Norazizul Bin M Yousof (MC-83-374-06/2025)

These are my grounds of judgment for the appeals arising from my decision delivered on 4 June 2025, wherein the accused pleaded guilty to three offences under section 420 of the Penal Code (“PC”) that were charged before this court.

The High Court, through case no. MA-44-17-12/2025 dated 3 March 2026, had granted the accused’s application to file the notices of appeal outside the prescribed timeframe. Dissatisfied with the convictions and sentences delievered by this magistrates’ court, the accused appealed to the High Court and altogether there were three appeals.

The accused was charged with the following:- First Charge (Case No. MC-83-374-06/2025) “Bahawa kamu, pada 25.1.2019 di antara jam 8.30 pagi di alamat PUSPAKOM Rumbia Alor Gajah di dalam daerah Alor Gajah di negeri Melaka, telah menipu Khairul Khalil bin Saleh @ Wahid KPT:950905 - 11-5945 dengan curang memperdayainya untuk menyerahkan kepada kamu wang tunai sebanyak RM9,900 untuk urusan membeli sebuah kereta Perodua Viva yang mana ia tidak akan menyerahkannya jika ia tidak diperdayakan sedemikian, dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 420 Kanun Keseksaan dan boleh dihukum di bawah Kanun yang sama; Second Charge (Case No. MC-83-375-06/2025) “Bahawa kamu, pada 25.1.2019 (28.3.2019 berdasarkan fakta kes) di antara jam 8.30 pagi di alamat PUSPAKOM Rumbia Alor Gajah di dalam daerah Alor Gajah di negeri Melaka, telah menipu Muhamad Faizul bin Zaharin KPT:871008-05-5481 dengan curang memperdayainya untuk menyerahkan kepada kamu wang tunai sebanyak RM8,650 untuk urusan membeli sebuah kereta Perodua Viva yang mana ia tidak akan menyerahkannya jika ia tidak diperdayakan sedemikian, dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 420 Kanun Keseksaan dan boleh dihukum di bawah Kanun yang sama; and Third Charge (Case No. MC-83-376-06/2025) “Bahawa kamu pada 9.11.2015 jam lebih kurang 0910 hrs di alamat PUSPAKOM Rumbia di dalam daerah Alor Gajah di negeri Melaka telah menipu Lim Seong Ho KPT:610715-04-5025 dengan curang memperdayainya untuk menyerahkan kepada kamu wang tunai sebanyak RM6,700 untuk urusan membeli sebuah kereta jenis Perodua Kelisa warna Silver no. plate MBF 9633 yang mana ia tidak akan menyerahkannya jika ia tidak diperdayakan sedemikian. Dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 420 Kanun Keseksaan dan boleh dihukum di bawah Kanun yang sama. Hukuman: Hendaklah dihukum dengan pemenjaraan selama tempoh tidak kurang dari satu tahun dan tidak lebih sepuluh tahun dan dengan sebat, dan hendaklah dikenakan denda.”

This court, bearing in mind the latest judgment in the case of Teh Geok Chin v Public Prosecutor [2025] MLJU 4833 by the Court of Appeal which outlines the guidelines that trial courts should follow before convicting the accused who intends to plead guilty, confirmed that the charges fell within its jurisdiction and corresponded with an offence under section 420 of the PC before reading out the said charges to the accused. This court ensured that the charges were explained to the accused in the Malay language which he understood, so as to ensure that the plea recorded was unequivocal, unreserved and unqualified.

There was more than one charge against the accused, and each charge was read out and explained separately in separate proceedings until the marking of the exhibits for each case was completed, enabling the court to record each charge independently. This court again sought confirmation from the accused, particularly as to the range of punishment particularly the mandatory minimum sentence of one year’s imprisonment, and the accused was asked again whether he wished to proceed. The accused chose to plead guilty to the charges proffered against him.

The accused was further informed, when the court directed questions to the learned prosecutor and the exhibits for each proceeding would be marked separately as explained by the prosecutor. At any time during the proceedings, the accused was entitled to withdraw his plea of guilty and could also seek advice from the learned counsel present in the open court, which was from National Legal Aid Foundation (YBGK counsel), Mr Ishak Kari. However, the accused did not withdraw his plea until the end of the proceedings.

