[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v MOHAN A/L MURUGESU (WA-45B-3-03/2023)

the deceased was the male person whose identity was unknown (identified by SP6);

the death of the deceased was due to the injuries sustained;

the injuries sustained by the deceased were inflicted upon him by the Accused; and

the act(s) of the Accused was committed with intention to cause injuries to the deceased, which were sufficient in the ordinary course of nature to cause death. [17] Although the deceased’s identity was unknown as he did not have 5 any identification papers on his person (he was suspected to be a Myanmar national), there was no doubt in regard to the first issue stated above. Therefore, the first ingredient of the offence has been proved from the evidence of the prosecution witnesses. The issue of contention was whether the actus reus was coupled with the 10 mens rea, i.e. intention. In this regard, whether the allegation that the Accused caused the injuries to the deceased intentionally could be proved by the prosecution. [18] There were multiple marks and bruises on the body as stated in 15 “Marks of Injury” in the post-mortem report (P27), totaling 30 altogether; out of which about 18 injuries were on the head and neck parts of the deceased. [19] The pathologist, SP5, in cross-examination was unable to testify as to how many blows had caused the fatal injury but agreed that the 20 cause of death was due to the injuries to the head. He stated that the length of the linear skull vault fracture measured 12 centimeters (refer to External Examination under “Skull” in P27). SP5 agreed that this injury could have been sustained after a hard fall and it could not have been caused by mere use of bare hands. Based on his 25 evidence, the Court was satisfied that the prosecution has proved the second ingredient of the offence, i.e. that the brain injuries sustained by the deceased had caused his death because the Court gathered from SP5’s evidence that the injuries, particularly the blunt trauma to the head were sufficient in the ordinary course of nature to cause death. [20] We now get to the third and fourth ingredients of the charge i.e. the identity of the perpetrator of the crime. As stated above, there was 5 no dispute it was the Accused who had assaulted the deceased. The questions in cross-examination of the prosecution were not that many and it was clear that the defence relied on the police report lodged by the Accused almost immediately after he left the scene, to support his case that he was provoked by the deceased and 10 injured by the deceased’s use of the slingshot against him prior to the Accused’s retaliation. The defence also tried to raise doubt that the there was a gap of 1.5 hours between the assault and the time when SP3 arrived to treat the deceased, and there was no explanation by SP6 what happened during that period. It was the 15 defence contention that there could have been other intervening circumstances which could have resulted in the death of the deceased (not attributed to the acts of the Accused). [21] However, in my analysis of the prosecution evidence, I found that the time the report was made as stated in P35 was 6.08 pm where 20 in the report, the Accused stated he was involved in a fight with the deceased at 5.45 pm. There were no eye witnesses (as could be seen in the CCTV footage) that had been called by the prosecution to testify in Court. From SP3’s evidence under cross-examination, she arrived at the scene just after 6.20 pm. The relevant part of the 25 CCTV recordings tendered by the prosecution showed the assault started at about 5.28 pm and the deceased walked away at about 5.48 pm with his bag. Therefore, there was no evidence of what happened to the deceased in the gap of about 30 minutes. [22] It is trite that intention is a matter of fact which in the nature of things cannot be proved by direct evidence. It can only be proved by inference from the surrounding circumstances. Whether these surrounding circumstances make out such intention is a question of 5 fact in each individual case: Chan Pean Leon v. PP [1956] 1 MLRH

