(iii) The Court must ascertain that the accused intends to admit without qualification the offence alleged against him. Thus, it is insufficient that the plea of guilty under safeguard (i) is unequivocal if the other safeguards are not complied with. In capital cases, for compliance with safeguard (ii), it is not sufficient for the Judge to merely and formally record that " The accused understands the nature and consequences of his plea of guilty ". In Koh Mui Keow v. R [1952] 1 LNS 46[1952] MLJ 214, Brown J ruled that in serious cases 12 | P a g e which warrant a sentence of imprisonment, and where the charge contained one or more ingredients or question, and the accused was not represented by Counsel, each ingredient and each question involved should be explained by the Magistrate to the accused. In that case, a retrial was ordered because the appellate Judge was not satisfied that the accused had understood and admitted each and every allegation in the charge. In capital cases, we are of the view that even if the accused is represented by Counsel when he pleads guilty, there must be some indication on record to show that the accused actually knows not only the nature of his plea of guilty to the charge, i.e. the nature of the capital offence he is pleading guilty to, but also the consequences of his plea, i.e. there will be no trial and that the sentence of death may be imposed on him even though such sentence is not mandatory. As regards the third safeguard, it is an established practice that on a plea of guilty, the prosecuting officer would supply to the Court the statement of facts constituting the offence with which the accused is charged. The statement is then read out and explained to the accused. Unless the accused admits the facts without qualification, the practice is to treat the plea as a plea of not guilty. This safeguards is of the utmost importance in serious cases. In capital cases, we suggest that the statement of facts supplied to the Court should first be read by the Judge himself to enable him to decide whether the facts alleged amount to an offence as contained in the charge. It is only when he is so satisfied, that the statement will be read out to the accused. If the accused admits the statement with qualification or if his admission is not clear or doubtful, then the Court should proceed with the trial. 13 | P a g e Berdasarkan kepada prinsip yang diiktiraf dalam kes Mahkamah Persekutuan Munawar Ahmad Anees dan kepatuhan kepada peruntukkan s 173(b) KTJ didapati dalam kes ini rakaman pengakuan bersalah yang dibuat oleh Mahkamah adalah teratur dan mengikut undang-undang. b) Pengakuan bersalah Tertuduh Walaupun faktor pengakuan salah adalah satu faktor yang harus dipertimbangkan oleh Mahkamah dalam mempertimbangkan hukuman yang boleh dikenakan terhadap seseorang pesalah namun begitu, ianya masih terpulang kepada budibicara sesuatu Mahkamah itu dan bukanlah satu peraturan automatik. Mahkamah ini berpendapat, pengakuan bersalah Tertuduh telah menjimatkan masa dan kos semua pihak yang terlibat di dalam kes ini dan perkara ini telah pun diberi pertimbangan sebelum hukuman dikenakan. Walau bagaimanapun, faktor pengakuan salah ini perlulah diimbangkan dengan keseriusan kes berasaskan faktanya serta faktor kepentingan am. Dalam hal ini dirujuk kepada kes Mahkamah Rayuan Bachik Abdul Rahman v PP [2004] 2 CLJ 572 di mana YA Hakim Mahkamah Rayuan Augustine Paul JCA menyatakan seperti berikut di m/s 583-584: " The learned judge appears to have taken the view that credit should be given in every case where a person pleads guilty. The position in law is that it is generally accepted 14 | P a g e that an accused person should be given credit or discount for pleading guilty (see Sau Soo Kim v. PP [1975] 2 MLJ 134; PP v. Sulaiman bin Ahmad [1993] 1 MLJ 74; PP v. Ravindran & Ors [1993] 1 MLJ 45). The discount that is given is normally a reduction of the sentence by about a third of what would otherwise have been imposed (see Mohamad Abdullah Ang Swee Kang v. PP [1987] 2 CLJ 405; [1987] CLJ (Rep) 209; PP v. Muhari bin Mohd Jani & Anor [1999] 8 CLJ 430; Christopher Khoo Ewe Cheng v. PP [1998] 3 CLJ 705). However, this is not a strict rule as the court may, in the exercise of its discretion, refuse to grant any discount in an appropriate case (see Zaidon Shariff v. PP [1996] 4 CLJ 441; Lee Say & Ors v. PP [1985] 2 CLJ 155; [1985] CLJ (Rep) 683). Its application in favour of an accused depends on the facts and circumstances of each case (see Wong Kai Chuen Philip v. PP [1991] 1 MLJ 321). Thus, as lucidly explained by Charles JA in Leigh Nicholas Donnelly v. R [1997] 91 A Crim R 550 at p. 554: A court’s attitude towards the fact of a plea of guilty is expected to act as an encouragement to enter such a plea. The issue with which the court is to be concerned is what weight should be given to it in the circumstances. The circumstances in which a guilty plea will not have any weight are varied. The severity of the offence committed may outweigh the mitigating effect of a guilty plea (see Loh Hock Seng & Anor v. PP [1979] 1 LNS 48; [1980] 2 MLJ 13; PP v. Oo Leng Swee & Ors [1981] 1 LNS 109; [1981] 1 MLJ 247). Where public interest demands effect of a guilty plea must also give way (see Gim Gek Yong v. PP [1995] 1 SLR 537; PP v. Govindnan a/l Chinden Nair [1998] 2 CLJ 370). A guilty plea