AW YU HUI v Pendakwa Raya (WA-41S-6-05/2023)

3.

8.2023 Untuk Pengurusan Kes Perayu adalah OKT Akan mengendalikan rayuan secara sendiri

Sentence passed is 20 months imprisonment - for two cases.

One charge - section 468 PC - 8 months imprisonment and fine

RM2000, in default of payment of fine, 3 months’ imprisonment Another charge - section 420 PC - 12 months and 1 stroke of the whip and fine RM3000, in default of payment of fine, 5 months’ imprisonment.

Learnt lesson well.

Want to be beneficial to the society.

Family needs me very much.

Parents are unwell.

Pray for a concurrent sentence. DPP: Prays for another date to submit. To - 7.8.2023 for Hearing of Appeal.

7.8.2023 For Hearing of Appeal Appellant present.

Hukuman serentak tidak wajar.

Dua kesalahan yang berbeza - Kesalahan pertama - 420 KK - setahun penjara dan denda RM3000 (denda telah dibayar dan hukuman sebatan satu kali.

Kesalahan kedua - pertuduhan dibawah seksyen 468 KK - 8 bulan penjara dan denda RM2000 (denda telah dibayar).

Pengakuan salah terhadap kedua-dua kesalahan. Telah berada di dalam penjara selama 3 bulan.

Kepentingan awam perlu dipelihara.

Hukuman seharusnya berasingan.

I have learned my lesson.

Pray for a concurrent sentence.

After having considered the case in its entirety, and the fact that the accused had paid the fines for both cases, this court decides to reduce the sentence of imprisonment imposed. For the first charge - 3 months imprisonment. For the second charge - 3 months imprisonment. Sentence to run from the date of arrest - 6.5.2023. Sentence of imprisonment to run consecutively for case no. WA-41S-6- 05/2023 and WA-41S-7-05/2023. Sentence of whipping of one stroke remains - section 288 (4) applies. No effect on the sentence of fine, as it has been paid. JUDGMENT [1] An appeal was lodged by the Public Prosecutor against the above sentence meted out by this court on appeal by the accused person. [2] Accused, who is the appellant to this appeal has to endure two different sentences for two different criminal cases of arrest against him, namely, case no. WA-41S-6-05/2023 and WA-41S-7-05/2023. The sentences are to take effect consecutively from the date of arrest on 6.5.2023. [3] Case no. 6 – 05/2023 pertains an offence of cheating pursuant to section 420 of the Penal Code (PC/Act 574), while case no. 7 – 05/2023 relates to an offence of forgery for the purpose of cheating pursuant to section 468 PC. [4] Both the charges against the accused are: Charge of forgery “Bahawa kamu bersama-sama pada 06/05/2023 di 18-09 DMajestic Jalan Pudu, Pudu 55100 di dalam Daerah Dang Wangi, Wilayah Persekutuan, Kuala Lumpur di dapati dengan curangnya telah memalsukan Kad Pengenalan Malaysia yang mana telah diubah suai bagi tujuan penipuan pinjaman secara atas talian, dengan niat supaya dokumen palsu tersebut digunakan bagi tujuan hendak menipu. Oleh yang demikian kamu telah melakukan satu kesalahan boleh dihukum di bawah Seksyen 468 Kanun Keseksaan dan boleh dihukum di bawah peruntukan yang sama dan dibacakan bersama Seksyen 34 Kanun Keseksaan. Hukuman: Jika disabit kesalahan hendaklah dihukum dengan pemenjaraan selama tempoh yang boleh sampai tujuh tahun, dan hendaklah juga dikenakan denda.” Charge of cheating “Bahawa kamu bersama seorang lagi yang masih bebas, pada 19/05/2018 jam 1.20 petang di Mc’ Donalds Suria KLCC, Jalan Ampang, Dalam Daerah Dang Wangi, Wilayah Persekutuan Kuala Lumpur, dalam mencapai niat bersama telah menipu Muhammad Syafiq Bin Sidin (930503-14-6185) dengan memperdayakan beliau dalam urusan jual beli telefon bimbit dan dengan itu kamu dengan curangnya telah mendorong beliau untuk menyerahkan (2) unit telefon bimbit berjenama Samsung Galaxy S9 dengan harga berjumlah keseluruhan RM 6,000 yang mana beliau tidak akan serahkan telefon bimbit tersebut sekiranya tidak diperdayakan sedemikian dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum dibawah seksyen 420 Kanun Keseksaan dan dibacakan bersama seksyen 34 Kanun Keseksaan. Hukuman: Penjara tidak kurang dari satu tahun dan tidak lebih dari sepuluh tahun dan dengan sebat dan bolehlah juga dikenakan denda.” [5] As for the offence under section 468 PC, he has to endure a period of eight (8) months’ imprisonment and to pay a fine of RM2000, and if he does not pay the fine imposed, he has to suffer a further three