This Court had to rely on the three (3) CCTV video recordings tendered as P31(1), (2) and (3) by the prosecution to determine the intention of the Accused when he assaulted the deceased. [23] I refer to the recent case of PP v Muhammad Khairuannuar 10 Baharuddin & Another Appeal [2025] 1 MLRA 65 where the Federal Court stated: “[33] In Ratanlal & Dhirajlal, The Indian Penal Code, 32nd Edition, on p 1274, the issue of intention in murder case was discussed and explained as follows: 15 "Intention how to be deduced −The intention is a question of fact which is to be gathered from the acts of the parties. The Law books as regards intention to the natural result of a man's act, and not to the condition of his mind. So, when a normal man does an act, he should be credited with the intention of doing that which is inevitable consequence 20 of his act. Further, the nature of intention has to be gathered from various circumstances, for instance, the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attending upon death. In the absence of any indication or circumstances to show that the particular injury inflicted by the 25 accused was accidental or unintentional or that some other kind of injury was intended to be inflicted, the presumption would be that the very injury suffered by the deceased was intended. Mere absence of pre-meditation will not be enough to displace this presumption. The question whether the offender entertained a 30 particular type of intention or not is the question which is to be answered not from any direct evidence but from the proved facts and circumstances of the case. However, it should be borne in mind that intention with which an act should be found to have been committed is neither constructive nor presumptive in its character. Though it is true 35 that the Court should not expect direct evidence of intention in every case and that a proper inference about existence of a particular intention can be made from the circumstances of the case, such circumstances should be such as would enable the Court to arrive at a conclusion beyond reasonable doubt that the intention in question did exist. Evidence of motive is generally found to be capable of supplying good evidence about the nature of the intention to commit the particular 5 act. The facts collateral to the main incident such as the manner and the method by which the offence was executed, possibility of the successful execution of the intended act, care taken by the accused to eliminate the possible mistakes in carrying out the successful execution of the intended act are some of the facts 10 which are likely to throw good light upon the actual intention with which the act was done." [Emphasis Added] ... 15 Whether The Injuries Intentionally Inflicted By The Respondent Are Sufficient In The Ordinary Course Of Nature To Cause Death Which Attracts The Application Of Section 300(c) Of The Penal Code [37] The next issue is whether the injuries inflicted by the respondent on the deceased are sufficient in the ordinary course of nature to cause death. The 20 injury that caused the deceased's death was the injury to the head. This injury was found by PW12 due to blunt force trauma and it was not accidental. [38] Here, whether the injury inflicted is sufficient in the ordinary course of nature to cause death is a question of fact to be determined by the court. An objective assessment of the evidence, particularly the medical or forensic 25 evidence, needs to be carried out by the court. The same issue was addressed by this court in Zulkiple Mohammad v. PP [2022] 2 MLRA 70 where this was said: "[15] Whether the injury is sufficient in the ordinary course of nature to cause death is essentially a question of fact for the court 30 to determine. Since however, this is a matter that is in the realm of medical science, medical evidence is needed to assist the court in arriving at a decision. Obviously, it is not for any layperson without the proper medical training and background to determine as a matter of scientific fact whether a particular injury is sufficient in the ordinary 35 course of nature to cause death. ..... [20] The crucial part of SP13's evidence was that the injuries on the deceased's head could cause direct or almost immediate fatality, ie, death ("Kecederaan-kecederaan tersebut boleh secara terus 40 atau sehampir secepat menyebabkan kematian"). He testified that the deceased would not be able to survive the injuries. [21] This effectively means that the injuries were of a kind that is sufficient in the ordinary course of nature to cause death within the meaning of cl (c) of s 300 of the Penal Code although SP13 did not describe the injuries in those exact terms either in his post-mortem 5 examination or in his oral evidence in court. At the trial, SP13 was shown the baseball bat (P10A) that the police seized from the scene of crime and he confirmed that it could cause injuries 1, 2, and 3 found on the deceased's head. (See also PP v. Sanderasegaran Nithenanham (supra); Mickelson 10 Gerald Wayne v. PP (supra))" [Emphasis Added] [39] In the present case, PW12, in his post-mortem report stated that the blunt force trauma on the deceased's head resulted in the fracture of the skull, 15 bleeding of the underlayer of the brain, and swollen brain which had caused the deceased death. This was stated in PW12's report as follows: "3. Pemeriksaan bedah siasat menunjukkan terdapat kesan trauma benda tumpul pada kepala si mati yang menyebabkan retak tulang tengkorak, pendarahan di bawah selaput otak dan bengkak otak seterusnya membawa 20 kepada kematian si mati." [40] In his oral testimony, PW12 explained that the injury to the head of the deceased was very serious, especially to a child, which resulted in her death. The following evidence by PW12 is crucial: 25 "Ya, YA. Faktor yang seterusnya yang menyebabkan pada pendapat