[Pendakwa Raya] v MOHANRAJ A/L SINNAYA (WA-45JT-11-08/2021)

(A) … PERAYU DAN MOHANRAJ A/L SINNAYA ... RESPONDEN DI ANTARA

(B) MOHANRAJ A/L SINNAYA … PERAYU DAN ... RESPONDEN [DALAM PERKARA MAHKAMAH TINGGI JENAYAH (1) KUALA LUMPUR PERBICARAAN JENAYAH NO. KES: WA-45JT-11-08/2021 ANTARA S/N bveZ1gnFkOMjza5to57Q LAWAN MOHANRAJ A/L SINNAYA] (CONSOLIDATED GROUNDS OF JUDGEMENT) A. INTRODUCTION [1] 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. [2] 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. [3] 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. [4] As the proceeding before this Court involved many Accused, three

Deputy Public Prosecutors (“DPP”) conducted the same. S/N bveZ1gnFkOMjza5to57Q [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, and all other evidence (exhibits) including the Arrest Report before me, I 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] On 2nd November 2023 the Defendant filed an appeal on the excessiveness of the sentence to the Court of Appeal. On 7th November 2023 the Public Prosecutor had filed a cross 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 consolidated Grounds of Judgement for both the appeal and cross appeal. S/N bveZ1gnFkOMjza5to57Q B. THE CHARGE [10] The Alternative Charge proffered against the Defendant was as follows: “Bahawa kamu, di antara Januari 2016 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 (11) 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). S/N bveZ1gnFkOMjza5to57Q 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, S/N bveZ1gnFkOMjza5to57Q as this will send a strong message to the public at large not to be a member of such society. E. SUBMISSION BY COUNSEL FOR THE ACCUSED [14] The Counsel for the Accused submitted amongst others that as the Accused had pleaded guilty, it has saved a lot of judicial time. The Accused has repented and wanted to turn over a new leaf. Hence a discount should be given. [15] Counsel submitted also that it is wrong in law to not recognising the amount of days the Accused had been in detention. Hence, Counsel submitted that his imprisonment should start from the date of his arrest. [16] In support of his submission, learned Counsel, Dato’ Geethan Ram referred to three (3) authorities to this Court to support this proposition. The learned DPPs were invited to reply. However, they requested this Court to excercise its discretion but did not offer any authorities to support their position. F. ANALYSIS AND FINDING OF THIS COURT Cross Appeal by the Prosecution for heavier sentence [17] 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 S/N bveZ1gnFkOMjza5to57Q sentencing process and hence it merits due consideration. Accordingly, this Court had considered this mitigating factor in favour of the Accused as it has saved a lot of judicial time and expanses. [18] 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. [19] This Court has also considered that the Accused is still young i.e 29 years. The Accused has repented and apologised to the Court, and promised not to get involved in any criminal activities in future. [20] 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. [21] 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). [22] 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 S/N bveZ1gnFkOMjza5to57Q 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.” [23] 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”. [24] Unfortunately, the learned DPPs did not offer any authorities to rebut otherwise. [25] For the aforesaid reason, the Public Prosecutor’s cross appeal against the sentence imposed was dismissed. Regarding the Appeal by the Accused [26] The Accused had also filed an appeal on the maximum sentence of imprisonment (i.e 3 years) imposed together with the fine. [27] It is trite that sentencing is purely discretionary and is the prerogative of the sentencing Court. However, it should be guided by certain principles as alluded to earlier, and that the discretion should be S/N bveZ1gnFkOMjza5to57Q exercised judiciously and conscientiously (and not arbitrarily). See PP v. Jessica Lim [2004] 2 CLJ 763. Further, public interest should be of paramount consideration. [28] Against the backdrop of the above, in exercising its discretion, this Court had considered that the Accused was offered an alternative charge whereby the original charge carries a maximum of 20 years but the alternative charge carries a mere maximum of only 3 years. Hence the Accused was not put in a disadvantaged position. In fact, it was a bonus to him. Further this Court has considered all the relevant factors into consideration that favours the Accused, profoundly that the period of his detention was taken into consideration rendering his very early release from prison very promising. This is another bonus for him. [29] For the aforesaid reasons, this Court ruled that this appeal has no merit and accordingly be dismissed. G. CONCLUSION [30] For the aforesaid reasons, both the appeal and the cross appeal be dismissed. S/N bveZ1gnFkOMjza5to57Q Dated: 31 January 2024 (DATO’ AHMAD BIN BACHE) Judge High Court Criminal (1) Kuala Lumpur. Parties: Public Prosecutors: Puan Shamsiah Maibon (Puan Maryam Jamilah and Encik Fakhrurazi with him) Pendakwa Raya Kamar Peguam Negara Aras 5, No. 45, Lot 4G7, Presint 4 Persiaran Perdana 62100 PUTRAJAYA Respondent’s/Appellant’s: Dato’ Geethan Ram Solicitors: (Ms Lavinia Raja with him) TETUAN GEETHAN RAM Suite No. 5, L15 – PJX Tower 16A, Persiaran Barat 46050 Petaling jaya SELANGOR TETUAN LIM YEOH & PARTNERS Suite 605, Lobby 2, Block A Damansara Intan No. 1, Jalan SS20/27 47400 Petaling Jaya SELANGOR (No. Ruj.: LYP/AB/SOSMA/MOHANRAJ/022023) S/N bveZ1gnFkOMjza5to57Q