[2002] 3 CLJ Hasanuddin Abd Hamid v.

PP 495

HASANUDDIN ABD HAMID a

v.
PP
HIGH COURT SABAH & SARAWAK, TAWAU b
RICHARD MALANJUM J
[CRIMINAL APPEALS NOS: T(41) 04-2001, T(41) 10-2001,
T(41) 11-2001, T(41) 12-2001 & T(41) 13-2001]
17 JANUARY 2002
CRIMINAL PROCEDURE: Sentence - Appeal for reduced sentences - c
Continuing offences - Offences serial in nature and premeditated - Habitual
offender - Whether concurrent sentences imposed inadequate in the
circumstances - Whether sentences should be consecutive - Whether whipping
should be imposed irrespective of whether violence employed - Whether
seriousness of offence reflected by increase in penalty by Parliament - Whether d
longer term of imprisonment appropriate in the interest of public - Penal Code,
ss. 379A, 380, 457
This was the appellant’s appeal against the sentences imposed on him by the
magistrate in connection with six charges preferred against him. Four of the
e
said charges were under s. 457 of the Penal Code (‘the Code’) whilst the
remaining two were under ss. 379A and 380 of the same. At the time of the
convictions on the said charges, the appellant was already serving two
sentences of imprisonment for offences under s. 457 of the Code. Following
the respective convictions of the appellant, upon pleas of guilty to each of
the six charges, the appellant was sentenced as follows: (1) ten months’ f
imprisonment; (2) twelve months’ imprisonment; (3) twenty months’
imprisonment and one stroke of the rattan; (4) thirty months’ imprisonment;
(5) forty-eight months’ imprisonment and fine of RM2,000 in default two
months’ imprisonment; and (6) forty-eight months’ imprisonment with two
strokes of the rattan. The sentences were ordered to run concurrently. At the g
hearing of the appeal, the appellant who was not represented, requested that
the sentences imposed on him be reduced whilst the prosecution contended
that the appeal should be dismissed as the appellant was a habitual offender
and the sentences having made to run concurrently were manifestly inadequate
in the circumstances. h

i
 496 Current Law Journal [2002] 3 CLJ

a Held:
[1] From the charges and the facts as presented and admitted by the appellant
it would not be far-fetched to categorise the offences as one of serial in
nature. Further, the appellant did not appear to be remorseful for what
he had done. He was only interested in getting a lighter punishment but
b
was not willing or even prepared to give a credible reason for his request.
He did not say much even when the prosecution asked for the sentences
to run consecutively. And as found by the magistrate, the appellant
appeared to have adopted a system in selecting his victims and obviously
therefore the crimes were premeditated. (pp 505 c & 507 a-c)
c
[2] From past cases, it would appear that the range of imprisonment for an
offence under s. 457 of the Code was between six months and ten years’
imprisonment with or without additional fines or strokes of the rattan, even
where the accused pleaded guilty. Further, all the sentencing courts were
d of the view that burglary especially at night should be taken as a very
serious offence that attracted custodial punishment even for a first offender
and despite the guilty plea. And such view was held even before the
amendment to the penalty for an offence under s. 457 of the Code.
Further, not only material losses to the victims were considered but also
the traumatic effect of having been burgled. (pp 506 h, 507 g, 512 i &
e
513 a)
[3] As for s. 379A of the Code, it is relatively a new provision added in to
meet the increasing incidents of theft of vehicles. The term of
imprisonment for such offence in previous cases ranged from a minimum
f period of one year which is mandatory to a maximum period of seven
years. In respect of s. 380 of the Code, the previous cases seem to indicate
that the usual punishment imposed ranged from one year to three years.
(pp 513 b & 514 a)
[4] The total length of imprisonment imposed by the magistrate on the
g
appellant came up to 108 months, ie, nine years. But with the order for
the term to run concurrently the length of imprisonment to be served
would only come up to 48 months, ie, four years. And with the remission
of one-third effectively, the appellant would only be in imprisonment for
a period of 32 months, ie, two years and eight months. That was contrary
h to the intention of the legislature in amending those provisions relating
to the offences committed by the appellant wherein the maximum terms
of imprisonment were increased with additional fines and whipping for
subsequent commissions. (p 514 e-g)

