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MALAYSIA
IN SESSIONS COURT NO. (1) IN PETALING JAYA
IN THE STATE OF SELANGOR DARUL EHSAN
ARREST CASE NO: MS1- 62J - 26 - 6 YEAR 2014

PUBLIC PROSECUTOR
Vs
MOHAMMAD IZWAN BIN ABDULLAH

GROUND OF DECISION

[1.0] The accused was charged with an offence punishable under S. 394 of Penal Code i.e.
voluntarily causing hurt in committing robbery. The charge reads as follows:
Bahawa kamu pada 02.06.2014 jam lebih kurang 1315 hrs, di tepi Jalan SS 20/8
Damansara, Petaling Jaya, di dalam Daerah Petaling, di dalam Negeri Selangor Darul
Ehsan, telah menyamun Chan Foon Leng (KPT: 900324-14-6254), beg tangan jenama
Vincci yang mengandungi satu unit telefon bimbit Samsung Note 2, power bank dan
Note Book, dan semasa melakukan samun tersebut kamu telah sengaja menyebabkan
cedera dengan menarik beg mangsa sehingga mangsa terheret di jalan, Oleh yang
demikian kamu telah melakukan satu kesalahan di bawah seksyen 394 Kanun
Kesiksaan dan boleh dihukum di bawah peruntukan yang sama
[1.1] The charge was read and explained to the accused and he understood the charge. He
pleaded guilty to the charge and understood the nature and consequences of his plea.
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The learned Deputy Public Prosecutor had tendered written facts of the case which is
reproduced as below:
Pada 2.6.2014, jam lebih kurang 13.15 hrs, semasa pengadu, Chan Foong Leng
sedang berjalan kaki di jalan SS20/8, Damansara, beliau telah ditolak dari arah
belakang dan terjatuh. Pada masa yang sama beg beliau dilarikan. Pengadu menjerit.
Kebetulan terdapat orang awam berhampiran dan telah berjaya menahan saspek.
Saspek diserahkan kepada PDRM untuk siasatan di mana bersama dengan saspek
dijumpai satu beg tangan perempuan yang dicam oleh pengadu miliknya. Pengadu
mengalami kecederaan di bahagian tangan kanan, kaki kanan dan lutut

[1.2] The facts of the case was read and explained to the accused and he admitted the facts
as being true. The court then accepted the guilty plea of the accused and convicted him
on the charge. On behalf of the accused, his counsel advanced the following mitigation:-
1. The accused is 23 years old. He is married and has three children, all of which
are still in school. His wife is a full time housewife. He is the sole bread-winner of
the family.
2. The father is a diabetic patient and needs further treatment at the hospital every
month. The accused is the only one that is expected by his father to take him to
the hospital.
3. The accused is a first offender. The victim suffered a loss of RM60 only.
4. The accused asked to be given the opportunity to return to the family and the
society as soon as possible and promised to be a useful person to the family and
society after serving the sentence.
5. The accused pleaded that the sentence of imprisonment and caning if meted out
on him be reduced.
6. The accused also regret and apologise to this Court for committing this offence.

[1.3] In reply, the learned Deputy Public Prosecutor submitted an offence under section 394
of Penal Code is a serious offence. In this case the complainant was injured. He
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requested that the whipping sentence be imposed by the Court on the accused. He
confirmed that the accused is a first offender and had no previous conviction.

[1.4] In deciding the appropriate sentence a court should always be guided by certain
considerations. For this, I would like to remind myself by referring to the following cases.

1. The first and foremost is the public interest. The criminal law is publicly enforced,
not only with the object of punishing crime, but also in the hope of preventing it.
(See English case of Rex v. Kenneth John Ball [1951] 35 Cr App R 164, per
Hilbery J).

2. The public interest is indeed served, and best served, if the offender is induced to
turn from criminal ways to honest living. Our law does not, therefore, fix the
sentence for a particular crime, but fixes a maximum sentence and leaves it to
the court to decide what the appropriate sentence for each criminal is, within that
maximum, in the particular circumstances of each case. Not only in regard to
each crime, but in regard to each criminal, the court has the right and the duty to
decide whether to be lenient or severe. (See English case of Rex v. Kenneth
John Ball, supra).

3. Deterrent sentences may very well be of considerable value where crime is
premeditated. Burglars, robbers and users of firearms and weapons may very
well be put off by deterrent sentences. (See Engllish Court of Appeal in Reg v.
JH Sergeant [1975] 60 Cr. App. R. 74, 77, 78). Robberies and crimes of
violence are almost daily occurrences and in many cases firearms were used:
(see Lee Chow Meng [1976] 1 MLJ 287). The public is entitled to be protected
and it is not likely to be so protected if lenient sentences are passed. (See PP v.
Chung Kwong Huah [1981] 1 LNS 67, per Chan J).

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4. The offence of robbery is rampant today and in most cases dangerous weapons
are used. In some cases the victims of the robberies sustain injuries. (See per
Zakaria Yatim, J (as he then was) in PP v. Lee Tak Keong [1988] 1 LNS 217).

