Tpr Geetha Jora Singh v Muhamad Hafis Bin Abdul Rahman (KB-83-811-11/2018)

These grounds of judgment are prepared in pursuance of an appeal by the Deputy Public Prosecutor (‘DPP’) on 27 November 2018 against my decision made and/or pronounced on 21 November 2018.

The charge framed against the accused under section 380 of the Penal Code was as follows: - Bahawa kamu pada 16 hb November 2018 pada jam lebih kurang 7.45 pagi bertempat di Kedai (Mart) Stesen Minyak Caltex Lagenda Page 2 of 17 Height Sg. Petani dalam daerah Kuala Muda di dalam Negeri Kedah telah didapati melakukan kesalahan curi dalam bangunan yang digunakan sebagai tempat simpanan barang iaitu (2) bungkus milo active-go berat (1) kilogram setiap satu, milikkan (sic) Stesen Minyak Caltex Lagenda Height. Oleh yang sedemikian kamu telah melakukan suatu kesalahan yang boleh dihukum dibawah (sic) sek 380 Kanun Keseksaan. Hukuman: Penjara selama tempoh yang boleh sampai (10) tahun dan boleh dikenakan denda.

Should the accused be found guilty, the sentence provided by the law is as follows: - “… shall be punished with imprisonment for a term which may extend to ten years, and shall also be liable to fine, …”

Hence, if found guilty, shall be given a custodial sentence not more than 10 years’ imprisonment.

The prosecution was led by the learned Deputy Public Prosecutor Geetha Jora Singh and the accused was represented by the learned counsel, Ruzanna Binti Abdul Rahim from Yayasan Bantuan Guaman Kebangsaan (‘YBGK’).

The charge was read, explained in Bahasa Melayu, and the accused understood the nature and the consequences of the plea.

In order to ascertain that the plea of guilty made is completely unreserved, unqualified and unequivocal, the facts which constitute the offence must be placed before this Court. Hence, the prosecution had tendered the facts of the case and marked it as P1. It was read and explained to the accused in Bahasa Melayu. The accused understood and admitted it to be true. P1 can be surmised as: - The complainant in this case is a manager of Stesen Minyak Caltex Lagenda Height. On 16 November 2018 at about 7.45 a.m. whilst he was on duty, he saw from the CCTV that one Malay male i.e. the accused, took 2 packets of Milo Active-Go weighing 1 kg each and put it in his bag pack. When the accused went out from the store, he was caught by the complainant.

The prosecution had, then, tendered the following documents and marked as evidence: - i. Police Report Sg Petani 29041/18 … P2 ii. Police Report Sg Petani 29044/2018 … P3 iii. Borang Bongkar … P4 iv. Sijil Serah Menyerah … P5 v. 8 photos of the crime scene and the exhibit … P6A-H vi. 2 photos via CCTV … P7A-B Page 4 of 17 vii. 2 packets of Milo Activ-Go … P8A-B viii. 1 bagpack registered under ER 702/18 … P9 [P4, P6A-H, P7A-B, P8A-B and P9 – admitted by the accused to be true]

As alluded above, I accepted the accused’s plea of guilty and the accused was found guilty as per the charge framed.

Before passing any sentence under the law, the accused was given the opportunity to mitigate.

Through the YBGK lawyer, it was submitted that the accused is of 37 years of age, doing odd jobs without a stable source of income. He is the sole breadwinner of the family having to support his wife who is a full time housewife and his two young children, aged 7 and 2 years old. His plea of guilty has saved the Court’s time and cost. He has given his words not to repeat the same offence. The value of P8A-B is low. The accused requested for a minimum sentence of imprisonment.

As for the aggravating factors, the prosecution had pleaded for a deterrent sentence and according to the complainant, the accused often steals from the store. However, I opine for this issue not to be taken into consideration as the prosecution did not tender the previous records of the accused to support such allegation. As such, Page 5 of 17 no conviction was ever recorded against the accused under the same offence.

The accused is found guilty and convicted under section 380 of the Penal Code.

Hence, taking into account the mitigating and the aggravating factors by both parties, instead of imposing 3 months of imprisonment, I have given an order for the accused, with his willingness, to undergo compulsory works (Compulsory Attendance Order) arranged by the prison department for a period of 3 months with 4 hours daily aggregate in accord with section 5 of the Offenders Compulsory Attendance Act 1954 (‘Act 1954’) (‘the said sentence’).

Aggrieved. The prosecution appeals against the said sentence.

The reasons for doing so are set forth below in respect of the crime sentencing. I do not wish to elaborate on the conviction as the appeal relates to the said sentence.

