ANNUAR BIN JALIE v Pendakwa Raya (JA-42H-1-03/2025)

Before the court is an appeal by the Appellant, Annuar bin Jalie, against the sentence of seven years’ imprisonment from the date of arrest on 17.2.2025 and three strokes of whipping imposed by the Sessions Court, Johor Bahru on 12.3.2025, upon the Appellant’s plea of guilty to an offence of robbery punishable under section 392 of the Penal Code.

The Appellant appeals solely against the sentence on the ground that it is manifestly excessive.

Having heard submissions from both parties and after careful consideration of the material before this court, I S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 allow the appeal and reduce the sentence of imprisonment to four years and six months from the date of arrest on 17.2.2025, with the three strokes of whipping to remain.

On 17.2.2025, at approximately 5.30 in the morning, the complainant Nur Antasya Aireena binti Adnan was travelling on a motorcycle registration number JSJ 7605 as a pillion passenger. Her fiancé, Ya’akub bin Mamar Sua’at @ Masa’od, was riding the motorcycle. They were returning home to No. 01-05 Block D, PPR Pelangi Indah, Johor Bahru.

Upon arriving at Jalan Ayu 17, Taman Pelangi Indah, 81800 Ulu Tiram, Johor Bahru, a motorcycle registration number QBF 4482, coloured blue, approached from behind. The Appellant, who was riding this motorcycle, pulled the complainant’s khaki-coloured backpack which she was wearing on her back and fled the scene. The complainant and her fiancé attempted to chase the Appellant but were unsuccessful.

Inside the bag were the following items belonging to the complainant: (i) a light blue coloured purse; (ii) the complainant’s identity card (number: 010209-01-1456); (iii) a Class L driving licence; (iv) a CIMB Bank ATM card; (v) an Oppo A53 mobile phone (telephone number: 01111820175, S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 IMEI 1: 862627056539411, IMEI 2: 862627056539403); and (vi) a gold bangle.

Following the incident, the complainant requested her fiancé to track her mobile phone using the “360” application. Through this application, they located the phone at Jalan Imam, Kampung Melayu Pandan, Johor. The complainant and her fiancé proceeded to this location and observed a male individual at the location indicated by the tracking application.

When the complainant’s fiancé approached the individual, he attempted to flee. During the chase, the motorcycle the individual was riding fell after hitting a stone when making a U-turn. The complainant contacted the police for assistance.

Police officers from Balai Polis Taman Johor Jaya arrived at the scene at approximately 7.30 in the morning. They identified the detained individual as the Appellant. The following items were recovered from the Appellant: (i) the blue Honda Dash motorcycle registration number QBF 4482; (ii) a Sunmo key marked as exhibit JJ1; (iii) the Oppo A53 mobile phone marked as exhibit JJ2; (iv) the light blue purse marked as exhibit JJ3; (v) the gold bangle marked as exhibit JJ4; (vi) the CIMB Bank ATM card marked as exhibit JJ5; (vii) the Class L driving licence marked as exhibit JJ6; and (viii) the identity card marked as exhibit JJ7. S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4

The Appellant was arrested at the scene. The police noted that the Appellant had sustained injuries, specifically a cut on his left eyebrow and right eyelid, and bruising on his face resulting from the struggle when he was apprehended by members of the public.

The Appellant was charged before the Sessions Court, Johor Bahru with robbery contrary to section 392 of the Penal Code. On 12.3.2025, the Appellant pleaded guilty to the amended charge. The charge read as follows: “Pertuduhan Sek: 392 Kanun Keseksaan Bahawa kamu bersama-sama pada 17/02/2025 jam lebih kurang 05.30 pagi, di Jalan Ayu 17, Taman Pelangi Indah, 81800 Ulu Tiram, Johor, di dalam Daerah Johor Bahru, dalam Negeri Johor, telah merompak beg dompet warna biru muda, kad pengenalan, lesen memandu, kad ATM CIMB Bank dan telefon bimbit jenis Oppo A53 dan seutas gelang tangan berwarna emas milik penama Nur Antasya Aireena binti Adnan, No. KPT: 010209-01-1456. Oleh yang demikian kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah Seksyen 392 Kanun Keseksaan. Hukuman: disabitkan kesalahan, hendaklah dipenjara selama tempoh yang boleh sampai empat belas tahun dan hendaklah juga dikenakan denda atau sebat.”

