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Page 1 of 8 IN THE COURT OF APPEAL AT PUTRAJAYA CRIMINAL APPEAL NO: A-09(H)-270-05/2018 BETWEEN JAMIL BIN DUN … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT [IN THE HIGH COURT OF MALAYA AT TAIPING CRIMINAL TRIAL N0. AB-42H-4-01/2018 BETWEEN PUBLIC PROSECUTOR AND JAMIL BIN DUN] CORAM UMI KALTHUM BINTI ABDUL MAJID, JCA HARMINDAR SINGH DHALIWAL, JCA STEPHEN CHUNG HIAN GUAN, JCA JUDGMENT OF THE COURT Facts of Case [1] The Appellant was charged as follows: “Bahawa kamu pada 1/11/2017, jam lebih kurang 0245 HRS di MCV SDN BHD Jalan Kg Dew Simpang 34000 Taiping Perak dengan sengaja telah menyebabkan kecederaan yang parah kepada Mohammed Sulaiman bin Abdul Rahim KPT : 661219025455 dengan Page 2 of 8 menggunakan sebatang besi dan adalah dengan ini melakukan kesalahan yang boleh dihukum di bawah seksyen 326 Kanun Keseksaan.” [2] On 1.11.2017, at about 2.45 a.m., when the complainant was on duty as a security guard at MCV Sdn Bhd’s factory, he saw a person entering the factory and stealing a piece of steel weighing approximately 30 kg. He apprehended the person who was later identified as the Appellant. The complainant brought the Appellant to the main security post when suddenly the Appellant took a steel rod and hit the complainant on his left leg which caused him to sustain injuries. On examination, it was confirmed that his left leg was fractured. He lodged a police report (Simpang Report 3434/17) and the Appellant was arrested by the police on 6.1.2018. The Appellant was charged in Taiping Sessions Court on 10.1.2018 under section 326 of the Penal Code for causing grievous hurt to the complainant. [3] The Appellant pleaded guilty to the charge and was sentenced to 2 years imprisonment from the date of arrest, namely 6.1.2018, and with 1 stroke of whipping. [4] The prosecution appealed to the High Court against the sentence for being manifestly inadequate. The High Court affirmed the whipping but set aside the sentence of 2 years imprisonment and substituted it with a sentence of 7 years imprisonment. The Appellant appealed against the order of the High Court. Page 3 of 8 In the Sessions Court [5] The learned Sessions Court Judge (SCJ) ruled that the sentence was just, reasonable and not too lenient and in accordance with the law. In passing sentence, the SCJ took into consideration the gravity of the offence, the facts of the case, mitigating factors and that the Appellant was a first offender but had caused grievous hurt to the complainant by hitting the left leg of the complainant with an iron rod which caused a fracture to the left leg. The act was recorded on CCTV. [6] The SCJ also took into consideration that the Appellant had pleaded guilty and had saved the Court’s time and costs thus entitling the Appellant for some reduction in sentence. In considering public interest, the SCJ said that the sentence should not only be a lesson to the Appellant but also as a deterrence to the public at large. The SCJ was of the view that a too long custodial sentence might not be a good thing to him and hoped the sentence would serve as a lesson and deterrence to the Appellant. In the High Court [7] The learned High Court Judge said that although the sentence imposed by the SCJ was within the ambit and range permitted under section 326 of the Penal Code, the issue for determination was whether the sentence was according to law. [8] He said even though the SCJ had considered public interest, but the sentence passed did not reflect public interest for such a serious offence under section 326 of the Penal Code. The learned High Court Judge ruled that public interest must take precedence over the interest Page 4 of 8 of the Appellant and the fact that the accused was a first offender and had pleaded guilty could not override the public interest factor in sentencing. He was of the view that the mitigation factors could not be given more priority in a serious offence case and there must be exceptional circumstances before allowing a lenient sentence to take precedence over public interest. [9] The learned High Court Judge in his grounds of judgment had referred to several authorities in respect of sentences imposed for offences under section 326 of the Penal Code which ranged between 5 to 20 years imprisonment and several strokes of whipping and ruled that in view of the sentencing trend, the SCJ had erred in sentencing the Appellant to 2 years imprisonment which was manifestly inadequate. He went on to say that the SCJ also failed to consider the facts of the case, the fact that a dangerous weapon was used which could cause death. He said the CCTV showed that the Appellant used both hands to hit the complainant with the iron rod and it showed that the Appellant was inhumane and a violent person. [10] He therefore set aside the sentence of 2 years imprisonment and substituted it with a sentence of 7 years’ imprisonment from the date of arrest. The Appellant’s submission [11] The Appellant prayed for the sentence to be reduced. He was sentenced to 2 years only in the Sessions Court. The sentence in the High Court was too high. Page 5 of 8 [12] He said this was his first offence and he lived alone. He said he was a