Latifah Binti Tomin (MA-83-1142-07/2025)

A housewife was charged with shoplifting a pair of pants at a branded outlet store inside a shopping mall. She pleaded guilty. I then sentenced her to a day’s imprisonment and a fine of RM600, in default of which, 21 days’ imprisonment. The charge against her under section 380 of the Penal Code reads as follows: “Bahawa kamu, pada 05/07/2023 jam lebih kurang 12.50 tengahari, di dalam kedai Uniqlo AEON Bandaraya Melaka, di 2 dalam daerah Melaka Tengah, di dalam negeri Melaka, telah didapati dengan niat curang telah melakukan kesalahan mencuri sehelai seluar Uniqlo Women Ultra Strech Jeans (Damaged) yang bernilai RM 179.90/-. Oleh yang demikian kamu telah melakukan suatu kesalahan di bawah seksyen 380 Kanun Keseksaan boleh dihukum di bawah seksyen dan akta yang sama. Hukuman: Jika disabitkan kesalahan, hendaklah diseksa dengan penjara selama tempoh yang boleh sampai sepuluh tahun, dan boleh juga dikenakan denda.”

Dissatisfied with the sentence imposed, the prosecution filed an appeal to the High Court of Malaya in Melaka.

This judgment details the reasons for the sentence imposed.

The facts of this case are as follows. On 5 July 2023, at around 12:50 pm, at the location mentioned in the charge above, the accused was seen placing a pair of jeans into her sling bag and then exiting the store without making any payment. She proceeded to a nearby female washroom, followed the entire time by a store staff member. That staff member then informed his Store Manager (the complainant). The complainant subsequently asked a female staff member to accompany her to the washroom to approach the 3 accused. Upon seeing the accused there, the Complainant sought permission to check her sling bag. The accused became uncooperative and rushed into one of the toilet stalls, citing bad stomachache. Through the opening below the stall, the complainant saw the accused placing the stolen jeans into a trash can. When the accused opened the stall door, the complainant retrieved the jeans and detained the accused with the assistance of nearby mall security personnel. The police were called to the scene, and the accused was subsequently re-arrested by the police officer.

On 9 July 2025, the accused was arraigned before this court. She pleaded guilty when the charge was read to her. I was satisfied that she understood the nature and consequence of her plea. The prosecution then tendered the facts of the case and all relevant documents to support such facts to be marked by the court as exhibits. The accused admitted to the facts of the case and all of the exhibits. In the circumstances, I accepted her plea of guilty and convicted her on the charge. I then proceeded to hear submissions for the purpose of sentencing.

The accused was unrepresented. She told the court that she was a housewife with four children. She said she was unwell and pleaded the court to impose a small amount of fine and lenient form of punishment for her conduct. When I asked about her condition being unwell, she merely told me that she believed she had a strange illness that needs a traditional method of cure. 4 [7] The prosecution on the other hand moved this court for a deterrence sentence to prevent the accused from repeating the same offence.

I then proceeded to determine the appropriate sentence to be imposed.

Section 173(b) of the Criminal Procedure Code stipulates that the court shall pass sentence according to law upon accepting a plea of guilty by an accused person. It is trite that passing sentence according to law means that the court shall pass sentence within the statutory ambits and established judicial principles on sentencing (see: PP v. Jafa Daud [1981] 1 LNS 28; and Tan Lay Chen v. Public Prosecutor [2000] 4 CLJ 492, [2001] 1 MLJ 135).

The accused was charged for committing theft in a building under section 380 of the Penal Code which provides for a mandatory term of imprisonment up to ten years and shall also be liable to fine. For ease of reference, section 380 is reproduced below: “Theft in dwelling house, etc.

