1. ) Tengku Izwan Shah Bin Tengku Azman (AA-62RS-36-08/2023)

Sessions Court of Malaysia19 Jul 2024

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Refers toCriminal Procedure CodeExternal
“ed to 6 years imprisonment, to run consecutively with the sentence under case numbers AA-62RS-35-08/2023 and AA-62RS-37- 08/2023 and 2 whippings. THE CONSECUTIVE ORDER [12] Subsection 292(1) of the Criminal Procedure Code [Act 593] reads— When a person who is an escaped convict or is undergoing a sentence of imprisonme”
Refers toPENAL CODELegislation
“s of the offences committed by him... **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 Reasons for the sentence The law [19] Section 395 of the Penal Code reads— Whoever commits gang-robbery shall be punished with imprisonment for a term which may extend to twenty year”
Cites[1955] MLJ 236External
“ity of action and continuity of purpose or design (see Jayaraman & Ors v. PP [1979] CLJU 36; [1979] 1 LNS 36; [1979] 2 MLJ 88; Amrita Lal Hazra v. Emperor 42 Cal 957; Chin Choy v. PP [1955] 1 LNS 17; [1955] MLJ 236). The rule, however, is not absolute. As Yong Pung How CJ said in Kanagasuntharam v. PP [1992] 1 SLR 81 a”
Cites[1979] CLJU 36External
“r 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 (see Jayaraman & Ors v. PP [1979] CLJU 36; [1979] 1 LNS 36; [1979] 2 MLJ 88; Amrita Lal Hazra v. Emperor 42 Cal 957; Chin Choy v. PP [1955] 1 LNS 1”
Cites[2022] CLJU 2789External
“consecutively with another case under section 395 read with section 397 of the same Code, where the accused was sentenced to 7 years and 3 whippings. [31] In the case of Wigneswaran Ponnusamy lwn. PP [2022] CLJU 2789, the High Court reduced the sentence of the accused to 6 years and 2 whippings for an offence under sec”

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Cites[2024] CLJU 1532External
“being the foremost consideration. Factors like first offender and pleading guilty apparently did not really find favour with the courts in cases of this nature. [28] In the case of Hassan Ahmad v. PP [2024] CLJU 1532, the High Court quoted the above case and held— ..the court has the liberty to decide based on the seri”
Cites[2024] CLJU 1626External
“hipping is well within the maximum sentence prescribed under the law. Public interest [22] The interest of the public must outweigh the interest of the accused. [23] In the case of Usuf Matli v. PP [2024] CLJU 1626, the Court of Appeal held— The mitigating factors presented by the Appellant are not sufficient to save h”
Affirms[2024] CLJU 188External
“meeting out sentences. **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 The trend of sentencing [30] In the case of Mohd Azhari Umar Ali lwn. PP [2024] CLJU 188, the High Court affirmed the sentence of the Sessions Court where the accused was charged with two counts of”

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1 IN THE SESSIONS COURT AT IPOH IN THE STATE OF PERAK CRIMINAL CASE NO. AA-62RS-36-08/2023 BETWEEN PUBLIC PROSECUTOR AND TENGKU IZWAN SHAH BIN TENGKU AZMAN JUDGMENT INTRODUCTION [1] This is an appeal by the accused against sentence. The accused filed a notice of appeal in enclosure 20 against the consecutive order of the sentence, counsel for the accused filed a notice of appeal in enclosure 24 against sentence. CASE FOR THE PROSECUTION [2] The accused was brought before this Court on 19.7.2024. The prosecution tendered an amended charge and was marked as exhibit P1. [3] The amended charge was read and explained to the accused in Malay. The amended charge read— Bahawa kamu pada 23.7.2023 jam lebih kurang 9 pagi bertempat di Car Wash Ari Tanjung Rambutan di daerah Kinta di dalam negeri Perak Bersama 6 orang lagi yang masih bebas telah melakukan rompakan berkumpulan menggunakan parang samurai terhadap harta milik Karunah Karan a/l Paramasivam (No. KPT: 940901-08-5647) seperti berikut:- a. seutas rantai emas bernilai RM20,000; b. sebuah telefon bimbit Oppo Reno 7; c. wang tunai bernilai 559; d. kad ATM Maybank. Oleh yang demikian, kamu telah melakukan kesalahan di bawah seksyen 395 Kanun Keseksaan yang dibaca bersama seksyen 397 Kanun Keseksan. [4] The accused admitted he understood the charge read and explained to him in Malay and pleaded guilty. [5] The nature, consequence and penalty of pleading guilty was read and explained to the accused in Malay. The accused understood the nature, consequence and penalty read and explained and maintained his plea of guilty. [6] The prosecution tendered these exhibits--- a. amended facts of the case - read and explained to the accused in Malay – the accused understood the amended facts of the case read and explained in Malay and admitted as correct – facts of the case as amended marked as exhibit P2; b. police report/Tg Rambutan/1531/23 – marked as exhibit P3; c. police report/Pasir Putih/3152/23 – marked as exhibit P4; d. 8 photographs of the scene of crime – marked as exhibit P5(A)-(H); e. 3 photographs of the exhibits – marked as exhibit P6(A)-

