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1 IN THE HIGH COURT IN MALAYA AT IPOH 5 CRIMINAL APPEAL NO.: AA-42H-14-08/2023 IPOH SESSIONS COURT NO.: AA-62JS-1-04/2023 AND 10 CRIMINAL APPEAL NO.: AA-41H-14-08/2023 IPOH SESSIONS COURT NO.: AA-83-479-04/2023 BETWEEN 15 HASSAN BIN AHMAD (NRIC NO. :800720-02-6037) ....APPELLANT AND 20 PUBLIC PROSECUTOR ....RESPONDENT GROUNDS OF JUDGMENT 25 Introduction [1]. This is an appeal against the sentence imposed by the Sessions Court for multiple offences under Sections 376(2)(b), 376(1), and 448 of the Penal Code. The appellant pleaded guilty to all charges and was sentenced accordingly. 30 Background Facts [2]. The appellant was charged and convicted of three offences. The 35 first two charges under case no: AA-62JS-1-04/2023 and the third charge under case no: AA-83-479-04/2023: a) First Charge: Rape under Section 376(2)(b) of the Penal Code, the charge reads as follows: “Bahawa kamu pada 17/04/2023 diantara jam lebih 40 kurang 2200 malam hingga pada 18/04/2023 jam lebih kurang 0147 pagi di alamat Blok B No. 4902-06, Tingkat 2, Perumahan Jabatan Kastam Diraja Malaysia, Jalan Kamarudin Isa Fair Park, dalam daerah Ipoh, di dalam negeri Perak, didapati telah melakukan rogol terhadap 45 penama: XXX, Kad Pengenalan: YYY dan pada masa itu, meletakannya dalam ketakutan kematian kepadanya dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 376(2)(b) Kanun Keseksaan.” 50 b) Second Charge: Rape under Section 376(1) of the Penal Code, the charge reads as follows: “Bahawa kamu pada 18/04/2023 diantara jam lebih kurang 0530 pagi hingga 0630 di alamat Blok B No. 55 4902-06, Tingkat 2, Perumahan Jabatan Kastam Diraja Malaysia, Jalan Kamarudin Isa Fair Park, dalam daerah Ipoh, di dalam negeri Perak, di dapati telah melakukan rogol terhadap penama: XXX, Kad Pengenalan: YYY. oleh yang demikian kamu telah melakukan suatu 60 kesalahan yang boleh dihukum di bawah seksyen 376(1) Kanun Keseksaan.” c) Third Charge: House trespass under Section 448 of the Penal Code, under case no: AA-83-479-04/2023 and the charge 65 reads as follows: “Bahawa kamu pada 17/04/2023 diantara jam lebih kurang 2200 malam sehingga 18/04/2023 jam lebih kurang 0900 pagi, tertuduh didapati telah menceroboh 70 masuk dengan niat melakukan satu perbuatan yang menyalahi undang-undang di sebuah rumah alamat Blok B No. 4902- 06. Tingkat 2, Perumahan Jabatan Kastam Diraja Malaysia, Jalan Kamarudin Isa Fair Park, dalam daerah Ipoh, di dalam negeri Perak yang didiami oleh 75 penama: XXX Kad Pengenalan: YYY. oleh yang demikian kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 448 Kanun Keseksaan” 80 (Note: The name and NRIC number of the victim are replaced with “XXX” and “YYY” to protect her identity) [3]. The appellant admitted to all three (3) charges of breaking into the victim's house, threatening her with a knife, and committing rape 85 twice. The Sessions Court sentenced him to 20 years' imprisonment and 10 strokes of the cane for the first rape charge, 10 years' imprisonment and 10 strokes of the cane for the second rape charge (to run consecutively), and 3 years' imprisonment for house trespass (to run consecutively). 90 Issues on Appeal [4]. The appellant contends that the sentences imposed are excessive and seeks a reduction. Respondent’s Arguments [5]. The respondent argues that the Sessions Court Judge acted within 95 the bounds of the law and appropriately considered the seriousness of the offences, public interest, and the mitigating factors. The respondent references several cases supporting the principle that appellate courts should not interfere with sentencing unless there is a clear error in principle or the sentence is 100 manifestly excessive. Laws on Sentencing [6]. The principle established in Adam Atan v. PP [2009] 1 CLJ 33, [2008] 2 MLRA 600 states: "The appellant must satisfy this court that the sentencing court 105 has either erred in principle or imposed a sentence that is manifestly excessive. The sentence neither suffered from an error in principle nor was it manifestly excessive" [7]. Furthermore, the Federal Court in Bhandulananda Jayatilake v. Public Prosecutor [1982] 1 MLJ 83 emphasized: 110 "For a discretionary judgment of this kind to be reversed by this court it must be shown to our satisfaction that the learned judge was embarking on some unauthorized or extraneous or irrelevant exercise of discretion" 115 [8]. The Court of Appeal in Bachik Bin Abdul Rahman v. Public Prosecutor [2004] 2 MLJ 534; [2004] 2 CLJ 502 held that: "In deciding whether the terms of imprisonment should be consecutive or commence at another date the court should be guided by the one transaction rule and the totality principle" 120 [9]. In