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SENTENCE

- PUNISHMENT WHICH THE “COURT ORDERS”


AFTER A PERSON IS FOUND GUILTY OR IS
CONVICTED OF AN OFFENCE.

- SENTENCING REFERS TO THE “PROCESS IN A


TRIAL” AFTER A PERSON IS FOUND GUILTY OR
IS CONVICTED OF AN OFFENCE AND HAS
ENTERED HIS PLEA OF MITIGATION.
In Safian bin Abdullah & Anor [1983] 1 CLJ
324 stated that:
“sentencing offender is a complex process, which
depends not on the use of a common mathematical
yardstick but on various considerations of facts and
circumstances relating to the offence, the offender
and the public interest
OBJECTIVE/PURPOSE OF
SENTENCING
• Retribution
It is likened to the “Biblical” ‘eye for an eye’ or
‘tooth for the tooth’

For every hurt received, a hurt is given. The


punishment seeks to retaliate against the
criminal for what he has done. It is as an
expression of the society’s natural feelings of
revulsion towards and disapproval of criminal
acts or conduct of the offender.
• Deterrence

The idea of imposing a deterrence sentence is that the


experience, treat or example of punishments
discourages crime. There are two (2) types of
deterrence sentence namely:-
• Specific deterrence. (deterrence of the actual offender)

It emphasis on the offender himself, that he is


punished so that he will not repeat the offence or
commit any other offence.

• General deterrence (deterrence of likely offender)

The motive is to emphasis on the public that they will


not commit a similar offence as the offender or
other offence lest they be similarly punished
• In the Federal Court cases of Loh Hock Seng v PP [1980]
2 MLJ 13 and PP v Oo Leng Swee [1981] 1 MLJ 247, the
Lordships reminded themselves of their responsibilities in
that:-

“The Court should not shirk their responsibility and


refrain from imposing the maximum sentence provided
by the law but in applying the principle of deterrence
sentencing, the punishment should be reserved for the
worst case.”
• Rehabilitation.
• This principle of sentencing means of restoring to
effectiveness by training, restore to privileges,
reputation or proper condition.
• Its aim is to encourage the offender to be a law
abiding citizen.
• In R v Ball, it was observed that in deciding the
appropriate sentence, a court should always be guided
by certain considerations. The first and foremost is the
Public interest and public interest is indeed served,
and best served if the offender is induced to turn from
criminal ways to honest living.
• In Abu Bakar v Reg [1953] MLJ 19, the court in
considering imposing rehabilitative approach held the
importance to call for evidence or information regarding
the background, character before passing sentence.

• However, the rehabilitative approach has its


limitations. Since a rehabilitative approach is
necessarily on individual approach, the individual
treatment will result in unequal treatment for offenders
who commit similar offences hence, disparity in
sentencing
SENTENCING IN THE PROCESS OF ADMINISTRATION OF
CRIMINAL JUSTICE

• Any punishment must be in accordance to law. The phrase


“sentence according to law appears in Sect 173(b), (m),
183 of the CPC and regulation 18(2) of the ESCAR
1975.
• In PP v Jafa bin Daud [1981] 1 MLJ 315, held that the
sentence must not only be within the ambit of the punishable
section, but it must also be assessed and passed in
accordance with established judicial principles.

• Jafa’s case contains 2 important principles namely:


- the sentencing court must keep within the prescribed
maximum punishment as well as within its sentencing
jurisdiction

- the sentence to be imposed must be considered judiciously in


line with the sentencing policy for the particular offence.
• W hen the court finds that the accused is guilty of the
crime, the court will invite the accused or his counsel to
make a plea of mitigation as prescribed by Sect
176(ii)(r). Accused’s plea of mitigation will usually
highly factors which may reduce his sentence such as
his personal antecedents, hardship etc.
• The reply from the Prosecutor will usually guide the
Court with regard to sentencing policy appropriate to
the case before the court.
• Power of the Courts in passing Sentence.
• Penghulu Court : Requirements under Sect 95(1
and (2) must be fulfilled namely,
• i. minor offence
• offence must be specifically listed in the Surat Kuasa
• only fine not exceeding RM25
• offender must be of n Asian race.
• 2nd Class Magistrate

Under Sect 88 of the Subordinate Court Act, he may


try offences punishable with imprisonment not
exceeding 12 months or those punishable with fine
only. However for sentencing, section 89 empowers
the 2nd class Magistrate to pass sentence of
imprisonment of not more than 6 months or a fine
not exceeding RM 1000 or any combination of both.
• 1st class Magistrate
- Sect 85 of the SCA laid down the trial jurisdiction of the 1st
class magistrate. There are:
i. offence punishable with imprisonment not exceeding 10
yrs
ii.offence punishable with fine
iii.offence under section 392 and 457 of the Penal Code.
• Sessions Court.
Sect 63 of the SCA states that the Sessions Court can try all
offences other than offense punishable with death.