(C); f. borang bongkar – marked as exhibit P7; g. identification parade report – marked as exhibit P8; [7] All the exhibits were shown and explained to the accused and the accused admitted all the exhibits as correct. [8] The Court accepted the guilty plea of the accused and found the accused guilty. [9] Mitigation by the accused through defence counsel read— 36 tahun, penternak ikan RM2,000 sebulan, tanggung isteri dan 5 anak umur 11, 7, 4, 2, dan 2 bulan. OKT terima anak baru May lepas. OKT ditangkap di rumah dan beri kerjasama dan akuan salah jimat masa dan kos. Diskaun hukuman, insaf, sesal, janji tak ulang, OKT ngaku kesalahan lama dan 5 tahun 1 sebatan di MSJ4 dari tarikh sabitan. tahun dan 1 sebatan di MSJ1. Pohon minima. [10] Reply by learned DPP reads— S.395 Kanun Keseksaan (memperuntukkan) penjara 20 tahun dan denda atau sebat. S.397 yang boleh Mahkamah beri hukuman tambahan sebatan. Rompakan berenjatakan pisau. Mangsa seorang perempuan di mana OKT larikan wang RM3000. (Pohon hukuman yang) dapat berikan pengajaran kepada OKT berdasarkan fakta kes Pendakwaan. OKT telah ngaku salah bagi kes lain iaitu kes rompakan juga. (Pohon) ambil kira fakta tersebut yang mana OKT disabitkan dengan kesalahan yang lain, ini bukan pesalah pertama. THE SENTENCE [11] The Court accepted the guilty plea of the accused, found the accused guilty and convicted the accused of the charge preferred against him, and sentenced the accused to 6 years imprisonment, to run consecutively with the sentence under case numbers AA-62RS-35-08/2023 and AA-62RS-37- 08/2023 and 2 whippings. THE CONSECUTIVE ORDER [12] Subsection 292(1) of the Criminal Procedure Code [Act 593] reads— 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. [13] This Court referred to the case of Mohd Zandere bin Arifin v Public Prosecutor [2006] 5 MLJ 685 at p 695; [2006] 5 CLJ 663 at p 674 para G–p 675 para A, Ahmad Maarop J (as His Lordship then was), stated— In the appeal before me the appellant had committed three distinct offences of incest. Although the victim in the three charges was the same and although the offences were perpetrated at the same place, they were perpetrated on three different dates within the period of about seven months. In my judgment the sentences passed must truly reflect the fact that in this case the appellant had committed three distinct offences of incest and that he is being duly punished for the three distinct offences. This, to my mind, could only be achieved by ordering the three sentences to run consecutively. I realise that the term of 18 years imprisonment imposed on each count in this case was almost the maximum sentence which could be imposed for an offence of incest under s 376B. I also realise that the cumulative effect of the sentences on the appellant (18 years x 3) will have a crushing effect on the appellant. However, this must be balanced against the very grave nature of the offences committed by the appellant and the demand of public interest on this type of offences [14] Although the above quoted case was one of incest, the same principle could be applied in the present case, where the accused had committed robbery on different dates at different places, as below— Case numbers AA-62RS-35-08/2023 AA-62RS-37-08/2023 AA-62RS-36-08/2023 (the present case) Date and time 25.7.2023 at 8.37 p.m.

26.7.2023 at 4.30 p.m.

23.7.2023 at 9 a.m. Place Kedai Runcit Enam Puluh Lapan, no 12 Hala Pegoh Aman 4a Taman Pegoh, 31500 Ipoh Rem Sawit lot 4648 Jalan Parit Kampung Dendang 32700 Beruas Car Wash Ari Tanjung Rambutan Victim Musfirah binti Mustafa Oo Chong Hing Karunah Karan a/l Paramasivam Loss RM3000 RM4800 A gold necklace worth RM20,000; handphone Oppo Reno 7; cash worth 559; Maybank ATM card Armed with Knife Parang Parang samurai [15] In the case of Public Prosecutor v. Yap Huat Heng [1986] CLJ Rep 645, the High Court held— Where two or more distinct offences had been committed, sentences of imprisonment should not be made to run concurrently. It should only be made concurrent when an offender had been convicted of a principal and a subsidiary offence. In all other cases sentences should be made to run consecutively. [16] The same principle can be applied to the present case where there were three distinct offences of robbery committed by the accused. [17] All three offences under the present case number and case number AA- 62RS-35-08/2023 and AA-62RS-37-08/2023 were executed in the same manner and were of the same severity though unrelated. [18] In the case of Bachik Abdul Rahman v. PP [2004] 2 CLJ 572, the Court held— The exercise of the discretion to determine the date of commencement of the sentence of imprisonment is dependent on the facts and circumstances of each case. 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.

