Muhamad Afandi Bin Mukhtar v Pendakwa Raya (42S-3-1/2017)

The Appellant/Accused was not represented at the court below. However with the full guidance of the Session’s Judge, the charge was read and explained by the Court interpreter to him. The Appellant/Accused understood and pleaded guilty. After being satisfied that the Appellant/Accused understood the nature and consequences of his plea of 2 guilty, and after being satisfied that the plea given was unequivocal and unqualified, and that the facts of the case to which the Accused admitted had revealed that the Appellant/Accused committed the offence, the Session’s Judge convicted him and sentenced him to 9 years imprisonment from the date of his arrest (21/12/2016) and 2 strokes of whipping.

Dissatisfied, the Appellant/Accused filed an appeal on conviction and sentence in this court. In mid stream the learned counsel proceeded the appeal on sentence only. After hearing submissions by both parties, this court dismissed the appeal and affirmed the decision of the trial judge.

Dissatisfied with the decision, the Accused/Appellant filed an appeal to the Court of Appeal through the Jabatan Penjara on both conviction and sentence.These are the grounds for the decision of this court. [B] THE CHARGE [5] The charge against the Accused/Appellant was as follows: “Bahawa kamu bersama-sama pada 07/12/2016 jam lebih kurang 7.00 pagi di sebuah rumah tanpa nombor Kg. Lubok Nibong, Pak Badol, Bachok, di dalam Daerah Bachok, di dalam Negeri Kelantan, telah melakukan rompakan dan dengan sengaja menyebabkan cedera kepada penama MUHAMAD SHAFIQ BIN CHE MAT, KP: 001020-03-0923. Oleh yang demikian kamu telah melakukan satu kesalahan dan boleh dihukum di bawah Seksyen 394 Kanun Keseksaan dan dibaca bersama Seksyen 34 kanun yang sama”. 3 [C] THE FACTS OF THE CASE [6] The brief facts of the case as appreciated by the trial judge are reproduced below in verbatim: “i. Pada 7/12/2016 sekitar jam 7.00 pagi pengadu bersama 3 orang adiknya sedang tidur di rumah kakak Pengadu di Kg. Lubuk Nibong telah mendengar ketukan pintu rumah. ii. Pengadu terdengar suara dari luar, “kami polis” dan OKT 1 terus menendang pintu rumah sehingga terbuka. iii. Dua orang lelaki masuk ke dalam rumah dan salah seorang daripada lelaki tersebut pengadu kenali sebagai Affendy bin Mokhtar iaitu OKT

iv. OKT 1 meluru ke arah pengadu yang sedang berbaring di ruang tamu dan memijak perut pengadu dan menendang pengadu. v. OKT 1 mengacukan sebilah pedang panjang dan berkata “MU DOK DIAM AKU NAK SEMBELIH AYAH DAN ABANG MU”. vi. OKT 1 menyucuh api rokok ke dada pengadu sambil mengugut pengadu untuk mendiamkan diri. 4 vii. OKT 1 mengeledah rumah tersebut dan mengambil dua buah speaker, 1 tab Samsung, 1 telefon Nokia, 2 utas gelang emas dan duit RM15.00 dari poket pengadu. viii. Kemudian, OKT 1 dan OKT 2 melarikan diri dengan menaiki motorsikal.” [D] THE LAW ON APPEAL AGAINST CONVICTION UPON PLEADING GUILTY [7] Eventhough the Appellant/Accused was barred from appealing against conviction as his counsel did not pursue it earlier, for record purposes this court had prepared the grounds. [8] The law on appeal against conviction upon pleading guilty is trite, that an accused cannot file any appeal on it. This is by virtue of section 305 of the Criminal Code Procedure which reads:- “When an accused person has pleaded guilty and been convicted by a Magistrate on the plea, there shall be no appeal except as to the extent or legality of the sentence.” [9] However there are circumstances which can nullify an accused’s guilty plea giving rise to the conviction recorded being set aside on appeal. A common example of such situation will be that the charge 5 was not fully understood by the accused because of language problem and no interpreter service was accorded to him. Hence the accused did not understand the nature and consequences of his plea, rendering his plea unqualified and unequivocal. [See PP vs Margarita B. Cruz (1988) 2 MLJ 82]. [E] THE LAW ON APPEAL AGAINST SENTENCE [10] The law on appeal against sentence is manifest that the appellate court should be slow to interfere or disturb with the sentence passed by the court below unless it is manifestly wrong or unsuitable to the proved facts and circumstances of the case. In fact in the case of Adam Atan v PP