saya ia bukanlah disebabkan jatuh, selalunya kecederaan akibat jatuh ini selalunya solitari ataupun satu. Tapi dalam kes ini ada 4 tempat yang cedera dan impak yang paling kuat itu seperti yang telah saya jelaskan tadi adalah pada bahagian belakang kepala. Cedera pada kepala yang saya periksa itu memang cukup 30 parah kerana ia menyebabkan retak tulang tengkorak, pendarahan di bawah selaput otak, bengkak otak yang memang boleh menyebabkan kematian. [41] Further, the deceased was still alive at about 5.00pm on 6 November 2015 as testified by PW8 but was found dead a few hours later at about 7.45pm 35 when the deceased was brought to Dr Idzham Clinic as testified by PW3 in his testimony. [42] Based on the cumulative evidence above mentioned, especially the medical evidence, we find that the injury on the deceased's head was a kind that is sufficient in the course of nature to cause death. This is despite the 40 pathologist, PW12, not mentioning specifically in his testimony that the injury on the deceased's head is sufficient in the ordinary course of nature to cause death. The total effect of PW12's evidence comes to the said conclusion. In the result, s 300(c) had been established by the prosecution for the offence of murder against the respondent. (see Zulkiple Mohammad v. PP (supra); PP v. Sanderasegaran Nithenanham (supra)) 5 ... [45] In this regard, we find the reason given by the Court of Appeal to substitute the conviction of murder with culpable homicide not amounting to murder is flawed for the simple reason that pre-meditation and pre-existing 10 malice are not the elements of an offence of murder under s 302 of the Penal Code. Failing to establish pre-meditation or pre-existing malice by the prosecution does not justify a substitution of the conviction of murder. [46] It is settled law that for the prosecution to establish an offence of murder punishable under s 302 of the Penal Code, the elements to be proved by the 15 prosecution are, the death of the deceased, the deceased died as a result of the injuries suffered, the injuries were caused by the accused, and the accused's act comes within one or a combination of the limbs under s 300 of the Penal Code. The act under any one or combination of the limbs under s 300 establishes the offence of murder. In the present case, the applicable limb is s 20 300(c) of the Penal Code. [47] We noted that Exception 2 and Exception 4 to s 300 of the Penal Code state to the effect that the absence of pre-meditation may result in the act being only culpable homicide not amounting to murder. However, Exception 2 applies when exercising the rights of private defence where it states as follows: 25 Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given by him by law, and causes the death of the person against whom he is exercising such right of defence, without pre-meditation and without any intention of doing more harm than is 30 necessary for the purpose of such defence. [Emphasis Added] [48] Next, Exception 4 only applies in a sudden fight case, which occurs in the heat of passion and the accused had not taken unfair advantage or acted 35 cruelly or unusually. Exception 4 is as follows: Culpable homicide is not murder if it is committed without pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel, and without the offender having taken undue advantage or acted in a cruel or unusual manner. 40 [Emphasis Added]”. [24] It is noted that the first two limbs of s.299 mentioned intention and the third limb is about knowledge. The same arrangement can be seen in s.300 wherein the fourth limb (d) is about knowledge. Intention or knowledge forms the mens rea of the offence. The 5 second and third limbs of s.300 do not require that the intention is to cause death. The law also makes a distinction between culpable homicide amounting to murder which is punishable under s. 302 of the Penal Code and culpable homicide not amounting to murder which is punsihable under s. 304(a) or (b), depending on the degree 10 of the intention or knowledge. Therefore, in order to determine if the mental element is present in the offence charged, the Court would look for evidence of intention or knowledge in the case before it. [25] The prosecution had to rely also on circumstantial evidence to prove its case, apart from the CCTV footage. The onus on the prosecution 15 where the evidence is of a circumstantial nature is a very heavy one and that evidence must point irresistibly to the conclusion of the guilt of the accused. If there are gaps in it, then it is not sufficient: Chang Kim Siong v. PP [1968] 1 MLJ 36 (FC). Here, the deceased walked away from the scene on his own, and he also carried his bag with 20 him at that time. About 30 minutes later, the ambulance arrived . The defence prayed that the Court would acquit him because of there was no evidence what happened during the 1.5 hours (actually it was just 30 minutes) before he was attended to by SP3. This is where the Court had to rely on circumstantial evidence i.e. SP5’s 25 evidence. The pathologist stated that the 12 centimeters long fracture on the deceased’s skull could not have been caused by hitting with bare hands but it could have been caused by some (hard) object. the Accused which could have caused such fracture. [26] In this regard, the Court was shown the CCTV footage during the trial. The quality of the videos was not too bad although the angle of vision was rather limited. SP6 had also prepared 72 screenshots of the CCTV footage and these were marked as P32(1-72) with his 5 own “narration” of the sequence of events. I did not rely on the said narration but have instead focused on the CCTV recordings tendered by the prosecution. Having said that, the following are my observation of what happened during the incident (which the prosecution contended showed the murderous intention of the 10 Accused): i.

