Criminal Procedure II – Sentencing

- Sentencing simply means when court impose a punishment on the accused person when
he is found to be guilty at the end of the trial.
- In Tuan Mat bin Lonik v PP [2009] 4 MLJ 81, it was explained that sentencing is a last
stage of judicial process in a criminal litigation.
- The power to pass sentence is at the sole discretion of the court as per the case of New
Tuck Shen [1982] 1 MLJ 27, where it was held that right to impose punishment is solely
at the discretion of the court where it shall exercise such discretion judicially without
any disturbance from any parties including the defence or even the prosecution.
- In Chandra Sekaran A/L Ramiyah & Anor v PP [2000] 3 MLJ 649, court made
reference to the Federal Court case of Bhandulananda Jayatilake v PP [1982] 1 MLJ
83, where it was held that court will not normally interfere with the findings of the trial
court. In appealing on the sentence by the defence, it must show that some principles of
laws had been neglected by the trial court in sentencing. Reasons such as other courts had
sentenced in a particular way and so on will be sufficient herein.

Aims of Sentencing

- In Muhammad Isa bin Aris & Ors v PP [2011] 5 MLJ 342, the court made reference to
the English case of R v Sargeant (1974) 60 Cr App 74, where the court laid down few of
the purposes of sentencing namely retribution, deterrence, rehabilitation and prevention.
- In PP v Muhari bin Mohd Jani & Anor [1996] 3 MLJ 116, court explained that the
aspect of retribution actually come from the concept of an eye for an eye and a tooth for a
tooth, which is no longer applicable in our modern society today. But the aspect of
retribution still serves as one of the aspect in aims for sentencing as it is the duty of the
court to lead the public opinion on the repercussion on commission of certain crime.
(eg. You commit murder you killed someone hence you will be sentenced to death not
because you need to return the life, but more like it serves as a warning to the public that
one has no right to take another’s life without proper reason).
- Sentencing does not aim to be punitive in nature, hence a remorseful person who had
been guilty of an offence shall be given a chance to lead his life like normal. This shows
rehabilitative aim of sentencing.
- In R v Ball (1951)* court explained that the paramount consideration in sentencing is of
course the interest of public and it will be best served if the offender can be made to turn
over a new leave as a result of his sentence.
- In Raja Izzuddin Shah v PP [1979] 1 MLJ 720, here the accused slapped a police
officer and was sentenced to three years of imprisonment by the trial court. On appeal,
court reduce his sentence for bond of good behavior and fine as he pleaded guilty, was
remorseful and even compensated the victim.
- In Koay Teng Soon v PP [2000] 2 MLJ 129 *, among the mitigating factors raised herein
were that the accused were child of tender years and has no previous convictions. Court
of appeal herein by making reference to Loo Choon Fatt’s case held that in this case
public interest shall prevail over the mitigating factors as based on the facts the injuries
inflicted were serious and had resulted in death of victim.
- In Chin Chee Wei & Anor v PP [2020] MLJU 402 ***, the two accused were sentence
to three months imprisonment by the learned Magistrate for violation of Movement
Control Order(MCO) Rules jointly for moving from one place to another without valid
reasons permitted by the laws. Upon revision by the learned Judicial Commissioner,
Muniandy JC’s own motion, it was found that the learned Magistrate had failed to
consider other available sentences for the offence committed which were indeed less
serious, herein merely to go fishing when they are not allowed to do so. The learned
Judicial Commissioner explained that no doubt public interest prevails over the mitigating
factors provided, but it must be noted that the most important issue to deal with in the
present is to flatten the curve of the covid-19 infection. By putting the both the accused in
the prison will stand high chances of getting them infected. Moreover, the offence
committed were not very serious and that they had even pleaded guilty. As such the High
Court altered the three months imprisonment to an order of compulsory attendance .

