maximum of 48 strokes.
- At one trial means that the person is convicted at one trial of two or more distinct offences.
61
EXECUTION OF WHIPPING
Cannot be by instalments
1) The law:
- S.289
2) Scope - PP v Roslan bin Imun @ Mon:
- Whipping must be carried out in one go;
- It cannot be executed on an instalment basis.
3) Additional strokes at appeal - Liaw Kwai Wah v PP:
- appellate or revisionary court cannot impose additional strokes after a sentence of whipping by the lower courts have been executed.
62
WHIPPING
Stay of whipping
S.311:
- automatically stayed when an appeal is lodged.
63
DEATH SENTENCE
Overview
1) Can be passed
2) Cannot be passed
3) Whether it is constitutional
4) Execution of death sentence
64
DEATH SENTENCE
Can be passed
S.292
65
DEATH SENTENCE
Cannot be passed
S.275
66
DEATH SENTENCE
Whether it is constitutional
Letitia Bosman v PP & Other Appeals:
- The mandatory death penalty satisfied the test of reasonable classification, and hence was not unconstitutional vis-à-vis cl. (1) of art. 8 of the FC
67
DEATH SENTENCE
Execution of death sentence
S.281
68
FINE, COMPENSATION & COSTS
Overview
1) Fine
| 2) Compensation & costs
69
FINE
Overview
1) The law & scope
2) Factors for consideration
3) Stay of fine
4) Examples of application
5) Default of payment of fine
6) Levying unpaid fines
70
FINE
The law & scope
1) The law:
- S.2
- S.283
71
FINE
Factors for consideration
1) Principle - PP v Najib Razak:
- a fine should always relate to the means of an accused.
- imposition of a fine beyond the accused’s means or a term of imprisonment in default of payment is tantamount to sentencing the accused to imprisonment without the option of a fine.
- court should not impose a fine which it knows or ought to have known that the accused is not in a financial position to pay.
2) Example of factors - Rex v Teo Woo Tin:
- the profit arising from the offence;
- the value of the subject matter involved;
- the amount of injury caused;
the financial position of the offender.
72
FINE
Stay of fine
HC, 2020
PP v Najib Razak:
General rule:
- a stay is not usually given for the sentence of fine for the reason that a fine already paid can be refunded should the sentence be set aside, as opposed to the loss of liberty which is irreversible.
Exception:
- special circumstances.
Held:
- s. 311 of the CPC as referred to earlier is widely drafted to permit the court to order a stay of the sentence of fine.
- OTF, the accused has been ordered by other High Court to pay RM1.69 billion in additional taxes and penalties, on top of extremely large sum of RM210 million of fines in the present case.
- The judge is of the opinion that this constitutes a special & exceptional circumstance for the judge to grant stay of fine.
73
FINE
Examples of application
1) Mohamed Abdullah Ang v PP:
- court took into account the fact that there was a full restitution and no personal enrichment of the offender and ordered the fine to be set-aside.
2) PP v Loo Chang Hock:
- the court observed that the total value of the goods involved totalled of RM70k has profited the accused from the offence.
- as such, the accused was fined for RM5000.
74
FINE
Default of payment of fine
1) The law:
- S.183(1)(b)(iv)
2) Application - PP v Amir bin Mahmood:
- court should not arbitrarily apply as the section gives some measure of discretion when imposing fines.
3) Guiding principles:
- R v Lim Cheng Tong: default term must bear some proportion to the amount of the fine imposed.
- Cheong Ah Cheow v PP: court must adhere to the scale set out under (c)(ii).
75
FINE
Levying unpaid fines
1) The law:
- S.283(1)(g)
2) Application - PP v Amir bin Mahmood:
- As to what prosecution can do in terms of recoverability of the fines imposed, judge held that this section is applicable.
- discretion is at the prosecution to decide whether to pursue the matter against the accused under this provision.
76
COMPENSATION & COSTS
The law
1) Costs: S.426(1)(a)
| 2) Enforcement of payment: S.432
77
GOOD BEHAVIOUR BONDS
Overview
1) Discharge conditionally or unconditionally - S.173A
2) First offenders binding-over - S.294
3) Youthful offender - S.93(1)(b)
78
DISCHARGE CONDITIONALLY OR UNCONDITIONALLY
Overview
1) The law & scope
2) No conviction
3) Exercise of discretion
4) Whether apply to serious offence
79
DISCHARGE CONDITIONALLY OR UNCONDITIONALLY
The law & scope
1) The law:
- S.173A
2) Scope - PP v Yeong Yin Choy:
- to be used for minor cases calling for mild treatment affecting youth & adult offenders;
- taking into account nature of the offence, extenuating circumstances of the case & factors peculiar to the offender.
3) Applicability - Remely bin Hussain v PP:
- It is not restricted for an accused who has pleaded guilty.