months’ period of imprisonment. For the charge for an offence under section 420 PC, he has to suffer a period of twelve (12) months’ imprisonment and 1 stroke of the whip (see section 288 (4) of the Criminal Procedure Code (CPC/Act 593) and fine of RM3000, in default of payment of fine, 5 months’ imprisonment. [6] On the date of appeal, this court was informed that the accused had paid the fines imposed, thus left is only for him to suffer the period of incarceration, adding up to 20 months’ and one stroke of the whip. [7] After having heard the plea by accused on his appeal and the responding submission by the deputy public prosecutor (DPP), I have decided to allow his appeal on the sentence meted out by the magistrate. With that, the sentence of imprisonment for both offences of cheating and forgery for the purpose of cheating was reduced to a period of three (3) months’ imprisonment respectively. It has to take effect consecutively from the date of arrest on 6.5.2023. Since the sentence of whipping passed is legal in accordance with section 420 PC, it stays. [8] The Public Prosecutor (PP) vide notice of appeal dated 18.8.2023 had appealed against the reduction of sentence for both offences of cheating as well as forgery for the purpose of cheating, which reads as the following: “… Pendakwa Raya Malaysia merayu kepada Mahkamah Rayuan terhadap keputusan … yang mana Yang Arif Hakim telah membenarkan rayuan Responden dan mengurangkan hukuman penjara 1 tahun bagi kesalahan di bawah seksyen 420 Kanun Keseksaan kepada 3 bulan penjara bermula dari tarikh tangkap (06.05.2023). Rayuan ini adalah terhadap hukuman tersebut.” “… Pendakwa Raya Malaysia merayu kepada Mahkamah Rayuan terhadap keputusan … yang mana Yang Arif Hakim telah membenarkan rayuan Responden dan mengurangkan hukuman penjara 8 bulan bagi kesalahan di bawah seksyen 468 Kanun Keseksaan kepada 3 bulan penjara bermula dari tarikh tangkap (06.05.2023). Rayuan ini adalah terhadap hukuman tersebut.” [9] Hence, the appeal by PP is only on reduction of the sentence of imprisonment to a period of 3 months’ by this court, for both offences committed by the accused. The cheating charge [10] Essentially, the basis for reduction of sentence of imprisonment from a period of 12 months to 3 months is because the sentence meted out by the magistrate is found to be manifestly excessive. Viewing the circumstance of the case whereby the accused had pleaded guilty to the charge for an offence of cheating pursuant to section 420 PC, it ought to be considered as a strong mitigating factor as he has the legitimate expectation under the law to have his sentence reduced accordingly. The plea of guilty came about immediately when the case was called up at the magistrate’s court. [11] Presumably (as it is not stipulated in the Notice of Appeal), the PP is dissatisfied with the reduction of sentence as section 420 PC provides for a minimum period of one year or 12 months imprisonment on conviction of the accused. Therefore, both the court of first instance and this court on appeal are left without an alternative but to impose a period of 12 months imprisonment. The sole question, would that be so? [12] Reading the penal provision, it renders the following: Whoever cheats …, shall be punished with imprisonment for a term which shall not be less than one year and not more than ten years and with whipping and shall also be liable to fine. (emphasis is mine) [13] Thus, it provides for a minimum term of 12 months imprisonment, and the court of first instance had imposed such term of imprisonment on the accused. However, this court on appeal had reduced it to a period of only 3 months imprisonment, since the 12 months’ imprisonment is found to be manifestly excessive, considering the salient fact the accused had pleaded guilty at once when the case was called up for determination by the magistrate. Is that reduction of sentence illegal? [14] This court opines the reduction of sentence from a period of 12 months imprisonment to 3 months imprisonment is not illegal but legal and proper as it is sanctioned by section 172G of the Criminal Procedure Code (CPC/Act 593), which renders the following: Where an accused pleads guilty at any time before the commencement of his trial, the Court shall sentence the accused in accordance with subparagraph 172D(1)(c)(ii). Section 172D (1) (c) (ii) reads as:

(ii) subject to subsection (2) and (3), sentence the accused to not more than half of the maximum punishment of imprisonment provided under the law for the offence for which the accused has been convicted. (emphasis is mine) Reading both the provisions, it is apparent the accused who had pleaded guilty to a charge for an offence under section 420 PC, is entitled in law to be treated leniently. He has only to be sentenced to a period of imprisonment not more than half of the maximum punishment of imprisonment provided under the law for the offence of cheating for which he has been convicted. Section 420 PC caters for a maximum period of 10 years imprisonment. Therefore, pursuant to section 172G CPC, the maximum period of imprisonment allowed under the law against the accused is only 5 years imprisonment and not anything more than that. As such, the accused in the present case has to suffer a period of only 5 years imprisonment, and anything more than that period of imprisonment would be illegal. But, in the present case, this court had reduced the sentence of imprisonment to a period of 3 months, which of course falls squarely within the 5 years period of imprisonment. [15] However, an argument could be advanced, that section 172D (1) (c)

(ii) has to be read subject to subsections (2) and (3) of section 172D CPC. That would mean, pursuant to subsection (2) of section 172D CPC, where there is a minimum term of imprisonment provided under the law for the offence, no accused shall be sentenced to a lesser term of imprisonment than that of the minimum term. That means, in the present case, the accused has to suffer a period of 12 months imprisonment, as it is the minimum period of imprisonment provided for under section 420 PC. Needless to refer and discuss subsection 172D (3), as it is inapplicable to the present case. [16] This court opines subsection 172D (2) is inapplicable vis a vis section 172G CPC, as the scheme of section 172D pertains a plea bargaining process, which means, where a satisfactory disposition of the case has been agreed upon by the accused and the PP under section 172C CPC, the court shall, in accordance with law, dispose of the case in the manner provided for in section 172D (1) (a), (b) and (c) CPC and if that situation arises, section 172D (1) (c) (ii) CPC is subject to subsection 172D (2) and (3) CPC. In the present case, there has been no plea bargaining, thus there is no satisfactory disposition of the case between the accused and PP in order for section 172D CPC to be operable. It is salutary to note, the accused had pleaded guilty at the court of first instance, voluntarily at once without having to go through a trial. There has been no plea bargaining process as envisaged under section 172C CPC and therefore needless to proceed with section 172C (7) CPC, which provides that where a satisfactory disposition of the case has been agreed upon by the accused and the PP, the satisfactory disposition shall be put into writing and signed by the accused, his advocate if the accused is represented, and the PP, and the court shall give effect to the satisfactory disposition as agreed upon by the accused and the PP. [17] In the premise, section 172G CPC operates independently of section 172D CPC and has to be read as it stands so as give its fullest effect. Therefore, when the accused pleads guilty, like in the present case, he is entitled in law to be sentenced to half of the maximum term of imprisonment provided for by section 420 PC. It is also needless for this court to be strayed by the other part of section 172D (c) (ii) CPC, as the precursor to 172D (c) CPC provides “where the satisfactory disposition is in relation to a plea bargaining of the sentence, find the accused guilty on the charge and …”. (emphasis is mine) [18] It is axiomatic, if there is a doubt in the reading and interpretation of section 172G CPC, which is a penal provision, benefit of it has to go to the accused. He cannot be denied of his right and legitimate expectation to be sentenced only to half of the maximum term of imprisonment as stipulated in section 420 PC. To reiterate, he has only to suffer a period of 5 years imprisonment or less after taking into consideration all factors, plea in mitigation included. Ensuing from that, the sentence of 3 months imprisonment meted out by this court on appeal against the accused is legal and not disproportionate to his case, wherein he has also to suffer another 3 months period of imprisonment for the offence of forgery for the purpose of cheating pursuant to section 468 PC. As support, reliance is on the dictum of Lord Esher MR in Tuck & Sons v Priester