Principles of Sentencing

1. Sentence must be in accordance to law

- Although the court has absolute discretion in sentencing, such discretion is only on the
leniency and harshness of the punishment. The court is still bound by the laws and certain
principles.
- S. 173(b) CPC provides that if the accused pleads guilty to the charge (original or
amended), the plea shall be recorded in which he may be convicted on it and the Court
herein shall pass sentence according to law. This is save in accordance that before Court
 records the pela of guilty, it shall ascertain that the accused understands the nature and
consequences of his plea, in which he intends to admit without qualification (condition) in
pertaining to the offence alleged against him. (admit or not admit no admit but this and
that)
- S. 173(j)(i) CPC provides that when there is an amended charge made against the
accused in which he pleaded guilty to it, the plea shall be recorded where he may later be
convicted where the court shall pass sentence according to law
- S. 173(m)(ii) CPC provides that when the court finds that prosecution had proven its case
beyond reasonable doubt, it shall find the accused guilty and he may be convicted on it
and the Court shall pass sentence according to law. This is save in accordance that before
passing of sentence, the Court shall call for the victim or his family member to give a
statement of the impact of the offence on the victim as well as his family if there is any
request of such made by the victim. In case, the victim or the victim’s family member
cannot attend the proceeding upon being called by the Court, the Court will have a
discretion to admit the impact statement made in writing.
- In PP v Jafa bin Daud [1981] 1 MLJ 315 *, it was held that when the accused person
had been found guilty at the end of trial, the court must pass sentence in accordance to the
laws. According to law would also means within the ambit of punishable sections.
- In Seah Ah Chiew v PP [2007] 1 MLJ 377, on appeal, the high Court quashed the
sentence by trial court as it was deemed illegal and not in accordance to law. Under s. 15
(1)(a) DDA 1952, it was provided that the court is only to pass a sentence of
imprisonment or a fine and not both, where the trial court passed a sentence of both fine
and imprisonment.
- In Pendakwaraya v Sundaran a/l Sokalingam [2011] MLJU 342 *, it was held that in
passing sentence, the court must find a sentence which is appropriate for the offence
charge against the accused person. In deciding what amounts to an appropriate sentence,
the court must adhere to the established principles of sentencing.
- In Letitia Bosman v PP & other appeals (No 1) [2020] 5 MLJ 277, Federal Court
explained that the court’s duty in imposing sentence is an exercise of its judicial power in
accordance with the kind and range of punishments prescribed by the Parliame nt. The
court is to execute its powers within the limits provided by our laws where it can only
pass sentences within the limitation provided under the laws. The court cannot simply
impose any sentences not prescribed or not allowed by the laws. The court is to exercise
its judicial discretion, but there are limits to it.
- However, in PP v Loo Choon Fatt [1976] 2 MLJ 256 ***, it was held that in respect of
sentencing the court is referring to the principles of laws as guidelines per se, as not all
cases would have the same facts and details. The court in sentencing shall strike a balance
between the interest of the accused as well as the interest of public.
- In Pendakwaraya v Mohd Fuad bin Othman [2001] 5 MLJ 549, court agreed to PP v
Loo Choon Fatt and held that the paramount consideration for a court in deciding the
appropriate sentence will be public interest.
2. The court must act judiciously in sentencing
- In Bhandulananda Jayatilake v PP [1982] 1 MLJ 83 ***, Raja Azlan Shah LP
explained that the concept of judicial discretion includes the option to choose between
more than one course of action, where different people(judge) will have different opinion.
This is something unavoidable. Different judges applying the same principle may still end
up with different conclusions as the facts of every case differs.
- In PP v Ravindran & Ors [1993] 1 MLJ 45, it was held that regardless of how wide of
the discretion the court has in sentencing, it must always act judiciously in deciding on
the right sentence to be passed. The court herein must act in accordance to the relevant
provisions in sentencing the offence in issue.
- See also Letitia Bosman v Public Prosecutor and other appeals (No 1) [2020] 5 MLJ
277 above
3. Procedural requirements to be adhere
- S. 176(2)(r) CPC provides that a court shall record any particulars on previous
convictions, evidence of character and plea in mitigation if there are any.
- Here the court will require the accused or his representing counsel to make a plea of
mitigation in order for the court to pass a lighter sentence (eg. Hardship, good character,
etc)
- In another hand, the prosecution will be asked by court to make a reply by submitting on
aggravating factors in suggesting the court to pass a heavier sentence (eg. Bad character,
seriousness of offence, etc)
- In Abu Bakar bin Alif v R [1953] MLJ 19, it was held that court shall consider the
background , antecedents and character of the accused when he is found guilty before
sentencing him.
- In PP v Dato’ Seri Anwar bin Ibrahim (No 3) **, it was held that in this case by looking
at the seriousness of the offence, allowance of mitigation shall be made by looking into
aspects like good character and so on. In case there is no plea of mitigation from the
 accused or his counsel, the court is to look for mitigating circumstances in favor of
the accused.
- In Leken @ Delem ak Gerik (M) v PP [2007] 3 MLJ 730, it was held that the legislative
intention in pertaining to sentencing is that it must take into the account of the gravity and
seriousness of the offence as well as its effect on public interest in order to be fair and
equitable
- In Muhammad Isa bin Aris & Ors v PP [2011] 5 MLJ 342, in this case the court
decided to reduce the sentences of the appellants as it had taken considerations of matters
such as the probations reports of the appellants by the welfare officer, the profession of
the appellants being fishermen with low income as well as other mitigating factors
raised by the defence counsel.
- However, in Soosainathan v PP [2001] 2 MLJ 377 **, it was held that the consideration
on previous conviction cannot be given too much weight in imposing penalty as it is no
appropriate to the gravity of the current offence. Furthermore, not every previous
conviction will be considered as relevant in sentencing process.

