[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v RAVISHANKAR A/L MURUGAN (WA-45JT-14-08/2021)

The accused was originally charged under Section 130V of the Penal Code, for being a member of an organised criminal group which carries a minimum sentence of five (5) years imprisonment with a maximum imprisonment of 20 years.

On trial, apart from the Accused there were 24 others. Although separately charged, but as this case was consolidated hence they were all jointly tried. About 19 witnesses had testified. Like many others, he was under remand since arrested.

In mid stream, on 27th October 2023, the Prosecution had offered all the Accused including the Accused herein, an alternative charge of being a member of an unlawful society, an offence under Section 43 of the Societies Act 1966, upon which the Accused had accepted the offer, which carries a maximum sentence of three (3) years imprisonment or/and fine of not more than RM5,000.00.

As the proceeding before this Court involved many Accused, three

Deputy Public Prosecutors (“DPP”) conducted the same. [5] Thereafter, after the charge was read and explained to the Accused and understood by him, the Accused pleaded guilty. [6] After the nature and consequences of his plea was explained and understood by him, the Accused maintained his guilty plea. Upon being satisfied that his plea is unequivocal and after hearing and considering the facts as understood and admitted by him P83 (14), and all other evidence (exhibits) including the Arrest Report before me, this Court convicted him. [7] After hearing his mitigation and reply by the Prosecution, this Court sentenced him to three (3) years imprisonment being the maximum imprisonment sentence allowed, (from the date of arrest which was 20th June 2021) and a fine of RM4,000.00 in default, 6 months imprisonment. [8] Dissatisfied, on 7th November 2023 the Public Prosecutor had filed an appeal on the ground of inadequacy of sentence inspite of the maximum imprisonment sentence this Court had imposed on the Accused. [9] Herewith are the Grounds of Judgement for the appeal. B. THE CHARGE [10] The Alternative Charge proffered against the Defendant was as follows: “Bahawa kamu, di antara Januari 2019 hingga 20 Jun 2021, di alamat Flat Sri Selangor, Jalan San Peng, dalam Wilayah Persekutuan Kuala Lumpur telah didapati menjadi anggota “Geng Sakai” yang merupakan satu pertubuhan yang menyalahi undang-undang, dan oleh yang demikian kamu telah melakukan satu kesalahan di bawah Seksyen 43 Akta Pertubuhan 1966 (Akta 335) dan boleh dihukum di bawah peruntukan yang sama. Hukuman: Jika disabitkan dengan kesalahan, kamu hendaklah dihukum penjara selama tempoh yang tidak melebihi tiga (3) tahun atau denda yang tidak melebihi RM5,000.00 atau kedua-duanya.” C. THE FACT OF THE CASE [11] The Fact of the case as tendered by the Prosecution and marked as P83 (14) are as follows (in verbatim): “Tertuduh telah dituduh kerana menganggotai sebuah pertubuhan yang menyalahi undang-undang iaitu “Geng Sakai” di bawah Seksyen 43 Akta Pertubuhan 1966 (Akta 335). Hasil siasatan mendapati “Geng Sakai” bergiat aktif di antara Januari 2015 hingga Jun 2021 dan beroperasi di alamat Flat Sri Selangor, Jalan San Peng, dalam Wilayah Persekutuan Kuala Lumpur. Pada 20 Jun 2021, Tertuduh telah ditahan oleh pihak Polis dan hasil siasatan pihak Polis mendapati Tertuduh merupakan salah seorang yang menganggotai pertubuhan yang menyalahi undang-undang iaitu “Geng Sakai”. Oleh yang demikian, Tertuduh telah melakukan kesalahan di bawah Seksyen 43 Akta Pertubuhan 1966 (Akta 335) yang boleh dihukum di bawah peruntukan yang sama kerana menganggotai sebuah pertubuhan yang menyalahi undang-undang iaitu “Geng Sakai”.” D. SUBMISSIONS BY THE PUBLIC PROSECUTOR FOR A HEAVY SENTENCE [12] In their submission, amongst others the Prosecution submitted that this is a serious offence eventhough it carries a maximum of three (3) years imprisonment sentence. An appropriate sentence should be imposed. [13] The Prosecution also submitted that a longer sentence is warranted to comensurate with the crime committed. Hence, they submitted that the sentence should start from the day of the decision of this Court, and not from the date of his arrest which was 20th June 2021, as this will send a strong message to the public at large not to be a member of such society. [14] In reply the learned Defence Counsel, adopted the submission of the earlier Counsel i.e Dato’ Geethan Ram who had referred to three (3) authorities to this Court to support the proposition that the detention period of an Accused should be considered. The learned DPPs were invited to reply. However, they requested this Court to excercise its discretion not to consider the same but did not offer any authorities to support their position. E. ANALYSIS AND FINDING OF THIS COURT [15] This Court has acknowledged that from the long line of authorities, a plea of guilty is a mitigating factor, as it is a constituent element of the sentencing process and hence it merits due consideration. Accordingly, this Court had considered this mitigating factor of pleading guilty in favour of the Accused as it has saved a lot of judicial time and expanses. [16] This Court has considered that the Accused is a first offender. In the case of Wong Keng Liang v. PP [2013] 1 CLJ 96; and the Federal Court case of PP v. Jaga Daud [1981] 1 LNS and many other high authorities, have recognised the need for the Court to consider “a first offender” as a mitigating factor and accordingly merit consideration. He has pleaded guilty at the first opportunity and assisted in the investigation. This Court has also considered that public interest takes precedence over the Accused’s interest. [17] Be that as it may, this Court had sentenced the Accused to the maximum number of years allowed vis-à-vis the Act i.e for 3 years. [18] The Prosecution argued that the sentence should start from the date of the decision of this Court i.e on 27.10.2023 and not from the date of arrest (i.e 20.6.2021). [19] This Court had perused the authorities submitted on this issue. After perusing the authorities, this Court vide the principle of stare decisis of which this Court is bound to, has to consider the time he was detained until his conviction upon pleading guilty. Put it in another way, this Court has to take into account the time the Accused was remanded upon arrest. Hence his sentence is to be considered from the date of his arrest. This was so determined by the Federal Court in Muharam Bin Anson v. PP [1981] 1 MLJ 222 where the Court held that: “(4) the detention of the appellant should have been taken into account.” [20] In the Court of Appeal case of Ng Teck Chai v. PP [2013] 2 MLJ 375, the Court ruled that: “it is obvious that his lordship did not take into account all the 3 Appellants’ remand period when sentencing them. It is trite that the period of remand period of the prisoners must be taken into account”. [21] Unfortunately, the learned DPPs did not offer any authorities to rebut otherwise. F. CONCLUSION [22] For the aforesaid reasons, given the fact that the maximum imprisonment sentence was already imposed, the Public Prosecutor’s appeal against the sentence imposed was dismissed. Dated: 31 January 2024 (DATO’ AHMAD BIN BACHE) Judge Criminal High Court (1) Kuala Lumpur. Parties: Public Prosecutors: Puan Shamsiah Maibon (Puan Maryam Jamilah and Encik Fakhrurazi with her) Kamar Peguam Negara Aras 5, No. 45, Lot 4G7, Presint 4 Persiaran Perdana 62100 PUTRAJAYA Respondent’s Solicitor: Encik P. Taneswaran (Cik Sara Rizqeen with him) TETUAN TANES, KHOO & PAULRAJ Unit A-36-3A, Tower A Menara UOA Bangsar No. 5, Jalan Bangsar Utama 1, Bangsar 59000 KUALA LUMPUR