1 CLJ 33, the Court of Appeal said in an appeal against sentence, the initial function of the appeal court is one of review only. The mere fact that another court might pass a different sentence provides no reason for the appellate court to interfere if the trial court applies the correct principles of sentencing. [11] Although there is a plethora of authorities on this point, suffice for this Court to apply the principles of sentencing as enunciated in the decision of the Court of Appeal in PP v Ling Leh Hoe (2015) 4 CLJ 869 viz: “[14] The appellate court can and will interfere in the sentence imposed by the lower court if it is satisfied that any of the following four grounds are made out: 6

The sentencing judge had made a wrong decision as to the proper factual basis for the sentence;

There had been an error on the part of the trial judge in appreciating the material facts placed before him;

The sentence was wrong in principle; or

The sentence imposed was manifestly excessive or inadequate. (See R v. Ball [1951] 35 Cr App. R 164; Loo Weng Fatt v. Public Prosecutor [2001] 3 SLR 313 at para [65]; Public Prosecutor v. UI [2008] 4 SLR (R) 500).” [12] To generalize it, whilst an appellate court should be slow in interfering the sentence imposed by the trial court in the exercise of their discretion as sentencing is not a science of mathematical application, an appellate court can interfere on the sentence if it is wrong in principle or the sentence imposed is manifestly excessive or manifestly inadequate. In fact the court of Criminal Appeal in Dookes v PP (2010) SCJ 71 said: “However, even if there is nothing wrong with the principle, the sentence may be increased by the appellate court if it is unduly lenient.” [F] ANALYSIS AND FINDINGS OF THIS COURT

Regarding conviction: [13] Regarding conviction, this court was satisfied that the learned judge had ensured that the appellant/accused understood the charge after being explained by the interpreter. The learned judge had also ensured that the 7 plea was unqualified and unequivocal. This was what he said in his grounds of judgment at page 11 of the Appeal Record: “[3] Pertuduhan telah dibacakan dan telah diterangkan kepada OKT 1, OKT 1 mengaku salah serta faham sifat dan akibat pengakuan salah pertuduhan tersebut. [4] Mahkamah ini melalui jurubahasa telah menerangkan kepada OKT 1 akan sebab akibat dari pengakuan iaitu boleh dikenakan hukuman yang boleh sampai sehingga 20 tahun dan boleh dikenakan denda atau sebat. [5] OKT 1 mengangguk faham akan penerangan tersebut.” [14] This court had looked at the Notes of Proceedings as well. This court was satisfied that there was no appealable error that merits appellate intervention. The conviction recorded was right and safe.

Regarding sentence [15] This Court shares the view that robbery is a very serious offence regardless whether it is armed or unarmed, with or without causing hurt. It is more serious when injuries were inflicted on the victim. [16] The Learned Session’s Judge in complying with the principles of sentencing was right in deciding that public interest is of paramount importance. It should supersede the interest of the Appellant/Accused. 8 The Learned Judge was right when he translated into reality that view when he sentenced the Appellant/Accused to 9 years imprisonment, with 2 whippings. [17] The Learned Judge was right when he rightly directed his mind that robbery, especially when dangerous weapon was used and injuries caused in the course of committing the offence, is a serious offence, and hence a long custodial sentence is necessary because the perpetrator is a threat to society. Hence public interest warrants that the offence of robbery be dealt with seriously. This was what the learned judge said in his grounds of judgment at Page 18 of the Appeal Record:- “[22] Tindakan ganas OKT 1 dan seksaan yang telah diperlihatkan OKT 1 mewajarkan saya mengenakan sebatan serta mengenakan hukuman pemenjaraan yang panjang kepada OKT

