Aung Zaw Win (JA-45B-6-09/2020)

cuts or marks of injuries found on the deceased body. Four (4) stab wounds were seen on the left side of the deceased torso. Three (3) were fatal as these wounds perforated vital organs and severed the blood vessels, resulting in massive bleeding, which then caused the death of the deceased. The Sentence Mitigation [12] The accused, 35 years old, came to Malaysia in 2010 to work and to support his family in Myanmar. He has no previous convictions and regrets the incident that occurred. The accused prayed for a sentence of imprisonment and for the Court to give him a second chance. S/N DyocAOsegkipklmZZkBmQg Aggravating factors [13] The prosecution submitted that in the course of his testimony in his defence, the accused admitted that he had a short temper and that he had shown intent to harm someone during a fight. The prosecution used this admission to press for a much harsher sentence that portrayed the accused's character as hot-headed and aggressive. Decision [14] When a sentence is imposed, it must not only be within the ambit of the punishable section but must also be assessed and passed in accordance with established judicial principles (see PP v Jafa bin Daud

CLJU 28). It was also held in New Tuck Shen v. Public Prosecutor [1982] CLJ 606 (Rep) that the right to impose punishment on a guilty party is absolutely the discretion of the Court. [15] In respect to the adequacy of a sentence, I am guided by the Court of Appeal decision in PP v. Morah Chekwube Chukwudi [2017] CLJU 864, which discussed the jurisprudence relating to sentencing. It was held that the Court has to consider various sentencing principles not only to the nature of the crime but also to each criminal and his antecedent and ultimately decide whether to be lenient or severe. [16] Pursuant to the recently came into effect of the Abolition of Mandatory Death Penalty Act 2023 (Act 846 ), and the amended section 302 (Act 574), according to s.34 of Act 846, s. 302 of the Penal Code has been amended by inserting after the word "with death" the words "or imprisonment for a term of not less than thirty years but not exceeding forty years and if not sentenced to death, shall also be punished with whipping of not less than twelve strokes." [17] The amendment has given me the discretion to consider alternative punishments, as stated, other than the death penalty. S/N DyocAOsegkipklmZZkBmQg [18] The discretion in deciding the choice of punishment must no doubt be implemented judiciously, considering all mitigating and aggravating factors submitted. [19] In this case, I have taken into account the individual circumstances, such as the deceased being the accused's housemate, a colleague, and a friend. The accused had held the deceased after the stabbing, indicating remorse and fear. Remorse after awakening from his criminal act is a valid consideration in giving the accused a second chance at life. [20] It is not a case of premeditated murder or aggravated murder because the accused was in a state of uncontrolled rage at that moment. Although it is a serious offence, it is not a heinous act of violence, which would justify a death sentence. [21] The prosecution submitted that this was a brutal act of murder. However, I am of the opinion that it was a spontaneous assault (sufficient to cause death according to the ordinary course of nature) and not a pre-planned act. Again, that does not mean it is not serious, but the length of the sentence passed is not short, but thirty (30) years of his freedom will be taken away just because he could not control his anger fighting over a microphone! [22] The intention of Act 846 was not only to give the Court discretion but also to give the offender of a serious offence, as in this case, the opportunity to consider rehabilitating themselves. [23] Referring to the official statement of the Dewan Rakyat dated 3.4.2023, it was the Parliament's intention to introduce Act 846 to abolish the death penalty as an initial step to change the criminal justice system in Malaysia. It is recognised that a fundamental principle of any conviction is to rehabilitate the accused so that they can return to society and S/N DyocAOsegkipklmZZkBmQg become people who can better serve their families and the local community after serving their sentence. [24] It was decided in the case of PP v Umapathi Ganesan [2023] 9 CLJ 625, though referring to a drug case which gave the option of imprisonment for life, on the spirit and intent of the Act 846, it was held: [20] Thus, in consideration of the spirit and intent of the Act 846, this Court holds the view that, unless the aggravating factors are exceptionally serious and outweighs the mitigating factors in any particular case, life imprisonment and whipping should be the preferred sentences under s. 39B(2). -Emphasis added [25] Therefore, the sentence imposed in this case - 30 years imprisonment and 12 lashes - is appropriate and in accordance with the provisions of the applicable law. Dated : 21st March 2024 (NOOR HAYATI BINTI HAJI MAT) Judicial Commissioner High Court of Malaya Johor Bahru Counsel :- For the Prosecution: Tuan Mohamad Nasrudin bin Mohamed Pejabat Penasihat Undang-Undang Negeri Johor Aras 2, Bangunan Dato’ Jaafar Muhammad Kota Iskandar, Iskandar Puteri Johor. S/N DyocAOsegkipklmZZkBmQg For the Accused – Encik Salmi Hamdan bin Sabran Tetuan Sahrihan & Hamdan No 286-3, 2nd Floor, Jalan Bakri Batu 1 ½ 84000 Muar Johor S/N DyocAOsegkipklmZZkBmQg