Sect 64 allows the Sessions Court to pass any sentence


except death sentence.
• High Court.

In respect of its criminal jurisdiction, section 22(1) of the


Courts of Judicature Act states that the HC has jurisdiction
to try all offences committed within its local jurisdiction,
on the high seas on board any ship or any aircraft
registered in Malaysia etc.
- Sect 22(2) of the CJA empowers the HC to pass any
sentence allowed by law

- Sect 26 bestowed the appellate jurisdictions over matters


originating from the subordinate court whilst sect 31 of
the CJA speaks of its reversionary jurisdiction over
matters originating from the subordinate court.
• Shall be liable v Shall be punished.

The Federal Court in Jayanathan v PP [1973] 2 MLJ 68


has defined “shall be liable” as non mandatory legal
requirement
POSSIBLE SENTENCES.

Death Sentence
• mandatory
• Sect 302 Penal Code
• Sect 39B DDA 1952
• Sect 57 ISA 1960
• Alternative
- Sect 121 Penal Code (waging war v DYMM)
- Sect 364 Penal Code (kidnap to murder)
- Sect 396 Penal Code (Gang robbery with
murder)
- Sect 3 Kidnapping Act.
2 exceptions whereby the convict may escape death
sentence namely:
• convict is a pregnant woman :- Sect 275 Penal
Code. In such case the sentence to be passed
upon her shall be imprisonment for life.
• where accused person is below 18 years old but
has attained the age of 10 years at the time of the
commission of the offence. The convict shall be
detained during the pleasure of the YDPA or the
State Authority, as the case may be.
• With exception to offence committed under ESCAR.
Regulation 3(3) states that “Where a person is accused of
or charged with a security offence, he shall, regardless of
age, be dealt with and tried in accordance with the
provisions of these regulations and the Child Act 2001
shall not apply to this person.”
LIM HANG SENG V PP [1978] 1
MLJ 68
• A minor aged 14 years old was sentenced to death for
security offences under section 57 of the ISA 1960
• Imprisonment
• for life
• Sect 3 of the Criminal Justice Act defines the phrase
“a sentence of life imprisonment” to mean a sentence
of imprisonment for a term of 20 years unless the
statute defines life imprisonment as imprisonment for
the duration of his natural life or until his death of the
person as in Sect 130A of the Penal Code (aiding
escape of prisoner) or sect 2 of the FIPA 1971.
Relevant case is Che Ani bin Itam v PP [1984] 1 MLJ
1113.
• for fixed period.

• Sect 282(d) of the CPC states that every sentence of


imprisonment shall take effect from the date on which the
same was passed unless the Court passing such sentence
otherwise directs.
• Court may order the imprisonment from the date of arrest or
from the date of judgment.
CONCURRENT OR CONSECUTIVE

• When there re more than one sentence of imprisonment,


Sect 102 of the Subordinate Court Act 1948 confers the
discretion on the Magistrate to order the imprisonment to
commence consecutively or concurrent
• In deciding whether to decide on concurrent or
consecutively, the court is normally guided by 2
sentencing principle:-
• one transaction principle.
• Where two or more offences are committed in the course
of a single transaction, all sentences in respect of these
offences should be concurrent rather than consecutively.
• The rationale of this principle is that the infringements
would be in respect of the same interest and a person
should not be punished two or three times over in respect
of the same blameworthiness.
ELEMENTS

i. proximity of time
ii. Proximity of place
iii. Continuity of action and
iv. Continuity of purpose and design
-Jayaraman & Ors v PP [1979] 2 MLJ 88
• The above principle was applied in Abu Seman v PP [1982] 2
MLJ 338 wherein the court of the view that where several
offences committed in the same transaction are tried together
the sentences imposed for the offences should be made
concurrent.
• totality principle.
• The court is required to decide on what would be the
appropriate sentence for each of the several offences. Then
the court would look at the aggregate and decide whether
in totality, the aggregate is excessive. If so, the court can
then order either two or more of such offence to run
concurrently so as to reduce its overall excessiveness. I
BACHIK BIN ABDUL RAHMAN V PP
[2004] 2 MLJ 534 CA
• Person already undergoing imprisonment
-s292:- Court may order imprisonment to commence
either immediately or at the expiration of the
imprisonment to which he has been previously sentenced
default payment of fine.
• The courts in imposing fines have the discretion to
stipulate default term of imprisonment and in the event of
default, the convicted accused can be made to undergo
the stipulated term.
• Whipping.
The regulating sections are Sect 286 till 287 of the CPC.
- Certain person not liable to whipping as stated in sect 289
CPC namely:
• females
• males sentenced to death
• males who are above 50 years old except males sentenced
to whipping under s.376, 377cor 377E of the Penal Code.