Post sentencing

1. Appeal
- An accused who has been convicted may appeal against the sentence passed against him
as per the provisions in Chapter XXX CPC and s. 50 CJA 1964 which provides that the
court of appeal has the jurisdiction to hear and determine any appeal against any decision
made by the High Court when it was made in its original or appellate jurisdiction (High
Court)
- In Bhandulananda Jayatilake v PP [1982] 1 MLJ 83, it was held that the appellate court
generally will not interfere with the sentence passed by the trial court unless it was found
that the trial court has passed a sentence which are not in accordance to laws and
established principles.
- In PP v Mohamed Nor & Ors [1985] 2 MLJ 200b, it was held that appellate court will
usually be slow in interfering with the decision of the trial court unless it was found that
the sentence passed has erred in law and that the trial court had failed to take into
consideration of other factors based on the situation of the case
- However, s. 305 CPC provides when the accused had pleaded guilty and has been
convicted by the court on such plea, there shall be no further appeal unless it is on the
extent and legality on the sentence
 (he cannot appeal conviction but only on the harshness of the sentence against him)
- In Gabriel v PP [1992] 1 MLJ 593, it was held that when an accused person had pleaded
guilty on the charge made against him, he is considered to have waived his rights to
question on the legality on the convictions made against him
2. Revision
- Provisions relating to revision had been laid down in Chapter XXXI CPC which
provides for the revisionary power of High Court in determining the correctness, legality
and propriety of sentence passed by the inferior court.
- In Irwan bin Abdullah & Ors v PP [2002] 2 MLJ 577, it was held that the High Court
will usually not exercise its revisionary powers to interfere with the sentence passed by
lower court, unless the applicant is able to show that the sentence imposed has erred in
law or unjust.
3. Pardon and/or commutations
- Art. 42 FC provides that the YDPA, Ruler of State or the State Governor (Yang di-Pertua
Negeri) has the power to grant pardons, reprieves and respites in regards to all offences as
well as to suspend or commute the sentence for any offence on the advice of the Pardon
Board.
- S. 300(1) CPC provides that a Ruler of State may under Art. 42 FC, suspend the
execution or remit the whole or any part of sentence of a person in which sentence has
been passed against him
- S. 301 CPC provides that a Ruler of State in exercising His power under Art. 42 FC may
commute the sentences such as death, imprisonment or fine.
- In PP v Soon Seng Sia Heng & Ors [1979] 2 MLJ 170, Supreme Court held that in
exercising the power to confirm, commute, remit or pardon, YDPA does not sit as a court
but somehow he is bound to take into considerations of court decisions which are in
accordance to law. This is solely an act of executive which no other parties can interfere
with.
- In Sim Kie Chon v Superintendent of Pudu Prison & Ors [1985] 2 MLJ 385, it was held
that although the Pardon Board tendered its advice to YDPA, but His Majesty did
exercised His power under Art. 42(l) to be read together with R. 29 Essential (Security
Cases) (Amendment) Regulations 1975. Such power is a one that is of high prerogative
power of mercy which is an act of executive in its nature, but however not an act of
susceptible or one that is amendable in judicial review.
Jurisdictions and power of criminal Courts