5.28 pm - the Accused was seen running after the deceased and hitting him several times after the latter fell (beside a white car parked on the side of the road); ii.

5.29 pm - the deceased was seen lying on the road (it is 15 believed he had crawled away from beside the car), and the Accused scolded and at the same time hit him again; iii.

5.31 pm - the Accused turned around, moved a few steps away from the deceased and then came back to the latter and kicked him on the head (near his neck) and also used a black bag he 20 was holding to hit the deceased’s head; iv.

5.32 pm - a few members of public came to see them and one of the men talked to the Accused. The Accused was seen explaining something to the man; v.

5.33 pm – the deceased got up and the Accused started to hit 25 and kick him again. The man was seen just looking on while talking to the Accused (he probably tried to pacify him); vi.

5.34 pm - the Accused moved away from the deceased and then came back; vii.

5.35 pm - the man helped the deceased up and sat him on a stool while the Accused held him; viii.

5.39 pm - the Accused left the scene; ix.

5.43 pm - the man talked to the deceased; 5 x.

5.48 pm - the deceased walked off a bit unsteadily, carrying his own bag. [27] The Court found that the black bag P13 was most likely used as a weapon of offence when the deceased was hit twice or thrice with it. SP6 in cross-examination agreed that the bag only contained a 10 toothbrush and toothpaste as well as some face masks. When I held the canvas bag, it weighed about 1.0 - 1.5 kg. I noted that the Accused hit and kicked the deceased in anger before he was stopped by the man; and as he was talking to the said man, the Accused still hit the deceased but it did not look as hard as before. 15 [28] SP6 also agreed that the deceased had used a slingshot prior to the incident and it hit the Accused on his upper lip. He agreed that the the deceased’s acts amounted to a provocation but he was unsure if the Accused’s acts of retaliation by hitting him with the bag could cause such traumatic brain injuries. Exception 4 to murder, which 20 the defence relied on stated: Culpable homicide is not murder if it is committed without pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel, and without the offender having taken undue advantage or acted in a cruel or unusual manner. 25 [29] From my observation of the incident as captured in the CCTV footage, the Accused’s pursuit of the deceased corroborated his version that he was provoked after being hit by the deceased’s slingshot (P16). The slingshot was recovered and tendered as exhibit. Although the man was not called to testify, from the CCTV footage it did appear that the Accused was talking animatedly (angry) while he explained to the man why he was hit the deceased. 5 The defence version was later recorded in P35 as early as 30 minutes after the Accused left the scene. There was not much time for the Accused to make up a story and I did not find that he had made up a story as to why he had repeatedly beaten up the deceased. He had also used the only item which he had in his hand 10 which was his bag (P13), to hit the deceased. In my opinion, this did not constitute a pre-meditated act to kill the deceased. [30] The DPP submitted that the acts of the Accused in retaliation against the deceased were disproportionate compared with the slingshot used against the Accused that caused the injury to his 15 upper lip. However, the Court opined that the deceased’s act was a grave enough provocation, more so when the Accused had reprimanded the deceased for disturbing a woman prior to the provocation made. Additionally, the Accused did not flee the scene and was still in the area which made it easy for the police to arrest 20 him after the deceased died at hospital. [31] The prosecution does not need to establish pre-meditation under s.302 of the Penal Code when relying on s.300(c) as decided by the Federal Court in Muhammad Khairuannuar’s Case (supra). However, I had also observed that the Accused was very angry with 25 the deceased but he did conduct himself with a “bit of restraint” as he was explaining his actions to the unidentified man. In my opinion, the Accused had the advantage of size over his opponent, the deceased. If he had wanted to “finish off” the deceased, he could have just struck the latter with more stronger force instead of just hitting him like someone who was “teaching” his opponent a lesson; and also he would not have lodged the police report P35. [32] In the Indian case of Mahmood v. State AIR [1961] ALL 538, Oak 5 J had noted (at 538- 539): “Whether the provocation was sudden or not does not present much difficulty. The word ‘sudden’ involves two elements. Firstly, the provocation must be unexpected. If an accused plans in advance to receive a provocation in order to justify the subsequent homicide, the 10 provocation cannot be said to be sudden. Secondly, the interval between the provocation and the homicide should be brief. If a man giving the provocation is killed within a minute after the provocation, it is a case of sudden provocation. If the man is killed six hours after the provocation, it is not a case of sudden provocation.” 