4) Does not apply to serious offence - PP v Najib Razak:
- S.52B of the Penal Code states that a “serious offence” denotes an offence punishable with imprisonment for a term of ten years or more.
- For the purposes of the instant case however the CBT charges are an example of a serious offence under s. 52B of the Penal Code.
- In light of amendments such as now found in s. 173A(8) which states that s. 173A shall not apply if the offender is charged with a serious offence, the discretion to bind over the accused is not available in the instant case.
80
DISCHARGE CONDITIONALLY OR UNCONDITIONALLY
No conviction
Re Badri Abas:
- Court should not proceed to conviction if he intends to invoke this.
- It is however, cannot claim as of right & entirely within the discretion of the court.
- Regard must be given to factors under (2), i.e antecedents, age etc.
81
DISCHARGE CONDITIONALLY OR UNCONDITIONALLY
Exercise of discretion
PP v Loo Choon Fatt:
- Discretion must be exercised judicially, i.e. not just because the accused is a youth.
the trivial nature of the offence that aggravate the circumstances must be taken into account.
82
DISCHARGE CONDITIONALLY OR UNCONDITIONALLY
Whether apply to serious offence
HC, 2020
PP v Najib Razak:
- S.52B of the Penal Code states that a “serious offence” denotes an offence punishable with imprisonment for a term of ten years or more.
- For the purposes of the instant case however the CBT charges are an example of a serious offence under s. 52B of the Penal Code.
- In light of amendments such as now found in s. 173A(8) which states that s. 173A shall not apply if the offender is charged with a serious offence, the discretion to bind over the accused is not available in the instant case.
83
BINDING-OVER FOR FIRST OFFENDERS
Overview
1) The law & scope
2) When it can be invoked
3) Exercise of discretion
4) Recent example
84
BINDING-OVER FOR FIRST OFFENDERS
The law & scope
1) The law:
- S.294
2) Scope:
- applies to first time offenders, adults & youthful offenders.
- conviction is recorded.
- only for offence punishable with imprisonment or fine-only.
- must NOT be serious offence or offence under Domestic Violence Act.
- it must appear that it is expedient (i.e. conveniently practical although immoral) that the offender be released on probation of good conduct.
85
BINDING-OVER FOR FIRST OFFENDERS
When it can be invoked
1) PP v Idris:
- can ONLY be invoked where the offence is punishable with imprisonment only without options of fine or any other options.
2) cf. PP v Yeong Yin Choy:
- also can be invoked where the offence is punishable with imprisonment and options of fine or any other options.
86
BINDING-OVER FOR FIRST OFFENDERS
Exercise of discretion
Nor Afizal Azizan v Pendakwa Raya:
- each case is to be examined based on its own peculiar facts;
- exercise of discretion should not be misconstrued as intending to have a blanket application or being applicable to all cases involving young offenders charged with a similar offence.
87
YOUTHFUL OFFENDER
Overview
1) The law & scope
2) Meaning of youthful offender
3) Exercise of discretion
88
YOUTHFUL OFFENDER
The law & scope
1) the law:
- S.293
2) scope - Pendakwa Raya v Redzohan Abdullah & Satu Lagi:
- applicable to youthful offender (18-21 y/o) who has been convicted for an offence punishable with imprisonment or fine.
- S.293(1) can only be used as an alternative to imprisonment or fine.
89
YOUTHFUL OFFENDER
Meaning of youthful offender
S.2(1) CPC:
- A person convicted of an offence who is of or above the age of 18 & below 21 years old.
90
YOUTHFUL OFFENDER
Exercise of discretion
Mohd Amirnudin Ahmad v PP:
- cannot be used arbitrarily just because the accused is a youthful offender.
91
POLICE SUPERVISION
Overview
1) The law & scope
2) Pre-requisites
3) Exercise of discretion
4) Period of supervision
5) Obligations for person under obligation
6) Non-compliance with order
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POLICE SUPERVISION
The law & scope
1) The law:
- S.295;
- S.296
2) Scope - Police supervision is not an additional punishment or sentence - Re Bakar bin Ahmad:
- Police supervision should not be imposed by way of as additional punishment.
- It is an order to ensure that in the interests of public security the police are in a position to exercise some measure of control of people of known bad character.
93
POLICE SUPERVISION
Pre-requisites
S.295(1):
- must have previously convicted of an offence punishable with imprisonment for term of 2 years & upwards.
- present conviction must be in respect of an offence punishable with imprisonment for term of 2 years & upwards.
94
POLICE SUPERVISION
Exercise of discretion
1) Zakariya bin Musa v PP:
- Supervision orders should be sparingly used by Magistrates and should be restricted to the most appropriate & suitable case.
2) PP v Sulaiman b Ahmad
- The use of police supervision orders should be sparingly used by Magistrates and should likewise be restricted to the most appropriate or suitable cases.
