Shrestha Sujan v Pendakwa Raya (J-05(SH)-164-03/2018)

Content

IN THE COURT OF APPEAL AT PUTRAJAYA, MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO.J-05(SH)-164-03/2018 BETWEEN SHRESTHA SUJAN - APPELLANT AND PUBLIC PROSECUTOR - RESPONDENT [In the Matter of High Court of Malaya at Muar, Johor Criminal Trial No. 45B-01-01/2017 Between Public Prosecutor And Shrestha Sujan] CORUM: HAMID SULTAN BIN ABU BACKER, JCA HANIPAH BINTI FARIKULLAH, JCA HADHARIAH BINTI SYED ISMAIL, JCA JUDGMENT OF THE COURT [1] The appellant was originally charged in the High Court of Muar, Johor Bahru for causing the death of Hom Bahadur Magar on $ 4^{\mathrm{th}} $ June 2016 between 11.00 pm to 11.50 pm in the worker's hostel of Poh Keong Factory, District of Muar, Johor Bahru, an offence under section 302 of the Penal Code. [2] At the close of the prosecution's case, the learned trial judge found there was no prima facie case for the offence under section 302 Penal Code and amended the charge to section 304 (a) of the same Code. The appellant was called to enter his defence. [3] At the conclusion of the trial, the appellant was found guilty by the High Court. He was convicted and sentenced to 22 years imprisonment from the date of his arrest on 5.6.2016. The appellant appealed against his conviction and sentence. [4] We first heard the appeal on 3.2.2020. It was adjourned to 10.8.2020 for further submission by parties. On 10.8.2020, the appellant withdrew his appeal on conviction and appealed against the sentence only. [5] It is not disputed that at the time of the commission of the offence, the appellant was 19 years old and on the date of sentencing, the appellant was 21 years old. Learned counsel for the appellant contended that the sentence imposed by the trial judge is excessive as the appellant is a youthful offender. It is submitted that the court should exercise it's discretion under section 293 of the Criminal Procedure Code (CPC) which deals with sentencing on youthful offender and give a lesser imprisonment term. Brief background facts [6] Both the appellant and the deceased were Nepalist. They knew each other and they stay together at the worker's hostel of Poh Keong Industri Sdn Bhd's factory. [7] The representative of the deceased's employer, named Tan Joo Meng (SP4) testifies that there were 75 workers staying in the said hostel. These workers were from Bangladesh, Nepal, Myanmar, Vietnam and Indonesia. [8] The prosecution's case rest mainly on the testimony of it's two eye witnesses, namely Dinesh Budha Magar (SP1) and GC Laxumal (SP2). Both SP1 and SP2 testify as to what they saw happen prior and after the incident as follows: a. There were fights between 30-40 Nepalist at the hostel. b. The deceased and the appellant were drinking alcohol. c. The appellant took a knife from a kitchen which was situated beside the workers' hostel. c. The appellant came back inside the hostel and stab the deceased's left stomach only once. d.The deceased took out the knife from his stomach before he fell down.e.After stabbing the deceased, the appellant ran away.f.SP2 went to Bakri Police Station to report on the incident.g.The appellant was arrested at a durian orchard, not far from the workers’ hostel.[9]The cause of the deceased’s death was confirmed by SP11 as stab wound and Hepatic Steatosis (liver disease).[10]In his defence, the appellant alleged as follows:i)On the day of the incident, he entered Deepak’s room and was given a drink which looked like a coca-cola, but tasted weird and he felt dizzy. Deepak was not called as a witness because he could not be found.ii)Outside Deepak’s room, he heard a loud noise and people fighting. The fight is about their religion, custom and race.iii)He saw the deceased was fighting and hitting each other.iv)The deceased had provoked him by uttering the following words:“Anjing sini pergaduhan berlaku kau ingat kami sedang main-main. Saya anak bangsa Maghar, apa yang kau boleh buat?”v)He then went to the kitchen to get a knife with the intention to stop the deceased from fighting and making provocation. vi) He only knew that he had stabbed the deceased when told about it by SP2 when he was in the police lock up. The issue [11] Whether this court should exercise its discretion under section 293 of the Criminal Procedure Code? Section 293 CPC provides as follows:

Subsection

(1) When any youthful offender is convicted before any Criminal Court of any offence punishable by fine or imprisonment,the Court may,instead of awarding any term of imprisonment in default of payment of the fine or passing a sentence of imprisonment-

Subparagraph

(ii) in this paragraph, "community service" means any work, service or course of instruction for the betterment of the public at large and includes, any work performed which involves payment to the prison or local authority; and

Subparagraph

(iii) the community service under this paragraph shall be under the Minister charged with the responsibility for women, family and community.

Subsection

(2) (Deleted by Act A1274);