It is in the forefront of my mind that the prime consideration is the public interest. In the oft-quoted case of R v Ball 35 Cr App R 164, it was observed by Hillbery J that: Page 6 of 17 “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 the crime, but also in the hope of preventing it … The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living …” [See also PP v Low Choon Fatt [1976] 2 MLJ 25 and PP v Idzham Bin Shafie [2006] 4 MLJ 236]

However, this principle cannot be applied ipso facto. It varies according to the time, place and circumstances of each case including its nature and prevalence. See New Tuck Shen v PP [1982] 1 MLJ 27 as per Wan Yahya J. In another word, it is on a case-to-case basis.

It cannot be gainsaid that a mitigation plea should not be rejected outright the moment it was made or to consider it lightly. It has to be deliberated in the light of the facts of each case so as to strike a balance in the scale of justice. See Raja Izzuddin Shah v PP [1979] 1 MLJ 270 and Zaidon Shariff v PP [1996] 4 CLJ 441.

There are many factors leading to a lenient sentence, inter alia, the plea of guilty and the record of the offender.

In the instant case, the accused had pleaded guilty on the very first day he was brought to this Court. It is a strong indication that the accused was remorseful for his crime and he had given his promise Page 7 of 17 to this Court not to commit the same offence again in the future. The accused’s plea of guilty has not only saved a great expense of a lengthy trial but also saved time and cost. This cannot be disregarded by this Court. It entails that the accused should be given credit or discount for pleading guilty. In the case of PP v Sharinathan a/l Pachemuthu [2000] 5 MLJ 368, it warrants a one-third reduction. Indeed, the act of the accused had committed a crime under section 380 of the Penal Code, nonetheless, the accused had only stolen 2 packets of Milo Activ-Go weighing 1 kg each. The accused did not gain any benefit from his crime as P8A-B had been successfully retrieved by the complainant. Bearing in mind, it was the first time the accused had committed such crime as there was no record whatsoever. This Court, being a subordinate to the higher courts, is bound by the principle enunciated in the case of Zaidon Shariff (supra) as observed by Augustine Paul JC (as he then was).

I opine that this is neither a serious nor a grave crime that warrants a long custodial sentence based on the facts of this case. A long custodial sentence would also affect the family of the accused since he is the sole breadwinner supporting his full time housewife and 2 young children, doing odd jobs with no stable source of income. See Chan Sit Hoong v PP [1975] 1 MLJ 261. It would suffice for the accused to serve a period of 3 months’ imprisonment as there is no minimum sentence to be imposed under section 380 of the Penal Code.

Next question to be answered is this, would that punishment be best served for the public interest against the facts of this case? I do not think so.

The fruits of crime sentencing are not only to deter others from committing the crime but also to induce the offenders to turn from criminal ways to an honest living. This in line with one of the aims of sentencing namely rehabilitation. True rehabilitation gives a way to the accused to return to the society and be a civilised Malaysian citizen.

Against that backdrop, instead of imposing a period of 3 months’ imprisonment and after having explained, and understood by the accused of the nature and the consequences of the compulsory attendance order, through his willingness, I ordered the accused to undergo compulsory works (Compulsory Attendance Order) arranged by the prison department for a period of 3 months with 4 hours daily aggregate.

Compulsory attendance order or in Bahasa Melayu known as Perintah Kehadiran Wajib is derived from an act namely Offenders Compulsory Attendance Act 1954 (revised 1991) (‘Act 1954’).

For ease of reference, I shall set forth the whole provision of section 5 of the said Act 1954. Page 9 of 17 “Compulsory Attendance Order

(1) Where a person, who resides not more than the prescribed distance from a Centre—

has been convicted of an offence for which he is liable to be sentenced to imprisonment; or

is liable to be committed to prison for failure to pay a fine or debt, and the Court is of the opinion that—

had this Act not been passed, such person would have been adequately punished by a sentence of imprisonment for a period not exceeding three months; and

(ii) having regard to the character of such person, the nature and seriousness of the offence or the circumstances of such person’s failure to pay (as the case may be) and all the other circumstances of the case, it is inexpedient to commit him, the Court may, in lieu of such sentence or committal, make a Compulsory Attendance Order requiring such person to attend daily at a Centre to be specified in such Order and to undertake compulsory work for a period not exceeding three months and for such number of hours each day not exceeding four as may be specified in such Order, and may, for further ensuring due compliance with such Order, require the offender to enter into a bond with or without sureties.

Where the Court has reason to doubt whether any such person is physically capable for employment on compulsory work the Court—

may cause him to be medically examined;

shall not make a Compulsory Attendance Order unless it is shown to the satisfaction of the Court that he is so capable; and

shall specify in the Compulsory Attendance Order, if such an order is made, any compulsory work for which the Court is satisfied he is not physically capable.