1. Meaning of ‘shall be liable’

- In PP v Hew Yew [1972] 1 MLJ 164, the section in issue here was s. 15(4) of the
Prevention of Crime Ordinance which reads "shall be liable to imprisonment for a term
not exceeding five years and not less than two years." It was seen that the court has an
absolute discretion to pass sentence of two years minimum and five years maximum
- In Jayanathan v PP [1973] 2 MLJ 68, section in issue here was s. 15(4) of the
Prevention of Crime Ordinance which reads "shall be liable to imprisonment for a term
not exceeding five years and not less than two years." The Federal Court herein referred
to PP v Man bin Ismail and held that ‘shall be liable’ would mean that the court has
discretion whether to impose the sentence of imprisonment or not and if it is to pass a
sentence of imprisonment, it must not exceed the limits allowed.
- In Mahrus v PP [1992] 1 MLJ 561, the section in issue here was the phrase “shall be
liable to be whipped, in addition to any other punishment to which he may be liable under
any other section of this Code” of s. 397 Penal Code. Court views that “shall be liable”
confers a discretionary power to the court to impose whipping in addition to other
permissible punishment provided by the Penal Code.
2. Meaning of ‘shall be punished’
- As of now there is no certainty as to the above phrase where different courts have
different interpretation, some say its mandatory some say its discretionary.
- In Philip Lau Chee Heng v PP [1988] 3 MLJ 107, the section in issue here was the s. 4
FIPA 1971 which provides that offender “shall be punished with life imprisonment and
with whipping of not less than six strokes. The learned session court judge herein
imposed a sentence of three years imprisonment and whipping of six strokes. Hence, the
accused appealed against the sentence and similarly the DPP applied for revision on the
ground that the sentence was illegal. The High Court then dismissed the appeal but
allowed the revision and further held that the phrase ‘shall be punished’ would mean
mandatory, meaning that the sentence of life imprisonment as per s. 4 FIPA 1972 is a
fixed one and does not mean a maximum that may be awarded. The sentence of three
years imprisonment by the learned sessions court judge was clearly an error and is now
altered to life imprisonment.
- In Francis Dang Anak Nuya v PP [1988] 2 MLJ 438, the appellant herein appealed
before the court on the ground that the phrase “shall be punished with life imprisonment”
 in s. 304 Penal Code is not a sentence fixed by law. Court rejected the argument where it
cited s. 39 Interpretation and General Clauses Act and held that the punishment for
"imprisonment for life" referred to in s. 304 is a sentence fixed by law.
- However, in PP v Lim Hong Chin [1993] 3 MLJ 736, it was held that the phrase ‘shall
be punished with imprisonment for a term which may extend to seven years or with fine
or with both’ in s. 414 Penal Code give the court a discretion pass sentence of
imprisonment, fine or both.
- Also, in PP v Chew Chee Wah [1995] 4 MLJ 26, court held that the term “shall be
punished with” alone does not make the sentence mandatory.
3. Maximum sentence
- In Sia Ah Kew v PP [1974] 1 MLJ 125 **, here the accused was sentenced to death after
pleaded guilty for kidnapping. On appeal, the court reduced the sentence to life
imprisonment on the ground that the case was not the worst kind because the kidnappers
treated the victim kindly and there was no violence found to be used against the victim.
- In PP v Ahmad Khairul Fa’ais bin Mat Dahlan [2006] 5 MLJ 190 **, court explained
that the maximum sentences are provided for in statutes and are usually passed for the
worst kind of offences (eg. In kidnapping, accused tortured the victim)
- In Loh Hock Seng v PP [1980] 2 MLJ 13, the federal court explained that the maximum
penalty marks the limits of the court’s discretionary power to pass sentence.
- In PP v Roslan Imun [1999] 3 CLJ 494, the court imposed maximum sentence after
considering several aggravating factors including the previous convictions of the accused,
the type of offence, and the fact that the offence was premeditated and well-executed.

Mitigating factors

- It must be noted that mitigating factor is not a right and will not automatically reduce the
sentence to be passed.
- In Zaidon Shariff v PP [1996] 4 CLJ 441 *, it was held that a plea of mitigation shall not
be simply and summarily rejected when it is made. It is a constituent element in the
process of sentencing. It gains its merits based on the circumstances of the case.
- However, in Letitia Bosman v PP and other appeals (No 1) [2020] 5 MLJ 277 **,
Federal Court explained that when death penalty is the only sentence prescribed under the
laws for the offence in issue, a plea of mitigation from the accused will not carry any
effects as the court has no power to impose a different or lesser sentence. It must be noted
 that this will not render the sentence unconstitutional because such sentence was passed
in accordance to law as per Art. 5 of our Constitution.
- The accused himself or through his counsel will advance a plea in mitigation which
comprise inter alia the following aspects:

1) Age of offender; (youth)

- This is due to assumption that the young do not know better i.e. they have not enough
experience to realized fully the consequence of their action.
- If the accused is young the court will be more likely to pass a sentence designed to
help rather than punish him.
- This is because the general rule where youthful offenders should in most cases be
given non-custodial sentence.
- S. 96(2) Child Act 2001 provides that a child aged 14 and above shall not be
imprisoned if there can be suitably dealt with in any other way.
- In Tukiran bin Taib v PP [1955] MLJ 24, court was of the view that first time
offenders between the age of 17 and 21 years old should not be imprisoned but
instead is to be sent to rehabilitative places such as Henry Gurney School for their
benefit for a long term in the community. Also, in case of young offenders, probation
report shall be taken into consideration before passing of sentence.
- In PP v Zulkarnain bin Sani [2007] 8 MLJ 228, court explained that although age
can serve as a mitigating factor in sentencing, but the court is also entitled to
disregard age when the offence involved is a grave one as deterrence is the primary
aim of sentencing.

2) Record of the offender; (past history, previous circumstances)

- In Tukiran bin Taib v PP [1955] MLJ 24, court was of the view that first time
offenders between the age of 17 and 21 years old should not be imprisoned but
instead is to be sent to rehabilitative places such as Henry Gurney School for their
benefit for a long term in the community. Also, in case of young offenders, probation
report shall be taken into consideration before passing of sentence.
- In PP v Leo Say & 2 Ors [1985] 2 CLJ 155, the accused persons was charged for
culpable homicide not amounting to under s. 299 Penal Code and that they were first
time offenders. It was held that the accused persons having clean record does not
 become a powerful point for consideration as the offence committed was gravely
serious.
- In PP v Rozita bt Mohamad Ali [2018] 9 MLJ 1, appellant is appealing against her
sentencing by the trial court against her for the offence of attempted murder under s.
307 penal Code. It was held that although respondent pleaded guilty and that she was
a first time offender, this could not be a strong mitigating factor. No doubt that she
was a first offender, but the gravity and the seriousness of the offence committed
herein would outweigh such mitigating factor.