In this context, this court recorded the plea for each charge separately and was satisfied that the accused fully understood the consequences of the plea which was found to have been made voluntarily and without misunderstanding or qualification. As such, this court found that it was safe to accept the pleas, recorded such pleas in writing and subsequently convicted the accused on his pleas of guilty under the three charges (PP v Muhammad Shah Putera bin Dang Wera [2024] MLJU 2165; PP v Sathesh A/L Krishnan [2026] MLJU 785).

To keep my vision unclouded, it was found that the date of the second charge when read to the accused differed significantly from the actual offence date of 28 March 2019 as disclosed in the statement of facts of the case presented (P1 in the case no. MC- 83-375-06/2025), read out and admitted by the accused. The written date bore some resemblance to that of the first charge (25 January 2019), but the victim's name and the amount of money involved were stated correctly as only the date was wrong. The prosecutor did not, at any time, seek to amend the date.

However, this court was guided by the Court of Appeal decision in the case of PP v Ngumbang ak Abang and another appeal [2024] 4 MLJ 796, where the accused clearly knew the true date of the alleged offence with no evidence to suggest otherwise. The court there found no prejudice from the prosecution's failure to amend, ruled the charge under section 302 of the PC non-defective and convicted both accused persons under the said section 302 of the

To my mind, section 156 of the Criminal Procedure Code (“CPC”) states that no error in stating the offence or its particulars is material unless it actually misled the accused. This supports the principle that such defects are curable under section 422 of the CPC if they cause no injustice (Ramely bin Hussain v PP [2005]

As held in the case of Azhar bin Che Wil v PP [2009] 4 MLJ 794 (CoA), with counsel present before the trial judge representing the accused, it is unlikely the accused was misled or that any failure of justice occurred by reason of the omission to amend the charge. This court therefore found that, even if an amendment was required, the omission to make such amendment here was curable and caused no prejudice to the accused.

Although the second charge against the accused had a date error with no amendment, the victim's name and the exact amount deceived were accurately cited. The correct date was also sta ted and read from the statement of facts (P1 in the case of MC-83-375- 06/2025), which the accused acknowledged.

Since no iota of evidence showed otherwise, this court found that section 422 CPC cured this minor date error of the second charge as no miscarriage of justice resulted. Simply put, there was no evidence of prejudice and the accused was found in no way misled by the prosecution’s failure to make the necessary amendment to the actual date in the second charge since the victim and amount of money being deceivd from the victim were precise, especially with the learned counsel Mr. Ishak Kari (YBGK) repesenting the accused (Yusof Holmes bin Abdullah v PP and another appeal [2020] 10 MLJ 269, HC). In my considered view, the second charge was found not defective.

In the present case, this court has recorded the statements of facts constituting the offences independently for each charge in accordance with section 354(1) of the CPC. The statements of facts (tendered and marked as P1 for the three cases respectively) were read aloud and explained to the accused, who admitted the facts without qualification. As held in the case of Lee Weng Tuck & Anor v PP [1989] 2 MLJ 143 by the Supreme Court, unless the accused admits the facts without any qualification, the plea will be treated as a plea of not guilty.

