of art. 5 of the FC could be taken away in accordance with law. In that case, the constitutionality of s. 59 of the Immigration Act 1959/1963 was challenged on the basis that the exclusion of the right to be heard in that provision, before the cancellation of respondent's entry permit, was unconstitutional as it was said to have infringed his right to livelihood. The Federal Court held that s. 59 that removes the audi alteram partem rule, which was duly enacted by Parliament is valid and constitutional. [135] Additionally, this approach has been clearly upheld in the Federal Court decision of BIRD DOMINIC JUDE where the apex court cast its mind to the issue as to whether there is a specific law authorising the deprivation of the applicant’s personal liberties. In light of the express provision authorising the deprivation of the personal liberty as set out ins. 56A of the Courts of Judicature Act 1964, the Federal Court refused to entertain the challenge to the provision on the ground of inconsistency with cl. (1) of art. 5. [136] I have already expressed my view earlier that the legislative prescription of a mandatory death penalty is within the December 19, 2021 29 legislative power to enact. The impugned provisions are therefore valid and binding law passed by Parliament. Those provisions are specific and explicit laws that authorise automatic imposition of the death penalty if the accused person is convicted at the conclusion of the trial rendering the mitigation plea playing no role in the sentencing process. Therefore, the deprivation of the right to fair trial was in accordance with the law as the impugned provisions were duly enacted by Parliament. [68] It has said in LETITIA BOSMAN (supra) that “If a mitigation plea constitutes a right to a fair trial that is guaranteed under cl. (1) of art. 5, we can take the discussion further by asking whether in a case where the accused is found guilty of an offence punishable with the mandatory sentence, can that right be taken away? As we have noted earlier at [120], this right enshrined incl. (1) of art. 5 is not absolute and is subject to qualifications. The key to the issue herein lies in the phrase ‘save in accordance with law’.” [69] Further down in the learned judgment, their Lordships said, “It bears noting that under the scheme of Chapter XX of CPC that governs the procedure of criminal trials in the High Court, there is no statutory requirement for mitigating factors to be considered by the court before it passes sentence according to law. Although there is no provision in the CPC for a plea in mitigation in High Court trials, nevertheless as a matter of fact, in practice it is quite common to allow a plea in mitigation before the court imposes sentence”. [70] Assuming that for the sake of the arguments, that notwithstanding the absence of a statutory requirement, based on the Rule of Audi December 19, 2021 30 Partem, mitigation is a right and so a right cannot be cast into oblivion and it must not be denied from the Appellant. [71] Hence it would follow that the Learned Magistrate would have erred in law when she passed sentence before the mitigation was heard. Then, it also follows that this Court must set aside the sentence that was handed down by the learned Magistrate. [72] Further if, for the sake of the arguments that I do so and having done that, I must now consider what is the suitable sentence to be passed. The mitigation put forward is that the Appellant is married with 6 children and an aged mother and his wife to support. He asked for a lenient sentence. He pleaded guilty at first instance. He has heart ailments which were all treated in a government hospital. [73] I shall now discuss what would be a suitable sentence on the facts and circumstances of the case. This brings us to the jurisprudence of sentencing in criminal procedural law. SENTENCING PRINCIPLES [74] There are many different purposes of sentencing. There is the deterrent factor, the rehabilitative factor, the punitive factor and the restorative factor. These are by no means exhaustive but these are the most common considerations. [75] In R v. BALL (KENNETH JOHN) [1951] 35 Cr App R 164, Justice Hilbery stated: “In deciding the appropriate sentence a court should always be guided by certain considerations. The first and foremost is the December 19, 2021 31 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 will 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 the 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.” [76] One important point to consider is public interest which is often said, must supersede all else. What is Public Interest? The Random House Dictionary of the English Language: The Unabridged Edition. (1994 edition) defines “Public Interest” as “the welfare or well-being of the general public and society”. [77] There are many levels of importance to this concept of Public Interest. The first and foremost is the National Security of the country. Without the national security in the country guaranteed, there is nothing that one may find, either in the form of Rule of Law, Human Rights, an orderly fashion of Governance, Accountability as well as self-regulation by society or accepted public norms. December 19, 2021 32 [78] The second is the Public Order where the Rule of Law is respected, procedures followed and one is not left bewildered by the haphazardness that is akin to the law of the jungle. [79] The third is the media interest where it invites attention by many, if not most members of society, that it would have