19 QBD 629 at page 638: If there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for the construction of penal sections. Further, reference is also made to persuasive case authorities from the Supreme Court of India in Tolaram Relumal and another v The State of Bombay (1954 SC) and State of West Bengal v Swapan Kumar Guha (1982 SC) which had in effect decided the following: When there are two possible construction, the court must lean towards that construction which exempts the subject from penalty, rather than one which imposes penalty. Where an ambiguity exists and it has not been possible for the legislature to express itself clearly, the court exhibits a preference for the liberty of the subject and resolves the doubt in favour of a subject. The court is not competent to stretch the meaning of an expression and include the situation which would not have come under the reasonable interpretation of the provision. [19] Aside the above, it is also appropriate to comment on the submission by DPP responding to the plea by accused as appellant to this appeal. She did not raise any submission on the legality of sentence pursuant to section 420 PC, if there is a reduction, but merely implored this court not to disturb the consecutive effect of the sentence meted out by the magistrate, and nothing more. She did not contend with support, to state any form of reduction of sentence for the offence of cheating under section 420 PC, cannot be anything less than 12 months imprisonment. In that respect, this appeal by the PP on reduction of the sentence to a period of 3 months’ imprisonment is an afterthought. Be that as it is, this court opines the reduction of sentence for the offence under section 420 PC is legal and justifiable under the law. The charge of forgery for the purpose of cheating [20] As for the offence of forgery for the purpose of cheating, this court had also reduced the sentence meted out from a period of 8 months imprisonment to 3 months imprisonment. It is also anchored on the basis, the sentence meted out by the magistrate was manifestly excessive as it was disproportionate to the commission of the offence by accused. He has to be sentenced to what he deserves and nothing more, so as to be in conformity with the principle of justice and fairness. Sentences passed or meted out should express abhorrence to the conduct of accused, which has to be proportionate to the seriousness of the offence. Rehabilitation, as an aim of sentencing should be pursued only within the confines of proportionate sentences. In the present case, viewing the sentence meted out which is a composite sentence as it embodies both imprisonment and fine, it sufficiently punishes the accused. On that score, the 8 months period of imprisonment is disproportionate to the commission of offence by the accused as a fine of RM2000 had been imposed. [21] Perusing the record of proceeding at the subordinate court (as below) it is apparent that the prosecution did not tender facts of the case to support its case against the accused, when he pleaded guilty. What has evolved, is that the facts tendered is as per the charge. If commission of the offence of forgery for the purpose of cheating by the accused is viewed seriously by the prosecution, it would have advanced facts of the case to support the charge in order to demonstrate to the court, his conduct when committing the said offence as well as his degree of involvement and deliberation. Likewise, is for the offence of cheating. With the brief facts the court may form an opinion on his conduct when assessing to mete out an appropriate sentence. (See: Abdul Kadir bin Abdul Rahman v PP