cannot also be a powerful mitigating factor when effectively no defence to the charge is available to the accused (see PP v. Low Kok Wai [1988] 2 CLJ 105; [1988] 2 CLJ (Rep) 268). If a plea of guilty is made too late in the trial it may also cease to have mitigating effect (see PP 15 | P a g e v. Dato' Nallakaruppan Solaimalai [1992] 2 CLJ 596). The absence of mitigating factors in favour of the accused like, for instance, the existence of previous convictions may also deprive the guilty plea of its effect. There can therefore be no automatic rule that a guilty plea on its own entitles an accused to a lesser punishment (see PP v. Tia Ah Leng [2000] 5 CLJ 614). Be that as it may, where there is a departure from the general rule the reason for not treating the guilty plea as a mitigating factor must be reflected in the grounds of judgment (see Tan Lay Chen v. PP [2000] 4 CLJ 492)." c) Keseriusan kesalahan/ Gravity of the Offence Mahkamah berpendapat kesalahan yang dilakukan oleh Tertuduh ini merupakan salah satu kesalahan serius yang sering berlaku dan mengancam keselamatan masyarakat. Dalam hal ini dirujuk kepada kes Mahkamah Rayuan Pendakwa Raya v Mohamed Danny Mohd Jedi [2018] 5 CLJ692, dimana Y.A. Mohamed Zawawi Salleh HMR (pada ketika itu) memutuskan seperti berikut di m/s 700 kes tersebut: “[14] It is trite law that a sentence must be proportionate to both the seriousness of the offence and the degree of responsibility of the offender. The concept of proportionality was explained in the Canadian Supreme Court Case of R v. Ipeelee [2012] SCC12. [2012] 1 SLR 433 in paragraph 37 as follows: “Proportionality in the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensure public confidence in the justice system…Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral 16 | P a g e blameworthiness of the offender. In this sense, the principles serves a limiting or restraining functioning and ensures justice for the offender.” [15] The protection of society is one of the important purposes of punishment under the principle of proportionality. In Channon v. The Queen [1978] 20 ALR 1, 5, the court stated: The necessary and ultimate justification for criminal sanctions is the protection of society from conduct which the law proscribes. Punishment is the means by which society marks its disapproval of criminal conduct, by which warning is given of the consequences of crime and by which reform of an offender can sometimes be assisted. Criminal sanctions are purposive, and they are not inflicted judicially except for the purpose of protecting society; nor to an extent beyond what is necessary to achieve that purpose. [16] In the same vein, in Sumer Singh v. Surajbhan Singh v. Others [2014] 7 SCC 323, the Supreme Court of India, while elaborating on the duty of the court in imposing sentence for an offence, ruled that it is the duty of the court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of society and legitimate response to the collective conscience. The paramount principle that should be the guiding laser beam is that the punishment should be proportionate. It is the answer of law to social conscience. In a way, it is an obligation to the society which has reposed faith on the court of law to curtail the evil. Di dalam kes Mahkamah Tinggi PP v. Wong Chak Heng [1985] 1 MLJ 457 Chan J. juga telah menjelaskan bahawa suatu hukuman yang 17 | P a g e menyebabkan kehilangan kebebasan (hukuman penjara) adalah wajar untuk kesalahan yang sering berlaku dalam masyarakat; diputuskan di m/s 458-459: “… Although Lawton L.J. spoke on burglary of private dwelling houses, there are on the other hand some other offences which are particularly rife at the moment in this country. For example; robberies, offences involving serious violence, use of a weapon to wound, extortion, burglary of private dwelling houses, the stealing of car accessories from parked vehicles, motorcar theft and purse or handbag snatching in the streets or in stores. Crimes of that kind are rife at the present time and it is quite plain that where a person is charged with any of the offences which I have mentioned then the Courts inevitably must take a serious view. It is not safe to park one's motor vehicle anywhere in the City or in any of the larger towns in the country. This is because motorcar theft and the theft of articles from motorcars are a daily occurrence throughout the country. In ordinary circumstances, petty theft would not have attracted any immediate sentence of imprisonment. But when one considers the extent to which the stealing of motorcar parts and accessories is rife at the present day, then the Court inevitably must view such an offence as a very serious crime indeed. Let it be repeated: it may be necessary to set out and stress the reasons why at the present time offences of this kind should be dealt with severely and usually by a custodial sentence. On all side’s members of the public, if they have not lost their cassette players or radios or even their cars, hear that their friends and relatives have. The public are entitled to be protected against such offenders. In the opinion of this court, they are not likely to be protected if lenient sentences are passed. Offenders are not likely to be discouraged by sentences which do not involve loss of liberty…”. 