Pendakwa Raya v Mohammad Irwan Bin Kairoman (JB-42JSKH-8-10/2025)

The respondent had pleaded guilty to two separate offences of rape on a child (his sister-in-law) aged 13 years old, punishable under Section 376(1) of the Penal Code. He was convicted and sentenced to 8 years imprisonment from the date of arrest and 3 strokes of the Rotan for each of the offences by the Sessions Court, Muar. The sentences of imprisonment were ordered to run concurrently. The respondent was also ordered to undergo counselling within the period of detention under Section 26 of the Sexual Offences Against Children Act 2017 and police supervision for 2 years after the expiration of the sentence.

The learned Deputy Public Prosecutor was dissatisfied with the order that the sentence be run concurrently and with the inadequacy of the sentence of 8 years’ imprisonment. Hence, this appeal by the learned Deputy Public Prosecutor.

The charges against the respondent in respect of the instant appeal are as follows: - “PERTUDUHAN PERTAMA Bahawa kamu pada Mac 2025 jam lebih kurang 01.00 pagi bertempat di alamat No.15, Jalan Taman Setia Chamek, Taman Setia Chamek, dalam daerah Kluang, di dalam negeri Johor telah merogol seorang kanak-kanak perempuan bernama XXXXXX XXXXXX (KPT: XXXXXX-XX-XXXX). Oleh yang demikian kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah Seksyen 376(1) Kanun Keseksaan. PERTUDUHAN KEDUA Bahawa kamu pada 31/08/2025 jam lebih kurang 12.01 pagi bertempat di alamat No. 5 Perumahan SPKR, Kampung Melayu Batu 4, Jalan Yong Peng, dalam daerah Kluang, di dalam negeri Johor telah merogol seorang kanak-kanak perempuan bernama XXXXXX XXXXXX (KPT: XXXXXX-XX-XXXX). Oleh yang demikian kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah Seksyen 376(1) Kanun

The Petition of Appeal raises the following two issues: - “1. Tuan Hakim yang bijaksana telah tersalah arah apabila menjatuhkan hukuman agar berjalan serentak; dan 4 2. Pihak Perayu tidak berpuas hati kerana hukuman yang diberikan adalah tidak setimpal dengan kesalahan yang telah dilakukan.”

In opposing the appeal, Counsel for the respondent (from Yayasan Bantuan Guaman Kebangsaan) argued that the learned Sessions Court Judge (SCJ) had considered all the relevant factors before sentencing the respondent.

The law on appeal against sentence is manifest that the appellate court should be slow to interfere or disturb with the sentence passed by the court below unless it is manifestly wrong or unsuitable to the proved facts and circumstances of the case. The mere fact that another court might pass a different sentence, provides no reason for the appellate court to interfere if the trial court applies the correct principles of sentencing.

Although there is a plethora of authorities on this point, suffice for this Court to apply the principles of sentencing as enunciated in the decision of the Court of Appeal in PP v. Ling Leh Hoe [2015] 4 CLJ 869 viz: - “[14] The appellate court can and will interfere in the sentence imposed by the lower court if it is satisfied that any of the following four grounds are made out: -

The sentencing judge had made a wrong decision as to the proper factual basis for the sentence;

There had been an error on the part of the trial judge in appreciating the material facts placed before him;

The sentence was wrong in principle; or

The sentence imposed was manifestly excessive or inadequate. (See R v. Ball [1951] 35 Cr App. R 164; Loo Weng Fatt v. Public Prosecutor [2001] 3 SLR 313 at para [65]; Public Prosecutor v. UI [2008] 4 SLR

(R) 500).” 6 8. To generalize it, whilst an appellate court should be slow in interfering the sentence imposed by the trial court in the exercise of their discretion as sentencing is not a science of mathematical application, an appellate court can interfere on the sentence if it is wrong in principle or the sentence imposed is manifestly excessive or manifestly inadequate. In fact, the court of Criminal Appeal in Dookes vs. PP [2010] SCJ 71 said “However, even if there is nothing wrong with the principle, the sentence may be increased by the appellate court if it is unduly lenient.” DECISION OF THIS COURT

This Court is of the view that when two or more distinct offences have been committed by the respondent, as in the instant case, on two separate dates and at two different places, although on the same victim, the sentence should be ordered to run consecutively, as the offences were not committed in the same transaction. It is clear that this case does not fall under the one transaction rule as stated in the case of Bachik Abdul Rahman v PP [2004] 2 MLJ 534. For there to be one transaction, four elements must be present, that is to say, proximity of time, proximity of place, continuity of action, and continuity of purpose or design. In the present case, there is no proximity of time and place.

In Public Prosecutor v Yap Huat Heng [1985] 2 MLJ 414 at p. 416, His Lordship Shaikh Daud J (as he then was) said: - “where two or more distinct offence have beencommitted, sentences of imprisonment should not be made concurrent. It should only be made concurrent when an offender had been convicted of a principal and a subsidiary offence. In all other cases sentences should be made to run consecutively.”