[23] Untuk itu, pemakaian saya kepada kata-kata Kamardin Hashim H dalam kes Herman lwn. PP [2011] 5 CLJ 896 sebagai: “Memandangkan masyarakat sentiasa diancam oleh perompak-perompak serta kejadian rompakan yang sering berlaku di negara kita, sudah sampai masanya perubahan dilakukan dengan menaikkan tempoh hukuman pemenjaraan dan sebatan terhadap pesalah-pesalah yang disabitkan atas kesalahan merompak. Perlu ada pendekatan baru dalam menghukum pesalah bagi kesalahan rompakan semoga dengan itu akan 9 dapat membendung gejala rompakan yang tidak menunjukkan trend yang menurun dengan matlamat utamanya bagi melindungi masyarakat umum.” [18] It follows that public interest warrants that the sentence imposed must reflect the gravity and seriousness of the offence and that it acts as a deterrent to the Appellant/Accused and also to would be offender. One way is for courts to pass a severe sentence to strike fear in the minds of those who harbour thoughts of committing the offence. In fact public interest demands a deterrent sentence to be imposed so much so that even the effect of a guilty plea as in this case must give way (Sim Lok Yong v PP (1995) 1 SLR 537) or be considered with less significant weight. The deterrent factors must weigh strongly in the minds of the sentencing court. Above all, it should reflect public abhorrence to this type of crime and also protection to the public at large. [19] Towards this end, this Court found that the Learned Judge had correctly directed his mind on those proposition and that the law was framed with a view to protect the public from being a victim of heartless perpetrators who live on others like the Appellant/Accused. This rationale is manifested in the section itself (section 394 of the Penal Code), which provides for a maximum sentence of 20 years imprisonment and also liable to be whipped. Further, a strong message should be sent to the public at large that just like rape, the court view this offence with much detestation and a severe punishment should be imposed. 10 [20] The learned judge has also considered the circumstances surrounding this case where violence and threat was used and injuries caused. This was what he said at page 17 of the Appeal Record:- “[17] Faktor yang lain yang menentukan hukuman kepada OKT 1 ialah keganasan atau seksaan yang dilakukan oleh OKT 1 kepada mangsa. [18] Dalam kes ini, fakta yang saya temui ialah OKT 1 telah mengacukan pedang panjang kepada mangsa dan mengugut mangsa dengan perkataan “Mu Dok Diam Aku Nak Sembelih Ayah Dan Abang Mu”. [19] Seterusnya, OKT 1 bukan sahaja telah memijak perut pengadu dan menendang pengadu malah telah mencederakan pengadu dengan menyucuh api rokok ke dada pengadu. [20] Pada pendapat saya, tindakan tersebut adalah satu bentuk seksaan yang kejam.” [21] Hence this court too had taken into account the above circumstances and the mode of committing the crime which was cruel and crude, where deadly weapon was used to instill fear and caused injuries on the helpless victim. The traumatic effect left on the victim, the circumstances surrounding the crime, the mode and weapon used and the injuries caused are factors which should weigh heavily in favour of a heavy and severe sentence to be imposed on the Appellant/Accused. Hence the 9 years imprisonment imposed by the learned judge was right and fair. 11 [22] Towards this end, this court would like to refer to the observation made by Zakaria Yatim J in the case of PP v Lee Tak Keong (1988) 1 LNS 217, a case of gang robbery but without the use of a weapon where his lordship said: “The offence of robbery is rampant today and in most cases dangerous weapons are used. In some cases the victims of the robberies sustain injuries: see Goh Chong Wee v PP 52-60-1987 (unreported) and PP v Mustanina bin Daing Sinring & Anor 51-125 of 1987 (unreported). In cases of robbery the court must take into consideration the element of public interest. This means that the court must impose a deterrent sentence not only to deter the respondent from committing the same offence again but to deter others from committing the same type of crime. The court is aware that in the present case no dangerous weapons were used and the complainant and his friend were not injured. But the court must not overlook the fact that there were five of them who surrounded the complainant and his friend and committed the robbery. If the court does not impose a deterrent sentence the respondent and his four other friends may commit similar offences and they may even use dangerous weapons and inflict injuries on their victims.” [23] This court had also taken into consideration the sentencing trend for this type of offence. As the maximum sentence is 20 years the sentencing trend seems to show the applicable sentence to be between 10 to 12 years imprisonment, depending on the circumstances of the case. 12 [24] Even using the principle in Abdullah Ang v PP (1988) 1 MLJ 167; PP v Muhari B. Mohd Jani & Anor (1996) 3 MLJ 116 where a discount of 1/4 or 1/3 of the sentence that would otherwise have been imposed had it gone on full trial, the sentence would be in the region of 10 to 14 years. Hence by sentencing the accused to only 9 years imprisonment with 2 whippings this court found that the learned judge was right in the circumstances of the case. Hence any appellate intervention was unwarranted. CONCLUSION [25] In the upshot this court found that the decision of the learned judge was right. No appellate intervention was warranted. The appeal against conviction and sentence was accordingly dismissed and the decision of the Session’s judge affirmed. Dated: 25 April 2018 Sgd. (DATO’ AHMAD BIN BACHE) Judicial Commisioner High Court of Malaya Kota Bharu, Kelantan. 13 Counsel / Appellant : Mohd Ridzuan Bin Muhammad Messrs. Mohd Fadzli & Co. Advocate & Solicitors PT 7258, Taman Sri Naim Sebelah KKTM Lubok Jong Bandar Baru Pasir Mas 17000 Pasir Mas, Kelantan. Public Prosecutor/ : DPP Hajarul Falenna Itah Bt Abu Bakar Adli Respondent Pejabat Penasihat Undang-Undang Negeri Kelantan, Blok 5, Tingkat Bawah, Kota Darulnaim, 15050 Kota Bharu, Kelantan