3) Effect of conviction or sentence on the accused person;

- A sentence may have an effect on the offender’s family or on his career.

- A conviction would result in accused in losing his job or to suffer humiliation as a
result of conviction.
- An offender too may be the sole bread-winner in his family or have aged parents to
support.
- In PP v Vijaya Raj [1981] 1 MLJ 43, accused was a former headmaster of school
charged for misappropriation of fund. Court held that losing his job as a
headmaster(which is an honorable profession) and humiliation being suffered itself is
already suffice to be his substantial punishment. Hence the court sentenced him to a
day’s imprisonment and fine of RM 2,500.
- In Winston Rajah v PP [1999] 1 CLJ 315, court has considered grounds that the
appellant was first offender in which the court had taken into considerations such as
his characters and that he was in pursuing his studies in IT field. Hence, imprisonment
of 12 months herein is not appropriate although mandatory. Not to mention that the
appellant merely attempted to commit the offence of theft and that he was attacked by
the complainant during incident.

4) Circumstance before commission of offence;

- This would also include the manner how the offence was committed (not brutal, no
violence, etc)
- In Seah Ah Kew v PP 1974] 1 MLJ 125, the court herein accepted the mitigating
factor where in the course of kidnapping, the appellant did not ill-treated the victim.
As such, sentence was reduced.
 - In Hoo Chee Keong v PP [2000] 5 MLJ 448, court herein accepted the mitigating
factor where the offence committed was not a serious one where it was a mere credit
card fraud which did not resulted in any injuries on any parties.

5) Health of offender;

- If the accused is suffering from a long-term illness/injury he is more likely to receive

sympathetic treatment from the court. (pregnancy is included)
- In Tang Ka Wak v PP [2018] 7 MLJ 445, court accepted both age and health as a
mitigating factor for appellant due to his elderly age of 71 years old. The court opines
that elderly accused persons often have associated health issues. Moreover, given at
his current age of 71 years old, sentencing him to nine years of imprisonment
somehow equates to giving him a natural life sentence.

6) Behavior of offender after commission of offence;

- Remorse and repentance after commission of the offence is an effective mitigation.

- In Raja Izzuddin Shah v PP [1979] 1 MLJ 720, here the accused slapped a police
officer and was sentenced to three years of imprisonment by the trial court. On appeal,
court reduce his sentence for bond of good behavior and fine as he pleaded guilty, was
remorseful, went to apologize the next day and even compensated the victim.
- In PP v Kamaruzaman bin Mahmud & Anor [2007] 1 MLJ 750 *, court explained
that the extent of which a plea of guilty may be taken into consideration in mitigation
depends on what extend the plea is indicative of accused’s remorse, acceptance of
responsibility and willingness to facilitate the course of justice

7) Cooperation with the police at all material times;

8) Plea of guilty.

- As a general rule, the court will give the accused credit/discount for entering an early
guilty plea to the offence.
- In Sau Soo Kim v PP [1975] 2 MLJ 134, court explained that court will give some
leniency in sentencing when the accused by his own will pleads guilty . This saves
the court some time from a lengthy trial as well as the public’s money.
- In Fu Foo Tong v PP [1995] 1 SLR 448, it was held that a plea of guilt is not to be
taken as an automatic ground in consideration of sentence reduction. A plea of guilt
 has no mitigating value, especially when the evidence overwhelmingly supports a
conviction
- In PP v Jessica Lim Lu Ping & Anor [2004] 2 CLJ 763, court explained that it has
been a custom that the court will convict the accused on a reduced sentence when he
pleads guilty. Court views that plea of guilty helps to ease the disposal of criminal
cases with lightning speed and reduces backlog of cases.
- A plea of guilty does not always entitle an accused to a discount as a matter of right.
- There are cases where court was reluctant to give discount. Somehow it also depends
on the facts on individual cases.
- In Kesavan Baskaran v PP [2009] 1 AMR 709, court of appeal held that generally a
plea of guilty can be seen as a strong mitigating factor. However, there cases where
the offences committed was very serious and that in these cases plea of guilty ought
to be given little or no weight. Protection of public interest always comes before plea
of guilty.

9) Other factors like the offence is already “stale”, no violence used or no injuries inflicted
and status of the offender, remorseful of the act committed, family history, period of remand
etc.

- In PP v Mark Koding [1983] 1 MLJ 111, here the accused was charged for sedition.
Court held that being a first time offender is deemed a strong point for mitigation . In this
case, the accused was released on bond of good behavior.

