Chapter 16 - Sentencing Flashcards

Question 1

Q

SENTENCING

Overview

Answer

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

Question 2

Q

OBJECTIVE OF SENTENCING

Overview

Answer

A

1) Retribution
2) Deterrence
3) Rehabilitation
4) Conflict of aims

Question 3

Q

OBJECTIVE OF SENTENCING

Retribution

Answer

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.

Question 4

Q

OBJECTIVE OF SENTENCING

Deterrence

Answer

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.

Question 5

Q

OBJECTIVE OF SENTENCING

Rehabilitation

Answer

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

Question 6

Q

OBJECTIVE OF SENTENCING

Conflict of aims

Answer

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.

Question 7

Q

GENERAL PRINCIPLES ON SENTENCING

Overview

Answer

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

Question 8

Q

GENERAL PRINCIPLES ON SENTENCING

Importance of public interest

Answer

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.

Question 9

Q

GENERAL PRINCIPLES ON SENTENCING

Sentencing & public interest

Answer

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.

Question 10

Q

GENERAL PRINCIPLES ON SENTENCING

Primary purposes of sentencing

Answer

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.

Question 11

Q

GENERAL PRINCIPLES ON SENTENCING

Exercise of discretion in sentencing

Answer

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.

Question 12

Q

GENERAL PRINCIPLES ON SENTENCING

Principles of proportionality

Answer

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.

Question 13

Q

GENERAL PRINCIPLES ON SENTENCING

Appellate intervention

Answer

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.

Question 14

Q

GENERAL PRINCIPLES ON SENTENCING

Effect of mitigating factors in sentencing

Answer

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.

Question 15

Q

GENERAL PRINCIPLES ON SENTENCING

Sentencing multiple accused

Answer

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.

Question 16

Q

SENTENCING PROCESS IN SUMMARY TRIALS

Overview

Answer

A

1) The law & scope
2) Particulars to be recorded
3) VIS

Question 17

Q

SENTENCING PROCESS IN SUMMARY TRIALS

The law & scope

Answer

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.

Question 18

Q

SENTENCING PROCESS IN SUMMARY TRIALS

Particulars to be recorded

Answer

A

1) The law:
- S.176(2)(r)
2) Scope, inter alia:

Plea in mitigation;
Factors which may aggravate sentence;
Probation report.
Impact statement.

Question 19

Q

SENTENCING PROCESS IN SUMMARY TRIALS

VIS

Answer

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.

Question 20

Q

SENTENCING PROCESS IN HIGH COURT TRIALS

Overview

Answer

A

1) The law & scope
2) Appeal
3) Revision
4) Pardons, commutation

Question 21

Q

SENTENCING PROCESS IN HIGH COURT TRIALS

The law & scope

Answer

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.

Question 22

Q

SENTENCING PROCESS IN HIGH COURT TRIALS

Appeal

Answer

A

1) S.50 CJA:

- can be made after sentence.

Question 23

Q

SENTENCING PROCESS IN HIGH COURT TRIALS

Revision

Answer

A

Chapter XXXI CPC

Question 24

Q

SENTENCING PROCESS IN HIGH COURT TRIALS

Pardons & commutation

Answer

A

1) Art. 42 FC
2) S.300
3) S.301

Question 25

Q

TYPES OF SENTENCE

Overview

Answer

A

1) Imprisonment
2) Whipping
3) Death sentence
4) Fine, compensation & costs
5) Good behaviour bonds
6) Police supervision

Question 26

Q

IMPRISONMENT

Overview

Answer

A

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

Question 27

Q

CATEGORY OF IMPRISONMENT

Overview

Answer

A

1) Imprisonment for life
2) Life sentence
3) Imprisonment for a fixed term by court
4) Imprisonment in default of payment of fine

Question 28

Q

CATEGORY OF IMPRISONMENT

Imprisonment for life

Answer

A

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.

Question 29

Q

CATEGORY OF IMPRISONMENT

Life sentence

Answer

A

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.

Question 30

Q

EXECUTION OF IMPRISONMENT

Effective date of imprisonment

Answer

A

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.

Question 31

Q

EXECUTION OF IMPRISONMENT

Interference of appellate court

Answer

A

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.

Question 32

Q

SHALL BE PUNISHED & SHALL BE LIABLE

Meaning of shall be punished

Answer

A

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”.

Question 33

Q

SHALL BE PUNISHED & SHALL BE LIABLE

Meaning of shall be liable

Answer

A

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”.

Question 34

Q

CONCURRENT OR CONSECUTIVE

Overview

Answer

A

1) Discretion of court
2) One transaction principle
3) Totality principle
4) Recent application

Question 35

Q

CONCURRENT OR CONSECUTIVE

Discretion of court

Answer

A

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.

Question 36

Q

ONE TRANSACTION PRINCIPLE

Overview

Answer

A

1) The principle
2) Meaning of one transaction
3) Example of one transaction
4) Recent application

Question 37

Q

ONE TRANSACTION PRINCIPLE

Meaning of one transaction

Answer

A

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.

Question 38

Q

ONE TRANSACTION PRINCIPLE

Example of one transaction

Answer

A

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.

Question 39

Q

ONE TRANSACTION PRINCIPLE

Recent application

CA, 2015

Answer

A

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.