95
POLICE SUPERVISION
Period of supervision
S.295(1A):
- not less than 1 year and not more than 3 years.
96
POLICE SUPERVISION
Obligations for person under supervision
S.296
97
POLICE SUPERVISION
Non-compliance with order
1) The law:
- S.297
2) Imprisonment - Darus v PP:
non-compliance with the order can render a person liable for imprisonment up to maximum 1 year.
lesser term may be imposed if it is considered appropriate.
3) Rehabilitative counselling:
- S.295A & 295(1A)
98
MITIGATION PLEA
Overview
1) Importance of mitigating process
2) Right to make plea in summary trials
3) Right to make plea in high court trials
4) Making false statement in mitigation
5) Procedure in mitigation
6) Examples of mitigation
7) Recent application of various offences
99
MITIGATION PLEA
Right to make plea in summary trials
Importance of mitigation - Re Izzudin Shah v PP:
- No plea in mitigation should be thrown aside lightly;
- It must be considered equally with the facts presented by the prosecution.
1) The law:
- S.173(m)
- S.176(2)(r)
- S.173A
2) Scope - Zaidon Shariff v PP:
- An accused person must be given an opportunity to make a plea in mitigation praying for a lenient sentence.
- It is a constituent element of the sentencing process.
100
MITIGATION PLEA
Right to make plea in high court trials
Letitia Bosman v PP & Anor Appeals:
- Although there is no provision in the CPC for a plea in mitigation in High Court trials, nevertheless as a matter of fact, in practice it is quite common to allow a plea in mitigation before the court imposes sentence.
101
MITIGATION PLEA
Making false statement in mitigation
Re Mohammad Shariff:
- An accused person who made a false statement in mitigation cannot be charged in respect of such false statement;
- An unsworn statement made in such circumstances is privileged and cannot be a subject matter of a further charge.
102
MITIGATION PLEA
Procedure in mitigation
1) Mitigation before recording conviction - Maung Ming Aung v PP:
- a conviction must be recorded only after the plea in mitigation has been made and before sentence is passed, i.e. finding guilty > mitigation > conviction > sentencing.
- Any conviction recorded before a plea in mitigation may render nugatory the application of s. 173A which provides for certain orders to be made without recording a conviction.
2) Mitigation followed by reply by PP - Lian Kian Boon v PP:
- After a plea of mitigation having been made, it is reasonable and usual for the prosecution to reply.
- This reply should be limited to matters raised in mitigation.
- No controversial facts should be raised in the reply or taken into consideration in the matter of sentencing.
- Facts that can be considered are the facts relevant to the charge or which have been admitted by the accused.
3) Whether mitigation can be deferred after conviction - PP v Najib Razak:
- The judge accept that by virtue of S.311 CPC & S.57 CJA, upon finding an accused guilty and convicting him the courts have the power to postpone sentencing and have it heard on a later date.
- However, the general rule should be that the courts should as far as possible proceed to hear the mitigation and sentence the accused immediately upon conviction.
- Only exceptionally good reasons should warrant the court to defer the mitigation and sentencing to another date by staying the conviction under s. 311 CPC.
- Examples of good reasons include if it is deemed necessary, to call for a probation officer’s report to establish the background of the accused who is below the age of 21 about to be sentenced (such as in the case of Lian Kian Boon v. PP [1991] 1 MLJ 51) or if there is a request by the victim of the crime or the victim’s family, for the court to call upon them to make a statement on the impact of the offence on the victim or his family under s. 173(m)(ii) and s. 183A of the CPC.
103
EXAMPLES OF MITIGATING FACTORS
Overview
1) Record of offender
| 2) Plea of guilty
104
EXAMPLES OF MITIGATING FACTORS
Record of offender
1) Clang of gates principle - Siah Ooi Choe v PP:
- relevant in the case of man with no previous record;
- the fact that he now has a criminal conviction and finds himself in a prison is a very grave punishment.
- in such circumstance, a short prison term should be sufficient.
2) Gap principle - Zaidon Shariff v PP:
- a 10-year gap ought to have operated as a mitigating rather than aggravating factor.
- rationale: the offender has made an effort to rehabilitate himself and it should operate in his favour.
- the longer the gap between a previous conviction, the greater the mitigatory effect.
3) Unrelated conviction - Soosainathan v PP:
- previous offences that are significantly different from the current offence may be given little or no weight.
105
EXAMPLES OF MITIGATING FACTORS
Plea of guilty - general principles
Bachik Abdul Rahman v PP:
- a convicted person should be given a discount for pleading guilty.
- reduction of about one third of the sentence is normally given.
- H/ever, the court may, in the exercise of its discretion, refuse to grant any discount.
- The severity of the offence or the existence of a previous conviction may outweigh the mitigating effect of the guilty plea;
- i.e. the guilty plea does not automatically entitle the convict to a lesser punishment.