• In Tan Kim Chok [1969] 1 MLJ 211, the Court sentenced 2


strokes of rattan on a man above 50 years old was held in
breach of Sect 289 CPC
UNFIT CONVICT

• certificate from a Medical Officer is needed.


• During execution, MO may certifies the convict unfit to
undergo the remainder of the sentence, the whipping
shall stopped.
• Substitution on balance: 291.
• Sect 288 (i) CPC set out the number of strokes that can be
imposed on a convicted person in a trial. In the case of an adult,
the stroke should not be more than 24 strokes and not more than
10 strokes in the case of youthful offender.(10 but below 16
years old)
• Whipping cannot be executed by way of instalments as stated in
section 289 of the CPC

• In Liaw Kwai Wah v PP [1987] 2 MLJ 69, the whipping


imposed by the Magistrate’s Court had already been executed
when the High Court in revision increased the stroke from 1 to 5.
Abdul Hamid CJ in delivering the judgment of the Supreme
Court held that “the Code prohibits whipping to be executed in
instalment.
• Policy of sentencing that whipping is usually reserved for
offenders who commit crimes involving the use of violence
such as in Lim Thien Hin & Ors v R [1953] MLJ 213 and
Mohammed Ali v PP [1956] MLJ 84.
• Fine.
• Sect 283 (i)(a) of the CPC states that where no sum is expressed to which
the fine may extend, the amount to which the offender is liable is
unlimited but shall not be excessive.
• Sentencing jurisdiction of the court as guideline eg; Magistrate
jurisdiction to fine not exceeding RM10,000 as empowered under sect
87(1) of the SCA unless the case fall under the exception set out under
the proviso of Sect 87(1 or (2) of SCA.
• In imposing a fine, it is a court’s practice to stipulate the term of
imprisonment in the event of default of payment. However certain
principles must be borne in mind;-
• the default term of imprisonment must bear some proportion
to the amount of fine imposed : R v Lim Cheng Thong [1956]
MLJ 77

• in computing the term of default sentence, the court must


adhere to the scale set out under sect 283 (i)( c ) which is 6
months
• Compensation.
- Sect 426(i)(b) CPC governs payment of compensation
to any person, or to the representative of any person,
injured in respect of his person, character or property
by the crime or offence for which the sentence is
passed.

- In Raja Izzuddin Shah v PP [1979] 1 MLJ 270,


compensation was paid to a complainant who was
injured by the accused in addition to the binding over
order made by the Court under sect 294 CPC.
• Police Supervision.
• Usually ordered by the court in addition to some
form of imprisonment in respect of recalcitrant
offenders who need to be watched over when
they come out from prison to minimize the
possibility of their being involved in crime again.
• Before such order can be made, sect 295(i) of
the CPC requires fulfillment of the following
requisites:-
• the offender must have been previously convicted
of an offence punishable with imprisonment for a
term of 2 years or upwards; and
• the present conviction must also be in respect of an
offence punishable with imprisonment for a term of
2 years or upwards.
• Sect 295(1)(a) and (b) empowers the High Court and
Sessions Court to subject the accused to police supervision
for a period not more than 3 years but a magistrate can
make such order not exceeding 1 year.
• Sect 295(1A) police supervision for a period of not less than 1
year and not more than 3 yrs commencing immediately after the
expiration of the sentence passed on the convict[s376, 377c or
377E
• Bond of good behaviour
• Provisions for bound over on a bond of good behaviour are
found in section 173A, 293(i)(b) and 294 of the CPC
• A convict will not have a criminal record if he is bound over
under sect 173A of the CPC unlike bond under sect 293(i)(b)
and 294 of the CPC
• Sect 173A is an order of dismissal and non recording of
conviction whereas Sect 293(i)(b) and 294 require a conviction
to be recorded.
• Sect 293(i)(b) applies in respect of youthful offender whereas
294 applies to adult offender.
• Sect 294: punishment is suspended
COMMUNITY SERVICE

• 293 (e): offender to perform 240hrs in aggregate


• Any work, service or course of instruction for the
betterment of public at large
• In either case, the court would have to have regard to
factors such as the character, antecedents, age, health,
mental condition, nature of the offence extenuating
circumstances under which the offence was committed.
• Debate over Sect 294 application in respect of
mandatory sentence offences (shall be punished with
imprisonment).
• In PP v Idris [1955] MLJ 234, it was held that sect 294
applied to offences punishable with imprisonment only
without the option of fine or any other option. Oppose
to PP v Yeong Yin Choy