Pendakwa Raya v Mohamed Norhasif Bin Norwiradijaya (WA-42H-8-06/2024)

The Accused / Appellant was convicted by the learned Sessions Court Judge for the following charges: -

WA-42H-8-06/2024

First Charge BAHAWA KAMU PADA 06/07/2022, DALAM JAM LEBIH KURANG 4.00 PAGI SEHINGGA 4.40 PAGI BERTEMPAT DI ALAMAT BLOCK 6-2-8, INDAH APARTMENT, JALAN 1D/6, TAMAN SETAPAK INDAH, 53300 KUALA LUMPUR, DALAM DAERAH WANGSA MAJU, DI DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR TELAH MELAKUKAN CUBAAN ROGOL DENGAN MELETAKKANNYA DALAM KETAKUTAN ATAU KECEDERAAN TERHADAPA SEORANG PEREMPUAN BERNAMA AININ SOFEA BINTI MOHD TAUFIK, NO. K/P: 990830-02-5806, BERUMUR 22 TAHUN 10 BULAN. OLEH YANG DEMIKIAN, KAMU TELAH MELAKUKAN KESALAHAN YANG BOLEH DIHUKUM DI BAWAH SEKSYEN 376(2)(b) KANUN KESEKSAAN.

(ii) Second Charge

(iii) Third Charge

WA-42H-9-06/2024

First Charge

(ii) Second Charge

The learned Sessions Court Judge had found the accused guilty of the said offences after hearing the Prosecution’s witnesses and the accused’s witness. The following sentence was entered against the accused: -

7 years for the offence of armed robbery

(ii) total of 10 years for the offence of sexual assault and attempted rape and 2 canning for each offence (3 charges) (total of 6 canning).

The learned Sessions Court Judge had also ordered that the punishment laid down above are to be undertaken concurrently from the date of arrest.

The Appellant has chosen not to pursue the appeal against conviction. Instead, the Appellant wishes to appeal only on the sentence laid down by the learned Sessions Court Judge.

I also note that the Public Prosecutor also appeals against the decision of the learned Sessions Court Judge on the said sentence. The learned Deputy Public Prosecutor appearing before me suggests that the said sentence by the learned Sessions Court Judge is insufficient and should be enhanced. The Public Prosecutor also challenges the decision of the Sessions Court in directing the said sentences concurrently. B. Decision of this Court

After considering the submissions, the record of appeal and arguments raised by learned counsels I allowed the appeal by the Public Prosecutor and make the following orders: -

the sentence of 7 years for the offence of armed robbery is maintained but this Court adds the punishment of 1 whipping / canning to be imposed against the accused.

(ii) total of 10 years for the offence of sexual assault and attempted rape and 2 canning for each offence (3 charges) (total of 6 canning) as imposed by the learned Sessions Court Judge is maintained.

(iii) the above sentences stated above are to be undertaken consecutively for a total of 17 years with canning 7 times.

The appeal by the accused against sentence and conviction is dismissed. C. Reasoning of this Court

It is clear from the decision of the learned Sessions Court Judge that the accused was found guilty for the offence of armed robbery. The sentence laid down under section 392 and section 397 of the Penal Code states that the punishment that should be imposed by the Court is as follows: -

Section 392 Whoever commits robbery shall be punished with imprisonment for a term which may extend to 14 years, and he shall also be liable to fine or to whipping.

(ii) Section 397 If at the time of committing or attempting to commit robbery the offender is armed with or uses any deadly weapon….such offender shall be liable to be whipped, in addition to any other such punishment to which he may be liable under any other section of this Code.

It is trite law that this Court should be slow to interfere or disturb with the 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. The fact that another Court might pass a different sentence does not provide reason for this Court to interfere unless it is shown that the Court below had misapplied the principles of law in assessment of sentence.

After considering the above statutory provisions, I find that the learned Sessions Court Judge had erred and should have added a sentence of whipping as required under section 397 of the Penal Code. The learned Sessions Court Judge did find that the accused had committed the crime of armed robbery as charged and it is mandatory for such offences to include whipping as a form of punishment for the said offence.

In the circumstances, this Court adds that the accused should be whipped once in accordance with section 397 of the Penal Code. I find that the sentence should have included this punishment as it is mandatory and therefore, the learned Sessions Court Judge had erred in law and should be corrected by this Court.