Subsection

(3) When any order has been made under paragraph (1) (b) and the Court has reason to believe that the behaviour of the offender during the period specified in the order is not good or that the offender has not complied with any direction included in the order, the Court may issue a notice addressed to the offender and to the parent, guardian, relative or other person to whom the offender has been delivered or under whose supervision the offender has been ordered to remain to show cause why that offender should not be dealt with under paragraph (1)(d) and if cause is not shown to the satisfaction of the Court, the Court may cancel the order made under the said paragraph (1) (b) and substitute for it as from the date of the cancellation an order under the Child Act 2001, and may if necessary issue a warrant for the apprehension of that offender so that effect may be given to the order. Submission of parties [12] The learned DPP submits that by the usage of the words "the Court may" appearing in sub-section (1) of section 293 CPC, it is not a mandatory requirement for the court to invoke section 293 when the accused person is of youthful age. In this appeal, it is submitted that although the appellant was a youthful offender, at the time of the sentencing, the learned trial judge was correct in sentencing the appellant with 22 years imprisonment. The appellant was convicted for an offence under section 304 (a) of the Penal Code, a serious offence which carries a punishment of imprisonment for a term which may extend to thirty years. The learned DPP had produced a table to show the trend of sentencing for an offence under section 304 (a) is between 18 years to 22 years imprisonment depending on the facts of each case. It is submitted that to sentence the appellant under any of the limbs under Section 293 of CPC will be manifestly inadequate. It is further submitted that the omission of the trial judge to mention section 293 CPC in her written judgment does not amount to a misdirecton. This is because the trial judge had considered all the important factors that needs to be taken into account before proceeding with the sentencing. Finally, it was submitted that if this Court so desire, this court can reduced the imprisonment term from 22 years to 10-12 years. [13] Learned counsel for the appellant submitted that the trial judge had erred in failing to consider section 293 CPC. Counsel urged this court to apply section 293 CPC and reduced the sentence to 6 to 7 years imprisonment based on the following mitigating factors: i) The appellant came to Malaysia in October 2015. i) He was 19 years old at the time of the commission of the offence; ii) This is his first offence; iii) He has no intention or pre-meditated plan to kill the deceased; and iv) He stab the deceased once only. [14] In passing the sentence, the learned trial judge said: "Mahkamah berpendapat hukuman tersebut (22 tahun penjara) adalah setimpal dan munasabah berdasarkan alasan berikut :i) Hukuman yang diperuntukkan di bawah seksyen 304 (a) Kanun Keseksaan ini boleh sehingga 30 tahun. Ini merupakan kesalahan yang serius yang telah menyebabkan kematian seseorang. ii) Perbicaraan telah dijalankan setelah tertuduh pohon dibicarakan setelah pertuduhan pindaan dibuat dan dibacakan. Ini telah mengambil masa Mahkamah dan melibatkan kos. iii) Hukuman ini berbentuk 'deterent' kerana telah banyak jenayah di negara ini dilakukan oleh pekerja asing. Sepatutnya perkara ini dielakkan kerana seperti yang dinyatakan di dalam rayuannya, tertuduh mengatakan yang dia datang ke Malaysia untuk mencari rezeki. Tambahan pula dia telah beristeri dan merupakan anak lelaki tunggal kepada keluarga. iv) Mahkamah juga telah melihat 'trend of sentencing' untuk kes-kes di bawah seksyen 304 (a) ini yang kebanyakkannya tertuduh telah dikenakan hukuman dari 20 tahun ke 24 tahun." [15] We are aware of the legal principles that the appellate court should not disturb the sentencing passed by the lower court unless the sentence is manifestly inadequate or excessive or there is error in the assessment of sentence. In Dato' Seri Anwar bin Ibrahim v Public Prosecutor [2002] 3 ML J 193, the Federal Court said: "It is of the upmost importance to stress here that the appellate court will not normally alter the sentence unless it is satisfied that the sentence passed by the lower court' is manifestly inadequate or excessive or illegal or otherwise not a proper sentence having regard to all the facts disclosed or that the court has clearly erred in applying the facts disclosed or that the court has clearly erred in applying correct principles in the assessment of sentence, see Public Prosecutor v Loo Choon Fatt [1976] 2 ML J 256." [16] In Public Prosecutor v Loo Choon Fatt [1976] 2 MLJ 256, Hashim Yeop Sani J (as he then was) held: "One of the main consideration in the assessment of sentence is of course the question of public interest." [17] Similarly, in Public Prosecutor v Ahmad Khairul Fa'ais bin Mat Dahlan & Ors [2006] 5 ML J 190, Singham J said: "The court, in sentencing any prisoner, has an obligation to have regard to the public's expectation of what an appropriate punitive period of imprisonment should be having regard to all the relevant circumstances." [18] We agree with the DPP that the trial judge had considered relevant factors including the seriousness of the offence and the trend of sentencing. We also agree with the DPP that by virtue of the word 'may' in section 293(1), it is not mandatory for the trial judge to consider section 293 before she passed the sentence. However, we took the view that the trial judge can still consider section 293 and decide whether that section is applicable or not. If the trial judge says section 293 is not applicable, she must state the reasons why it is not applicable. We find the failure of the trial judge to consider section 293 to reduce the sentence notwithstanding the trend of sentencing based on the special facts of the case has caused injustice to the appellant. [19] The special facts of this case meant by us are as follows:

Subparagraph

(ii) he was not only a young offender but he was also a first offender;

Subparagraph

(iii) the incident happen as a result of a fight amongst the Nepalist workers;

Subparagraph

(iv) the Nepalists were arguing about their own race and culture;

Subparagraph

(vi) the appellant is not a hardcore criminal that posed a danger or threat to our society;

Subparagraph

(vii) putting the appellant behind bar for too long a time only burdened our government with cost to feed foreign prisoner;

Subparagraph

(viii) the appellant can be deported back to Nepal early if the imprisonment term is shorter and this save the government's money. [20] Therefore, considering the nature of the offence, how it was committed and the circumstances mentioned above, we were of the opinion that section 293 CPC ought to be applied. We take the view that 6 years imprisonment from date of arrest will be just and fair. Therefore, we make an order that the sentence of 22 years imprisonment be reduced to 6 years. We also wish to state that this is not an authority for other cases where it does not involved youthful offender. Dated 21 September 2020. Hadhariah binti Syed Ismail Judge Court of Appeal For the Appellant: Datin Kharen Jit Kaur; Messrs Law Chambers of Kharen Jit & Associates. For the Respondent: En Zaki Asyraf Zubir, Deputy Public Prosecutor; Attorney General Chambers.