The number of hours each day during which the offender shall be required to be employed under subsection (2) shall not exceed four exclusive of any intervals prescribed for meals, refreshment or rest and shall, if the offender is gainfully occupied in employment, occupy only that part of the offender’s time which would represent leisure hours.

The Court shall, before making a Compulsory Attendance Order, explain to the person concerned in ordinary language the effect of such Order and the consequence of failure to comply therewith and shall not make the order unless such person expresses his willingness to comply with the requirements thereof.” [28] It is a point to note that there are not many decided cases in relation to the application of the said Act 1954. I had the opportunity to read written judgments by the learned High Court judges in the case of PP v Azizie Chew Chung Zhi & Anor [2014] 1 LNS 111 (Ravinthran Paramaguru J) and PP v Mohd Rezza Muslim Mohd Asri [2015] 2 CLJ 1013 (Abu Bakar Katar JC). [29] In the case of Azizie (supra), the accused was charged with attempting to steal a car under section 379A of the Penal Code read together with section 511 of the Penal Code. It was observed by the learned High Court judge that the said Act 1954 can be applied in the following manners. Firstly: the presiding Magistrate must have in mind that less than 3 months’ imprisonment is adequate for the offence committed. Page 11 of 17 At page 4: “The Offenders Compulsory Attendance Act 1954 (Revised 1991) does not list out the offences for which a Compulsory Attendance Order could be made. However section 5 provides that such an order could be made in cases where, if the option of a Compulsory Attendance Order was not available, in the opinion of the court the person would be adequately punished with a period of imprisonment not exceeding three months. This simply means that if the sentencing magistrate wanted to imprison an accused person, he would have exercised his discretion to impose a period of three months imprisonment or less.” [My own emphasis is added] Secondly: if there is a minimum sentence to be imposed, it must not be more than 3 months. At page 5: “The reason is that for an offence under section 379A read with section 511, the minimum punishment is one year imprisonment. Therefore, if Parliament had not passed the Compulsory Attendance Act 1954 (Revised 1991), the question of exercising sentencing discretion by imposing imprisonment for a period of less than three months or less would not arise in the first place as the court would be obliged by law to impose at least one-year imprisonment.” [30] That having been said, the learned High Court Judge set aside the order made by the learned Magistrate. Page 12 of 17 [31] In applying the case of Azizie (supra) to the instant case, both of the requirements have been fulfilled. As I mentioned herein before, it is of my opinion that the 3 months’ imprisonment is adequate to be imposed on the accused as there is no minimum sentence of imprisonment under section 380 of the Penal Code. [32] Meanwhile, in the case of Mohd Rezza (supra), the accused had been found guilty and convicted for an offence under section 43(1) of the Road Transport Act 1987. Instead of imposing the punishment provided under the said offence, the learned Magistrate had invoked section 5(1) of the said Act 1954. It is a point worth noting that the decision made by the learned High Court judge was in obiter as the appeal was withdrawn by the prosecution and thus, it became an academic discussion, however, it is worthwhile to set out herein for a more detailed discussion. [33] It was propounded by the learned High Court Judge that the purpose of enacting the said Act 1954 is to bring back the offenders to the society and to ensure that the offenders will not feel isolated or abandoned by the society at large. The society plays a vital role to rebuild the confidence of the offenders. This eventually leads to the very purpose of the aim of the crime sentencing namely rehabilitation. At page 1016 [11] – 1017 [14]: Page 13 of 17 “[11] Objektif utama program ini diadakan antara lainnya bertujuan mengurangkan kos yang perlu ditanggung oleh Kerajaan bagi menampung banduan yang menjalani hukuman kurang daripada tiga bulan, mengurangkan kesesakan dalam penjara, pesalah masih meneruskan penghidupan sehariannya seperti biasa (pekerjaan asalnya), mengurangkan kesan pemenjaraan bagi kesalahan yang ringan dan mengurangkan impak residivis di penjara. [12] Program yang dilaksanakan ini dapat membantu memulihkan pesalah dengan program-program yang diatur dengan memberi intervensi, sesi kaunseling dan memberi khidmat nasihat yang berterusan bagi mengingatkan pesalah supaya dapat berubah tingkahlaku dari negatif kepada positif. [13] Di samping itu, apabila pesalah melakukan kerja-kerja wajib di lokasi kerja wajib ianya diharapkan dapat membantu memulihkan pesalah dengan timbul rasa keinsafan kepada pesalah. Sebagai contohnya apabila