In this section, "repeatedly" shall refer to at least two occasions.". [17] This section makes it a crime to stalk a person physically and online. [18] During the first and second reading of the bill in the Dewan Rakyat, the rationale of the amendment of the Penal Code to include the offence of stalking was explained as follows: “Untuk makluman Dewan yang mulia ini, rasional bagi meminda Kanun Keseksaan untuk menjadi perlakuan menghendap sebagai satu kesalahan jenayah adalah seperti berikut. Pertamanya, perlakuan mengganggu dan menghendap boleh menimbulkan perasaan takut dan bimbang kepada mangsa. Perlakuan ini boleh mencapai ke tahap mangsa boleh dicederakan dan sehingga ada yang mengakibatkan kematian. Selain itu perlakuan ini turut memberikan implikasi serius terhadap kesihatan mental mangsa akibat diganggu dan dihendap bagi jangka masa yang lama. Kedua, hasil tinjauan, dengan izin Understanding Malaysians’ Experiences of Stalking oleh sebuah syarikat penyelidikan iaitu dengan kerjasama bersama WAO mendapati senario perlakuan mengganggu dan menghendap di Malaysia adalah meluas di mana 36 peratus rakyat Malaysia pernah di hendap dan merasa ketakutan, 12 peratus mendapat ancaman dan sebanyak 17 peratus telah mendapat kecederaan. Hasil tinjauan juga mendapati perlakuan mengganggu dan menghendap memberi kesan negatif kepada kehidupan seharian rakyat Malaysia daripada segi aktiviti ekonomi, sosial, rekreasi dan hal ehwal penjagaan kanak-kanak. Manakala sebanyak 69 peratus daripada rakyat Malaysia percaya bahawa perlakuan mengganggu dan menghendap merupakan satu kesalahan. Ketiga, negara-negara luar telah pun mengambil inisiatif lebih awal dalam mewujudkan undang-undang berkaitan perlakuan menghendap ini. Bagi tujuan pindaan ini rujukan terhadap modal perundangan beberapa buah negara seperti Singapura, United Kingdom dan juga India telah dilaksanakan dengan tujuan mengenal pasti modal perundangan yang sesuai sebagai penanda aras. Singapura telah memperuntukkan perbuatan mengganggu dan menghendap sebagai satu kesalahan jenayah di bawahdengan izin, Protection from Harassment Act 2014 (POHA). Negara India pada tahun 2013 telah melakukan pindaan ke atas Indian Penal Code dan memasukkan perlakuan menghendap di bawah seksyen 354D. Manakala di United Kingdom telah menggubal undang-undang seperti United Kingdom Protection from Harassment Act pada tahun 1997 dan telah dipinda pada tahun 2012 bagi memansuhkan undang-undang berkaitan kesalahan menghendap. [19] There are still no reported cases in Malaysia on this section for this court to take guidance. Principle in sentencing [20] Section 507A of the Penal Code provides that whoever commits the offence of stalking shall be punished with imprisonment for a term which may extend to three years or with fine or with both. [21] The maximum term of the sentence is fixed in the Penal Code but leaves it to the court to decide within that maximum the appropriate sentence based on the particular circumstances in each case and it must be in accordance with established judicial principles. [22] In assessing the sentence, there can only be general guidelines for the court. No two cases can be of the same facts and eventually, each case will have to be assessed on its own merit. [23] In Mohamed Jusoh bin Abdullah and Anor, v Public Prosecutor [1947] MLJ 130, Willan CJ stated: “In our view no sentence can be assessed by a simple mathematical formula. Many factors must be taken into account according to the circumstances of each individual case. In that respect we would draw attention to the matters which should be taken into account in fixing punishments as set out in Halsbury’s Laws of England (Hailsham Edition) volume 9, para 365: The Court, in fixing the punishment for any particular crime, will take into consideration the nature of the offence, the circumstances in which it was committed, the degree of deliberation shown by the offender, the provocation which he has received, if the crime is one of violence, the antecedents of the prisoner up to the time of sentence, his age and character.’” (Emphasis added) [24] The court must balance between interests of the public as well as the accused in determining a proper sentence. In other words, the court must strike a balance between the need for deterrence and the need to give the accused a chance to rehabilitate (see Kesavan Senderan v Public Prosecutor [1999] 1 CLJ 343). Public interest and circumstances of the case [25] The public interest must necessarily be one of the main considerations when assessing punishment. [26] In the case of Public Prosecutor v Govindnan A/I Chinden Nair [1998] 2 MLJ 181, Augustine Paul JC held: “The phrase 'pass sentence according to law' means that the sentence imposed must not only be within the ambit of the punishable section but it must also be assessed and passed in accordance with established judicial principles (see Re Chang Cheng Hoe & Ors [1966] 2 MLJ 252; PP v Jafa bin Daud [1981] 1 MLJ 315; Philip Lau Chee Heng v PP [1988] 3 MLJ 107). In R v Ball 35 Cr App R 164, the Court of Criminal Appeal restated the principles which should guide a court in assessing the appropriate sentence that should be passed in the following terms: 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, 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. Thus, sentencing generally, the public interest must necessarily be one of the prime considerations (see PP v Teh Ah Cheng [1976] 2 MLJ 186). A major element of public interest is that justice means justice not only to the accused but also justice to society. Accordingly, in passing sentence, a court has to consider not only the offence and the offender, but also the interests of society. The court acts as a vehicle to show abhorrence to particular types of criminal conduct. This function can be effectively discharged only by passing appropriate sentences to suit the circumstances of a particular case. Where a person is found to be a persistent offender, then it is in the interests of justice that a deterrent sentence should be passed (see PP v Jafa bin Daud [1981] 1 MLJ 315).” (Emphasis added) Deterrence [27] It is an established principle that there are 2 aspects of deterrence ie deterrence of the offender and deterrence of likely offenders. [28] It can be seen in the case of Public Prosecutor v Wong Chak Heng [1985] 1 MLJ 457 where this was an appeal by the Public Prosecutor