15 [33] In this case, the deceased was assaulted immediately after the Accused was struck by the slingshot, but the deceased died more than 12 hours after the incident. It could not be said that the Accused went after the deceased to beat him, 6 hours after the provocation as stated in the case above. 20 [34] In the case of PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457, the Federal Court held that: “[15] For the guidance of the court below, we summarise as follows the steps that should be taken by trial court at the close of the prosecution’s case: (i) the close of the prosecution’s case, subject the evidence led by the prosecution in 25 its totality to a maximum evaluation. Carefully scrutinise the credibility of each of the prosecution’s witnesses. Take into account all reasonable inferences that may be drawn from that evidence. If the evidence admits of two or more inferences, then draw the inference that is most favourable to the accused; (ii) ask yourself the question: if I call upon the accused to make his defence and 30 he elects to remain silent am I prepared to convict him on the evidence now before me? If the answer to that question is “Yes”, then a prima facie case has been made out and the defence should be called. If the answer is “No” then, a prima facie case has not been made out and the accused should be acquitted;” ...”. [35] Looking at the extent of the injuries sustained by the deceased, one may think that the Accused may have had the necessary mens rea to commit the crime of murder. As stated by SP5, the fatal injuries to the head were sufficient in the ordinary course of nature to cause 5 his death, hence the prosecution relied on the third limb of the offence in s.300 of the Penal Code. But the expert opinion of SP5 have to be re-tested against the evidence in the CCTV footage, in a maximum evaluation exercise, so that there would be no doubts if defence is called and the Accused elected to remain silent. 10 [36] The Court also had to consider the evidence of SP6 which corroborated the defence version that there was a provocation by the deceased after the Accused reprimanded the former for disturbing a Malay woman prior to the incident. In the case of Bunya 15 Jalong v PP [2015] 5 CLJ 893 the court held: “[9] The duty of the investigators is to investigate the facts and to collect all the evidence. The police as investigators are public officers. Their concern must be to investigate the facts without fear or favour, so that 20 all wrongdoers may be brought to justice. …A completed investigation is one that includes investigation of the defences that emerged from the investigation… Such investigation may eliminate the gaps or weaknesses, and provide substance to be tested against the defences when raised. This is important as it ensures that if 25 charges are to be preferred, there are no gaps or weak links in the prosecution case in the way of a successful prosecution.”. [Emphasis added] [37] The difference between the offences under s. 302 and 304(a) of the 30 Penal Code is in the intention, i.e. where the act was done with the intention to kill or to inflict bodily injury likely to cause death, or with the knowledge that death must be the probable result, are prima facie murder, while those committed with the knowledge that death will be a likely result are culpable homicide not amounting to murder. [38] In light of all these evidence, I was not convinced that if the Accused 5 remained silent if his defence was called, that I could proceed to convict him on the murder charge. Therefore, upon a maximum evaluation of the evidence before me, I concluded that although the injuries were sufficient in the ordinary course of nature to cause death, the Accused did not possess the necessary mens rea for 10 murder. At best, I found that he knew that death could be a likely result of his actions in hitting and kicking the deceased repeatedly at that time. Moreover, he pursued the deceased immediately after the provocation received, and he used the bag that was in his hand to hit the deceased; he did not wait and plan to come back with a 15 dangerous weapon to kill the deceased. This was a clear case of culpable homicide not amounting to murder. [39] Pursuant thereto, the prosecution had proved at the prima facie stage that the Accused committed the crime and caused the death 20 of the deceased. However, it was not able to prove the mens rea of the crime against the Accused for the murder charge. Instead, the Court found that an offence under s. 304(a) of the Penal Code has been proved and therefore, proceeded to amend the charge accordingly in accordance with the Court’s power under s.158 of the 25 Criminal Procedure Code (P38). The amended charge of culpable homicide not amounting to murder was read out and explained to the Accused as follows: "Bahawa kamu pada antara 28.6.2022 jam lebih kurang 5.28 petang hingga 29.6.2022 lebih kurang 10.00 pagi bertempat di tepi jalan Lorong Bandar 19, 30 Off Jalan Hang Lekir, dalam Daerah Dang Wangi, dalam Wilayah Persekutuan Kuala Lumpur telah menyebabkan kematian seorang manusia lelaki Myanmar yang tidak diketahui namanya dengan niat untuk menyebabkan kecederaan tubuh badan yang mungkin menyebabkan kematiannya, dan dengan itu kamu telah melakukan kesalahan mematikan orang dengan salah yang tidak 5 terjumlah kepada kesalahan membunuh yang boleh dihukum di bawah s. 304(a) Kanun Keseksaan". Hukuman: Pemenjaraan boleh sampai 30 tahun dan denda. 