As submitted by the learned prosecution and agreed by this court, it appeared that the accused adopted a modus operandi in carrying out his illicit activities. The accused practiced deception by meeting the victims at PUSPAKOM Rumbia Alor Gajah, and dishonestly induced the victims to deliver cash payments for the purchase of non-existent vehicles, as detailed in the statements of facts (P1) when considered alongside other evidence, including the police reports. The respective statement of facts under each charge are as follows:- a) First Charge: The complainant, a Malay man named Khairul Khalil bin Saleh @ Wahid, a car salesman, met the accused at PUSPAKOM Rembia on 25 January 2019 at around 8.30 a.m. The accused offered to sell a purple Perodua Viva for RM10,000, but the registration number was not recalled. The complainant knew the accused through acquaintances in the car sales business. While at PUSPAKOM Rembia, the complainant paid RM9,900 in cash to the accused. The accused then directed the complainant to meet a Chinese man at a used car dealership named Yeap Auto at Jalan Balai Panjang, Malim, Melaka, stating that the complainant needed to meet the owner of the used car workshop. When the complainant arrived at the workshop, he met a salesman named Ah Pau (012- 6112792), who informed him that there was no record of the accused as the worker of the workshop and that the workshop had never intended to sell a purple Viva. As a result, the complainant suffered a loss of RM9,900; b) Second Charge: The complainant, a Malay man named Muhamad Faizul bin Zaharin who was a factory worker, posted on Facebook on 27 March 2019 to find a Perodua Viva. He also received a Facebook message from a user named Nadirah Azman Sg who asked him to call the number 011-6308997 for obtaining the further details about the Viva for sale. The complainant then called the seller for more details, and the seller offered a Viva with registration no. WWE 1264 for RM8,650. The complainant was interested in the seller’s offer, and they scheduled to meet at PUSPAKOM Rumbia Alor Gajah in order to inspect and view the vehicle. At approximately 8.30 a.m. on 28 March 2019, the complainant met the seller (a Malay man, the accused) at the agreed site with the help of a Chinese man. After inspecting the said vehicle, the complainant agreed to buy it and the seller instructed him to make a cash payment of RM8,650. Following this payment, the complainant was instructed to follow the Chinese man to a workshop at IKS Paya Dato for the name transfer process. After waiting approximately two hours at the workshop, the complainant contacted the seller to verify that the name transfer took place but his calls went unanswered. The complainant subsequently inquired about status of the name transfer, the Chinese man told him that he had not received any payment from the seller. At that time, the complainant realized that he had been deceived in the transaction for buying a non-existent vehicle for RM8,650; and c) Third Charge: A1, the complainant, is a Chinese man named Lim Seong Ho who acted as an intermediary for a friend to purchase a Perodua Kelisa with registration no. MBF 9633 from an unknown Malay man (the accused). On 9 November 2015 at around 9.10 a.m., A1 and his friend met the accused in front of PUSPAKOM Rumbia. The accused requested that the vehicle owner who was an employee of Used Ever Top Trading Sdn Bhd in Tangkak, Johor, to attend PUSPAKOM for the sale of the vehicle. The accused deceived the salesman from the used car workshop in Tangkak by claiming he wanted to buy the vehicle for cash at the price of RM14,000.00. The accused also deceived A1 into buying the same vehicle for RM6,700.00. A1 was interested and made a cash payment inside the car while at PUSPAKOM Rumbia. The accused later instructed A1 and the vehicle owner to wait at PUSPAKOM, claiming that a runner named Rashid (believed to be non-existent) would come to handle the paperwork at PUSPAKOM. After one hour, A1 and the vehicle owner found that the accused had disappeared. A1 suffered a loss of RM6,700.00, while the vehicle owner did not incur any loss and served as a police witness.

All statements of facts were admitted by the accused in open court when read out by the court interpreter who consistently approached the accused in the dock to read them clearly for the accused to hear, after which the accused admitted the facts as mentioned above.

Additionally, the statements of facts revealed that, based on the identification parade conducted by Insp. Nor Amira binti Ab Razak, the identification officer, in a one-way mirror room, the complainants and witnesses were able to identify the accused during both the first and second rounds of the parade. Each complainant confirmed the accused’s position accurately in both rounds.

SUBMISSION OF LEARNED COUNSEL OF THE ACCUSED In the accused’s mitigation, Mr. Ishak, the YBGK counsel representing him, submitted that for all three charges the accused has pleaded guilty, which has helped to save the court’s time. The accused is aware of the consequences of the charges, including the mandatory minimum sentence of one year’s imprisonment and nevertheless chose to proceed with the plea as he wishes to resolve all the cases currently pending against him. The learned counsel further submitted that the accused has seven children and most of whom are still schooling. This is the first offence committed by the accused and he has no previous criminal record. He i s also the sole breadwinner of the family. The accused therefore requests that the sentences for all the charges run concurrently and that the court impose the minimum sentence.