Aggravating Factors

- Aggravating factors are any relevant circumstances, supported by the evidence presented
during the trial, that makes the harshest penalty appropriate.
- The existence of aggravating factors may have the effect of enhancing the sentence to be
passed.
- In deciding whether to press for a deterrent sentence or not the prosecution may take the
following factors into consideration:

1) Previous conviction(s) or antecedents (past history, background, previous circumstances)

of the accused;

- Before passing sentence, court is required to call for evidence/information regarding the
background, antecedent and character of the accused
- It is the usual practice for prosecution to inform the court that the accused has previous
convictions.
- In PP v Jafa bin Daud [1981] 1 MLJ 315, court held that when a convicted person has
past records of similar offence in nature as of the present offence charged against him the
court must also look into whether the previous conviction on him has resulted in any
deterrent effect on him. If none was found, then the court will have to pass a deterrent
sentence against him for the interest of justice. In this case the court increased the
sentence from eight to eighteen months of imprisonment for the offence of possession of
drugs as the accused has five previous convictions of similar offence.
- In PP v Aminoor bin Hj Naidi [2009] MLJU 1608, here the appellant herein is appealing
against the sentence made by the trial court against him for the offence of rape. On
appeal, the court having found that he has another previous conviction on sexual
offence as well, court remained the sentence imposed by trial court.

2) Serious nature of the offence;

- In PP v William Ayau [2005] 4 MLJ 328*, the accused was sentenced to five years for
raping 13 years old school girl. On appeal, the court increased his sentence to 15 years
and held that despite that the trial judge has taken into consideration of the seriousness of
the offence, but the given situation in present also showed increases in such cases in our
country, which obviously aggravates the seriousness of such offence.
- In PP v Aminoor bin Hj Naidi [2009] MLJU 1608 *, here the accused had committed
rape against his neighbor’s Indonesian maid. Court cited PP v Asing Anak Sabai which
states that a foreigner maidservant is in a "pitifully vulnerable position" when facing a
sexual predator and consider this point to be a grave aggravating factor.

3) Prevalence or rampancy of the type of offences; (widespread, uncontrol)

- In Lee Chow Meng v PP [1976] 1 MLJ 287, the trial court in taking consideration on the
rampancy of the offence herein armed robberies, fine robberies as well as possession of
firearms and ammunitions had passed consecutive sentence of imprisonment, whipping
and fine. This was later upheld by the High Court on appeal.
- In PP v Sathiaseelan Periyasamy [2010] 2 CLJ 890, it was held that the court has a duty
to take judicial notice on the increasing in the robbery cases as per reported by the
media.

4) Status of Offender;
- In Datuk Haji Harun bin Idris v PP [1978] 1 MLJ 240, the Federal Court increased
accused’s sentence of imprisonment and order for concurrent sentencing on the ground
that the accused being a former Menteri Besar of Selangor should have shown good
example as a leader of the public.
- In PP v Datuk Tan Cheng Swee [1980] 2 MLJ 276 **, court referred to Datuk Haji
Harun Idris and emphasized that the higher the status of the offender, it will aggravates
more on his offence.
- In Tan Sri Abdul Rahim bin Mohd Nor v PP [2001] 1 MLJ 193, the accused was the
IGP being charged for causing hurt under s. 323 penal Code. Court of appeal affirmed the
trial court’s sentence and further held that the accused as the top man in the police force
should have shown good example but instead he acted in a unprofessional manner.
- In PP v Dato Waad bin Mansor [2005] 2 MLJ 101, here the accused who was an ADUN
and State EXCO was charged for three counts of corruptions. On appeal, Federal Court
held that the court of appeal has placed a very minimal emphasis on the principles of
sentencing and had been overly sympathetic with the accused as his political career has
been ruined and as a result a lenient sentence was passed. In must be noted that sentences
to be imposed for serious offences such as in the present case, corruption, must be
deterrent in nature so that it reflects the seriousness of the offence.

5) Difficulty in detecting such offences;

6) Manner in which an offence is committed (criminality of the accused, criminal enterprise,

criminal design, syndicated crime etc.);

7) Degree of violence used;

- In PP v Safian bin Abdullah & Anor [1983] 1 CLJ 324, in this case the victim was
fatally wounded as she was strangled in a brutal way by the accused with a rope .
Court herein passed a sentences of 14 years maximum imprisonment. (mode of
commission too brutal)

8) The effect a deterrent sentence will have on the accused as well as on others;

9) The public interest; and

10) The national interest.