Lukman v PP case no: AA-42JSKH-16-4/2023, I had an opportunity to consider on what constitutes “one single transaction’ for the purposes of sentencing and I said this: “[14] In further supporting their argument, the respondent refers 125 to the case Darvin Satya Manokaran v. PP [2023] 1 LNS 2361, which reiterates that for offences to be considered for concurrent sentences, they must flow from a single transaction. This means there must be proximity in time, place, continuity of action, and consensus of purpose or design. In other words, in 130 offence of this kind if there is a break from one incident of rape with another, it cannot amount to a single transaction. What I meant by “break from one incident of rape with another” is the victim was free from the clutches of the accused, she was free to move away from the accused, in which case, she could sort 135 help. In our present case as mentioned above the appellant's offences, committed on distinct dates of May 19th @ 5 am, 20th @ 6 am, and 21st @ 5 am of 2023. In between each commission of offence there is substantial break of close to 24 hours, which in my considered view cannot constitute one 140 single transaction.” [10]. In addition to what was said in Lukman v PP (supra), I would further add the concept of a “cooling-off period” on the part of the appellant between each commission of the offence, where each 145 commission of the offence is with fresh intention independent of the first commission. The longer the “cooling-off period,” the less likely it is to constitute “one single transaction” for the purposes of sentencing. Application of Principles 150 [11]. In this case, the Sessions Court Judge correctly applied the sentencing principles. The sentences for the two rape charges were correctly ordered to run consecutively due to the severity and nature of the offences, where the proximity of time between the two commissions of offence had a sufficient “cooling-off period” to 155 realize one's wrong. The commission of the second offence of rape was with a fresh intention independent of the first rape. While the victim suffered a second time in hands of the appellant thinking the nightmare was over, why should the appellant be led to believe that the second rape is part of a single transaction for the benefit of 160 concurrent sentencing? The victim had suffered physical and psychological harm, as described in the “Victim Impact Statement”, which necessitates a stringent approach to sentencing to reflect the gravity of the appellant's actions and the trauma inflicted on the victim. Append a portion of the statement by the victim in the 165 “Victim Impact Statement” “….Pada 17/04/2023 jam lebih 2200 hrs saya tiba di rumah saya selepas berbuka puasa dirumah keluarga saya di Meru. Semasa saya masuk ke dalam rumah saya dapati rumah saya seperti dimasuki orang dan 170 apabila saya masuk ke dalam bilik utama saya telah diserang dan bergelut dengan seorang lelaki yang saya tidak kenali pada awalnya. Semasa sedang bergelut lelaki tersebut telah mengacukan pisau ke leher saya dan melakukan ugutan dengan mengatakan sekiranya 175 saya terus melawan dia akan membunuh saya. Hal ini kerana semasa bergelut, saya sempat menikam di bahagian bahu kiri lelaki itu. Tangan saya telah diikat dengan menggunakan wayar kabel pengecas telefon bimbit yang terletak dibawah katil saya….. 180 …... Saya tidak lagi mempunyai tenaga untuk berlawan dan pada masa yang sama mulut saya juga diikat menggunakan seluar saya. Lelaki itu memberi saya dua pilihan samada saya memilih kemaluan lelaki itu atau sebatang besi kuku kambing untuk dimasukan ke dalam 185 kemaluan saya. Saya telah dirogol oleh lelaki tersebut secara paksa dan tanpa kerelaan saya. Saya hanya mampu menangis dan mengucap dua kalimah syahadah semasa lelaki itu merogol saya ….. 190 [12]. The approach of sentencing by the Sessions Court Judge, is in line with the principles outlined in R v. Wheatley [1983] 5 Cr App R 417 and R v. Skinner [1986] 8 Cr App R (S) 166, which state that consecutive sentences are justified in cases involving serious offences and multiple victims. 