1 MLJ 80). Sadly, in the present case, for both the charges, there was none, other than the prosecution merely informing the court, facts of the case are as per the charges against the accused. Charge of cheating: “… TPR: DENGAN IZIN PUAN, MOHON PERTUDUHAN DIBACAKAN PUAN. PERTUDUHAN DIBACAKAN, TERTUDUH FAHAM, MENGAKU SALAH. FAHAM AKIBAT SIFAT PENGAKUAN, MASIH MENGAKU SALAH. TPR: DENGAN IZIN PUAN POHON FAKTA KES SEPERTI MANA PERTUDUHAN, LAPORAN PENGADU DITANDAKAN SEBAGAI P1, LAPORAN TANGKAPAN DITANDAKAN SEBAGAI P2, LAPORAN TANGKAPAN SEMULA DITANDAKAN SEBAGAI P3, PERBUALAN WHATSAPP DITANDAKAN SEBAGAI P4, RESIT BAYARAN DITANDAKAN SEBAGAI P5. POHON DIKEMUKAKAN P4 DAN P5 DITUNJUKKAN KEPADA OKT UNTUK PENGECAMAN, PUAN. PENGECAMAN DIBUAT DAN DIAKUI BENAR OLEH OKT. MAH: BOLEH BUAT RAYUAN. OKT: PUAN, TOLONG BAGI HUKUMAN SERINGAN-RINGANNYA. SAYA TELAH INSAF. MAH: PENDAKWAAN? TPR: PUAN, POHON HUKUMAN SETIMPAL SEBAGAI PENGAJARAN PUAN. MAH: OKT DIDAPATI SALAH DAN DISABITKAN SALAH SEPERTI PERTUDUHAN, HUKUMAN 1 TAHUN PENJARA DARI TARIKH TANGKAP DAN DENDA RM 3000.00 GAGAL BAYAR 5 BULAN PENJARA DAN 1 KALI SEBATAN. ITU SAHAJA.” (Emphasis is mine) Charge of Forgery for the purpose of cheating: ‘ … TPR: DENGAN IZIN PUAN, POHON PERTUDUHAN DIBACAKAN, PUAN. PERTUDUHAN DIBACAKAN, TERTUDUH FAHAM, MENGAKU SALAH. FAHAM AKIBAT SIFAT PENGAKUAN, MASIH MENGAKU SALAH. TPR: DENGAN IZIN PUAN POHON FAKTA KES SEPERTI MANA PERTUDUHAN, LAPORAN TANGKAPAN DITANDAKAN SEBAGAI P1, GAMBAR BARANG KES DITANDAKAN SEBAGAI P2, PENGESAHAN JABATAN PENDAFTARAN NEGARA DITANDAKAN SEBAGAI P3. ITU SAHAJA PUAN, POHON DIKEMUKAKAN GAMBAR KEPADA OKT UNTUK PENGECAMAN, PUAN. PENGECAMAN DIBUAT DAN DIAKUI BENAR OLEH OKT. MAH: RAYUAN. B1: SAYA MEMOHON HUKUMAN SAYA DIRINGANKAN. MAH: B2 BUAT RAYUAN. B2: PUAN, KAMI BERBUAT DEMIKIAN SUPAYA KAWAN-KAWAN TIDAK BERBUAT KESALAHAN LAIN. SAYA BERBUAT DEMIKIAN UNTUK PERBELANJAAN SAHAJA. BUKAN SENGAJA BERBUAT DEMIKIAN UNTUK BUAT JENAYAH PUAN, UNTUK PERBELANJAAN HARIAN SAHAJA PUAN. MINTA PUAN RINGANKAN HUKUMAN SEBAB SAYA PUN ADA ANAK UNTUK DISARA. MAH: B3 BUAT RAYUAN. B3: PUAN, SAYA MOHON HUKUMAN SAYA DIRINGANKAN SEBAB SAYA ADA AYAH DAN EMAK YANG SUDAH TUA HENDAK DIJAGA. MAH: PENDAKWAAN? TPR: DENGAN IZIN PUAN, POHON HUKUMAN SETIMPAL SEBAGAI PENGAJARAN, PUAN. MAH: KETIGA-TIGA OKT DIDAPATI SALAH DAN DISABITKAN SALAH SEPERTI PERTUDUHAN, HUKUMAN 8 BULAN PENJARA DARI TARIKH TANGKAP DAN DENDA RM2000.00 GAGAL BAYAR 3 BULAN PENJARA. ITU SAHAJA. …” (Emphasis is mine – B2 is the accused/appellant in the present case). [22] Except in a case where the facts are straight forward without any complexity involved and the offence is embodied in the charge itself, then it would be easier for the accused to say yes or no to a plea of guilty. But when the law applicable to those facts, beyond doubt seems impossible to expect an accused person unversed in the law and undefended to be able to say, whether he is or not guilty of the offence charged, then facts of the case is pivotal. (See the case of Low Hiong Boon v PP (1948-49) MLJ Supp. 135). In the present case, it is apparent in the charge against the accused for the offence of forgery for the purpose of cheating is “dengan curangnya telah memalsukan Kad Pengenalan Malaysia yang mana telah diubah suai bagi tujuan penipuan pinjaman secara atas talian, dengan niat supaya dokumen palsu tersebut digunakan bagi tujuan hendak menipu.” Since the charge does not disclose if the said loan