By:
Harneshpal Karamjit Singh (Co-Managing Partner) [harnesh@luibhullar.com]
INTRODUCTION
Vide a judgment dated 29.04.2020 delivered by Muniandy Kannyappan JC in the case of Chin Chee Wei & Anor v PP [2020] 5 CLJ 640, the High Court considered whether the learned Magistrate meted out a sentence which was proper in the circumstance of the case.
THE FACTS
Two accused persons were arrested for violating Regulation 3(1) of the Prevention and Control of Infectious Disease (Measures within Infected Local Areas) (No. 2) Regulations 2020 (“Regulation No 2”) during the infamous Movement Control Order (“MCO”) period in Malaysia.
The two accused were found near a fishing pond in Sungai Siput. They were told to go back home but refused. The two accused persons had full knowledge that they were violating the law by being present near the fishing pond.
Accordingly, they were both charged for an offence under Regulation No 2. On conviction, under Regulation 11(1) of Regulation No 2, the accused persons shall be liable to a fine not exceeding RM1,000 or to imprisonment for a term not exceeding six months or to both.
Both pleaded guilty and in mitigating for a lenient sentence their pleas was as follows:-
(a) They wanted to fish to provide food for their family;
(b) They were unable to go out and work and earn to feed their families; and
(c) There earn daily wages by doing house repair work.
The Magistrate having heard them sentenced both the accused to six months’ imprisonment.
REVISIONARY POWER OF THE HIGH COURT
Having his attention drawn to the case via the media, the High Court judge in exercising his power under Section 323 of the Criminal Procedure Code (“CPC”), called for and examine the records of the said Magistrates’ Court.
Section 323 of the CPC states as follows:
“Power to call for records of subordinate Courts
(1) A Judge may call for and examine the record of any proceeding before any subordinate Criminal Court for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of that subordinate Court.
(2) Orders made under sections 97 and 98 are not proceedings within the meaning of this section.”
In PP v Kannan Manogaran [2020] 1 LNS 483, the Court noted that as follows:
“Srimurugan Alagan in The Criminal Procedure Code a Commentary (Second Edition) stated that there are three ways in which a court may exercise its revisionary powers. The three methods of are:
"(1) in suo moto (on its own motion) upon becoming aware of irregularities or illegalities in the proceedings in the subordinate court;
(2) on a formal application filed by the parties to the proceeding (accused or the Public Prosecutor);
(3) on a formal or informal application by a person who is not a party to the criminal proceeding, for instance a victim of the crime by way of letter."”
When Muniandy Kannyappan JC called up the file, he was exercising the High Court’s supervisory jurisdiction over the proceedings in the Subordinate Courts, which he is entitled to do under Section 323 of the CPC.
In PP v Roslan Imun [1999] 3 CLJ 494, the High Court stated that the revisionary court usually accepts the findings on questions of facts recorded by a subordinate court unless the finding is manifestly perverse or patently erroneous. In Amir Hassan Ali Usin v PP [2019] 3 CLJ 325, the Court of Appeal held as follows:
“…as a general rule, the appellate court should not vary a sentence just because it would have passed a different sentence from that imposed by the court below unless it is manifestly excessive or manifestly inadequate or not in accordance with the law”
In PP v Roslan Imun [1999] 3 CLJ 494, the accused, an ex-convict who was just released from prison after serving a 20-year jail sentence on 16.02.1999 for rape of a minor in 1985, committed a heinous crime of shoving a 60 cm stick up the anus of his victim, a young innocent schoolboy on 01.06.1999, a mere three and half months since his release. He was sentenced to the maximum 20 years' imprisonment by the Sessions Court judge. However, by exercising his revisionary power, the High Court judge, added an additional sentence of 20 strokes of rattan on top of the 20 years’ imprisonment sentence, commenting that such violence was of the highest degree. The High Court judge did so as he was of the view that the sentence was manifestly inadequate.
The High Court in Chin Chee Wei & Anor v PP [2020] 5 CLJ 640 had to consider whether the sentence passed in the circumstance of the case was proper or otherwise herein harsh or of excessive severity. A key consideration being substantial justice to the accused persons in regards to the sentence given to them and whether the sentence meted out should be interfered with, in the interest of justice. Was the sentence manifestly excessive or manifestly inadequate?
DECISION OF THE HIGH COURT
The High Court judge noted that the Magistrate considered the mitigating factors of the two accused but failed to take into account alternative forms of punishment proportionate to the crimes committed.
The two accused were unable to afford a fine if given, hence they were willing to be imprisoned, if sentenced.
