Pejabat Timbalan Pendakwaraya Negeri Selangor v Wan Ruhanie Longnooh (83 - 2392 - 09/2017)

The charge proffered against the accused on 20/09/17 reads as follows: Bahawa kamu pada 06/09/17, jam lebih kurang 6 petang, di alamat No. 72, Jalan Jed, 41200, Bandar Parkland, Klang, Selangor di dalam daerah Klang di dalam negeri Selangor di dapati telah menjalankan perniagaan pusat siber dan kafe siber (10 set computer) tanpa lesen yang dikeluarkan oleh pihak Majlis, oleh yang demikian, kamu telah melakukan kesalahan di bawah Undang – Undang Kecil 3 Pusat Siber dan Kafe Siber (Majlis Perbandaran Klang) 2007 dan boleh dihukum di bawah Undang – Undang Kecil 3, Undang – Undang yang sama. 2

The charge has been read and explained to, and understood by the accused. She pleaded guilty unconditionally and was duly convicted to the charge. After taking into consideration both mitigating and aggravating factors, the accused was sentenced to three (3) weeks imprisonment taking effect from the date of her arrest i.e. 06/09/17.

The accused is a 24-year-old Thailand national. He is the sole bread winner in her family. The counsel for the accused, in his plea in mitigation, asked the court to opt for fine instead of sending his client into prison. He argued that, whenever the punishable section gives the court discretion to choose either to impose fine or imprisonment, the court should have first opted for fine instead of sending the offender straightaway into prison. The argument put forth by the counsel for the accused gives me an idea that the accused should have first been fined. If the accused commits the same offence in future, only then she can be sent into prison. Is this the current and correct preposition of the law? 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 sentencer of the first instance 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 sentencing factors before passing out sentence on the accused, the appellate 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 another sentence might be suitable in that case.

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 5 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.

1 MLJ 27). [6] 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 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. 6 [7] 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 recognized that sentencing is a matter of judicial discretion of the trial court. We were of the view that the sentence of 12 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 the same country to similar facts may sometimes reach different conclusions 7 (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. [8] I would like to reiterate the reasoning given by the late HRH Raja Azlan Shah, AG LP (as His Royal Highness then was) in Bhandulananda Jayatilake v Public Prosecutor [1982] 1 MLJ 83 (supra.) concerning the concept of “judicial discretion” in the sense that I have 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. Therefore, I see nothing illegal in my sentence when I chose three weeks imprisonment to be imposed against the accused. 8 [9] However, the discretion given to the court to choose the appropriate should not be practiced arbitrarily. There are, of course, guidelines for the sentencing court to follow. In Ahmad Bin Hop [1992] 3 CLJ 1408, Chong Siew Fai J had underlined several principles for the court to consider while choosing the appropriate sentence i.e.: Of late, there have been increasing cases where both custodial sentences and fines were imposed for one and the same offence. As a general guideline, I would venture to state as follows:

The sentencing Court should consider whether imprisonment sentence is the appropriate form of punishment, regard being had to all the circumstances of the case including the nature and the gravity of the offence, and public interest.

If fine is an adequate punishment, then the sentences should impose a fine. Consideration should be given to the ability of the offender to pay the fine.

Fine may be added to a prison sentence as a means of removing the profit of the offender's offence. Here again, regard should be had to the 9 offender's ability to pay because failure to pay would involve a further period of imprisonment of default. But if, on the material available, the sentencer is as sure as he or she can be that the offender can afford to meet the fine, the possibility of default should not cause the sentencer to reduce the principal prison term.

In a case where custodial sentence is imposed and forfeiture order is also made resulting in the offender obtaining no financial benefit from the offence committed, fine should not normally be imposed. After looking at the circumstances of this case, I opine that imprisonment sentence is the only appropriate form of punishment, after giving regard to all the circumstances of the case including the nature and the gravity of the offence, and also the public interest. These aspects will be discussed further in the paragraphs below. Fine is certainly not an adequate punishment. The accused is more than able to pay fine as to make fine is not an effective measure to deter the accused from committing the offence again in future. 10 [10] I retain 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 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 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." 11 [11] I am of the opinion that the public interest, in this case, is best served by sentencing the accused to three weeks imprisonment taking effect from the date of her arrest. The offence committed by the accused cannot be tolerated. The accused, a Thailand national, came into Malaysia and committed an act against the law of this country. The accused must therefore 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 serious. Fine alone is certainly insufficient. [12] It must be admitted that unlicensed cyber cafes are quite rampant nowadays. Cyber cafes business must be regulated since its customers normally involve unwary youths. In order to ensure that cyber cafes are not being misused to house for any other illegal activities such as illegal gambling, the local authorities require the operators of such cafes to obtain valid license. Clearly, this is to protect the interest of the public, especially the youths. Therefore, by this judgment, I will take the opportunity to tell the public that the court views this kind of offences with much detestation and therefore, 12 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, three weeks imprisonment is sufficient to serve the purpose. [13] The court, in this case, must pass a deterrent sentence in the hope that the accused will enter into honest and sincere repentance and she will not repeat the same offence or any other criminal acts in future. Three weeks imprisonment is reflective of the court attitude and seriousness in dealing with the offence. It is also hoped that the sentence will serve as a useful reminder to others not to commit the same offence. (Refer Tan Bok Yeng [1972] 1 LNS 145) [14] 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. 13 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 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. Therefore, against the 14 backdrop of her plea of guilty, I chose to sentence the accused to three weeks imprisonment. [15] Counsel for the accused also prayed that his client not to be referred to the Immigration Department for deportation. Even though his client possesses no valid pass and/or permit to stay in this country, since this fact has not been established in this case, then the court should not make an order to that effect. However, upon closer inspection, it is clear that the accused is a Thailand national as manifested in the police report dated 06/09/17. Therefore, the accused cannot be left to roam freely in this country without valid pass and/or permit. This is the reason I ordered the accused to be referred to the Immigration Department to be deported once she has completed her sentence. [16] For the above stated reasons I sentenced the accused to three weeks imprisonment from the date of arrest. 15 ROSLIZI BIN SULAIMAN Magistrate Klang 12/10/2017 Deputy Public Prosecutor : Puan Amira Binti Abd Aziz Jabatan Peguam Negara Counsel for the Accused :