In the Queen v Cutbush And Another [1867] LR 2 QB 329, Cockburn, CJ said: - “... as right and justice require, when a man has been guilty of separate offences, for each of which a separate term of imprisonment is a proper form of punishment, that he should not escape from the punishment due to the additional offence, merely because he is already sentenced to be imprisoned for another offence, and as it would be contrary to public policy and expediency that he should so escape with but one punishment; (emphasis by this court)” (see also Sau Soo Kim v Public Prosecutor [1975] 2 MLJ 134, Hashim Bin Pawanchee & Anor v Public Prosecutor [1988] 2 MLJ 66 and Haji Johari Bin Haji Abd Karim v Public Prosecutor [1989] 2 MLJ 276).

In the above circumstances, the learned Sessions Court Judge had erred in law and on the facts, and the order for both the sentences to run concurrently cannot be maintained and ought to be altered so as to run consecutively.

On the adequacy of the sentence, this court did not find any extenuating circumstances apart from the respondent’s plea of guilty and that he was a first offender. It is important to note that rape is a very serious offence. It is more serious when the victim is a minor (i.e., below 16 years) (Manuarva Venkaresvarlu vs State [199] 2 Crimes (AP) 854). The Learned Sessions Judge was right in considering the public interest. However, he fell into error when he failed to translate into reality the views when he sentenced the respondent to 8 years imprisonment only. In this respect, public interest is of paramount importance, and it should supersede the interest of the respondent.

The Learned Sessions Judge failed to direct his mind that rape, especially when the victim is a minor, is a very serious offence, and hence a relatively long custodial sentence is necessary for a variety of reasons. Rape is an experience that shakes the foundation of the lives of the victims. Hence, public interest warrants that the offence of rape be dealt with as the gravest crime against human dignity. It follows that public interest warrants that the sentence imposed must reflect the gravity and seriousness of the offence and that it acts as a deterrent to the respondent and also to would-be offenders (Sidek Bin Ludan v. Pendakwa Raya [1995] 1 LNS 219). In fact, where public interest demands a deterrent sentence, even the effect of a guilty plea must also be given away (Sim Lok Yong v PP [1995] 1 SLR 537). Above all, it should reflect public abhorrence of this type of crime and also serve as a protection for minors.

This Court has considered the rampancy and the plethora of sexual offences committed on young children by ruthless men, which are reported almost daily in the newspapers, which cannot be disregarded, and society, which is the ultimate guardian of decency, expects the court to take a serious view of this despicable crime so as not to impose a “too-lax sentence”. In Public Prosecutor v Chung Kwong Huah [1981] 1 MLJ 316-317, His Lordship Chan J said: - “... the time has come for the courts to show their disapproval by acknowledging that offences of this kind are grave and serious crimes, and that those who indulge in them must expect a severe sentence.”

The Learned Sessions Court Judge also failed to direct his mind to the impact this has caused to the victim, who was 6 months pregnant, due to the respondent’s offences and who delivered a child, which was confirmed to be the child of the respondent and the victim through DNA. The future of this minor was ruined by the acts of the respondent.

The Learned Judge also failed to direct his mind to the sentencing trend for this type of offence. In Pendakwa Raya lwn Ahmad Shahirul bin Ali [2025] MLJU 214, the accused/respondent was sentenced to 12 years imprisonment and 5 strokes of whippings. In the case of Bachik Bin Abdul Rahman v Public Prosecutor [2004] 2 MLJ 534, the accused was sentenced to 15 years imprisonment and 12 strokes of whippings. In PP v. Muhamad Iskandar Ismail [2016] CLJU 664, the accused was sentenced to 11 years imprisonment and 1 stroke of whipping, and in PP v. Badron Zamanuddin [2005] 5 CLJ 493, the accused was sentenced to 16 years imprisonment and 6 strokes of whipping for each of the offences, and the imprisonment was to run consecutively. Hence, the trend shows that the sentence imposed are between 11 years to 16 years imprisonment and whipping.

Premised on the above, this Court is of the considered view that a sentence of 8 years imprisonment in the circumstances of the case is manifestly inadequate and a relatively long custodial sentence is warranted to reflect firstly the gravity of the offence, secondly to reflect public abhorrence to this type of crime, thirdly to serve as a warning to other would be offenders and fourthly to punish the offender (see UR vs Roberts [1982] 1 ALL ER 60).

Considering all the above factors, this Court allowed the Public Prosecutor’s appeal as this Court found that the errors by the Learned Sessions Court Judge had given rise to a misdirection which warranted this Court’s intervention.

Having regard to all the circumstances of this case, including his guilty plea, his age, mitigation, and the sentencing trend, the order of the imprisonment of 8 years and the order for both the sentences of imprisonment to run concurrently made by the Sessions Court Judge is set aside and substituted with imprisonment of 12 years for each offence and the sentence of imprisonment to run consecutively. The other orders under sections 26 and 27 of the Sexual Offences Against Children remain. This Court is also of the view that the sentence imposed on the respondent is not a “crushing sentence” as espoused in the case of Bachik Abdul Rahman (supra) since the respondent is only 38 years of age at the time of sentencing and is not substantially above the normal level of sentences. Dated 23rd April 2026 t.t. KALYANA KUMAR A/L SOCKALINGAM JUDICIAL COMMISSIONER HIGH COURT OF MALAYA MUAR JOHORE DARUL TA’ZIM For the Appellant : Siti Asmah binti Zainal Ariffin Deputy Public Prosecutor Johor State Legal Advisor’s Office For the Respondent : Norhafizah binti Abdullah