Content
THE HIGH COURT OF MALAYA (CRIMINAL DIVISION) IN THE FEDERAL TERRITORY OF KUALA LUMPUR CRIMINAL APPEAL NO. WA – 42H – 10 – 09/2024 BETWEEN DARSHN RAJ A/L RAJAGOPAL AND PUBLIC PROSECUTOR JUDGMENT [1] The preferred charge against the accused is the following: “Bahawa kamu bersama-sama dengan seorang lagi yang masih bebas pada 22/08/2024 jam lebih kurang 04.50 pagi di pasar mini KK Super Mart, Jalan Sungai Besi di dalam Daerah Dang Wangi, Wilayah Persekutuan Kuala Lumpur, telah melakukan rompakan berkumpulan ke atas seorang nama Khan Imran, no PP: EJ0399081 dengan mengambil wang tunai berjumlah RM407.00. Oleh yang demikian kamu telah melakukan kesalahan yang boleh dihukum di bawah seksyen 395 Kanun Keseksaan.” [2] Appeal by the accused challenges the five-year prison sentence and whipping up to two (2) strokes imposed by the Sessions Court Judge (SCJ). He had pleaded guilty to the offence of gang robbery under Section 395 of the Penal Code (PC/Act 574). [3] After having heard submissions advanced to this court by both counsel for the accused and DPP appearing for the prosecution, this court had decided to reduce the term of imprisonment imposed from a period of five (5) years to three (3) years but for the sentence of whipping meted out to stay. The term of imprisonment is to take effect from the date of arrest on 23.8.2024. [4] The reduction is for the following reasons: Nature of offence [5] The accused who is appellant to this appeal, though charged with gang robbery, is the only individual charged for the said offence. Another individual, who was waiting outside the KK shop is at large. In the premise, the offence committed by the accused is only robbery pursuant to section 392 of the PC, entailing lesser punishment of only ten (10) years imprisonment and fine, and without whipping. Although the framed charge is for gang robbery, the SCJ ought to have considered this salient distinction in terms of culpability of the accused in the case against him. Mitigating Factors Ignored [6] It is this court’s view too that the SCJ did not consider several key mitigating factors: • Plea of Guilty: The accused pleaded guilty at the earliest opportunity, showing he is remorseful of the crime he had committed. By doing so, obviously he had saved much judicial time and resources. It is a fact that when he pleaded guilty, he was unrepresented, but pursued with the plea of guilty so as not to waste any more time but to incur wrath of the law. That only shows his state of mind, who wishes to admit to the commission of crime, regardless of the fact that he is only charged singly but still for an offence of gang robbery. • First Offender Status: It was his first offence on record. • Lack of Premeditation: The crime was not planned nor premediated by him but an impulsive act and happened at the spur of moment, to rob the victim off monies worth RM407 whilst he was at the cash register machine. • Irrelevant Consideration: Reasoning by the SCJ to have imposed a fairly heavy sentence is flawed. He had inadvertently concluded that act of the accused wearing helmet with an open visor indicates a deliberate attempt to have his identity concealed. Further, commission of the crime at dawn was found to be a calculated effort to avoid witnesses. Such assumptions were unsubstantiated, as the accused was easily identified and monitored by the CCTV, depicted by the footage available. It is recorded, the SCJ had considered rampancy of such offences without benefit of reference given to him of statistical data, as proof. However, he may take judicial notice of such rampancy, but he had missed the prevailing factor in the case of the accused, whereby it was an impulsive act by him to rob the victim of the monies, and it’s an incident one-off, as apparent from the facts of case produced to support the charge. Principle of Proportionality [7] I find the sentence meted out on the accused to be disproportionate. The SCJ had imposed a lengthy period of incarceration and whipping. It has to be borne in mind that sentence of whipping per se is deterrent, and it denotes the act of violence by the accused on to the victim, albeit it being only a verbal abuse. Regardless of degree of violence, the law dictates whipping as a sentence in law to be meted out. But all the same, as the SCJ had imposed whipping up to two (2) strokes; conduct of the accused at the scene of crime; absence of the other individual; and his instant remorse to plead guilty to the charge ought to be have been considered necessitating a shorter period of imprisonment. The SCJ could not in law, impose a severe form of punishment as the offence is serious, as criminality, coupled with his remorse should have been a material consideration. [8] Therefore, a longer period of incarceration, is unjust and inappropriate. The case of PP v Jafa bin Daud (1981) 1 MLJ 315 supports this trite principle of law, a sentence meted out shall be fair, just and proportionate and not a knee-jerk reaction by the sentencing judge. [9] This court further opines that one dominant consideration when sentencing an accused person, is confluence of both aggravating and mitigating factors available for and against the accused. Foremost being public interest, which this court has to lead and protect so as to send a strong message to the public at large including would-be offenders not to try such a crime in their life time and the accused would not re-offend. This encapsulates the aim of deterrence in sentencing. [10] Hence, when meting out an appropriate sentence, the SCJ has to weigh all the factors posed before him on a balance, give it an anxious consideration and then pass a sentence according to law, which is proportional to criminal conduct of the accused. Thus, the principle of proportionality demands that the sentence meted out to be in conjunction with gravity of the offence, degree of responsibility of the accused and specific circumstances of the crime, like in the present case. [11] His criminality and responsibility to suffer a punishment has to be juxtaposed with the fact he is solely charged for the offence when another is also involved, albeit the framed charge is for an offence of gang robbery. Although he had pleaded guilty, that salient fact ought not to have escaped the judicial mind of the SCJ, who is supposed to have tempered justice with mercy in true sense of the principle. [12] Therefore, the factors benefiting the accused, to wit, he had shown remorse by pleading guilty instantly upon charge; regardless of absence of a charge against his friend who was in complicity; and yet he was charged for an offence of gang robbery, ought to have been considered judiciously. Moreover, it is also apparent he has been serving sentence since 23.8.2024 and the charge was preferred against him after his arrest and remand for a period of seven (7) days. [13] It is established in law, this court in its exercise of appellate jurisdiction shall not interfere with discretion of the SCJ, unless he has erred in principle, which is so in the present case for the reasons alluded to above. The measure of sentence reduced and imposed in the present case, after intervention purely turns on the facts and circumstances of the case. (See PP v Salwani Thaleh (2009) 2 MLJ 723, CA; PP v Karthiselvam a/l Vengatan (2011) 4 MLJ 212, CA). Thus, appeal by the accused on sentence is allowed. Sentence reduced accordingly. Dated 31 August 2025 SGD Muniandy Kannyappan Judge, High Court 2 (Criminal) Kuala Lumpur. Parties For the Appellant/Accused – Muhammad Soffian bin Jamaludin of Messrs. M. Sofian & Co. For the Respondent/Prosecution – DPP Joshua Tee for and behalf of the Public Prosecutor of the Attorney General’s Chambers.