Whoever commits theft in any building, tent, or vessel, which building, tent, or vessel is used as a human dwelling, or for the custody of property, shall be punished with imprisonment for a term which may extend to ten years, and shall also be liable to fine, and for a second or subsequent offence, shall be punished with imprisonment and shall also be liable to fine or to whipping.” [11] As the offence under said section entails a mandatory term of imprisonment, I must first consider the appropriate length of imprisonment to be imposed. [12] The foremost consideration must be the public interest. It must also be noted that the seriousness of the offence of theft in a dwelling house or a building used for custody of property caught the attention of the Legislature to the point that the maximum term of imprisonment was increased from seven (7) years to ten (10) years (see: Penal Code (Amendment) Act 1989 [Act A727]). As the Legislature deemed it a very serious offence, the term of imprisonment imposed by courts should therefore reflect the same level of seriousness accordingly. From past cases, the trend of imprisonment imposed under section 380 of the Penal Code ranges from one to three years (see: Hasanuddin Abd Hamid v. PP [2002] 3 CLJ 495). [13] However, it must be said in the same breath that although the offence is considered a serious one, the manner in which it is committed can vary in terms of gravity and culpability. The accused in our case was essentially spotted for shoplifting, having pretended to patronise the outlet before stealing an item on display. In my view, it was not committed in a sophisticated fashion with significant planning. It was done by the accused alone. No use of coercion, treat or cunning manipulation involved. From the facts of the case, it can also be said that the offence was impulsively committed, and perhaps out of desperation that the accused could not afford to purchase the stolen item. Additionally, the value of the stolen item was only RM179.99 and the complainant managed to recover the item. In other words, the outlet did not suffer any significant loss. It goes without saying that these factors do not excuse the accused’s crime. However, in my view, given the circumstances surrounding the commission of the offence, a lengthy term of imprisonment is certainly not warranted. [14] Indeed, the court in determining the appropriate length of imprisonment must consider the gravity of the offence committed and the overall picture of the case. Even if the offence committed is a serious one, it does not automatically follow that a long sentence should be imposed especially if the facts of the case do not warrant so. In Mohd. Abdullah Ang Swee Kang v. Public Prosecutor [1987] CLJ (Rep) 209, Mohd. Azmi SCJ held as follows: “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 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 the facts of the offence warrant. The gravity of the type of offence involved must be considered in the light of the particular facts of the offence. As stated by James LJ in R. v. Ladd & Tristam [1975] Crim LR 50; Encyclopedia of Thomas 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, 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 follow that on the particular facts very long sentences are justified.” (emphasis added) [15] I also took into consideration that the accused was a first offender. Sending first offenders to long term imprisonment could jeopardise their rehabilitation process. They would be exposed to other hardened criminals and developed more serious criminal tendencies. I stand guided by the High Court decision in PP v Nazmi bin Ganih [2009] CLJU 1168 where the following was held: “I agree with the Magistrate that, as far as possible, a first offender should be kept away from long term imprisonment. This is because it would not be good to expose a first offender, who has not used violence in the commission of the offence, to other convicts who have been imprisoned for violent and more serious crimes lest he becomes influenced by negative ways and may come out of prison, not rehabilitated but worse off than before.” [16] In Chan Sit Hoong v Public Prosecutor [1975] 1 MLJ 261, Ajaib Singh J went as far as holding that keeping first offenders away from long term imprisonment is in line with the public interest to turn the convicted person from criminal ways to honest living. The following was held: “In the present appeal before me the appellant was a first offender and had a wife and five children to support. He was a frail looking sick man of humble means and appeared much older than his 38 years. He had shown some remorse by unhesitatingly pleading guilty to the offence charged on the very day that he was called upon to make his plea in court. Also, there was the humiliation, to him and to his family, of having been arrested and charged in Court and a conviction recorded against him. In all the circumstances of this case, therefore, I was of the view that the sentence of imprisonment imposed on the appellant was unduly harsh. This was his first offence. Sending him to prison where he would have mixed with other prisoners convicted of all sorts of offences might well have produced an adverse effect on the appellant and instead of coming out of the prison a better man he might well have developed more criminal and antisocial tendencies. The public interest, as Hilbery J said in the case of R v. Ball, supra, may best be served if the offender is turned from his criminal ways to honest living. Treating the appellant leniently in the circumstances of this case and thus giving him a chance to turn away from crime was certainly not against but very much in the public interest.” (emphasis added) [17] In view of the above discussion, it is my considered view that the accused ought only to be given a nominal term of imprisonment of one day’s imprisonment. It is not unusual for courts to impose only a nominal term of imprisonment provided there are sufficient justifications (see: Public Prosecutor v. Phua Keng Tong & 2 Other Appeals 129[1986] 2 MLJ 279). [18] In Nazmi bin Ganih (supra), the High Court affirmed the sentence of imprisonment for one day imposed by the learned Magistrate. There, the accused was charged under section 380 of the Penal for stealing a sum of RM5,650 from a shop inside a shopping mall. The following was held regarding the sentence imposed by the learned Magistrate: “It must also be borne in mind here that the maximum punishment under s. 380 of the Penal Code for this offence is imprisonment which may extend to 10 years’ imprisonment. Such maximum punishment provided reflects the Legislature’s concern that this is a serious offence which ought to be punished sufficiently with a heavy sentence in the interest of the public. I am of the view that the Respondent, being a first offender, should not be given a custodial sentence except for the minimum mandatory imprisonment for 1 day. However, the fine imposed should be much more than the sum stolen so that the Respondent would feel the punitive effect for future deterrence.” [19] Guided further by the above decision, apart from the sentence of one day’s imprisonment, a fine should also be imposed the amount of which ought to reflect an appropriate punitive and deterrent effect. In determining the appropriate amount of fine, I should endeavor to strike a balance between the financial ability of the accused and the need to send strong message to the public that it is not cheaper to break the law than to comply with it. The fine should not be excessive as to drive the accused back to criminal ways through the urge of necessity (see: Lee Yu Fah & 5 Ors. v. Public Prosecutor [1937] 1 MLJ 179). At the same time, it should not amount to a mere slap on the wrist, lest the desire to commit similar offences remains. (see: Liow Eng Giap v. Public Prosecutor [1970] CLJU 67). [20] Given the fact that the accused is a housewife and the value of the stolen item was not substantial, coupled with the fact that the item was eventually retrieved by the complainant, it is my view that a fine in the sum of RM600 is just and appropriate. At the risk of being overly mathematical, it is noteworthy that this amount is more than triple the value of the stolen item. Therefore, the amount of fine is not grossly disproportionate to the value of the item. Most importantly, the accused cannot be expected to resort to criminal means in order to obtain the money required to pay the fine. [21] In Nazmi bin Gandih (supra), the High Court took issue with the amount of fine imposed because it was considerably lower than the value of stolen item. The following was held: “The Magistrate did not resort to the other end of the spectrum by binding over the Respondent under s. 294 of the CPC. He tried to find a happy medium in sentencing the Respondent. However, bearing in mind that the sum stolen is RM5,650, a sentence of 1 day’s imprisonment and a fine of RM2,100 is manifestly inadequate. It is clear that there is no balance, that the sentence does not commensurate with the gravity of the offence. It is also not sufficiently deterrent, not only to the Respondent but also to other would-be offenders. The fine of RM2,100 is grossly disproportionate to the amount of RM5,650 that the Respondent stole, even though the sum stolen was recovered and returned to the owner.” [22] Further, and purely for persuasive purposes, the Magistrates’ courts sentencing guidelines issued by the UK Sentencing Council for theft from a shop or stall under the UK’s Theft Act 1968 suggest, inter alia, that a fine amounting to 75%-125% of the relevant weekly income should be imposed in cases of lesser culpability and low value of goods stolen. Given the minimum wage in Malaysia is RM1,700, the amount of RM600 as a fine is hardly a weekly income for a housewife like the accused. [23] In passing, it is also my observation that it is not practical to bind the accused over with a bond of good behaviour under section 294 of the Criminal Procedure Code. The offence was committed in July 2023, and the accused was charged in July 2025 after nearly two years has passed. Insofar as the record shows, no other prosecution was brought against the accused during this period. This demonstrates that the accused did not come into conflict with the law again after committing her first offence. [24] By imposing the sentence of one day’s imprisonment and a fine of RM600 in default of which 21 days’ imprisonment, it cannot be gainsaid that I erred on the side of leniency in sentencing the accused. In doing so, I bear in mind my duty to impose a sentence warranted solely by the facts and circumstances of the case, as well as the following wisdom of Raja Azlan Shah LP in Bhandulananda Jayatilake v. Public Prosecutor [1982] 1 MLJ 83 regarding the differing outcomes of judicial discretion in sentencing: “I have had occasion to say elsewhere, that the very concept of judicial discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred. That is quite inevitable. Human nature being what it is, different judges applying the same principles at the same time in the same country to similar facts may sometimes reach different conclusions (see Jamieson v Jamieson [1952] AC 525, 549). It is for that reason that some very conscientious judges have thought it their duty to visit particular crimes with exemplary sentences; whilst others equally conscientious have thought it their duty to view the same crimes with leniency.” CONCLUSION [25] Having regards to the facts and circumstances of this case together with all mitigating and aggravating factors present, I am of the considered view that the just and appropriate sentence to be passed against the accused is a sentence of a day’s imprisonment and a fine in the amount of RM600, in default of which 21 days’ imprisonment. Dated 15 October 2025 UTHMAN BIN ABD GHANI MAGISTRATE MAGISTRATE COURT (4) MELAKA For the prosecution : Puan Farah Nabihah Binti Sofian, Deputy Public Prosecutor For the accused : unrepresented