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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
societys 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

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 172(b), (m), 183
of the CPC and regulation 18(2)
of the ESCAR 1975.

When 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). Accuseds 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.

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.

Jafas 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.

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.

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 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 are 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.

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.

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.
Court orders the place of whipping
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
sexual offences]
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

Number of strokes
Sect

288 (1) 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 installments as stated in
section 289 of the CPC

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


whipping imposed by the Magistrates 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 (1)(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 courts practice to


stipulate the term of imprisonment in the
event of default of payment. [S.283(1)(b)(iv).
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 (1)(c)

Compensation.
-

Sect 426(1)(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(1) 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(i)(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.

S295(1A)

states that irrespective whether the


person has no criminal records, he shall be
subjected to police supervision had he committed
an offence under s.376,377c,377cA or 377E

The

court order the convict to attend a


rehabilitative counseling within the period of
detention

Bond of good behaviour


Provisions for bound over on a bond
of good behaviour are found in
section 173A, 293(1)(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(1)(b) and 294 of the
CPC

Sect

173A is an order of dismissal and non


recording of conviction whereas Sect
293(1)(b) and 294 require a conviction to
be recorded.
Sect 293 applies in respect of youthful
offender whereas 294 applies to adult
offender.
S.293(e) community service not exceeding
240 hours in aggregate.
Sect

294: punishment is suspended

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