18 | P a g e Mahkamah ini juga merujuk kepada kes Ong Lai Kim v. Public Prosecutor And Other Appeals [1991] 2 CLJ 1568 di mana YA Zakaria Yatim H (pada ketika itu) menyatakan seperti berikut: "The punishment must not only deter the appellants from committing a similar offence in the future but it must also deter others from committing such an offence. The punishment inflicted for grave offences including the crime of rape should adequately reflect the revulsion felt by the great majority of society. See JC Smith & B Hogan Criminal Law (5th Ed) at p 6. In this case therefore the punishment has to be sufficiently harsh and proportionate to the harm done, otherwise society will feel that the punishment is manifestly inadequate. The punishment must also reflect public disapproval of the crime committed by the appellants. See R v. Roberts at p 610. Similarly, the punishment for the robbery offence must also be deterrent in nature. The appellants are no doubt first offenders but as they have been convicted of a serious crime involving violence, the primary consideration of the court is the element of public interest and society's abhorrence of this type of crime." d) Kepentingan Awam Kesemua rayuan dalam mitigasi oleh Tertuduh dalam kes ini telah diimbangi dengan fakta kes dan kepentingan awam. Dalam pandangan 19 | P a g e Mahkamah, kepentingan awam adalah satu perkara yang amat penting untuk diimbangi dalam hukuman yang dijatuhkan terhadap seseorang Tertuduh kerana sesuatu hukuman terhadap Tertuduh tersebut bukan sahaja untuk pemulihan Tertuduh namun adalah untuk kebaikan masyarakat juga. Di dalam kes Mahkamah Tinggi PP v. Loo Choon Fatt [1976] 2 MLJ 256 Hashim Yeop A. Sani J. telah mendapati seperti berikut di m/s 257-258: “…In respect of sentencing there can be only general guidelines. No two cases can have exactly the same facts to the minutest detail. Facts do differ from case to case and ultimately each case has to be decided on its own merits. In practice sentences do differ not only from case to case but also from court to court. All things being equal these variations are inevitable if only because of the human element involved. But, of course, there must be limits to permissible variations. The principles to be applied in imposing sentence however are the same in every case. The High Court sitting in exercise of its revisionary powers will not normally alter the sentence unless it is satisfied that the sentence of the lower court is either manifestly inadequate or grossly excessive or illegal or otherwise not a proper sentence having regard to all the facts disclosed on the record or to all the facts which the court ought to take judicial notice of, that is to say, that the lower court clearly has erred in applying the correct principles in the assessment of the sentence. It is firmly established practice that the court will not alter a sentence merely because it might have passed a different sentence 20 | P a g e … “…One of the main considerations in the assessment of sentence is of course the question of public interest. On this point I need only quote a passage from the judgment of Hilbery J. inRex v Kenneth John Ball 35 CrAppR 164 as follows:– "In deciding the appropriate sentence a court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition, that if the offender is caught and brought to justice, the punishment will be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living. Our law does not, therefore, fix the sentence for a particular crime, but fixes a maximum sentence and leaves it to the court to decide what is, within that maximum, the appropriate sentence for each criminal in the particular circumstances of each case. Not only in regard to each crime, but in regard to each criminal, the court has the right and the duty to decide whether to be lenient or severe." Presidents and Magistrates are often inclined quite naturally to be oversympathetic to the accused. This is a normal psychological reaction to the situation in which the lonely accused is seen facing an array of witnesses with authority. The mitigation submitted by a convicted person will also normally 21 | P a g e bring up problems of family hardship and the other usual problems of living. In such a situation the courts might perhaps find it difficult to decide as to what sentence should be imposed so that the convicted person may not be further burdened with additional hardship. This in my view is a wrong approach. The correct approach is to strike a balance, as far as possible, between the interests of the public and the interests of the accused. Lord Goddard L.C.J. in Rex v Grondkowski [1946] 1 All ER 560 561 offered some good advice when he said:– "The judge must consider the interests of justice as well as the interests of the prisoners. It is too often nowadays thought, or seems to be thought, that the interests of justice means only the interests of the prisoners …"”. [12] Dalam mempertimbangkan hukuman dalam kes ini, mahkamah sedar bahawa Tertuduh berusia 34 tahun, mempunyai tanggungan seorang isteri berusia 32 tahun dan 2 orang anak berusia 11 dan 7 tahun, kesal atas kesalahan yang telah dilakukannya dan memohon peluang kedua. Namun begitu, Mahkamah menjatuhkan satu hukuman yang difikirkan amat wajar setelah diimbangi dengan trend hukuman yang lain untuk kes-kes pengakuan salah bagi kesalahan dibawah seksyen 395 Kanun Keseksaan seperti berikut: