The issue is regarding the passing of sentence on Kofe on finding him guilty of the

offences charged.

In Section 85 of the Subordinate Court Act 1 , a First Class Magistrate shall have
jurisdiction to try all offences for which the maximum term of imprisonment provided
by law does not exceed ten years imprisonment. However, in section 87(1), a First
Class Magistrate may pass any sentence allowed by law not exceeding five years
imprisonment; fine not exceeding RM10,000; whipping up to 12 strokes; or any
sentence combining any of the sentences aforesaid. Despite that, section 87(2)
provides that a First Class Magistrate may exceed his sentencing competence if it
appears that full punishment prescribed by law should be awarded because of a
convicted persons previous convictions or antecedents.

In applying the law, the First Class Magistrate shall have the jurisdictions to try the
matter. In passing the sentence therefore, Astro only has power to sentence of
punishment not exceeding five years for each offences. However, since Kofe has
previously been convicted, Astro may exceed his sentencing competence if
necessarty.

Next we will look at the penal provision. Both section 354 and section 379 of the
Penal Code2 used the word shall be punished. In the case of Public Prosecutor v
Agambaran3, the Federal Court was of the view that on a proper construction of this
expression, it was mandatory in law for the court to impose a sentence of
imprisonment where the penalty is preceded by this phrase. Meanwhile, the word
liable, as discussed in the case of Ng Chwee Puan v R4, contains no obligatory or
mandatory connotation and to confer absolute judicial discretion as to the form and
extent of punishment to be imposed. Lastly the meaning of the word or was
discussed in Mohd Azmi Ghazali v Public Prosecutor5, by the usage of the word
or before the words to whipping, whipping is not a mandatory sentence.

1
Act 92
2
Act 574
3
[1996] 2 CLJ 93, FC
4
[1953] 1 MLJ 86
5
[1999] 7 CLJ 110
Kofe is convicted for three counts of theft under section 379 of the Penal Code6 which
carries punishment of imprisonment for a term which may extend to seven years or
with fine or with both, and for a second or subsequent offence shall be punished with
imprisonment and shall also be liable to fine or to whipping. He is also convicted for
one count of outrage of modesty under section 354 of the Penal Code7 which carries
the punishment of imprisonment for a term which may extend to ten years or with fine
or with whipping or with any two of such punishments. Since both of those provisions
use the word which may extend, meaning the disecretion is on the court to award
any term of imprisonment up to the maximum prescribed by the law.

In assessing sentence, the court gives consideration to the public interst, the
circustances of the offence and the background of the offenders. In Public
Prosecutor v Mohd Kamil bin Yahya8, it was stated that in passing the sentence, a
Magistrate must consider the interest of justice as well as the interests of the accused.
The interest of an accused usually is to avoid imprisonment and or the payment of a
substantial fine. The public interest on the other hand is primarily that an offender
does not offend again and others are discouraged from similarly offending. The court
may pass a deterrent sentence, which means a sentence that is higher than which
would normally be proper for the offence concerned. The court may also consider the
principle of prevention which is effected by taking away the offender the power of
offending. Circumstances of the offence shall also be considered, especially the
purpose of the act, the type of offence, the background of the case and the attitude of
the offender, as decided in the case of Pendakwa Raya lwn NCK Aluminum
Extrusion Sdn Bhd9. In the case of Public Prosecutor v Loo Chang Hock10, the
court takes into consideration whether an offence was clearly premeditated,
committed with deliberation and professional skill such as theft and not on the spur of
the moment. Besides that, the prevalance of an offence is usually submitted by the
prosecution in urging that a deterrent sentence be imposed. The court shall also
consider the background of offender.

6
Act 574
7
Ibid.
8
[1998] MLJU 513
9
[2002] 6 MLJ 96
10
[1988] 1 MLJ 316
In applying the law, here clearly public interest is of utmost importance. Not only
Kofe is an escaped prisoner, he has also convict theft and commits outrage of
modesty, which clearly shows that he is a danger to the public. Therefore, in weighing
the public interest and Kofes interest, public interest clearly wins, and Kofe should
therefore be punished with imprisonment, taking into consideration also the rampancy
of theft in our country as well as the nature of the offence which requires deliberation
and professional skill.

In the case of Ahmad bin Hop v Public Prosecutor 11 , the Court stated that the
sentencing Court should consider whether an imprisonment sentence is the
appropriate form of punishment, regard being had to all the circumstances of the case
including the nature and the gravity of the offence, and public interest. Furthermore,
there may be instances where, instead of imposing only a sentence of imprisonment or
a fine, the court may couple a term of imprisonment with a fine. However in the case
of Ahmad bin Hop v PP12, where the offender has been sentenced to substantial
periods of imprisonment and had obtained no financial benefit from the offences
because the stolen goods had been recovered, fines would be inappropriate.

Therefore, after a lengthy discussion on the principles of sentencing, as Astro, I shall

consider the punishment for Kofe. Since Kofe had obtained no financial benefit from
the offence since the stolen goods were recovered, I shall not impose fine, but only
sentence him with imprisonment. Taking into consideration the fact that Kofe is a
danger to the public, and also the fact that hes an escaped convict, it is important to
keep Kofe away from the public. Therefore, the sentences that I shall pass are as
follow;

(a) Imprisonment for four years for theft of Minahs Gucchi handbag,
(b) Imprisonment for four years for theft of Comels Pravda bag,
(c) Imprisonment for four years for theft of Bambinos bag.

11
[1992] 3 CLJ 1408
12
Ibid.
And as regards to the offence of outrage of Bambinos modesty, I shall sentence Kofe
with four years imprisonment as well.

It is also important to note that prior to the commission of those offences, Kofe was
already convicted of an offence under section 326 of the Penal Code 13 and was
sentenced to six years imprisonment but he escaped from prison after just barely two
months serving his sentence. Section 292(1) of the Criminal Procedure Code14 states
that when a person who is an escaped convict or is undergoing a sentence of
imprisonment is sentenced to imprisonment, such imprisonment shall commence
either immediately or at the expiration of the imprisonment to which he has been
previously sentenced, as the Court awarding the sentence may direct.

With the above provision as authority, I shall direct that the punishment I imposed on
Kofe to be commenced after the expiration of the previous six years imprisonment
sentence.

Since there are four different sentences, it is important to consider whether the
sentences should run concurrently or consecutively. A concurrent sentence means the
accused would serve all the sentences at the same time, whereas a consecutive
sentence means defendants have to finish serving the sentence for one offence before
they start serving the sentence for any other offence.

The court in the case of Bachik bin Abdul Rahman v Public Prosecutor15, held that
in deciding whether the terms of imprisonment should be consecutive or commence at
another date, the court will be guided by the one transaction rule and the totality
principle. Pursuant to the one transaction rule 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 consecutive. As decided in the case of
Jayaraman & Ors v Public Prosecutor 16 , for there to be one transaction four
elements must be present, that is to say, proximity of time, proximity of place,
continuity of action and continuity of purpose or design.

13
Act 574
14
Act 593
15
[2004] 2 MLJ 534
16
[1979] 2 MLJ 88
However, in the case of Public Prosecutor v Abdul Malik bin Abdullah17, the court
held that it is a common principle that where the two or more offences committed by
the accused were distinct offences the appropriate sentence should be consecutive
rather than concurrent. Furthermore, where there are cumulative sentence, the court
may then consider the totality principle. In the case of Bachik bin Abdul Rahman v
Public Prosecutor 18 , cumulative sentence may offend the totality principle if the
aggregate sentence is substantially above the normal level of sentences for the most
serious of the individual offences involved, or if its effect is to impose on the offender
'a crushing sentence' not in keeping with his records and prospects.

In applying the law to the case at hand, clearly all four offences committed by Kofe
occur in the same transaction as they fulfil all the four elements in the case of
Jayaraman. There were proximity of time and place, since it happened on 17 July
2013, in which Kofe at the car park of Plaza Mas Shah Alam broke into three cars.
There were also continuity of action and continuity of purpose and design, since Kofe
broke into three cars at the same time. As regards to the outrage of modesty, it
happened as Kofe was extracting the handbag from the car, therefore, there is
continuity of action.

Thus, applying the same transaction rule, all the sentence shall run concurrently.
However, as in the case of PP v Abdul Malik bin Abdullah19, if the offences were
distinct, the appropriate sentence should be consecutive rather than concurrent.
Therefore, since outrage of modesty is a distinct offence to theft, the punsihment shall
run consecutively, despite being in the same transaction.

To sum up the sentences, Kofes punishment shall commence once he has served the
previous six years imprisonment. For the three thefts he was found guilty of, he shall
be sentence to four years imprisonment but the sentences shall run concurrently.
Meanwhile for the outrage of modesty, Kofe shall be sentenced to four years

17
[2013] 8 MLJ 251
18
[2004] 2 MLJ 534
19
[2013] 8 MLJ 251
imprisonment as well, but since it is a distinct offence, the sentence shall run
consecutively which means it shall commence after the sentence for theft has expired.

In conclusion, I believe this is a fair and just sentence to pass on Kofe after taking
consideration of all factors.