195 [13]. In Sau Soo Kim v Public Prosecutor [1975] 2 MLJ 134, Lee Hun Hoe CJ (Borneo) stated that the decision on whether sentences should be served consecutively or concurrently depends on the circumstances of each case. The one transaction rule is not absolute, as there are situations where consecutive sentences are 200 necessary to deter the type of criminal behaviour. This exception is particularly relevant for serious offences, such as sexual offences involving child and also rape, where consecutive sentences are warranted to reflect the severity of the crimes and to provide a deterrent effect. This aligns with the principles outlined in 205 R v. Wheatley [1983] 5 Cr App R 417 and R v. Skinner [1986] 8 Cr App R (S) 166. [14]. In Pendakwa Raya v Nai Boon Wah [2011] MLJU 1132, a decision by the Court of Appeal, Justice Hasan bin Lah, while delivering the judgment of court, departed from the “one 210 transaction rule” stating: “As decided in Sau Soo Kim the question whether the sentences should run consecutively or concurrently must depend upon the particular circumstances of the case. On the facts and circumstances of this case and in line with the 215 decisions of this court in Bachik Abdul Rahman, Yit Kean Hong and Prabu Veeramuthu we are of the view that this is a proper case for the court to apply the exception to the one transaction rule and the totality principle in deciding to order the two terms of imprisonment to run consecutively. In addition, the two 220 offences committed by the respondent were very serious and each punishable with imprisonment of up to 20 years. This case also involved two separate and distinct offences and two different victims. In this case too a matter which attracted the application of the exception to the one transaction principle was 225 the fact that the second killing resulted from merciless anger. The facts show that the respondent came back to finish off the second deceased after having dealt with the first deceased at the entrance of the bistro. The second deceased was still at the table where he had originally sat offering no resistance when 230 the respondent stabbed him to death. We are further of the view that consecutive sentences are necessary in order to discourage violent crime affecting the human body resulting in death as public interest is paramount. Had the learned judge given adequate consideration to the circumstances and facts of 235 this case and the authorities referred to earlier he would have, in our view, ordered that the two sentences to run consecutively. It is our judgment that the learned judge had erred in not applying the exception to the one transaction rule and the totality principle to this case.’ 240 [15]. In Public Prosecutor v Tamilarasan a/l Monirajah & Anor [2019] 7 MLJ 443; [2019] 1 CLJ 526, [2019] 7 MLJ 443, Justice Ahmad Fairuz emphasized that the court has the liberty to decide based 245 on the seriousness of the offence and other circumstances warranting drastic measures. These measures aim to send a clear message to offenders that they will face severe, deterrent sentences, even if such sentences have a crushing effect on them. [16]. In light of the rising number of sexual offence cases, especially 250 those involving innocent child victims, there have been amendments to stiffen sentences. In this case, the victim was also innocent and could not have done anything to avoid or escape from being raped by the appellant, which took place in her own home. This court finds that in such circumstances, the sentence imposed 255 by the Sessions Court Judge to be appropriate and fitting for the severity of the crime committed by the appellant. While the appellant may eventually regain freedom after serving sentence, the psychological trauma inflicted on the victim may have lasting effects, with no guarantee of full recovery. 260 Conclusion [17]. In conclusion, I hold that the appellant has failed to show that the Sessions Court Judge had erred in principle or imposed a sentence that is manifestly excessive. The sentences are within the statutory limits and reflect a proper exercise of judicial discretion. 265 [18]. Therefore, appellant’s appeal is dismissed. The sentences imposed by the Sessions Court are affirmed. 270 275 Dated: 10 July 2024 280 Moses Susayan MOSES SUSAYAN Judicial Commissioner High Court in Malaya 285 at Ipoh, Perak Counsel: 290 For the Appellant : Seeralasittan a/l Eliathamby Palanyvel Advocates and Solicitors Messrs Chong & Poh [Appointed lawyer by YBGK] 295 For the Respondent : Vitthiyeswary a/p Shanmuganthan Deputy Public Prosecutor Prosecution Unit [State Legal Advisor Offices, Perak Legal Advisor Offices] 300 (Notice: This Grounds of Decision is subject to official editorial revision) 305 310 Headnotes: Criminal Procedure — Sentence — Plea of guilty — Principles governing “one transaction rule” — the “cooling-off period,” the longer it is the less likely it is to constitute “one single transaction”. Exception to the “one 315 transaction rule” whether sentences should be served consecutively or concurrently depends on the circumstances of each case — consecutive sentences are necessary to deter the type of criminal behaviour — consecutive sentences are warranted to reflect the severity of the crimes and to provide a deterrent effect. 320