After the facts were tendered and the Appellant confirmed their accuracy, the learned Sessions Court Judge heard mitigation from the Appellant, who appeared in person and was represented by counsel appointed by the court. The Appellant stated in mitigation: “Pohon hukuman ringan dari tarikh tangkap. Saya ada tanggungan dua adik 6 tahun dengan 10 tahun dan bapa baru meninggal dan adik kecik dua orang tiada orang jaga.” S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5

The learned Sessions Court Judge sentenced the Appellant to seven years’ imprisonment from the date of arrest on 17.2.2025 and three strokes of whipping.

The Appellant submits that the sentence imposed is manifestly excessive and fails to give adequate consideration to the mitigating factors present in this case, particularly his guilty plea. The Appellant argues that the learned Sessions Court Judge erred in principle by imposing a sentence that did not properly reflect the discount that should be afforded for a plea of guilty.

The Appellant relies principally on the decision of the Supreme Court in Mohamed Abdullah Ang Swee Kang v Public Prosecutor [1987] CLJ Rep 209. The Appellant submits that this authority establishes the principle that when an accused person pleads guilty, the appropriate sentence should be determined by first asking what sentence would have been imposed had the accused claimed trial, and then applying a discount of between one-quarter and one-third to reflect the plea of guilty.

The Appellant contends that if the principle in Abdullah Ang is properly applied, the sentence of seven years imprisonment imposed by the learned Sessions Court S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 Judge is equivalent to the sentence that would be imposed after a full trial. The Appellant submits that with section 392 of the Penal Code providing for a maximum sentence of 14 years’ imprisonment, a sentence of seven years after a guilty plea is manifestly excessive as it fails to reflect any meaningful discount for the plea.

The Appellant further submits that he is a first offender, aged 40 years, with significant family responsibilities. He is the sole provider for his two young siblings aged 6 and 10 years following their father’s recent death. The Appellant expresses remorse for his actions and cooperated fully with the police following his arrest.

The Appellant cites several authorities where sentences for robbery under section 392 of the Penal Code range from three to five years’ imprisonment, arguing that the seven-year sentence is disproportionately high when compared to these precedents. The Appellant specifically refers to Pendakwa Raya v Mohd Kadri bin Mohd Arupin [2022] 5 LNS 4 (five years from date of arrest and two strokes) and Pendakwa Raya v Zulkefle bin Bedol [2021] 1 LNS 2323 (three years from date of arrest and two strokes, affirmed on appeal).

The Respondent submits that the sentence imposed by the learned Sessions Court Judge is appropriate and within the S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 proper range for offences of this nature. The Respondent argues that an appellate court should exercise restraint in interfering with sentences imposed by trial courts and should only do so where the sentence is manifestly excessive or inadequate, or where there has been an error in principle.

The Respondent emphasises that the offence committed by the Appellant was a serious crime involving violence and posed significant danger to the victim. The robbery took place in a residential area at 5.30 in the morning when the victim, a 24-year-old woman, was riding as a pillion passenger on a motorcycle. The Appellant approached from behind and pulled the bag which the victim was wearing on her body, creating a risk of serious injury to the victim who was on a moving motorcycle at the time.

The Respondent submits that the learned Sessions Court Judge properly balanced the mitigating factors against the aggravating factors and the overriding consideration of public interest. While the Appellant’s guilty plea, family circumstances, and remorse were taken into account, these factors cannot override the need for a deterrent sentence that reflects the seriousness of the offence and protects public safety.

The Respondent cites several authorities where substantially higher sentences have been imposed and upheld for robbery offences. These include Selvaraj a/l S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 Ganesu v Public Prosecutor [2020] MLJU 2365 (10 years’ imprisonment and four strokes affirmed on appeal), Mohd Azhari Umar Ali v Pendakwa Raya [2024] MLRHU 132 (nine years’ imprisonment and three strokes for each of two charges, running concurrently, affirmed on appeal), and Mohd Johaizan Man v Public Prosecutor [2018] MLRHU 1934 (eight years’ imprisonment and four strokes affirmed on appeal).

The Respondent submits that robbery continues to be a prevalent crime that causes fear and insecurity in society. The Respondent argues that public interest demands stern sentences to deter would-be offenders and that personal mitigation factors, while relevant, cannot outweigh the need to protect the public and maintain confidence in the criminal justice system.

I begin by considering the proper role of an appellate court in relation to appeals against sentence. It is well established that an appellate court should be slow to interfere with a sentence imposed by a trial court. As stated in Bhandulananda Jayatilake v Public Prosecutor [1982] 1 MLJ 83: S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 “It is for that reason also that this court has said it again and again that it will not normally interfere with sentences, and the possibility or even the probability that another court would have imposed a different sentence is not sufficient, per se, to warrant this court’s interference.”

The Respondent submits that this principle of restraint should apply in the present case. I accept that an appellate court should exercise caution before disturbing a sentence imposed by a trial judge. However, the principle of appellate restraint does not mean that an appellate court must abdicate its responsibility to ensure that sentences are imposed in accordance with established principles of sentencing and are neither manifestly excessive nor manifestly inadequate.

I am satisfied that in the present case, the sentence imposed by the learned Sessions Court Judge, while undoubtedly within the statutory range provided by section 392 of the Penal Code, is manifestly excessive when measured against the established principles governing the sentencing of offenders who plead guilty.

The Appellant’s central submission is that the learned Sessions Court Judge failed to apply the principle established in Abdullah Ang regarding the discount that should be afforded for a plea of guilty. It is necessary therefore to examine this authority and its application to the present case. S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 10

In Abdullah Ang, the appellant was convicted on his own plea of guilty to an offence of criminal breach of trust under section 409 of the Penal Code. He was sentenced to eight years’ imprisonment and a fine of RM100,000, in default six months’ imprisonment. The Supreme Court allowed the appeal and reduced the sentence to four years’ imprisonment from the date of arrest, setting aside the fine.

The Supreme Court in Abdullah Ang laid down important principles regarding the sentencing of offenders who plead guilty. Mohd Azmi SCJ, delivering the judgment of the court, stated: “For determining the length of custodial sentence in pleading guilty cases, the test to be adopted could be found in R v Boyd [1980] 2 Cr App 234; Encyclopedia of Thomas Current Sentencing Practice p 1061 where Cumming-Bruce LJ said: The policy of the Courts is that where a man does plead guilty, which does give rise to public advantage and avoids the expense and nuisance of a trial, which may sometimes be a long one, the Court encourages pleas of guilty by knocking something off the sentence which would have been imposed if there had not been a plea of guilty. So one asks oneself, if there had been a plea of not guilty, and he had been convicted, what would have been the appropriate sentence?”

The Supreme Court went on to state: “When we asked ourselves the same question here, the appropriate sentence if the appellant had claimed trial would have been around eight years, regard being had to the amount of money defalcated and the other circumstances of the case. Clearly on this test, the sentence imposed on the appellant was manifestly excessive. It is generally accepted that the extent of the reduction on account of a plea of guilty S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 would be between one-quarter and one-third of what otherwise would have been the sentence.”

The Supreme Court emphasised that: “A sentencer must give sufficient discount for all extenuating circumstances pertaining to the degree of culpability or criminality involved, which must necessarily vary from case to case apart from other mitigating factors. Unless there is a proper reason for withholding such credits, failure to do so may result in the sentencer not exercising his or her discretion judicially in assessing the level of custodial sentence.”

The principle in Abdullah Ang has been consistently applied and affirmed in numerous subsequent decisions. In PP v Khairil Anwar Abdul Rahim [2016] 1 LNS 403, the Court of Appeal stated: “Nevertheless, it is an accepted policy of the courts that a plea of guilty should in most cases be treated as a mitigating factor. The reasons for this are obvious. A guilty plea avoids the expense and inconvenience of a trial. A discount for a guilty plea serves as a strong incentive and encourages such pleas. On the other hand, if there is no such incentive, accused persons may then all insist on a trial as they have nothing to lose since the sentence will be the same.” The Court of Appeal went on to affirm: “There is no fixed rule as to the discount but it should be between one-quarter and one-third of not the maximum sentence imposed by the statute but on what would have been the sentence if the accused had claimed trial and found guilty.”