Victim Impact Statement

- S. 173(m)(ii) CPC provides that when the court finds that prosecution had proven its case
beyond reasonable doubt, it shall find the accused guilty and he may be convicted on it
and the Court shall pass sentence according to law. This is save in accordance that before
passing of sentence, the Court shall call for the victim or his family member to give a
statement of the impact of the offence on the victim as well as his family if there is any
request of such made by the victim. In case, the victim or the victim’s family member
cannot attend the proceeding upon being called by the Court, the Court will have a
discretion to admit the impact statement made in writing.
- S. 183A(1) CPC provides that before the court passed sentence and when there is request
of the victim of the offence or his family, the court shall call upon the victim or a family
member of him to make a statement on the impact of the crime has resulted to him or
them.
- S. 183A(2) CPC provides that if the victim or his family member is unable the
proceeding in (1), the court may have discretion to accept the statement in writing.
- In Ahmad Rashidi Zainol v PP [2013] 1 LNS 345, in this case the words such as
“traumatized” and “inconvenience” from the statement made by the victim has caught the
attention of the learned judge. It was mentioned that after the incident the 76 year old
lady was afraid to stay alone in her house and that she would always need someone to
accompany her
- In Pendakwa Raya v Shafiqah Izzati binti Badrul Hisham [2020] MLJU 1290 *, court
had taken into consideration of the victim impact statement made by the two victims
where as a result of the act of accused splashing acid on the victims, they now suffer
serious injury as well as permanent skin defects and is now undergoing trauma. High
court as such allowed the appeal and set aside the sentence of 8 years imprisonment
concurrently and replaced with 8 years of imprisonment consecutively instead.

Non-custodial Sentencing

- Non-custodial sentences are alternative options to a sentence of imprisonment.

- It serves to be an advantage not only to offenders but also the society.
- It comes in line with the ultimate aim of the criminal justice system which is the
reintegration of the offender into the society. This is part and parcel of ‘restorative
justice’.
- Non-custodial sentences also help to prevent the problem of overcrowding in our prisons
in which may later lead to other social problems.
- The common types of non-custodial sentences are as follows:-
1. Fine
- S. 2(1) CPC defined ‘fine’ as to include any fine, pecuniary penalty or forfeiture or
compensation adjudged upon any conviction of any crime or offence or for the breach of
any law.
- The maximum fine imposable depends on the jurisdictions of the respective court as well
as the provisions in relation to the offence in issue.
- S. 283 CPC provides that if there is no sum being specified, the fine must not be
excessive but shall be reasonable and be within that particular court’s jurisdiction . Also,
decent time should be allocated to pay the fine. The court also has discretion to direct the
method of payment such as by way of installment, sale of property and so on . In case
of default in payment, the court may direct the offender to imprisonment.
- In Lee Yu Fah v PP [1937] 1 MLJ 179, it was held that a fine imposed on the offender
shall not be too excessive. His wealth and poverty are some points that court must take
into consideration.
- In R v Lim Chang Tong [1956] MLJ 77, when the situation clearly shows that the
offender is has difficulty in paying fine, the court shall then impose the minimum amount
of fine.
- See also Chin Chee Wei & Anor v Public Prosecutor [2020] MLJU 402
2. Compensation and costs
- S. 173A(3) CPC provides that the court may order for the offender to pay compensation
to victim in which the sum shall not exceed RM50 or the cost of proceeding which the
court thinks fit in addition to an order of binding or discharge.
- S. 294(2) CPC provides that court may make an order for the offender to pay for the cost
of prosecution which may be made by way of installment
- S. 426(1) CPC provides that court may order the offender to pay for the cost of
prosecution or any other payment which the court directs for payment of compensation to
any person or to the representative or any person injured in terms of reputation or
property as a result of such offence.
- In Mohamed Johan Mutalib v PP [1978] 1 MLJ 270, court explained that the
compensation under s. 426 CPC is only for the victim and not the government.
- In Raja Izzuddin Shah v PP [1979] 1 MLJ 270, here the accused was charge for slapping
a police officer. Court ordered offender to be bound by good behavior and in addition,
pay compensation of RM 200 to the police officer.
3. Police supervision
- S. 295(1) CPC provides that police supervision may be imposed if the offender has a
previous conviction of an offence punishable with two years and above and/or if the
offender in the present offence is also one that is punishable with imprisonment of two
years and above. The High Court and Sessions Court shall not give an order of police
supervision of more than three years whereas the Magistrate Court ‘s limit will be one
year.
- S. 295(1A) CPC **provides that for a person convicted of an offence under ss. 376,377C,
377CA or 377E Penal Code, the court shall order for police supervision for a period not
less than one year and not more than three years right immediately after the completion of
the sentence passed against him (eg. right after released from prison)
- In Re Bakar bin Ahmad [1959] MLJ 256, court explained that it is not mandatory for
police to order for police supervision under s. 295. The powers conferred herein is a
discretionary one.
- In Roslan bin Haji Yahya v PP [1985] 2 MLJ 218 **, the accused in this case was
convicted for stealing from his father’s house in which he has another previous conviction
similarly stealing from his father. Court make an order of one year police supervision. On
appeal, court set aside the order and held that the purpose of police supervision is to
ensure the safety and security of public, where police will be in position to exercise some
measure or control over the movements and activity of known bad character of the
offender. Such order shall only be made in appropriate cases.
- In PP v Iran bin Sakdon [1998] 7 MLJ 503 **, court held that the learned Magistrate
had made the order for police supervision wrongly. The fact that he had considered the
order for police supervision into account in accessing the years of sentence clearly shows
that he actually considers such order as a form of punishment which is not right. (as per
Roslan bin Yahya above, it is not supposed to be punishment but for the purpose of public
safety )
4. Good behavior bond
- Good behavior bonds are commonly known as “binding over”.
- S. 173A CPC provides that when a person is charge with an offence which the court finds
it difficult or not suitable to pass any sentence or other than a nominal sentence or that it
is suitable to release him on probation, the court may by taking into considerations based
on factors such as character, antecedents, age, health or mental condition of the person
charged, or to the trivial nature of the offence, or to the extenuating circumstances under
 which the offence was committed, the court may record a conviction and follow with an
order of dismissal upon giving warning or discharge with bond of good behavior with or
without surety and to appear for the conviction to be recorded and for sentence when
being summoned at any time during such period, not exceeding three years, as may be
specified in the order.
- S. 294(1) CPC provides that when a person has committed an offence in which the court
thinks that it is suitable, he may be release on probation of good conduct, provided that
the court must take into consideration of his character, antecedents, age, health or mental
condition of the offender or to the trivial nature of the offence or to any extenuating
circumstances. Also, the court may direct him to be released on a bond with or without
sureties instead of sentencing him at once to any punishment in which during such period.
- S. 173A v S. 294

