Whoever commits lurking house-trespass or housebreaking, in order to commit any offence punishable with imprisonment, shall be punished with imprisonment for a term which may extend to five years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the 20 imprisonment may be extended to fourteen years; and for every second or subsequent offence shall in either case be liable to fine or whipping. THE APPEAL [4] During the appeal, the Court perused the Notes of Evidence in RRJ2 25 and Grounds of Judgment and was satisfied that the SCJ had followed all procedures in convicting the Appellant. He understood the charge and pleaded guilty. He understood the consequences of pleading guilty and that he wished to plead guilty unconditionally. The Deputy Public Prosecutor adduced the Facts of the Case which was read to the 30 Appellant and he admitted to the facts. The prosecution tendered other exhibits and all were admitted by the Appellant, including his previous conviction record marked as P10. Among the exhibits tendered were the cartons of cigarettes and a plastic container which had cash in the amount of RM210.70. [5] The crux of the appeal was the previous conviction record which counsel submitted should not be taken into consideration by the SCJ as 5 they were for offences committed more than 10 years ago. The Appellant’s counsel submitted that it was entirely the Court’s discretion to impose an appropriate sentence. Nevertheless, he submitted that his client was willing to have the 5 years’ imprisonment term reduced in exchange for more whippings because he had a family to take care of and 10 the crime was committed as he was desperate for money due to a family emergency (uncle passed away). EVALUATION AND FINDINGS OF THE COURT 15 [6] Having considered the evidence and the submissions by the parties, the Court decided that there was no misdirection by the SCJ and nothing special in the circumstances which would justify it to interfere in the decision of the Sessions Court. The Appellant had 3 previous conviction record involving offences against property whereby 2 of them were for the 20 same type of offence under s.457 of the Penal Code in the year 2012 and 2014. [7] In the case of Bachik Abdul Rahman v PP [2004] 2 CLJ 572 at page 583 where Augustine Paul JCA (as he then was) stated: 25 "The position in law is that it is generally accepted that an accused person should be given credit or discount for pleading guilty. The discount that is given is normally a reduction of the sentence by about a third of what would otherwise have been imposed." 30 [8] The Court noted that Bachik Abdul Rahman was a rape case and the appellant was sentenced to imprisonment in which the term was to run consecutively with another rape offence that he had been sentenced earlier. So, there were 2 different victims and the charges were unrelated, save for the fact that they were both rape offences. Nevertheless, the 5 guidance laid out for the courts below as stated by Augustine Paul JCA in the same case in regard to principles of sentencing where an accused pleaded guilty is useful and is reproduced here for effect: “One of the principles in sentencing is that a convicted person should be given a discount for pleading guilty. A reduction of about one third of the 10 sentence that would otherwise have been imposed is normally given. This, however, is not a strict rule and the court may, in the exercise of its discretion, refuse to grant any discount. The severity of the offence or the existence of a previous conviction may outweigh the mitigating effect of the guilty plea; so may the demands of public interest for a 15 deterrent sentence as well as the absence of a good defence or of other mitigating factors. The guilty plea does not automatically entitle the convict to a lesser punishment. In the instant case, the sessions judge had considered all these factors before deciding that the accused's plea of guilty could not operate as a mitigating factor. Hence, the High 20 Court ought not to have interfered and reduced the sentence of imprisonment from 18 years to 15 years. Nevertheless, it was not necessary for the instant court to reinstate the sentence originally imposed by the sessions judge as it would not make a material difference to the consecutive terms the accused would already have to serve.” 25 [Emphasis added] [9] The learned Deputy Public Prosecutor submitted on the severity of offence and urged that the Court should not disturb the sentences imposed by the SCJ as they were within the range of sentence permitted by the law and there was no misdirection in the order. The facts of the 30 present case in RRJ3 showed that the Appellant had broken into the shop at around 5.00 am and succeeded in taking out a few hundred ringgits in cash and many cigarettes from the shop. From the photographs tendered, it is safe to assume that he was going to sell them off for quick cash. Public interest consideration was weighed in as can be seen in the SCJ’s grounds of judgment. This Court viewed that the facts of the case and decided that it did not warrant a reduction of the term of imprisonment and will elaborate on the reasons below. 5 [10] The Court noted the Federal Court case of Bhandulananda Jayatilake v PP [1982] 1 MLJ 83 where Raja Azlan Shah Ag LP (as he then was) stated: “…I have had occasion to say elsewhere, that the very concept of judicial discretion involves a right to choose between more than one 10 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 15 (see Jamieson v Jamieson). 