Pejabat Timbalan Pendakwaraya Negeri Selangor v Tan Woei Hang (83 - 2565 - 10/2017)

The accused was charged on 06/10/17 under s. 424 of the Penal Code for dishonestly concealing RM 3,800.00 in his CIMB bank account which was deposited by the complainant, Mr. Shazwan Aziz Bin Masuaud. The offence was said to have been committed on 11/09/17 at about 951 AM at CIMB Bank, Port Klang branch. The charge has been read and explained to, and understood by the accused. He pleaded guilty to the charge. After taking into consideration both mitigating and aggravating factors, the accused was convicted and duly sentenced as follows: 2 i) 2 months imprisonment from the date of arrest; ii) Fine RM1500 in default 1 month imprisonment.

The accused, being aggrieved by the sentences passed, has filed an appeal.

The complainant became interested to purchase a secondhand Perodua Kancil advertised in Mudah.my. He then contacted the number provided in the website and spoke to a Chinese guy. After having negotiated thoroughly with the Chinese guy via phone call, the complainant finally agreed to pay RM 3,788.00 being the purchase price of the car. He then deposited a sum of RM3,800.00 into the accused’s CIMB bank account on 11/09/17. On 12/09/17, the complainant went to Kajang 707 Auto City 11 SL 4/3 Bandar Sungai Long 43000 Batu 9 Cheras to collect the car. However, he was informed that no such car exists and the owner of the auto shop did not know the Chinese guy the complainant had spoken on 10/09/17. 3

Section 173(b) of the Criminal Procedure Code provides that the court shall pass the sentence according to law. In Jafa Bin Daud [1981] 1 MLJ 315, passing sentence according to law means the sentence must be meted out within the ambit of the punishable section and it must also be in line with the established judicial principles on sentencing. Therefore, the appellant, in his appeal, must be able to show that the magistrate had erred by passing sentence not within the four corner of the punishable section or the sentence was not assessed according to the established judicial principles on sentencing. If the sentence was passed according to the law and the magistrate had considered all factors before passing out sentence on the accused, the high court should be slow to interfere with the sentence passed by the magistrate. In Mohamed Nor [1985] 2 MLJ 200b, Abdul Hamid CJ decided as follows: 4 The question now remains whether we should disturb the sentence in the instant case. In this regard we would observe that it is the established principle that an appellate court should be slow to interfere or disturb with a sentence passed by the court below unless it is manifestly wrong in the sense of being illegal or of being unsuitable to the proved facts and circumstances. And the mere fact that another court might pass a different sentence provides no reason for the appellate court to interfere if the court below applies the correct principles in the assessment of the sentence. Therefore, the sentence passed by the lower court can’t be dislocated just because the appellate court is of the opinion that other sentence might be suitable in that case. 5

In Zaidon Bin Shariff [1996] MLJU 159, Augustine Paul JC (as he then was) put succinctly that the sentencing court has the discretion to determine the appropriate sentence to be passed on the accused. He was reported to say: The right to determine the quantum of punishment on a guilty party is absolutely in the discretion of the trial Court. It will exercise that power judicially and will not tolerate any encroachment or even semblance of encroachment by either the prosecution or the defence in respect of that right (see New Tuck Shen v. P.P. (1982) 1 MLJ 27).

Similarly in Norshahrizan Bin Junaidi [2016] MLJU 465, it was held by the Court of Appeal in the following fashion: In any event, sentencing is an exercise of discretion by the trial Judge. The law simply provides, as in most cases, a spectrum of sentences – from the minimum to the maximum. The trial 6 Court has to choose the appropriate sentence in each case within that spectrum by giving consideration to the peculiar circumstances of each case and all the relevant factors. The only constraint face by the trial Court in exercising its discretion is when the law imposes the only sentence such in the case of murder under section 302 or when the law provides for a minimum sentence in which case the trial Court cannot impose anything less than the minimum. For illustration reference may be made to the following cases: PP v Leonard Glenn Francis [1989] 2 MLJ 158; Leong Kok Huat v PP [1998] 6 MLJ 406 and Philip Lau Chee Heng v PP [1988] 3 MLJ 107.