The Respondent does not dispute the principle that a guilty plea should ordinarily attract a discount. However, the Respondent submits that the extent of any discount must be considered in light of all the circumstances of the case, including the seriousness of the offence and the need to protect public interest. The Respondent relies on authorities S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 such as PP v Francis Omar Kaseh [2016] MLRAU 451, where it was stated, citing Kesavan Baskaran v PP [2008] 6 MLJ 384 (CA): “Generally speaking, a plea of guilt is a strong mitigating circumstance 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.”

While I accept that there may be exceptional cases where the seriousness of an offence or the need to protect the public may reduce or eliminate the discount for a guilty plea, I am not satisfied that the present case falls into that category. The reasoning in Abdullah Ang makes clear that the discount for a guilty plea should be applied except where there is a “proper reason for withholding such credits.” The burden lies on the sentencing court to identify such reasons and to explain why the usual principle should not apply.

In the present case, I find that the learned Sessions Court Judge, while acknowledging the Appellant’s guilty plea in the grounds of judgment, did not apply the principle in Abdullah Ang in determining the appropriate sentence. The learned Sessions Court Judge stated in the grounds of judgment: “OKT telah mengaku salah kepada pertuduhan dan pengakuan salah tersebut telah menjimatkan masa dan kos Mahkamah serta Pendakwaan. Mahkamah telah merujuk S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 kepada kes PP V JESICCA LIM LU PING & ANOR [2004] 2 CLJ 763 dimana Mahkamah Tinggi telah memutuskan seperti yang berikut: ‘It is customary for the court to give the convict a reduced sentence for pleading guilty. The court recognizes that a plea of guilty disposes of a criminal case with lightning speed; it eases the backlog of undisposed criminal cases and unclogs the courts and prison of remand-prisoners. A reduced sentence for pleading guilty encourages the accused to be honest in admitting to the offence he has committed. A discount of between one quarter and one third of the sentence that would otherwise have been imposed is usually given.’”

However, having cited this principle, the learned Sessions Court Judge did not apply it in the manner prescribed by Abdullah Ang. The proper approach, as established in Abdullah Ang and its progeny, is to first determine what sentence would have been appropriate had the accused claimed trial, and then to apply a discount of between one-quarter and one-third to reflect the guilty plea. Instead, the learned Sessions Court Judge appears to have started from a baseline of seven years and concluded that this was appropriate without first determining what the sentence after trial would have been.

Applying the principle in Abdullah Ang, I must first ask: what would have been the appropriate sentence had the Appellant claimed trial and been convicted after a full hearing? In answering this question, I must consider the gravity of the offence, the circumstances in which it was S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 committed, and the sentencing range established by precedent for similar offences.

Robbery under section 392 of the Penal Code is undoubtedly a serious offence. Section 392 provides for imprisonment which may extend to 14 years, and makes the offender liable to fine or whipping. It reads: “Whoever commits robbery shall be punished with imprisonment for a term which may extend to fourteen years, and he shall also be liable to fine or to whipping.”

The offence strikes at the security of persons and property and causes fear and anxiety in the community. In the present case, the robbery involved a young woman who was a passenger on a motorcycle. The Appellant approached from behind and pulled a bag that the victim was wearing on her body. This created a real risk of injury to the victim.

However, it is important to note certain features of this case that distinguish it from the most serious examples of robbery. First, no weapon was used in the commission of the offence. Second, although the Appellant’s actions created a risk of injury to the victim, no actual injury was sustained by the victim. Third, the Appellant was apprehended shortly after the offence and all the stolen items were recovered. Fourth, the value of the items stolen, while significant to the victim, was not extraordinarily high – S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 comprising personal items including a mobile phone, ATM card, identity documents, and a gold bangle.

The Respondent relies heavily on cases such as Selvaraj a/l Ganesu v Public Prosecutor where a sentence of 10 years’ imprisonment and four strokes was affirmed. However, that case must be distinguished on its facts. In Selvaraj, the accused was a persistent offender with 42 previous convictions under sections 392, 395, and 397 of the Penal Code. The High Court in that case stated: “The accused himself is a repeat offender with a record of 42 previous convictions under Section 392, 395 and 397 of the Penal Code.” In contrast, the Appellant in the present case is a first offender with no previous convictions.

Similarly, in Mohd Azhari Umar Ali v Pendakwa Raya, where sentences of nine years’ imprisonment were upheld, the accused faced two charges of armed robbery under sections 392 and 397 of the Penal Code, and was armed with a parang during the commission of the offences. The accused in that case also had a previous conviction for armed gang robbery. Again, these features distinguish that case from the present one.