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. Therefore sentences do vary in apparently similar 20 circumstances with the habit of mind of the particular judge. It is for that reason also that this court has said it again and again that it will not normally interfere with sentences, and the possibility or even the probability, that another court would have imposed a different sentence is not sufficient, per se, to warrant this court's 25 interference. 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 unauthorised or extraneous or irrelevant exercise 30 of discretion. (Emphasis added.)”. [11] Although it was submitted by the Appellant’s counsel that this Court should show mercy to his client, I was of the view that he would not be in 35 this predicament had the Appellant thought long and hard before he committed the crime, even if he was really desperate for money. Otherwise the Court would be sending the wrong signal to the public that it was alright to commit a crime when one was short of money. He even had his wife’s car with him when he went to commit the crime, and therefore, it was unlikely that he was really desperate for cash. This Court viewed that there was nothing wrong in the decision of the SCJ when she 5 chose to impose a deterrent sentence rather than showing him mercy despite the Appellant pleading guilty: PP v. Govindan Chinden Nair [1998] 2 CLJ 370; Lee Chow Meng v PP [1976] 2 MLJ 287. The SCJ in her Grounds of Judgment at paragraph 13 onwards had also taken into consideration public interest factor: Ahmad Abdul & Ors v PP [1987] 10 CLJ Rep 437. [12] The Court is also guided by the case of Mohammed Abdullah Ang Swee Kang v PP [1988] 1 MLJ 187 where it was stated: “If there had not been a plea of guilty but a finding of guilt after trial, 20 15 years was the maximum term of imprisonment that could have been imposed. If 20 years would have been the term of imprisonment, then at the most, on account of the plea of guilty, the appellant could only be sentenced to a term of imprisonment of 13 - 15 years.”. 20 [13] On the issue of pleas in mitigation, the Court noted the case of Letitia Bosman v PP and other appeals (No 1) [2020] 5 MLJ 277 which stated the following: “[124] … Generally, the law does not fix a mandatory sentence for a certain offence. A maximum sentence is prescribed for the offence and the court 25 is left to decide the appropriate sentence within the ambit of the punishment provision. In such a case, the accused will then makes a plea of mitigation, which is a submission to move the court to pass a lenient sentence. It bears noting that under the scheme of Chapter XX of the CPC that governs the procedure of criminal trials in the High Court, there is no 30 statutory requirement for mitigating factors to be considered by the court before it passes sentence according to law. Although there is no provision in the CPC for a plea in mitigation in High Court trials, nevertheless as a matter of fact, in practice it is quite common to allow a plea in mitigation before the court imposes sentence. After the accused has submitted the mitigation plea, the prosecution will submit the aggravating factors for the purpose of pressing for a heavy sentence. [125] In passing sentence, the court takes into consideration the 5 mitigating and aggravating factors in order to ensure that the sentence is in accordance with the law. Passing a sentence according to law means the sentence imposed must not only be within the ambit of the sentence period stipulated but also assessed and passed according to established judicial principles (see Jafa bin Daud at p 316 of the judgment 10 of Mohamed Azmi J).” [Emphasis added] [14] I now go on to consider the “spent conviction” issue raised by the Appellant’s counsel. The law does not mention anything about a time-limit 15 to be imposed in s.457 of the Penal Code so that an offender would be disqualified from being given a more severe penalty where he has a spent conviction. In the case of PP v Lee Lam (F) [1952] 1 MLJ 86, Wilson J. held: “… So far as this case is concerned the Legislative authority has laid it 20 down that an accused person charged with an offence such as that alleged in the first charge shall be sent to prison for a period of not less than one year. If the Legislative authority had wished to say that such a person should not be sent to prison for this minimum period if he or she had no previous conviction, the Legislative authority would have so 25 stated. Whilst I have every sympathy with the domestic circumstances of the accused person, I find it impossible to allow myself to be influenced by them. During the period of this Emergency the Executive and the Legislature alone can be fully aware of the reasons which make extraordinary legislation necessary. Judges and Magistrates are not in a position and are not entitled to 30 query such legislation unless it can be found to be ultra vires.”