- S. 173A CPC is usually invoked if the person convicted is a government servant because
conviction would result in the dismissal of job.
- In PP v Loo Choon Fatt [1976] 2 MLJ 256 **, court explained that before s. 173A is
being invoked, there are few things that the court need to consider. Firstly, whether there
is a need of rehabilitation, secondly whether any person has come forward to the court
willing and able to undertake to rehabilitate him? (parents or guardian for young
offender) and lastly whether the commission of such offence is not rampant and that a
deterrent punishment is not really called for. It must be noted that the court in
exercising its discretion under this section must be done with sense of responsibility
where the court must not be driven away by any misplaced senses of leniency or
 sympathy. Nonetheless this section also does not mean to be applied discriminately to all
first offenders.
- In PP v Yeong Yin Choy [1976] 2 MLJ 267, court opined that s. 173A will only be
invoked in “very deserving cases” for both adult and/or youthful offenders when by
looking at the nature of the offence and circumstances of the case it clearly shows that no
conviction is to be recorded.
- It is to be noted that bond of good behavior under s. 294 CPC is a variation from the
similar
bond under s. 173A CPC.
- Differing from s.173A CPC, the offender has to be convicted first before a bond of good
behavior is considered under s. 294 CPC.
- S. 294 CPC is usually applicable to offences of a more serious category where a record
of offence is necessary.
- In Lim Yoon Fah v PP [1971] 1 MLJ 37, here it was found that appellant came from a
good family and is undergoing training as a motor mechanic and in this case, he was
obviously misled by his friend in the commission of the offence. As such , court ordered
him to be put on bond under s. 294 for three years with one RM 1000 surety.
- In Winston Rajah v PP [1999] 1 CLJ 315, it was held that the existence of minimum
sentence in an offence does not stop the court from invoking s. 294 CPC. In this case, s.
294 CPC was well invoked on the grounds that the appellant was first offender in which
the court had taken into considerations such as his characters and that he was in pursuing
his studies in IT field. Hence, imprisonment of 12 months herein is not appropriate
although mandatory. Not to mention that the appellant merely attempted to commit the
offence of theft and that he was attacked by the complainant during incident.
- Further, s. 294A CPC provides that the court may require one or more of the following
conditions for bond where:-

o The person shall remain under supervision of a named person

o Such conditions to secure such supervision as the court so desires

o Such conditions relating to residence, employment, associations, abstaining from

intoxicating
liquors or other matters as the court desires.
- In Teo Siew Peng v PP [1985] 2 MLJ 125, here S.294A was invoked and the condition
of the bond was that the five appellants should remain under the supervision of the
probation officer for a certain period.
- In PP v Lee Lai Choi [2009] 1 CLJ 312, here the respondent was charged for corruption.
S. 294A was invoked and a bond of good behavior was ordered for a term of three years.
5. Community service
- S. 293(1)(e) CPC provides that when a youthful offender is convicted before court for an
offence punishable by fine or imprisonment, instead of passing sentence of imprisonment
or imprisonment in default of payment make an order requiring him to perform
community service not exceeding 240 hours in aggrega te as such time and place
specified by the court. The term “community service” herein would mean any work,
service or course of instruction for the betterment of the public at large and includes any
work performed which involves payment to the prison or local authority. This shall be in
charged by the Minister of Women, Family and Community.
- This must be noted to be applicable only on youthful offenders (s. 2(1) CPC: 18-21 years
old)