PROSECUTION’S REPLY In reply, the learned prosecutor, Tuan Fiqri, submitted that for the offences committed in these cases, the prosecution is seeking a heavy sentence to be imposed on the accused. The prosecution informed the court that all three cases involve the same modus operandi where the accused deceived victims into purchasing vehicles which in fact did not exist. The prosecution also informed the court that these are old cases dating back to 2019 and that the accused was only recently apprehended. Further, the prosecution submitted that the accused will be facing several additional charges at the Magistrates’ Courts in Ayer Keroh and Jasin after these proceedings. In light of these circumstances, the prosecution requests that a heavy custodial sentence be imposed on the accused.

This court has considered the mitigating factors raised by the YBGK counsel, including the accused’s plea of guilty which saved the judicial time, his status as a first offender and his role as the sole breadwinner for seven children, most of whom are still in school. However, this court noted that the principle of reducing a sentence for a guilty plea was not absolute. In certain circumstances, the demands of public interest may outweigh the benefit and mitigating effect of such a plea, as held in the cae of PP v Tia Ah Leng [2000] 5 MLJ 401, HC.

The seriousness and severity of the offence may also diminish the weight to be given to a guilty plea. The main exception arises where the protection of the public becomes a primary concern. If a substantial sentence or even the maximum sentence, is necessary to safeguard the public, a guilty plea may not justify a discount or lighter punishment (PP v Oo Leng Swee & Ors, FC).

In the present case, the accused’s conduct indicated a pattern of offending and a specific modus operandi in targeting victims who intend to purchase a vehicle. His activities at PUSPAKOM Rumbia have also raised questions regarding the assertion that he is a first offender.

Further, this court emphasises that the sentence must be determined based on the individual facts of the present case. The accused presently faces three charges before this court. Although the learned prosecutor indicated that the accused may face additional charges in other Magistrates’ Courts at Ayer Keroh and Jasin, this court did not consider those matters in determining the sentence. Such information is not relevant to the present proceedings since no official record evidence has been produced by the prosecution to substantiate those assertions.

It was clear from the evidence that the three cases shared a similar modus operandi and that the elements of section 420 of the PC had been established. The accused deceived three different victims and induced them to do something which they would not otherwise have done. Acting upon the deception, the victims were persuaded to hand over cash payments to the accused. The evidence showed that the accused had induced the victims to act on this deception, leading to fraudulent or dishonest behavior on his part.

Essentially, evidence presented in this court showed that the accused engaged in dishonest practices, using PUSPAKOM Rumbia as location to meet victims and manipulate them psychologically into making cash payments (Manimala Muniandy v PP & Another Case [2023] MLRHU 327, HC). This form of psychological manipulation played a significant role in inducing the victims to part with their money.

In light of these circumstances, this court takes a serious view of the offence of section 420 of the PC particularly in view of the need to protect the public interest. Undoubtely, sentencing is not governed by rigid rules and must be determined by considering the circumstances of each case. At the same time, the court must ensure that the punishment imposed remains proportionate to the gravity of the offence while taking into account any mitigating factors that may exist maintaining a balance between the offence and the penalty as well as any extenuating factors, as stated in the case of Liow Siow Long v Public Prosecutor [1970] 1 MLJ 40,

Given the time elapsed since the offenses and the hardships faced by the young children involved, sentencing must also serve the wider public interest. A proper sentence, delivered in open court, serves not only to punish the offender but also to deter others who might be tempted to commit similar offences in the belief that such crimes offer easy financial gain with little consequence. At the same time, it may deter the offender himself from repeating the offence and encourage him to return to an honest way of life. In this sense, the public interest is best served when punishment also promotes rehabilitation (Md Jahangir v PP [2020] 10 MLJ 20, HC and the classic case of R v Ball (1951) 35 Cr App Rep 164).

Cheating offences of this nature also create wider harm to society. They give rise to fear among members of the public, particularly victims who may feel helpless and uncertain about whether their savings can ever be recovered despite having lodged police reports. This court must therefore ensure that the public is protected from such conduct and from the sense of vulnerability that accompanies these nature of crimes.