Another case that is worth-mentioning here regarding the discretion of the sentencing court is Omar Bin Rudding [2017] 3 MLJ 524. In this case, the Court of Appeal had this to say: We recognised that sentencing is a matter of judicial discretion of the trial court. We were of the view that the sentence of 12 7 years imprisonment in the circumstances of this was adequate. It was not manifestly or grossly inadequate. We were guided by the observation of Raja Azlan Shah, AG LP (as His Royal Highness then was) in Bhandulananda Jayatilake v Public Prosecutor [1982] 1 MLJ 83 as follows: Is the sentence harsh and manifestly excessive? We would paraphrase it in this way. As this is an appeal against the exercise by the learned judge of a discretion vested in him, is the sentence so far out-side the normal discretionary limits as to enable this court to say that its imposition must have involved an error of law of some description? 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 8 the same country to similar facts may sometimes reach different conclusions (see Jamieson v Jamieson [1952] AC 525). It is for that reason that some very conscientious judges have thought it their duty to visit particulars crimes with exemplary sentences; whilst others equally conscientious have thought it their duty to a view the same crimes with leniency. Therefore sentences do vary in apparently similar 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 interference.

The court retains the discretion to choose the appropriate recourse for each offender after taking into account the particular circumstances of the case. The first and foremost consideration is the 9 public interest. The famous case of R v Ball 35 Cr App R 164 is often cited in this regard. Hilbery J stated: "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 mil 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, and 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 10 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."

I am of the opinion that the public interest, in this case, is best served by sentencing the accused to two months imprisonment and fine RM1500.00. The offence committed by the accused cannot be tolerated. It involves the notion of “dishonesty”. Dishonesty makes the society to collapse. The offender must be punished sufficiently. The court must show its abhorrence and disapproval by passing out severe sentence. The offence committed by the accused, in my judicially considered opinion, is too serious. Fine alone is not sufficient. I think it would not be too much for me to say that fine alone is detrimental to the interest of the society in this kind of offences. 11

It must be admitted that cases of cheating and fraudulently concealing money committed through cyber space are rampant nowadays. The offenders advertise their “products” in the internet to entrap the unwary victims. The money has been deposited but the victim got nothing. Then they move to look for new victims. This must be put to a stop. I take judicial notice that cyber crimes are rampant nowadays. Therefore, by this judgment, I will take the opportunity to tell the public that the court views such offences with much detestation and therefore, deterrent kind of sentence is needed. There is an abundance of authorities to show that the court must not neglect the element of rampancy. Mokhtar Sidin JCA in Tia Ah Leng [2004] 4 MLJ 249 had made “rampancy” as an exception to the practice of giving discount in sentencing when the offender had pleaded guilty. Therefore, in this case, 2 months imprisonment and RM1500 fine are surely sufficient to serve the purpose.

The court, in this case, must pass a deterrent sentence in the hope that the accused will enter into honest and sincere repentance and he will not repeat the same offence or any other criminal acts in future. 12 Two months imprisonment and RM1500 fine are reflective of the court attitude and seriousness in dealing with cyber related crimes. It is also hoped that the sentence will serve as a useful reminder to others not to commit cyber related crimes. (Refer Tan Bok Yeng [1972] 1 LNS 145)

An accused person who pleads guilty should generally be given leniency/discount. The rationale behind this practice is that the great expense of a lengthy trial is avoided. If the court does not give discount, the offender will not be induced to enter into plea of guilty. They would rather try their luck in full trials (Refer Sau Soon Kim [1975] 2 MLJ 134). However, leniency based on guilty plea is not the automatic right of the accused. There will be exceptions to this rule. The court may refuse to give a discount and may choose to pass a severe sentence where a serious offence is committed (Leo Say [1985] 2 CLJ 155). In Teh Ah Cheng [1976] 2 MLJ 186, the accused pleaded guilty and lower court released the accused on good behavior bond for an offence of having in his possession unlawful firearms. Eusoffe Abdoolcader J (as he then was) set aside the bond 13 and replaced it with three years imprisonment. He had this to say in his judgment: “In sentencing generally the public interest must necessarily be one of the prime considerations…..Of the several concepts relevant to sentencing, it is my considered view that deterrence and prevention assume positions in the forefront in relation to the offences of this nature”. I consider this is a serious case even though the accused had pleaded guilty at the earliest possible moment. By virtue of the above-quoted case, it is my judicially considered opinion that the guilty plea of the accused is of little value compared to that of the seriousness of the offence he had committed.

For the above stated reasons I sentenced the accused to two months imprisonment from the date of arrest and RM1500 fine in default one month imprisonment. 14 ROSLIZI BIN SULAIMAN Magistrate Klang 12/10/2017 Deputy Public Prosecutor : Puan Amira Binti Abd Aziz Jabatan Peguam Negara Counsel for the Accused : Encik Chua Hong Hui Messrs Dexter Chua, Wun & Partners Notice of Appeal filed on 09/10/17