The Respondent also relies on Mohd Johaizan Man v Public Prosecutor, where a sentence of eight years’ imprisonment and four strokes was upheld. However, in that case the accused was convicted under both sections 392 and 397 of the Penal Code, indicating that the robbery was committed S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 while armed with a deadly weapon. Section 397 provides that if a person commits robbery while armed or while committing or attempting to cause grievous hurt, that person shall be liable to whipping in addition to the punishment provided for robbery.

A more helpful comparison is provided by the cases cited by the Appellant. In Pendakwa Raya v Zulkefle bin Bedol, the Sessions Court imposed a sentence of three years’ imprisonment from the date of arrest and two strokes for robbery under sections 392 and 397 of the Penal Code. The High Court dismissed the prosecution’s appeal against this sentence. The accused in that case had pleaded guilty and the robbery involved the use of a helmet and a brick as weapons. The High Court held that the Sessions Court had properly considered all relevant factors and that the sentence was not manifestly inadequate.

In Pendakwa Raya v Mohd Kadri bin Mohd Arupin, the Sessions Court imposed a sentence of five years’ imprisonment from the date of arrest and two strokes. The offence in that case involved the snatching of a mobile phone following a deception of the victim.

Having considered the circumstances of the present case and the sentencing precedents, I am of the view that had the Appellant claimed trial and been convicted, an appropriate sentence would have been in the range of six to seven years’ imprisonment. The offence was serious and S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 involved a vulnerable victim, but it was not committed with a weapon, did not result in injury, and the Appellant is a first offender.

Taking six to seven years as the appropriate range after trial, the application of a discount of between one-quarter and one-third for the guilty plea, as prescribed by Abdullah Ang, would result in a sentence in the range of approximately 4 years to 5 years and 3 months’ imprisonment. I am satisfied that a sentence towards the middle of this range, namely four years and six months’ imprisonment, properly reflects both the seriousness of the offence and the mitigating effect of the guilty plea.

Having determined that the proper application of the Abdullah Ang principle results in a sentence significantly lower than that imposed by the learned Sessions Court Judge, I turn to consider whether there are other factors that might nevertheless justify the seven-year sentence imposed.

The learned Sessions Court Judge identified the following factors in the grounds of judgment: (a) the seriousness of the offence and the facts of the case; (b) the background of the accused; and (c) the guilty plea of the accused. S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 18

Under the heading “Fakta Kes dan Seriousness of the Offence,” the learned Sessions Court Judge stated: “Berdasarkan fakta kes seperti eksibit P1, OKT telah melakukan jenayah samun di jalan awam semasa mangsa membonceng motosikal dengan menarik beg galas yang disandang di badan mangsa. OKT telah menyamun mangsa dari arah belakang menggunakan motosikal dan melarikan diri selepas itu. Mahkamah telah melihat bahawa kesalahan samun yang dilakukan oleh OKT ini adalah suatu jenayah yang serius dan berleluasa. Perbuatan samun oleh OKT ini telah mendatangkan ketakutan kepada mangsa dan orang awam serta boleh memberi ancaman nyawa dan harta benda.”

I do not disagree with the learned Sessions Court Judge’s assessment of the seriousness of the offence. However, seriousness alone does not determine the appropriate sentence. The sentence must be proportionate to the offence and must take proper account of all relevant factors, including mitigating factors and, in particular, the guilty plea.

Under the heading “Latarbelakang OKT,” the learned Sessions Court Judge stated: “Secara am, antecedent OKT adalah satu faktor mitigasi tetapi Mahkamah harus mengimbangi dengan the nature of the crime committed by the OKT where it required the dare, the dash and the defiance of the OKT in its commission seperti yang digariskan di dalam kes PP V TEH AH CHENG [1976] 2 MLJ 186. Di dalam kes ini, OKT berumur 40 tahun. OKT juga menanggung 2 adik yang masih kecil. Bapa OKT baru meninggal dunia dan tiada siapa yang menjaga 2 adiknya tersebut. Mahkamah telah membandingkan kesemua faktor di atas dan juga jenis kesalahan yang dilakukan oleh OKT dan mendapati di dalam kes ini, ‘the scale of justice favours the Court to impose a custodial punishment upon the OKT.’ Mahkamah telah lebih menimbangkan kepentingan awam S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 berbanding kepentingan OKT dengan hukuman yang telah diberikan bertujuan melindungi kepentingan awam daripada ancaman nyawa dan harta akibat perbuatan OKT.”