on the sentence imposed by the Magistrate Court. The respondent was sentenced to a fine of $200 and $300 respectively for offences of theft of motor vehicle parts in the Magistrate Court. In discussing the issue of first offender and the principle of deterrence, the court has stated as follows: “In the instant case, Wong is a first offender. The sentencing court must realise, that when one speaks of deterrence that there are two aspects of deterrence. This is how it was put by Lawton L.J. in Reg v Sargeant (1974) 60 Cr App R 74, 77: “There are two aspects of deterrence: deterrence of the offender and deterrence of likely offenders.” Looking at it from the point of view of individual deterrence, I find MacKenna J. saying this, in Reg v Curran (1973) 57 Cr App R 945, 947, 948: “As a general rule it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionate to the gravity of the offence, and imposed … for reasons of general deterrence, that is as a warning to others. The length of a first sentence is more reasonably determined by considerations of individual deterrence. Applying what has been said by MacKenna J. to an offender like Wong in the present case, the length of a first sentence of imprisonment is to be determined by considerations of individual deterrence. Looking at it from that point of view, I think that a sentence of 18 months' imprisonment for the first offence is proper. The fine of $200 is to remain undisturbed. In respect of the second offence, I think a concurrent sentence of two years' imprisonment in addition to the $300 fine is appropriate. (emphasis added) The trend of sentencing in other jurisdictions Singapore [29] In Singapore, the Protection from Harassment Act 2014 was enacted to protect persons against harassment and unlawful stalking. Section 7 of the Act provides for unlawful stalking which on conviction shall be liable to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months or to both. [30] In the case of Tan Yao Min v Public Prosecutor [2018] 3 SLR 1134 the appellant pleaded guilty to a charge of unlawful stalking of a 14-year-old girl. He is a stranger to the victim. The fact of the case was that the appellant waited for the victim at the bench near her block, followed her and tried to make eye contact with her. He followed her to a bus stop near her home, and when the bus she boarded stopped at a traffic light, he knocked on the window of the bus. He sent her a Facebook friend request and added her friend on Facebook. He also visited her father’s workplace to speak with his colleague. The trial judge sentenced the appellant to eight months imprisonment and the High Court upheld the decision of the trial judge. [31] In Lim Teck Kim v Public Prosecutor [2019] 5 SLR 279 the appellant was the victim’s ex-boyfriend. The appellant sent messages to the victim, pleading with her to see him in person. He also loitered around her vicinity and attempted to initiate conversations with her in person. The appellant pleaded guilty to the charge of unlawful stalking and was sentenced to three months imprisonment by the trial judge. However, the High Court allowed the appeal of the appellant and reduced his sentence to a $5,000 fine (in default two weeks’ imprisonment). [32] In the case of Sim Kang Wei v Public Prosecutor [2019] 5 SLR 405 the appellant pleaded guilty to the charge of unlawful stalking his schoolmate at the Singapore Management University (SMU). The appellant recorded up-skirt videos of the victim without her knowledge, gaining unauthorised access to and making unauthorised modifications to e-mail and social media accounts belonging to the victim and unsubscribing the victim from courses which she had registered for at the SMU. The trial judge sentenced the appellant to 10 months imprisonment. However, the High Court allowed the appellant’s appeal and reduced the sentence to five months imprisonment instead. United Kingdom [33] In the United Kingdom, the Protection from Harassment Act 1997 was enacted to protect persons from harassment and similar conduct. Section 2A of the act provides for the offence of stalking. A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, or a fine not exceeding level 5 on the standard scale, or both. [34] Section 4A of the same act provides for the offence of stalking involving fear of violence or serious alarm or distress. A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for a term not exceeding ten years, or a fine, or both, or on summary conviction, to imprisonment for a term not exceeding [the general limit in a magistrates’ court], or a fine not exceeding the statutory maximum, or both. [35] In R v Shah [2024] EWCA Crim 50, the appellant pleaded guilty to an offence of stalking, causing serious alarm or distress, contrary to section 4A of the Protection from Harassment Act 1997. The appellant was in a relationship off and on with the victim for over 6 years. After they split up, the appellant would frequently turn up at the victim’s place of work unannounced and wait outside for her. The victim also complained that the appellant would constantly film her, though she was never sure exactly how he was able to do so. The appellant also pursued a relentless campaign of harassment against the victim, bombarding her with mobile phone calls after she blocked his number, and sending her abusive messages by text and on WhatsApp and via other social media including Snapchat and Instagram. The appellant also contacted or attempted to contact one of the victim’s male cousins (“N”) from various Snapchat or Instagram accounts, sending him videos or photos of the victim’s private sexual nature, asking him to send them to her family, and threatening to do so himself if N did not comply with that request. These photos or videos were often accompanied by derogatory comments of a deeply misogynistic nature. The appellant also sent photos and videos of the victim in her underwear to the victim’s mother and revealed to her that the victim had terminated a pregnancy. These are some of the harassments made to the victim. The trial judge sentenced the appellant to 18 months of imprisonment and the appellant filed an appeal that the sentence was too excessive. The appeal was dismissed by the Court of Appeal, Criminal Division. [36] In R v Summers [2020] EWCA Crim 1921, the applicant pleaded guilty to an offence of stalking under the Protection from Harassment Act