10 [40] The Accused immediately pleaded guilty to P38, but counsel requested for time to prepare for his mitigation. The Court acceded and sentencing was postponed to 7.4.2026. 15 SENTENCE [41] The Accused is 42 years old. He had worked as a security guard but lost his job before the incident and was a homeless person at the material time. He pleaded guilty immediately after the charge was 20 amended and had saved the Court’s time. In mitigation, his counsel pleaded for leniency because the Accused never intended to kill the deceased who was believed to be a Myanmar migrant. He did not think that the fight would end in the death of the deceased and he did assist the deceased to sit up after the assault. He lodged a police 25 report about happened then immediately after he left the scene. He had no intention to run away after the incident and he had co-operated with the police. He believed that if he had not lodged the police report, he may not have been arrested by the police. He was not a hardened criminal and in his defence, he urged the Court that 30 he was provoked by the deceased’s attacking him with the slingshot. He also did not use any dangerous weapon at that time. [42] The Accused was remorseful and pleaded to be given a lenient sentence from the date of arrest as he wanted to return to his family in Raub, Pahang after serving the sentence. The Accused’s counsel referred the Court to the case of PP v Mohd Noor Ab Manaf [2025] 5 CLJU 3665 where the High Court passed sentence of 8 years imprisonment after the accused had pleaded guilty to an alternative charge under s. 304(a) of the Penal Code. [43] The Accused had no previous conviction record as confirmed by the 10 DPP. Nevertheless, the DPP pressed for a suitable (and heavy) sentence due to the gravity and nature of the offence. The Court was informed that the trend of sentencing by the Court of Appeal for a similar offence is about 15 – 20 years imprisonment. The DPP referred to the Court of Appeal case of PP v Ribin Bin Osman 15 [2017] 3 MLJ 532 in respect of the sentencing trend. In that case, the prosecution offered an alternative charge under s. 304(a) of the Penal Code and the respondent pleaded guilty. The High Court sentenced him to 12 years’ imprisonment. The Court of Appeal had dismissed the appeal and affirmed the sentence. Their Lordships 20 held that: “[21] Having regard to the facts and circumstances of this case, the trial judge had sentenced the respondent to 12 years imprisonment wef the date of arrest. We found that the sentence imposed may appear to be on the lenient side, but that did not mean that the trial judge was 25 plainly wrong. In imposing such sentence as he did, His Lordship was still within the ambit of his judicial discretion as envisaged in Bhandulananda Jayatilake.”. [44] This Court is guided by the principle in the case of Mohamed 30 Abdullah Ang Swee Kang v PP [1988] 1 MLJ 167, where the Supreme Court held: “In assessing the length of custodial sentence, the court must look at the overall picture in perspective by considering, firstly, the gravity of the type of offence committed; secondly, the facts in the commission of the offence; thirdly, the presence or absence of mitigating factors, and, fourthly, the 5 sentences that have been imposed in the past for similar offences to determine the trend of sentencing policy, if any. The fact that a sentence of imprisonment is imposed as a deterrence does not justify the sentencer in passing a sentence of greater length than what the facts of the offence warrant. The gravity of the type of offence involved must be considered in 10 the light of the particular facts of the offence. As stated by James L.J. in R v Ladd & Tristam [1975] Cr LR 50; Thomas Encyclopaedia of Current Sentencing Practice p 1058 : "We have to look at the overall picture of what is the right sentence for the total involvement, the total degree of criminality involved, 15 and we have to keep the sentences in perspective with the sentences that have been passed on other occasions for offences involving criminal activity of this kind, though of course varying in their gravity. Clearly a deterrent element has to be involved, but because the offences are very serious, it does not necessarily 20 follow that on the particular facts very long sentences are justified.” 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 25 so may result in the sentencer not exercising his or her discretion judicially in assessing the level of custodial sentence.”. [45] The Supreme Court in Mohamed Abdullah Ang Swee Kang (supra) also gave guidance on how to assess a suitable sentence 30 when the accused pleaded guilty where such a plea had saved the courts’ time and resources. Their Lordships further held that “... It is generally accepted that the extent of the reduction on account of a plea of guilty would be between one-quarter and one-third of what otherwise would have been the sentence.”. Applying the above 35 principles and taking into consideration the facts and circumstances of the present case, the Court should impose a sentence that would For the Public Prosecutor: DPP Mohammad Shahrizzat Bin Amadan Pejabat Timbalan Pendakwa Raya 5 Cawangan Wilayah Persekutuan, Kuala Lumpur For the Accused: 10 Mr. Mahendran Naidu A/L Rama Santaram Messrs. Dennis Mahen. R & Aida, Kuala Lumpur 15