106
EXAMPLES OF MITIGATING FACTOR
Plea of guilty - scope of reduction
1) How much it is reduced - PP v Ravindran:
- plea of guilty calls for a reduction between one quarter to one third of what would have otherwise be sentenced.
2) Refusal to give discounts - Tan Lay Chen v PP:
- where there is a departure from general rule of giving discount, the reason for not treating plea of guilty as mitigating factor must be reflected in the grounds on judgment.
107
EXAMPLES OF MITIGATING FACTOR
Plea of guilty - non-applicable situations
1) Severity of offence - Loh Hock Seng v PP:
- where the severity of offence outweigh the mitigating effect of the guilty plea.
2) Demands of public interest - PP v Govindnen Chinden Nair:
- where the public interest demands a deterrent sentence in the circumstances of the case.
3) Made too late - PP v Dato Nallakaruppan:
- where a plea of guilty is made too late in the trial, it ceases to have a mitigating effect.
108
RECENT APPLICATION ON MITIGATION PLEA FOR VARIOUS OFFENCES
Overview
1) Drug offence
2) Terrorism-related offence
3) Mandatory death penalty offence
4) Serious offence within PC
109
RECENT APPLICATION ON MITIGATION PLEA FOR VARIOUS OFFENCES
Drug offence
PP v Ling Leh Hoe (CA, 2015)
- While it is generally accepted that an accused person should be given credit for pleading guilty, there can be no automatic rule that a guilty plea on its own entitles an accused to a lesser punishment.
- However, neither the guilty plea of the respondent nor the fact that the respondent was a first-time offender could be considered too favourable for the respondent.
- Offences relating to possession of dangerous drugs are a major national problem & public interest called for deterrent sentence.
110
RECENT APPLICATION ON MITIGATION PLEA FOR VARIOUS OFFENCES
Terrorism-related offence
1) PP v Mohamed Danny Mohamed Jedi (CA, 2018):
- While it is generally accepted that an accused person should be given credit for pleading guilty, there can be no automatic rule that a guilty plea on its own entitled an accused to a lesser punishment.
- Malaysia has an international obligation to deter terrorism on the world front, and Malaysian courts must assist in fulfilling that obligation by ensuring severe punishment for terrorist offences to reflect the abhorrence and condemnation of the Malaysian community against such crime.
- Therefore, severity of the offence herein outweighs the respondent's plea of guilty.
2) Mohd Anwar bin Azmi & Anor v PP (CA, 2018):
- For such offences, private factors such as mitigation are of little/no value.
- This is due to, amongst others, the extremely severe nature of the offence.
- “Dalam keadaan sebegini, faktor peribadi sebagai mitigasi tidak mempunyai kesan yang tinggi atau tidak bernilai langsung”.
111
RECENT APPLICATION ON MITIGATION PLEA FOR VARIOUS OFFENCES
Mandatory death penalty offence
Letitia Bosman v PP & Anor Appeals (FC, 2020):
- Such offences include murder, drug trafficking, and treason.
- Where the legislature has by proper exercise of its powers prescribed that for drug trafficking and murder offences the offenders shall be punished with a mandatory death penalty, the duty of the court is to impose the legislatively prescribed punishment on offenders.
- The court has no choice but to impose the mandatory sentence provided by law as enacted in Parliament.
112
RECENT APPLICATION ON MITIGATION PLEA FOR VARIOUS OFFENCES
Serious offences within PC
PP v Najib Razak:
- Public interest must indeed take precedence over other considerations, and in that regard, the gravity of the offence as demonstrated by the facts of the case must be placed in its proper context and perspective.
- Mitigating factors in favour of the accused person are especially pertinent too, if not strong considerations.
- Each case must be evaluated on its own peculiar facts and circumstances.
113
AGGRAVATING FACTORS
Overview
1) Previous convictions
2) Position or status of offender
3) VIS
114
AGGRAVATING FACTORS
Previous convictions
PP v Jafa bin Daud:
- Bad antecedents or previous convictions of an offender are generally considered as aggravating factor, calling for deterrent sentence.
115
AGGRAVATING FACTORS
VIS
Ahmad Rashidi Zainol & Anor v PP
- the victim's impact statement received scant attention despite the gravity of the criminal offence of gang robbery.
- The only words which captured the mind of the judge were "traumatised" and "inconvenience" when the learned judge mentioned that "after the incident, SP3 was too afraid to stay alone in her own house and always require a companion to be with her.
- Certainly this has cause inconvenient to SP3 and her family members”.
- The learned judge had not given proper weightage to the VISs and ruled that the sentence meted by the lower court must be enhanced not because of factors relating to the victim, but rather because of the nature of the crime, ie, gang robbery, which must naturally meet a heavy and not a lenient sentence.