Again, I do not disagree that public interest is an important consideration in sentencing. However, the learned Sessions Court Judge’s reasoning suggests that public interest is a factor that operates to increase the sentence beyond what would otherwise be appropriate. This is not correct. Public interest is a factor that informs the determination of what sentence is appropriate in the first place, taking into account both the need for deterrence and the need for proportionality. It does not operate as a separate aggravating factor that justifies a sentence higher than that which would be imposed applying normal sentencing principles, including the principle of guilty plea discount.

The Respondent places great emphasis on public interest and the prevalence of robbery offences. The Respondent submits that where public interest and the interest of the offender collide, public interest must prevail.

I accept that public interest is a paramount consideration. However, it is important to understand what is meant by “public interest” in this context. Public interest requires that sentences be proportionate to the offence, that like cases be treated alike, and that established sentencing principles be consistently applied. The public interest is not served by imposing sentences that are disproportionately severe or S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 that fail to give effect to established principles such as the discount for a guilty plea.

Moreover, the invocation of public interest cannot justify the imposition of a sentence that amounts to a sentence that would be appropriate after trial, without applying the discount for a guilty plea. If this were permissible, it would effectively nullify the principle that guilty pleas should be encouraged through the granting of a meaningful discount. This would be contrary to public interest, as it would remove the incentive for accused persons to plead guilty, thereby increasing the burden on the criminal justice system and potentially causing additional distress to victims who would be required to testify at trial.

The Respondent also argues that family hardship is not a mitigating factor unless there are exceptional circumstances. The Respondent relies on the statement in PP v Shahrul Azuwan Adanan & Anor [2013] 2 CLJ 686 (HC): “The sentencing court must only consider circumstances that mitigate the crime and not those that are personal to the offender and unconnected to the crime such as hardship to the offender and his family if he is sent to prison. These are matters that the offender should have thought of before committing the offence.”

While this principle is correct as a general proposition, it must not be applied in a manner that eliminates all consideration of an offender’s personal circumstances. The S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 sentencing court is required to consider the offender as a whole person, including his background, character, and circumstances. In the present case, the Appellant is 40 years old, is a first offender, and has responsibility for two young siblings following the recent death of his father. These circumstances, while not excusing his conduct, are relevant to the overall assessment of the appropriate sentence and to the determination of his prospects for rehabilitation.

I am satisfied that when all these factors are properly weighed, the sentence of seven years’ imprisonment imposed by the learned Sessions Court Judge is manifestly excessive. The sentence does not properly reflect the discount that should have been applied for the guilty plea in accordance with the principle in Abdullah Ang.

For the reasons set out above, I am satisfied that the appropriate sentence in this case, properly applying the principle in Abdullah Ang and taking into account all relevant circumstances, is four years and six months’ imprisonment from the date of arrest on 17.2.2025.

This sentence properly reflects the seriousness of the offence committed by the Appellant. It takes into account the fact that the robbery was committed in a public place against a vulnerable victim, and that such offences cause S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 fear and insecurity in the community. However, it also properly reflects that the Appellant pleaded guilty at the earliest opportunity, thereby saving the time and expense of a trial and sparing the victim the ordeal of having to testify. It reflects that the Appellant is a first offender, that no weapon was used, that no injury was caused, and that all stolen property was recovered.

The sentence of four years and six months represents approximately 32% of the maximum sentence of 14 years provided by section 392 of the Penal Code. This is within the appropriate range for a case of this nature where an offender pleads guilty.

In relation to whipping, I see no reason to disturb the order of three strokes imposed by the learned Sessions Court Judge. This is within the lower range of sentences for whipping typically imposed for robbery offences and is appropriate given the circumstances of this case.

Before concluding, I should address the reasoning of the learned Sessions Court Judge more directly, as I am required to explain why the Sessions Court’s findings are not upheld.