Although the High Court noted that the two accused did not take heed of the law enforcement official’s friendly advice to go home, the public interest of Regulation No 2 (staying put at home) outweighs the two accused persons’ plea of mitigation, and the intent and purport of Regulation No 2 has to be accorded the treatment it deserves and any breach of it has to be viewed seriously, the learned High Court judge found the sentence of three months’ imprisonment harsh and severely excessive.
The High Court judge then converted the sentence of imprisonment to that of a compulsory attendance order under Section 5(1) of the Offenders Compulsory Attendance Act 1954 mandating the two accused persons to attend the Perak Compulsory Attendance Centre daily and to undertake compulsory work for a period of three months for four hours each day. Pending the compliance with the altered sentence and prohibition of movement by Regulation No 2 (and further gazetted Regulations), both the accused persons were ordered to report to Ibu Pejabat Daerah (IPD) Sungai Siput Utara Police Station, once a week, every Monday. The public had no greater interest than that the two accused persons, being violators of Regulation No 2, be 'quarantined' at home in the interim.
Under Section 5(1) of the Offenders Compulsory Attendance Act 1954, it is important to note that one pertinent consideration is that the Court must be of the opinion that had the Offenders Compulsory Attendance Act 1954 not been passed, such person would have been adequately punished by a sentence of imprisonment for a period not exceeding three months. Accordingly, although under Regulation 11(1) of Regulation No 2, the accused persons shall be liable to a fine not exceeding RM1,000 or to imprisonment for a term not exceeding six months or to both, the Sessions Court judge had adequately passed a sentence of three months’ imprisonment on both the accused persons. It is therefore submitted that the High Court rightly used Section 5(1) of the Offenders Compulsory Attendance Act 1954 in its revisionary power in this instance.
Further, the Court viewed a compulsory attendance order to carry out compulsory work would best meet the interest of justice as well as to cater to the accused persons to be more responsible and law-abiding citizens. Paramount consideration was given to the rehabilitation and reintegration with the community, a proper pathway to restorative justice.
At this juncture, it is worth mentioning that It is also worth to note that there are five aims of sentencing in general as stated in PP v Dublin Edward Tinggi [2015] 5 LNS 64 as follows:
“(i) Deterrence - A deterrent sentence aims both to deter the individual offender from committing offences in the future and to deter potential offenders from committing crime.
(ii) Rehabilitation - A rehabilitative sentence seeks to reform an offender from being a criminal to being an honest and responsible member of society.
(iii) Prevention - A preventive sentence is naturally an incapacitative sentence as it aims to directly prevent the offender from committing further crimes against other members of society.
(iv) Retribution - Retribution demands that the sentence imposed reflects the degree of revulsion which society feels towards the conduct of the offender.
(v) Just Deserts - The concept of giving an offender his just deserts stipulates that the severity of the sentence should be proportionate to the seriousness of the crime and that similar offences should receive similar sentences.”
In the case before the High Court, the learned High Court judge had noted that although violating Regulation No 2 is the worst act of indiscipline at the time of COVID-19, imprisonment should remain for prisoners who have committed heinous crimes. It was clear that the learned High Court judge had considered that the sentence of imprisonment was too harsh under the circumstances.
Having said that the learned High Court judge was also minded to not bind over both the accused under the good behaviour bond pursuant to Section 294 of the CPC as the High Court was of the view that binding over was not appropriate as the violation was serious and the two accused persons would be left unrestrained with no lesson learnt from their crime. Further, a fine was also inappropriate given the fact that the situation the two accused persons were in were that they could not even afford food for their families. Subordinate courts are reminded to be mindful of all available sentencing options to afford an accused person justice in all sense.
CONCLUDING REMARKS
Chin Chee Wei & Anor v PP [2020] 5 CLJ 640 is an appropriate case where the revisionary powers were used for a sentence that was manifestly excessive. This was an appropriate case for the court to use its discretionary powers on sentencing sparingly, leniently and temper justice with mercy.
It is, however, noted that the High Court judge was of the view the sentence must reflect deterrence and the aim of deterrence is to punish the accused persons so that they repent and will not reoffend and that future offenders will be deterred by seeing the punishment meted out on these accused persons.
The substitution of the three months' imprisonment sentence with compulsory attendance order, with respect, does not assimilate the aim of deterrence.
We were and still are living in times were rapid transmission of COVID-19 is occurring and laws to curb such transmission are being gazetted at an unprecedented pace.
The dangers of COVID-19, the importance to control its spread in Malaysia and across the globe and the creation of the various Regulations under Prevention and Control of Infectious Diseases Act 1988 must be approached in an educative manner.
As such, in the time of COVID-19, a compulsory attendance order to carry out compulsory work in violation of Regulation No 2 is likely to be the proper sentence based on the facts of the case for the rehabilitation and protection of the offender, being more utilitarian aims of sentencing, as oppose to deterrence.
Image by Ichigo121212 from Pixabay
Comentários