some impact on the “good feel”. [80] Of course, sensationalist reporting is by no means within this category because there must be good and cogent reason(s) on why society is interested in the issues at hand, be it that it touches on the nerves of the right thinking members of the flock for the inconsistency with the Grund Norms, Customs and Usages or the general acceptance of things that happened which later became a matter of interest in the lives of its right thinking members. [81] If there is a conflict between the interest of society as a whole (as in the “Public Interest”) and private interest, Public Interest must prevail. While not casting individual rights into oblivion, one cannot but accept that interest of many must necessarily overrides the individuals. [82] The law is there to protect the individual rights as can be seen in the Fundamental Liberties in our Federal Constitution (see Articles 5 to 13). [83] In PUBLIC PROSECUTOR v. LOO CHOON FATT [1976] 1 LNS 102; [1976] 2 MLJ 256 the Court discussed the issues which are as follows: December 19, 2021 33 “In respect of sentencing there can be only general guidelines. No two cases can have exactly the same facts to the minutest detail. Facts do differ from case to case and ultimately each case has to be decided on its own merits. In practice sentences do differ not only from case to case but also from court to court. All things being equal these variations are inevitable if only because of the human element involved. But, of course, there must be limits to permissible variations. The principles to be applied in imposing sentence however are the same in every case. The High Court sitting in exercise of its revisionary powers will not normally alter the sentence unless it is satisfied that the sentence of the lower court is either manifestly inadequate or grossly excessive or illegal or otherwise not a proper sentence having regard to all the facts disclosed on the record or to all the facts which the court ought to take judicial notice of, that is to say, that the lower court clearly has erred in applying the correct principles in the assessment of the sentence. It is a firmly established practice that the court will not alter a sentence merely because it might have passed a different sentence. ... Presidents and Magistrate are often inclined quite naturally to be over-sympathetic to the accused. This is a normal psychological reaction to the situation in which the lonely accused is seen facing an array of witness with authority. The mitigation submitted by a convicted person will also normally bring up problems of the family hardship and the other usual problems of living. In such a situation the courts might perhaps find it difficult to decide as to what sentence should be imposed so that the convicted person may not be further burdened with additional hardship. This in my view is wrong approach. The correct approach is to strike a balance, as far as possible, between the interest of the public and the interests of the accused. December 19, 2021 34 [84] The Lord Chief Justice Lord Goddard in REX v. GRONDKOWSKI [1946] 1 All ER 560 561 offered some good advice when he said: - “The judge must consider the interests of justice as well as the interest of the prisoners. It is too often nowadays thought, or seems to be thought, that the interest of justice means only the interest of prisoners.” [85] The Court must take into account the private interest of the Appellant and measure it against that of society. In so doing, the society must be protected from the act or acts of the Appellant while the Appellant be given the opportunity of reforming himself. Protecting the society from the acts of the Appellant or like-minded individuals in the illegal acts and it is also to protect the Appellant from the very act that he committed, by deterring others from committing the very same act(s) unto him. Hence it must be remembered that protecting society at large also means protecting the Appellant himself. [86] In our instant case, property belonging to the Appellant must equally be protected from thievery or being kept by others with knowledge that it was stolen from the Appellant. [87] Hence among the factors to be taken into account are (but not limited to). i. The seriousness of the offence. ii. The protection of public interest. iii. When there is no justification for the criminal act perpetuated by the appellant. iv. Any previous conviction. December 19, 2021 35 v. Any plea of guilty. [88] As Lord Justice Lawton put it in REG. v. SARGEANT [1975] 60 Cr. App. R. 74, 77, 78 (at p. 78) or, perhaps more appropriately transmuted in a local context, the creaking of the prison doors closing shut behind him will afford the appellant ample opportunity to ponder on his folly in the company he keeps, and give to others of his ilk and equally gullible, cause to reflect on the desirability of the company they should or rather should not keep, for, as the ancient adage goes, he who sups with the devil must use a long spoon. (PUBLIC PROSECUTOR v. TEH AH CHENG [1976] 1 LNS 116; [1976] 2 MLJ 187). [89] In our instant case, the offence is having in his possession motorcar that he has reasonable grounds to believe is stolen, contrary to section 411 Penal Code that entails a minimum of 6 months imprisonment. [90] There is this issue of In PUBLIC PROSECUTOR v. LEE LAM (F) [1952] 1 LNS 87; [1952] 1 MLJ 86, his Lordship, Justice Wilson had the occasion to comment on provision that provides for a minimum sentence as follows: “So far as this case is