farmer and he needed to go back to look after his house and farm. The Respondent’s submission [13] The learned DPP submitted that the learned High Court Judge did not err in ruling that public interest prevails over the interest of the Appellant. It was submitted that sentences do vary in similar circumstances because each particular judge may have a different view of the sentence to be imposed and the appellate courts have consistently ruled that it will not normally interfere with sentences per se. [14] It was submitted that the SCJ failed to appreciate the gravity of the offence and had erred in passing the sentence of 2 years imprisonment which was manifestly inadequate in the circumstances which failed to protect the public interest. It was submitted that the sentence imposed by the High Court was not manifestly excessive and appropriate based on the facts and circumstances of the case. [15] The learned DPP referred to several different cases which reflected the sentencing trend in respect of offences committed under section 326 of the Penal Code which ranged from six to fifteen years of imprisonment depending on the facts of each case. It was submitted that the learned High Court Judge in imposing the sentence of 7 years imprisonment was well within the sentencing trend and had not erred and there was no reason to interfere with the sentence imposed by the learned High Court Judge. Page 6 of 8 [16] It was submitted that the appeal be dismissed and the order of the High Court be affirmed. Our Decision [17] The Appellant was not represented and he confirmed that he did not wish to engage an advocate to represent him and was able to handle the appeal himself. This appeal was in respect of sentence only. [18] This matter was heard in the Sessions Court which went on appeal to the High Court. The question was whether an appellate court should interfere with the sentence imposed by the learned High Court Judge. [19] It is trite that an appellate court will be slow to interfere with the sentence imposed by the court below unless (a) the sentence imposed was manifestly excessive or inadequate; (b) that the sentence passed was wrong in the sense of being illegal or unsuitable to the proved facts and circumstances of the case; or (c) there was an error or misdirection in considering the facts and circumstances of the case. An appellate court will not interfere with the sentence merely because it might have passed a different sentence: see Bhandulananda Jayatilake v PP [1982] 1 MLJ 83. [20] In assessing the length of custodial sentence, the court must look at public interest, the gravity of the type of offence, the penalties prescribed by the legislature, the facts in the commission of the offence, the presence or absence of mitigating factors and the sentences imposed in the past for similar offences to determine the Page 7 of 8 trend of sentencing policy: see Mohamed Abdullah Ang Swee Kang v Public Prosecutor [1988] 1 MLJ 167. In deciding the appropriate sentence, the first and foremost is the public interest: see Public Prosecutor v Govindan Chinden Nair [1998] 2 CLJ 370. [21] In his grounds of judgment, the learned High Court Judge had referred to several authorities on sentencing in respect of an offence committed under section 326 of the Penal Code. In this appeal the learned DPP had also referred to us several authorities on sentencing in respect of section 326 of the Penal Code. From these authorities, based on the sentencing range, the range was between 6 to 15 years of imprisonment. [22] The learned High Court Judge after taking into consideration the public interest, the facts and circumstances of the case and the sentencing trend was of the view that the sentence of 2 years imprisonment imposed by the SCJ was manifestly inadequate and we agreed with that view. The SCJ appeared to have given undue weight to the guilty plea, credit for pleading guilty and that the Appellant was a first offender and in doing so had failed to balance the interest of the Appellant with the public interest. [23] The learned High Court Judge had set aside the sentence of 2 years imprisonment imposed by the SCJ and substituted it with an imprisonment term of 7 years. In his grounds of judgment he affirmed the sentence of one stroke of whipping imposed by the SCJ. However this was not reflected in the Court Order dated 2.4.2018. The parties did not seek clarification whether there was an error and the Respondent did not make any application to amend the court order. Page 8 of 8 Any benefits of doubt should be given to the Appellant. Based on the sealed court order, the learned High Court Judge had only imposed the sentence of 7 years imprisonment. [24] Based on the facts and circumstances of the case and the sentencing trend, we were of the view that the sentence of 7 years imposed was not manifestly excessive and there was no reason to interfere with that sentence. Therefore the appeal was dismissed and we affirmed the Order of the High Court. Dated: 25th February, 2019 signed STEPHEN CHUNG HIAN GUAN (delivering judgment of the court) Court of Appeal Judge Putrajaya For Appellant: In person (Unrepresented) For Respondent: DPP Nurshafini binti Mustafa Attorney General Chambers