was in fact approved and disbursed to the accused, it could be deduced that the loan and disbursement did not eventually go through. Therefore, the actus reus involved is only falsification of the identity card, used to apply for a loan online, but thwarted as it was discovered. Therefore, the sentence of 3 months imprisonment and the fine imposed, which was not altered by this court, commensurate with the offence committed by him. [23] Likewise for the offence of cheating, the accused had pleaded guilty to the charge which contains his actus reus “dalam mencapai niat bersama telah menipu Muhammad Syafiq Bin Sidin (930503-14- 6185) dengan memperdayakan beliau dalam urusan jual beli telefon bimbit dan dengan itu kamu dengan curangnya telah mendorong beliau untuk menyerahkan (2) unit telefon bimbit berjenama Samsung Galaxy S9 dengan harga berjumlah keseluruhan RM 6,000 yang mana beliau tidak akan serahkan telefon bimbit tersebut sekiranya tidak diperdayakan sedemikian”. It is a fact, he was not alone in the said commission of the offence of cheating, but with others, thus the use of common intention as mode of his participation in the commission of crime. In the absence of the facts disclosing his degree of involvement and premised on the charge itself, a punishment of 3 months imprisonment with the imposition of fine is sufficient punishment for the accused to suffer. What more, he has also to suffer a stroke of the whip, adding on to the severity of punishment against him. [24] After having considered all factors against accused, cumulatively and being mindful of the settled principle of sentencing in the administration of criminal justice, that punishment in proportion to the seriousness of the crime is one of many objectives in sentencing and also the principal focus for a sentence, and the accused has not committed a violent crime but crimes against property, where on the face of the charge, it is inferred was actuated by greed for money, the punishment imposed of 3 months imprisonment for each of the offences he has committed with the imposition of fine and also a stroke of the whip for the offence of cheating, is appropriate, proportional and sufficient punishment he has to suffer. Adding on, imposition of the fines has also served as deterrence for the offences committed. (See cases like Rex v Teo Woo Tin (1932) MLJ 124; Zakariya bin Musa v PP (1985) 2 MLJ 221) Moreover, it is also a fact to be mindful of, that the offence of cheating was committed in the year 2018, as opposed to the offence of forgery for the purpose of cheating which took place in the year 2023, thus raising an argument for it tantamount to a stale offence which was only brought against the accused when he was charged for the offence of forgery. The accused has also repented by pleading guilty to both the charges. In the premise the plea of guilty by accused is a predominant and pivotal factor considered by this court when reducing the sentence meted out by the magistrate. (See: Melvani v PP (1971) 1 MLJ 137; Sau Soo Kim v PP (1975) 2 MLJ 134; Ravindran & Ors v PP (1992) 4 CLJ 2043). In the upshot, appeal by the accused is allowed and sentences of imprisonment meted out against him is reduced accordingly. Appeal allowed. Sentence reduced to three months imprisonment. Dated 30 October 2023 SGD. Muniandy Kannyappan Judge, High Court 2 (Criminal) Kuala Lumpur. Accused in person. DPP Aqilah Ishak for the respondent.