Accordingly, this court found that a sentence of one year’s imprisonment for each charge, being the minimum term prescribed under section 420 of the PC, is appropriate in the circumstances. Such a sentence reflects society’s disapproval of the offence, reinforces respect for the law and serves both deterrent and rehabilitative purposes, as discussed in the case of Muhammad Isa bin Aris v PP [2011] 5 MLJ 342, CoA.

Section 420 of the PC also provides for mandatory whipping upon conviction. While the provision does not specify the minimum or maximum number of strokes, this court retains the discretion to determine the appropriate number in the circumstances of the case. In the present case, this court considers the imposition of whipping to be justified as part of the punishment as it reflects the seriousness of the offence and expresses society’s strong disapproval of dishonest conduct involving cheating and deception as conducted by the accused.

However, it is important for this court to consider whether the one-year imprisonment sentence for each charge shall run consecutively or concurrently. The relevant principle of sentencing has been established in the case of Bachik bin Abdul Rahman v PP [2004] 2 MLJ 534, where the Court of Appeal provided guidance on the one transaction rule and the totality principle. This principle was further elucidated in my previous case, PP v Mohd Huzaimi Che Zainol [2019] MLRSU 67.

Given the nature of the offences committed by the accused, this court agreed with the totality principle, recognizing that each offence occurred separately at different times and dates with the involvement of different victims, which determined the just and appropriate punishment. Based on the available evidence, this court has made the following findings:- a) The three offences were committed in separate transactions involving different victims. Therefore, the sentences for these offences should not run concurrently, as they do not constitute a single transaction (Mansor bin Meyon v PP [2007] 8 MLJ 706, HC). The four elements required to establish one transaction rule which include proximity of time, place, continuity of action, and continuity of purpose, were not present in the present case, particularly due to the different victims and varying amounts of cash paid from 2015 to 2019; b) The modus operandi of the accused involved misleading victims into believing they were making legitimate payments for car purchases, despite the transactions being fraudulent (Eshmat Fatimah Abdullah v PP [2023] MLRHU 1193, HC). In such cases, consecutive sentences are necessary to deter this type of criminal conduct by deception (R v Faulkner [1972] 56 Cr App R 594); c) The cumulative sentence of three years after having served three “one-year imprisonment” sentences adhered to the totality principle since it was found not substantially above the normal sentencing limits for the most serious individual offences nor does it place an unduly harsh burden or crushing sentence on the accused (Mansor bin Meyon v PP, supra); d) The three-year imprisonment sentences appropriately reflected the seriousness of the accused's behavior and did not crush the potential for the accused’s rehabilitation. The accused must be held accountable for defrauding three different victims, emphasizing that all citizens are at risk from such fraudulent schemes The accused’s conduct had demonstracted the characteristics of a motivated fraudster who deliberately approached potential victims through a deceptive scheme and thereby exposing them to the risks arising from the said three distinct offences; and e) This court has to ensure that the imprisonment sentence is not excessive by considering the totality of the cumulative sentences in light of the accused’s overall criminal behavior. Therefore, consecutive sentences are warranted to discourage such criminal conduct (Yusmikushairi Yusuf v PP [2025] MLRHU 2943, HC; section 282(d) of the CPC; section 292 of the CPC). In summary, when the charges against the accused are distinct and do not arise from the same transaction, it is standard practice for the imprisonment sentences to be served consecutively (Mohd Norgihan Awang v PP [2025] MLRHU

In summary, the offences were committed on different dates and at different times against different victims targeted and therefore cannot be said to have arisen from a single transaction. This principle was recognised in Mazinin Anting v PP [2026] MLRHU 121, HC. Having considered the particular circumstances of the present case, this court is of the considered view that the three cheating offences must be treated as separate and distinct criminal acts.

It must also be remembered that offences of cheating are serious in nature. Such crimes demonstrate that any member of the public may become a victim, particularly where deception is involved. Cheating offences often cause not only financial loss but also significant psychological and emotional harm to victims. Victims may experience feelings of depression, shame, guilt, anger, helplessness and fear when dealing with the consequences of the cheating (Jonychi ak Jemani v PP [2021] MLJU 2911; Balcombe, L. The Mental Health Impacts of Internet Scams. Int. J. Environ. Res. Public Health 2025, 22,

https://doi.org/10.3390/ ijerph22060938).