The Appeal filed by the accused as to the duration of the sentence imposed by the learned Sessions Court Judge is dismissed. I opine that the length of the sentence imposed is in accordance with law and did follow the required sentencing guidelines as elucidated by our Superior Courts. Sentence on Sexual Offences 13. I also find that the decision by the learned Judge on the length of the sentence for the sexual offences and whipping imposed is in line with the applicable law and legal principles.

I therefore decided not to interference and decided to affirm the decision of the learned Sessions Court Judge save on the issue of whether the sentence for armed robbery of 7 years and the sentence of 10 years for the sexual offences should run concurrently or consecutively. Concurrent or Consecutive Sentence for these Offences 15. As laid down earlier, the learned Sessions Court Judge had found that the sentence imposed for these offences should run concurrently from the date of the arrest.

I am of the opinion that the decision by the learned Sessions Court Judge that these sentences for these distinct offences should run concurrently should be corrected by this Court. I find that the sentence is manifestly wrong in view of the gravity of the offence committed and the sentence passed will not be adequate to show to the accused the gravity of the offence committed by him.

I have considered the following cases in coming to this position: -

Lee Chow Meng v PP [1976] 1 MLJ 287

(ii) Ahmad Danny bin Jilip v PP [2024] MLJU 1715

(iii) PP v Ahmad Osman [1998] 1 CLJ 66

(iv) PP v Yap Huat Geng [1986] 1 CLJ 81

The trial Judge should have considered (i) the severity of the offences committed, (ii) the importance of ensuring that the sentence reflects the overall seriousness of the behavior of the accused and (iii) the deterrent factor to ensure that the public and the accused understand the seriousness of the crime and that these offences will not occur again in the future. I have also considered the fact that this case involves two females and too consider them merely as being undertaken in a single transaction will be simplistic and does not reflect the true nature of the offences committed. I refer to PP v Prabu Veeramuthu & Ors [2010] 8 CLJ 257.

I find that in view of the above factors, I believe this is a suitable case for this Court to intervene and direct that the said sentence of (i) 7 years for armed robbery and (ii) 10 years for sexual related offences run consecutively and not concurrently as directed by the lower Court. Thus, making a total maximum of 17 years for the said offences. This is more appropriate in the circumstances of this case. The manner in which the offences were committed by the accused against the victims and the brazen manner justifies a longer imprisonment should be imposed against the accused. This is also to ensure that the fairer sex in our society is protected from such criminal behavior.

This Court also takes judicial notice of the current increase in sexual offences and there is a need to deter such behavior. I have considered the age of the accused and the need to balance the need of society, the possible rehabilitation of the accused and the requirement of not crushing the soul of the accused by unfair long sentences.

However, in view of the seriousness of the crime of (i) armed robbery,

(ii) sexual assault and (iii) attempted rape, I believe a longer sentence will serve its purpose and show to the accused and the public as a whole that our Courts takes these cases seriously. He was a neighbor of the victims and one should be able to trust on such a person. For the 2 female victims to be subjected to these crimes, the accused should be subjected to a longer sentence to deter such similar behavior in our society. D. Orders of this Court

For the above reasons, I vary the orders made by the learned Sessions Court Judge as stated earlier.

For the appeal bearing number WA-42H-8-06/2024, the sentence for the said 3 charges under section 376(2)(b) / 511, section 377C and Section 377CA Penal Code are maintained and are to run concurrently for the said offences.

For the appeal bearing number WA-42H-9-06/2024, this Court directs that the Appellant be subject to the sentence of imprisonment of 7 years and to be whipped a single time.

The sentence for appeal bearing number WA-42H-9-06/2024 is to start after the Appellant completes the sentence for the appeal bearing number WA-42H-8-06/2024. Dated 26th November 2025 (DATO’ INDERA MOHD ARIEF EMRAN BIN ARIFIN) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR CRIMINAL 2 FEDERAL TERRITORY OF KUALA LUMPUR Parties For and on behalf of the Public Prosecutor – DPP Zaileen Nadia binti Zubir of the Attorney General’s Chambers (AGC) For the respondent – DC Salvantiran Thurai of Sumitra Devi & Partners