. [Emphasis added] [15] Counsel referred to the case of Zaidon Bin Shariff v PP [1996] MLJU 159. The facts of that case showed that he was charged with 35 possession of cannabis weighing 0.04 grams. The accused had pleaded guilty to the charge in the lower court. The main issues in the High Court were (i) whether the learned magistrate erred in taking into account the previous conviction of the accused that had no bearing on the present offence and (ii) whether the type and weight of the drugs did not warrant the sentence imposed. The accused's previous conviction was for an 5 offence of theft under section 379 of the Penal Code FMS Cap 45. Again, with due respect, the facts of that case must be distinguished from the facts of the present appeal. The learned Judicial Commissioner Augustine Paul (as His Lordship then was) held: 10 “A more serious objection to the sentence imposed by the learned Magistrate lies in the undue emphasis he placed on the 1986 conviction of the Appellant for an offence under section 379 of the Penal Code. This previous conviction of the Appellant was obviously the driving force behind the sentence imposed on the Appellant. It is settled law that a previous conviction is to be taken into 15 consideration in assessing sentence only if the previous offence was of a similar nature as the one with which an accused is presently charged. In this regard Mohamed Azmi J (as he then was) said in P.P. v. Jafa bin Daud(1981) 1 MLJ 315 at p. 316, "Where the convicted person has previous records and admits 20 them as correct, the Court must consider whether the offence or offences committed previously were of a similar nature as the one with which he is presently charged. The court must then consider the sentences imposed in the previous convictions for similar offences to determine whether they have had any deterrent effect 25 on him. Where he is found to be a persistent offender for a similar type of offences, then it is in the interest of justice that a deterrent sentence should be passed ......" In any event the fact that there has been a ten-year gap in the Appellant's criminal record has not been duly appreciated by the learned Magistrate. 30 The Appellant's clean record since his last conviction in 1986 ought to have operated as a mitigating rather than as an aggravating factor. The rationale of the gap principle is that the offender has made an effort to rehabilitate himself and it should, accordingly, operate in his favour. In this regard D.A. Thomas in his book entitled Principles of Sentencing said at p 35 179, The fact that an offender who has a criminal record has made an effort to 'go straight' since his last conviction or release from prison normally counts as a substantial mitigating factor if he subsequently commits an offence. In the case where the previous offences were trivial and committed in the long distant past, the Court will normally disregard them 5 entirely and treat the offender as a man of previous good character. Where the previous convictions are more numerous or are for offences of a more serious character, the existence of a period free from conviction immediately before the commission of the present offence still has substantial mitigating effect. Clearly, the longer the period, the more 10 effect it will have in mitigation, but while in some of the cases illustrating this point the period may be as long as twelve years, the Court will normally give credit for much shorter periods. In Rosa a man of forty-one sentenced to four years for housebreaking had ten previous convictions for dishonesty and violence, and had on one occasion been sentenced 15 to seven years' imprisonment for wounding with intent. After his release from this sentence he had married, and in the following four years had been convicted only once in respect of a minor offence for which he was fined, and achieved a work record which was 'distinctly to his credit'. In view of the appellant's effort to reform, the sentence was reduced to two 20 years' imprisonment." [Emphasis added] [16] In my view, the principle of “spent conviction” as stated in the High Court case of Zaidon Shariff (supra) still has to be considered in light of the other established principles of sentencing as I have outlined above 25 such as Letitia Bosman (supra), Govinden Chinden Nair (supra) and Bachik Abdul Rahman (supra). Considering the mitigating factors of the Appellant as against the similar previous conviction record nature and gravity of the crimes committed, public interest would be better served by keeping the Appellant away from the society at large for a longer period 30 of time. The severity of the offence or the existence of a previous conviction may outweigh the mitigating effect of the guilty plea; so may the demands of public interest for a deterrent sentence as well as the absence of a good defence or of other mitigating factors. The guilty plea does not automatically entitle the convict to a lesser punishment: Bachik 35 Abdul Rahman (supra). Hence, this Court agrees with the rationale of the SCJ in imposing the sentences against the Appellant. [17] Moreover, an appellate court would be slow to interfere or disturb a sentence passed by a lower court unless it is manifestly wrong in the 5 sense of being illegal or unsuitable to the proved facts and circumstances: PP v Mohamed Nor & Ors [ 1985] 2 MLJ 200. CONCLUSION [18] Premised upon the above considerations, the Court affirmed the 10 conviction and sentence imposed by the Sessions Court Judge on the Appellant. Appeal dismissed. 15 Dated 25 March 2025 Signed 20 NOOR RUWENA BINTI MD. NURDIN Judge High Court of Malaya, Taiping 25 30 Counsels: For the Appellant : M. Saravanan Messrs. S. Muthu & Co., Teluk Intan 5 For the Respondent : DPP Sally Chay Mei Ling Pejabat Timbalan Pendakwa Raya Negeri Perak, Taiping 10