In this regard, the court, as the guardian of the public interest, must ensure that the sentence imposed reflects the seriousness of the conduct and serves as a reminder that such offences cannot be taken lightly. All three offences committed by the accused were serious, and the accused was not apprehended shortly until after the offences had been carried out against three different vict ims. Accordingly, this court ordered that the accused be sentenced to one year’s imprisonment for each charge, and the sentences shall run consecutively.

This court also wishes to make it clear that the accused was not misled and misassumed that, merely because several charges were dealt with on the same day, the sentences will automatically run concurrently (PP v Maniarasan Patrick [2023] 2 SMC 84, Magistrates’ Court). Prior to sentencing, this court had explained in open court that the three cases did not arise from a single transaction as these involved three different victims. The accused was represented by the learned counsel at the material time and was therefore fully aware of the court’s position which could advise the accused as well the accused could understand the plain language used by this court. At that stage, the accused had the opportunity to withdraw his plea of guilt before the sentence was imposed, as once a sentence has been pronounced the court becomes functus officio, as explained in the case of The Geok Chin v PP, supra. However, the accused did not make any withdrawal of his plea of guilt before the pronouncement of sentences given by this court.

Last but not least, with reference to the sentence of whipping, th is court was informed by the latest decision of the Federal Court which held in the case of Santanasamy Muthiah v PP [2025] 1 MLRA 154, that it is to decide whether a whipping term shall be served in a concurrent or a consecutive manner when the whipping sentence is imposed for more than one offence. The Federal Court Panel observed that in Malaysia there is no legislative provision on whether to impose a whipping sentence concurrently or consecutively. While the Federal Court, in its majority opinion, accepted that the existing cases and authorities favored the execution of the whipping sentences consecutively, however the dissenting judgment from Tan Sri Nallini Pathmanathan decided there is no definite prohibition when it comes to the concurrent execution of the whipping sentences and that the discretion of the court is sufficient for such determination.

While this court is not going to be into that issue and analyse it more hereon, this court has exercised its judicial discretion as a result of the widespread presence, structure and heinousness of the cheating offences taken by the accused, In the end, the issue of either consecutive or concurrent whipping is ultimately on the court’s discretion to be exercised sparingly, so long as it does not exceed the maximum strokes for whipping which is 24 for adults when the accused was tried with more distinct offences, as prescribed under section 288(5) of the CPC. On the day the setences was imposed by this court, the accused was 42 years old. Based on such considerations, this court provides that each charge shall be whipped one stroke and the whipping sentences shall also run consecutively.

When deciding such, this court has taken into account the public interest at its core consideration to sentencing, which was outlined in the case of PP v Muhammad Danial Iman Mohd Sharif [2026] MLRHU 75, HC. If the courts may not have to wholly reflect public’s opinion, they should not be indifferent to it at all times though. Sentencing must be based on what society needs to respect for the law must uphold the needs of the victims as the victims and their families were found sufferring the severe cost of this type of crime not only the psychological harm, but also the loss of money associated with the family life.

Based on the reasons stated above, and having considered the parties’ submissions, facts and circumstances of the present case, this court delivers the following sentence against the accused:- a) First charge (83-374-06/2025): One (1) year’s imprisonment from the date of conviction and one (1) stroke of whipping (to run separately); b) Second charge (83-375-06/2025): One (1) year’s imprisonment to commence after the accused has completed serving the sentence in case no. 83-374-06/2025, and one (1) stroke of whipping (to run separately); and c) Third charge (83-376-06/2025): One (1) year’s imprisonment to commence after the accused has completed serving the sentences in cases no. 83-374-06/2025 and 83-375-06/2025, and one (1) stroke of whipping (to run separately). Accordingly, the sentences of imprisonment and whipping are ordered to run consecutively. Dated this 13 Mac 2026 SGD ----------------------------------- (TEOH SHU YEE) MAGISTRATE MAGISTRATES’ COURT AT ALOR GAJAH PROSECUTION : DPP Tuan Fiqri Hakim THE ACCUSED :