The learned Sessions Court Judge stated in the grounds of judgment that the court had balanced mitigating factors S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 against aggravating factors and had given weight to public interest. However, with respect, I find that the learned Sessions Court Judge did not properly apply the principle established in Abdullah Ang. Although the learned Sessions Court Judge cited the principle that a discount should be given for a guilty plea, the sentence imposed did not reflect such a discount.

The learned Sessions Court Judge further stated in the grounds of judgment: “Namun, Mahkamah perlu memberi pertimbangan yang sewajarnya bagi faktor mitigasi ini setelah mengimbangkan dengan jenis kesalahan yang dilakukan oleh OKT dan mendapati bahawa kesalahan yang dilakukan oleh OKT adalah suatu kesalahan yang serius melibatkan kekerasan dan mendatangkan ancaman nyawa dan juga harta benda. Dalam keadaan ini, OKT tidak seharusnya diberikan pengurangan hukuman yang lebih ringan dan sewajarnya dikenakan hukuman berat yang bersesuaian dan berbentuk deteren untuk memberi pengajaran kepada OKT dan orang awam yang lain agar tidak mengulangi kesalahan yang sama.”

This reasoning suggests that the learned Sessions Court Judge treated the seriousness of the offence and public interest as factors that could override the normal principle of guilty plea discount. As I have explained above, this is not the correct approach. Public interest requires that sentencing principles, including the principle of guilty plea discount, be consistently applied.

The learned Sessions Court Judge also stated that the offence was “suatu jenayah yang serius dan berleluasa” S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 and that it caused “ketakutan kepada mangsa dan orang awam.” While these observations are correct, they do not provide a sufficient basis for departing from the principle that a meaningful discount should be given for a guilty plea. The seriousness of an offence is relevant to determining what sentence would be appropriate after trial, but it does not eliminate the need to apply a discount where the accused pleads guilty.

In Abdullah Ang, the Supreme Court stated: “Although the learned Judge indicated in his judgment that he had given the necessary discounts, they were not reflected at all in the sentence imposed.” The same observation applies in the present case. Although the learned Sessions Court Judge acknowledged the guilty plea and cited the principle that a discount should be given, the sentence of seven years did not reflect any meaningful discount when measured against the maximum sentence of 14 years or against the sentence that would have been appropriate after trial.

I therefore find that the learned Sessions Court Judge erred in principle by failing to properly apply the principle established in Abdullah Ang. The sentence imposed was manifestly excessive as a result of this error.

For the reasons set out above, I find that the sentence of seven years’ imprisonment imposed by the learned S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 Sessions Court Judge was manifestly excessive. The learned Sessions Court Judge erred in principle by failing to properly apply the principle that a meaningful discount should be given for a plea of guilty, as established in Abdullah Ang.

Applying the correct principles, and taking into account all relevant circumstances including the seriousness of the offence, the circumstances in which it was committed, the Appellant’s guilty plea, his status as a first offender, and all other mitigating factors, I am satisfied that the appropriate sentence is four years and six months’ imprisonment from the date of arrest on 17.2.2025.

Accordingly, I make the following orders: a) The appeal against sentence is allowed; b) The sentence of seven years’ imprisonment imposed by the Sessions Court, Johor Bahru is set aside and substituted with a sentence of four years and six months’ imprisonment from the date of arrest on 17.2.2025; and c) The order of three strokes of whipping is affirmed and shall remain in force.

This court decides to allow this appeal and reduce the sentence from seven years’ imprisonment to four years and S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 six months’ imprisonment from the date of arrest, with three strokes of whipping to remain. 17 December 2025 ATAN MUSTAFFA YUSSOF AHMAD Judge High Court of Malaya Johor Bahru COUNSEL: For the Appellant: Tuan Iskandar Shah bin Ibrahim Messrs. Iskandar Shah & Co., Suite 11.10, Tingkat 11, Menara TJB, No. 9, Jalan Syed Mohd Mufti, 80000 Johor Bahru. For the Respondent: TPR Tuan Mohamad Adhallan Syafiq bin Azami TPR Puan Lydia Salleh Pejabat Penasihat Undang-Undang Negeri Johor, Aras 2, Bangunan Dato’ Ja’afar Muhammad, Kota Iskandar, 79100 Nusajaya, Johor. S/N RnjpqXLxqkuYW0BgAzKdiA **Note : Serial number will be used to verify the originality of this document via eFILING portal