Question 40

Q

TOTALITY PRINCIPLE

Overview

Answer

A

1) The principle
2) Meaning of totality principle
3) Example of application on totality principle

Question 41

Q

TOTALITY PRINCIPLE

Overview

Answer

A

1) The principle
2) Meaning of totality principle
3) Example of application on totality principle
4) Recent application

Question 42

Q

TOTALITY PRINCIPLE

The principle

Answer

A

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.

Question 43

Q

TOTALITY PRINCIPLE

Meaning of totality principle

Answer

A

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.

Question 44

Q

TOTALITY PRINCIPLE

Example of application of totality principle

Answer

A

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.

Question 45

Q

TOTALITY PRINCIPLE

Recent application

HC, 2013

Answer

A

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.

Question 46

Q

CONCURRENT OR CONSECUTIVE

Recent application

Answer

A

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.

Question 47

Q

IMPRISONMENT IN DEFAULT OF PAYMENT OF FINE

Overview

Answer

A

1) The law
2) Discretionary power of the court
3) Date of imprisonment

Question 48

Q

IMPRISONMENT IN DEFAULT OF PAYMENT OF FINE

The law

Answer

A

S.283(1)(b)(iv) & (c)

Question 49

Q

IMPRISONMENT IN DEFAULT OF PAYMENT OF FINE

Discretionary power of the court

Answer

A

PP v Amir bin Mahmood:

The word “may” gives the court discretionary power to exercise discretion according to common sense and justice.

Question 50

Q

IMPRISONMENT IN DEFAULT OF PAYMENT OF FINE

Date of imprisonment

Answer

A

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.

Question 51

Q

STAY OF EXECUTION FOR IMPRISONMENT

The law

Answer

A

Bail pending appeal:

S.311 CPC + S.57 CJA

Question 52

Q

xx

Question 53

Q

xx

Question 54

Q

WHIPPING

Overview

Answer

A

1) Circumstances where it cannot be passed;
2) Males sentenced to death;
3) Execution of whipping;
4) Stay of whipping

Question 55

Q

WHIPPING

Circumstances where it cannot be passed

Answer

A

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.

Question 56

Q

WHIPPING

Males sentenced to death

Answer

A

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.

Question 57

Q

EXECUTION OF WHIPPING

Overview

Answer

A

1) Number of strokes
2) Youthful offender
3) At one trial
4) Cannot be by instalment

Question 58

Q

EXECUTION OF WHIPPING

Number of strokes

Answer

A

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.

Question 59

Q

EXECUTION OF WHIPPING

Youthful offender

Question 60

Q

EXECUTION OF WHIPPING

At one trial

Answer

A

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.

Question 61

Q

EXECUTION OF WHIPPING

Cannot be by instalments

Answer

A

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.

Question 62

Q

WHIPPING

Stay of whipping

Answer

A

S.311:

automatically stayed when an appeal is lodged.

Question 63

Q

DEATH SENTENCE

Overview

Answer

A

1) Can be passed
2) Cannot be passed
3) Whether it is constitutional
4) Execution of death sentence

Question 64

Q

DEATH SENTENCE

Can be passed

Answer 61

A

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

Answer 62

A

1) Fine

2) Compensation & costs

Answer 63

A

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

Answer 64

A

1) The law:
- S.2
- S.283

Answer 65

A

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.

Answer 66

A

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.

Answer 67

A

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.

Answer 68

A

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).

Answer 69

A

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.

Answer 70

A

1) Costs: S.426(1)(a)

2) Enforcement of payment: S.432

Answer 71

A

1) Discharge conditionally or unconditionally - S.173A
2) First offenders binding-over - S.294
3) Youthful offender - S.93(1)(b)

Answer 72

A

1) The law & scope
2) No conviction
3) Exercise of discretion
4) Whether apply to serious offence

Answer 73

A

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.

Answer 74

A

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.

Answer 75

A

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.

Answer 76

A

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.

Answer 77

A

1) The law & scope
2) When it can be invoked
3) Exercise of discretion
4) Recent example

Answer 78

A

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.

Answer 79

A

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.

Answer 80

A

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.

Answer 81

A

1) The law & scope
2) Meaning of youthful offender
3) Exercise of discretion

Answer 82

A

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.

Answer 83

A

S.2(1) CPC:

A person convicted of an offence who is of or above the age of 18 & below 21 years old.

Answer 84

A

Mohd Amirnudin Ahmad v PP:

cannot be used arbitrarily just because the accused is a youthful offender.

Answer 85

A

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

Answer 86

A

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.

Answer 87

A

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.

Answer 88

A

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.

Answer 89

A

S.295(1A):

not less than 1 year and not more than 3 years.

Answer 90

A

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)

Answer 91

A

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

Answer 92

A

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.

Answer 93

A

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.

Answer 94

A

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.

Answer 95

A

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.

Answer 96

A

1) Record of offender

2) Plea of guilty

Answer 97

A

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.

Answer 98

A

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.

Answer 99

A

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.

Answer 100

A

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.

Answer 101

A

1) Drug offence
2) Terrorism-related offence
3) Mandatory death penalty offence
4) Serious offence within PC

Answer 102

A

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.

Answer 103

A

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”.

Answer 104

A

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.

Answer 105

A

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.

Answer 106

A

1) Previous convictions
2) Position or status of offender
3) VIS

Answer 107

A

PP v Jafa bin Daud:

Bad antecedents or previous convictions of an offender are generally considered as aggravating factor, calling for deterrent sentence.

Answer 108

A

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.

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Chapter 16 - Sentencing Flashcards

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