5. The perpetrator must be punished and the punishment must reflect the
seriousness of the crime. At the same time, the perpetrator should not be
punished more severely just because there are others who have committed acts
of violence. The accused should not be made a scapegoat for others just
because crime has become more rampant in our country. Each case must be
viewed from its particular facts and circumstances. (see PP v. Muthu
Subramaniam Seeniservai [2001] 7 CLJ 236).

6. In the Court of Appeal case of Kesavan Baskaran v. PP [2008] 6 CLJ 390,
Gopal Sri Ram, JCA (as he then was) said at p. 394: Generally speaking, a plea
of guilt is a strong mitigating circumstances operating in favour of an accused.
However, there may be cases where the offence committed is so serious and the
circumstances in which it was committed so heinous that a plea of guilt need be
given little or no weight. The need to protect the public is another factor that may
prevail over a plea of guilt.

7. Finally, in the assessment of sentence, the correct approach is to strike a
balance, as far as possible, between the interests of the public and the interests
of the accused. (See PP v. Muthu Subramaniam Seeniservai [2001] 7 CLJ
236). In Rex v. Grondkawski [1946] 1 All ER 560, Lord Goddard LCJ had
advised judges in the following words. The judge must consider the interests of
justice as well as the interests of the prisoners. It is too often nowadays thought,
or seems to be thought, that the interests of justice mean only the interests of the
prisoners.

[1.5] Now the question before me was what is the appropriate sentence to be passed in the
circumstances of this case? Under the circumstances of this case, having been
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balanced the interests of the public and the interests of accused, in the exercise of my
discretion, I sentenced the accused to 2 years imprisonment term with effect from the
date of his arrest (2.6.2014) and 8 strokes of whipping.

[1.6] In this case, the aggravating factors against the accused that I have considered before
passing the sentence were:-

1. The public interest demands that a deterrent sentence be passed on the robbers
who are voluntarily causing hurt in committing robbery. The sentence must also
deter others who are of the like mind to commit similar crime.

2. Robberies, nowadays, are not only rampant but brutal and vicious. The robbers
not only threaten and terrorise the victims but in some instances they have no
hesitation to injure or even kill their victims.

3. Section 394 of Penal Code stipulates that the offender shall be punished with
imprisonment for a term which may extend to 20 years and shall also be liable to
fine and or to whipping. Therefore, imprisonment is mandatory. By looking at the
sentencing provision as provided under this section, it was unnecessary for me to
stress on the seriousness of the offence or justify imprisonment herein.

4. I wanted to stress that the sentence passed on the accused in this instance case
is not only be within the ambit of the punishable section, but it also in accordance
with established judicial principles. (See PP v. Jafa bin Daud [1981] 1 LNS 28;
[1981] 1 MLJ 315 at p 316)

5. From the facts of the case, the accused deserved a custodial sentence and the
imposition of whipping. This is because:-

(i) Robbery is a serious offence. (see per Zakaria Yatim, J (as he then
was) in PP v. Lee Tak Keong [1988] 1 LNS 21, supra).
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(ii) The facts tendered disclosed that the accused pushed the
complainant while she was walking along the street and she fell and
sustained injuries.
(iii) This shows that the accused by his own conduct voluntarily causing
injury to the victim.
(iv) The accused pulled the hand bag from the victim. However, he was
caught by the nearby civilian who saw the incident. The complainant
was fortunate because the accused was caught and get her
belongings back.
(v) This is clearly a premeditated crime. From the police report tendered,
the accused was also found in his possession a fake pistol.
(vi) This shows that the accused has planned to rob any victim on the day
of the incident and willing to act violently against the victim.
(vii) In this case, the criminal act of the accused was seen by the civilian.
He was chased, cornered and captured without high drama. In this
case, the accused has no means of escape.
(viii) The injuries sustained by the victim.
(ix) The accused cannot shift his criminal liability in the said robbery due
to the hardship of his family and personal circumstances as stated in
his mitigation.

[1.7] In this instant case, the mitigating factors for the accused that I have considered before
passing the sentence were:-

1. The accused is a first offender

2. The plea of guilt was entered before the hearing date is fixed.

3. Although the plea was not on the very 1
st
day that the accused was produced in
court, it is undisputed that the plea did save time and cost of everybody involved.

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4. The prosecution need not have to call witnesses and the court does not have to
conduct the lengthy trial.

5. The plea of guilty by the accused indicating his remorse and willingness to
accept punishment for his crime.

6. The injury caused to the victim was only superficial, and not at all life threatening
(see P4A to C photos of victims injury).


[1.8] Based on the reasons stated above, it is my humble opinion that I have adequately
considered all principles of sentencing as well as the aggravating and mitigating factors
relevant in this case before passing the sentence. The punishment imposed herein is
fair and there is no reason to interfere with the sentence.


Dated: 16th July 2014.



(Zamri Bin Haji Bakar)
Sessions Court Judge 1
Petaling Jaya

Parties
1. Tuan Tan Gin Han
Deputy Public Prosecutor

2. Accused in Person.