Preamble

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 (see R v. Saleem [1964] Crim LR 482; R v. Walsh [1965] Crim LR 248). 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 (see Jayaraman & Ors v. PP [1979] CLJU 36; [1979] 1 LNS 36; [1979] 2 MLJ 88; Amrita Lal Hazra v. Emperor 42 Cal 957; Chin Choy v. PP [1955] 1 LNS 17; [1955] MLJ 236). The rule, however, is not absolute. As Yong Pung How CJ said in Kanagasuntharam v. PP [1992] 1 SLR 81 at p. 83:..It cannot be denied that the cumulative effect of both the sentences will have a crushing effect on the accused bearing in mind his age. But this effect must be balanced against the seriousness of the offences committed by him... Reasons for the sentence The law [19] Section 395 of the Penal Code reads— Whoever commits gang-robbery shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping. [20] Section 397 of the same Code reads— If at the time of committing or attempting to commit robbery, the offender is armed with or uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, such offender shall be liable to be whipped, in addition to any other punishment to which he may be liable under any other section of this Code. [21] The maximum sentence under these two sections is 20 years or whipping. Thus, the sentence of 6 years and 2 whipping is well within the maximum sentence prescribed under the law. Public interest [22] The interest of the public must outweigh the interest of the accused. [23] In the case of Usuf Matli v. PP [2024] CLJU 1626, the Court of Appeal held— The mitigating factors presented by the Appellant are not sufficient to save him from being punished 'consecutively' as they were not enough to set aside the public interest. We do consider the guilty plea by the Appellant but it should be noted that the interest of the public are the most important considerations and precede other considerations. [emphasis added] [24] In the case of R v. Ball 35 Cr App R 164 the court of Criminal Appeal held— In deciding the appropriate sentence, a court should always be guided by certain considerations. 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. The guilty plea [25] In the case of Bachik Abdul Rahman v. PP [2004] 2 CLJ 572, the Court of Appeal held— One of the principles in sentencing is that a convicted person should be given a discount for pleading guilty. A reduction of about one third of the sentence that would otherwise have been imposed is normally given. This, however, is not a strict rule and the court may, in the exercise of its discretion, refuse to grant any discount…The guilty plea does not automatically entitle the convict to a lesser punishment. [26] The guilty plea of the accused in the present case does not entitle him to a discount automatically. However, in imposing the sentence, this Court did take into account the guilty plea that saved the court’s and prosecution’s time and costs. Seriousness of the offence [27] In the case of PP v. Tamilarasan Monirajah & Anor [2019] 1 CLJ 526, the High Court held— The sentences meted out differed from one case to another depending on various factors discussed in the judgments. But they were all for deterrent sentence in view of the seriousness of the offence with the element of public interest being the foremost consideration. Factors like first offender and pleading guilty apparently did not really find favour with the courts in cases of this nature. [28] In the case of Hassan Ahmad v. PP [2024] CLJU 1532, the High Court quoted the above case and held— ..the court has the liberty to decide based on the seriousness of the offence and other circumstances warranting drastic measures. These measures aim to send a clear message to offenders that they will face severe, deterrent sentences, even if such sentences have a crushing effect on them. [29] Thus, the seriousness of the offence must be considered in meeting out sentences. The trend of sentencing [30] In the case of Mohd Azhari Umar Ali lwn. PP [2024] CLJU 188, the High Court affirmed the sentence of the Sessions Court where the accused was charged with two counts of armed robbery under section 392 read with section 397 of the Penal, as in the present case. The Sessions Court sentenced the accused to 9 years and 3 whippings to run concurrently but consecutively with another case under section 395 read with section 397 of the same Code, where the accused was sentenced to 7 years and 3 whippings. [31] In the case of Wigneswaran Ponnusamy lwn. PP [2022] CLJU 2789, the High Court reduced the sentence of the accused to 6 years and 2 whippings for an offence under section 392 read with section 387 and to run consecutively with another case sentenced to 7 years and 4 whippings for the same offence. [32] Thus, the sentence imposed in the present case was in accordance with the trend of sentencing, between 6 to 9 years and 2 to 4 whippings and to run consecutively with another sentence under the same offence. CONCLUSION [33] To order a concurrent sentence would be as if the accused is only punished for 1 offence when he had committed more. [34] Based on the above, this Court ordered the sentence in the present case to run consecutively with AA-62RS-35-08/2023 and AA-62RS-37-08/2023. Dated this 9th day of September, 2024 Signed,

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Preamble