concerned the Legislative authority has laid it down that an accused person charged with an offence such as that alleged in the first charge shall be sent to prison for a period of not less than one year. If the Legislative authority had wished to say that such a person should not be sent to prison for this minimum period if he or she had no previous conviction, the Legislative authority would have so stated. Whilst I have every sympathy with the domestic circumstances of the accused person, I find it impossible to allow myself to be influenced by them. During the period December 19, 2021 36 of this Emergency the Executive and the Legislature alone can be fully aware of the reasons which make extraordinary legislation necessary. Judges and Magistrates are not in a position and are not entitled to query such legislation unless it can be found to be ultra vires.” [91] I fully agree with his Lordship, Justice Wilson that “So far as this case is concerned the Legislative authority has laid it down that an accused person charged with an offence such as that alleged in the first charge shall be sent to prison for a period of not less than one year. If the Legislative authority had wished to say that such a person should not be sent to prison for this minimum period if he or she had no previous conviction, the Legislative authority would have so stated.” [92] The Court cannot and should not usurp the functions of the Parliament in determining the appropriate sentence for a particular offence. This is provided for by Articles 73 & 74 Federal Constitution. [93] Otherwise, it would be crossing the line and be guilty of judicial legislation, violating the separation of powers. [94] Keeping in mind the principle that “If the Legislative authority had wished to say that such a person should not be sent to prison for this minimum period if he or she had no previous conviction, the Legislative authority would have so stated”. [95] The Federal Court in LETITIA BOSMAN (supra) held that “The court has no choice but to impose the mandatory sentence provided by law as enacted by Parliament. There is no room to make the mandatory principle discretionary; otherwise it would amount to usurpation of constitutional powers of Parliament. December 19, 2021 37 The fact that the court has no alternative but to pass that sentence does not make the mandatory sentence unconstitutional. There is no denial of the equal protection of the law to the offenders. In this way, there is no denial of the right to a fair trial in a case of an offender that is deprived of a plea of mitigation before the court passes the mandatory death sentence.” [96] I am aware of a High Court decision of her Ladyship Justice Zaharah (as she then was) in the High Court case of PP lwn. KANDASAMY MUNIANDY [2005] 2 CLJ 201 where her Ladyship imposed an Order of Binding Over for Good Behaviour for an offence under section 411 Penal Code. The facts of that case was that the accused stole parts of a bus that was left abandoned by the roadside. The owner did leave the bus abandoned and no longer wants it back. Technically it was still his bus as the Certificate of Ownership of the bus still, at the material time, had his name on it. There were extenuating circumstances that invited the application of section 294 Criminal Procedure Code. [97] I have scrutinised the facts of this case. Nowhere does it show that the owner had abandoned the stolen vehicle. It is in evidence that Nurul Farha binti Pardi who worked at the Statistics Department in Muar. Her office is situated at Wisma Tiam Lock (which is the Inland Revenue Board Building, Muar) at No. 19/4, Jalan Sungai Abong, 84000 Muar, in the District of Muar, in the State of Johore, had on 28 January 2020 at about 1 pm, left the office to have lunch with friends and she went to the parking lot of the building where she left her car. December 19, 2021 38 [98] When she reached her parking bay where she left her car earlier, the car which is a white Perodua MyVi 1.5 SE (auto) with the registration number JTN 1113, was no longer there. She immediately went to the Security Guard Kiosk to view the CCTV and she saw through the video recordings that an unknown man got into her car and drove it off at about 11.15 am that day. She then lodged a police report (Muar Report / 1244/20) at the Muar Police Station in the State of Johore. [99] The facts in KANDASAMY MUNIANDY (supra) was clearly distinguishable from the facts of our case. I have considered section 294 Criminal Procedure Code and I found “if it appears to the Court that regard being had to the character, antecedents, age, health or mental condition of the offender or to the trivial nature of the offence or any extenuating circumstances under which the offence was committed it is expedient that the offender be released on probation of good conduct, the court may,…” is inapplicable in out instant case [100] Coming back to LETITIA BOSMAN (supra), by the Doctrine of Stare Decisis, I am bound to follow the decision of the Federal Court and since, for an offence under section 411 Penal Code, the minimum sentence is 6 months imprisonment, and after finding section 294 Criminal Procedure Code unsuitable, I would still sentence the Appellant to an imprisonment term of 6 months from the date of this judgment. CONCLUSION [101] Section 316 Criminal Procedure Code reads as follows: December 19, 2021 39 316 Decision on appeal At the hearing of the appeal the Judge may, if he considers there is no sufficient ground for interfering, dismiss the appeal, or may-