pesalah melakukan kerja wajib di rumah orang-orang tua, diharapkan semasa melakukan kerja tersebut akan menimbulkan rasa keinsafan kepada diri pesalah dan memupuk perasaan menghormati antara satu sama lain. [14] Mahkamah ini juga berpendapat dengan adanya PKW, masyarakat sebenarnya memainkan peranan yang penting di dalam membantu program ini dapat dilaksanakan dengan jayanya. Masyarakat berganding bahu bersama-sama pesalah dan bukannya dengan memulau atau menjauhkan diri daripada pesalah. Secara tidak langsung masyarakat membantu memulihkan keyakinan dan membina jati diri pesalah. Jabatan Penjara telah mengenal pasti peranan yang boleh diberikan oleh masyarakat kepada pesalah antaranya ialah memberi khidmat sokong bantu, memberi khidmat kaunseling, menyediakan lokasi kerja wajib dan mengadakan program bersama pesalah” [34] I suppose, in my humble opinion, the imposition of Compulsory Attendance Order will not only save the public funds for a custodial sentence for a period of 3 months or less, but, it will also help the Page 14 of 17 offender to return to the society with another chance at life, after performing the orders as given as means to redeem himself for his mistakes and of course it is expected of him to learn from them. I do believe that would serve the public interest in the long run. [35] The learned High Court judge has succinctly laid down the requirements to be fulfilled under section 5 of the said Act 1954. The presiding Magistrate ought to have considered the requirements stated therein. [36] In summary, the requirements are: - Firstly: had the said Act 1954 not been passed, the 3 months’ imprisonment would be imposed on the accused. At page 1020 para [28]: - “[28] Tuan Majistret itu perlu mencatatkan sekiranya tanpa Akta itu sama ada beliau akan menjatuhkan hukuman penjara selama tiga bulan kesalahan di bawah s. 43(1) Akta Pengangkutan Jalan 1987 yang memperuntukkan hukuman penjara tidak melebihi 12 bulan.” Secondly: if the punishment relates to an imposition of fine, the presiding Magistrate has to consider section 5(1)(b)(ii) of the said Act 1954. Page 15 of 17 Thirdly: the presiding Magistrate has to state that he or she has duly considered in respect of “having regard to the character of such person, the nature and seriousness of the offence or the circumstances of such person’s failure to pay (as the case may be) and all other circumstances of the case, it is inexpedient to commit him”. At page 1020 para [29]: “[29] Tuan Majistret itu juga perlu mencatatkan beliau telah menimbangkan peruntukan s. 5(1)(b)(ii) Akta itu apabila melibatkan hukuman denda. Bagi kesalahan s. 43(1) Akta Pengangkutan Jalan 1987 hukuman minima denda RM4,000 dan hukuman maksima RM10,000. Tuan Majistret itu perlu mencatatkan dalam nota keterangan beliau telah menimbangkan “having regard to the character of such person, the nature and seriousness of the offence or the circumstances of such person’s failure to pay (as the case may be) and all the other circumstances of the case, it is inexpedient to commit him”.” Fourthly: the effect and the consequences for failure to comply with the Compulsory Work Order shall be explained to the accused in ordinary language by the presiding Magistrate. At page 1021 para [33]: “[33] Mahkamah ini berpendapat Tuan Majistret itu mengikut peruntukan s. 5(4) Akta itu sebelum mengeluarkan PKW perlu menerangkan dengan bahasa mudah kesan PKW dan akibat sekiranya PKW tidak dipatuhi terutamanya perkara-perkara yang dinyatakan di bawah s. 8 Akta itu …” Page 16 of 17 Fifthly: the presiding Magistrate shall have to obtain consent from the accused to undertake the compulsory work which shall then be evidence of his willingness to redeem himself for his crimes. At page 1021 para [34]: “[34] Mahkamah ini juga berpendapat Tuan Majistret itu telah gagalmencatatkan dalam nota keterangan responden menzahirkan persetujuannya untuk mematuhi syarat-syarat PKW. Peruntukan s. 5(4) Akta itu secara terang menyatakan ianya wajib bagi responden memberi persetujuan sebelum PKW diperintahkan ke atasnya.” [37] As stated herein above, I opine that I have complied with the requirements stated in the case of Mohd Rezza (supra) in accordance with section 5 of the said Act 1954. With regard to the second requirement, it has no application as this case does not relate to an imposition of fine under section 380 of the Penal Code. [38] After having considered the principles alluded above, it is of my view that the order given to the accused to undergo the compulsory works to be arranged by the prison department is made in the interest of the public. I trust that perhaps it would give help the accused to reflect his crime, mistakes and bad life decisions by serving the public so that the accused feels inclined to turn away from taking the easy way out with his criminal ways to an honest living. Page 17 of 17 [39] In conclusion, the said sentence is appropriate and just. Therefore, it should be maintained. Dated: _______________________________