i
[2002] 3 CLJ Hasanuddin Abd Hamid v. PP 497

[5] This court did not agree with the view that only where violence was a
employed in the commission of the offence, whipping should be imposed.
The fact that Parliament had amended to increase the penalty for such an
offence in particular upon second omission was indicative of its abhorrence
to it. Further, it would have been stipulated in the amendment if that was
the view. Also, it was not justified to add to the provision, words or b
conditions which were not there in the first place. (p 514 g-h)
[6] The sentences to run concurrently made the punishment meted upon the
appellant disproportionate to the offences committed and thus manifestly
inadequate in the circumstances. Also, there should be some semblance
of consistency in the sentencing process as there seemed to be a dichotomy c
in the punishments meted out by the magistrate in earlier cases. Therefore,
the request by the prosecution for the custodial sentences of the appellant
to be made consecutive was justified. Furthermore, judging from the
sentences in the cases referred to, a longer term of imprisonment for the
appellant would be in tandem with the current demand of public interest. d
(p 515 a-f)
[Order of magistrate varied; sentences to run consecutively.]
Case(s) referred to:
Abdul Wahab v. PP [1970] 2 MLJ 203 (refd) e
Basir Badonggo & Ors v. PP [1988] 2 MLJ 442 (refd)
Gek Sing Kaliappan v. PP [1999] 4 CLJ 292 (refd)
Gurdit Singh v. PP [1983] 1 CLJ 89; [1983] CLJ (Rep) 575 (refd)
Mohamed Abdullah Ang Swee Kang v. PP [1987] 2 CLJ 405; [1987] CLJ (Rep) 209
(refd)
Mohamed Ali v. PP [1956] MLJ 84 (refd) f
Narayasamy v. PP [1968] 1 MLJ 273 (refd)
New Tuck Shen v. PP [1982] 1 MLJ 27 (refd)
PP v. Fam Kim Hock [1954] 23 MLJ 20 (refd)
PP v. Govindnan Chinden Nair [1998] 2 CLJ 370 (refd)
PP v. Loo Chang Hock [1988] 1 CLJ 76; [1988] 2 CLJ (Rep) 263 (refd)
g
PP v. Loo Choon Fatt [1976] 2 MLJ 256 (refd)
PP v. Rajandran & Anor [1985] 2 MLJ 260 (refd)
PP v. Ravindran & Ors [1993] 1 MLJ 45 (refd)
PP v. Tan Eng Hock [1970] 2 MLJ 15 (refd)
PP v. Wong Chak Heng [1985] 1 CLJ 375; [1985] CLJ (Rep) 717 (refd)
R v. Ball [1951] 35 Cr App R 164 (refd) h
Radin Ibrahim Gusti Yassar v. PP [1988] 3 MLJ 237 (refd)
Reg v. Sargeant [1974] 60 Cr App R 74 (refd)
Roslan Hj Yahya v. PP [1985] 2 MLJ 218 (refd)
Tan Teow Swee v. Regina [1955] MLJ 76 (refd)
Tinit & Ors v. PP (No 2) [1964] MLJ 389 (refd)
Zakariya Musa v. PP [1985] 2 MLJ 221 (refd) i
 498 Current Law Journal [2002] 3 CLJ

a Legislation referred to:

Criminal Procedure Code, ss. 163, 164, 325
Penal Code, ss. 379A, 380, 454, 457

Appellant in person
For the respondent - Norliza Yusof DPP
b
Reported by Usha Thiagarajah
JUDGMENT
Richard Malanjum J:
On 4 December 2001 at the request of the learned Deputy Public Prosecutor
c I heard together several appeals by the appellant against the sentences imposed
on him by the learned trial magistrate in connection with the various charges
preferred against him. For convenience and since the offences were similar
in nature and against the same person I acceded to the request.
The charges were as follows:
d
(i) First Charge:

Bahawa anda, pada 18hb. Februari 2001, jam lebih kurang 2.00 pagi,
bertempat di TB 5527, Taman Ria 6, Jalan Utara Baru, di dalam Daerah
Tawau, di dalam Negeri Sabah, telah melakukan pencerobohan bangunan
e pada waktu malam hari, dengan memasuki ke dalam bangunan
kepunyaan LABATJO BIN TAGILIN, L/36 THN. BUGIS, yang mana
bangunan tersebut digunakan sebagai tempat kediaman, selepas matahari
jatuh dan sebelum matahari keluar, dengan niat hendak melakukan
kesalahan yang boleh dihukum dengan penjara, iaitu mencuri, telah
mencuri:
f
1. Sebuah handphone jenis Ericcson BX 668,
2. Sebuah mesin taip jenama Olympia,
3. Sebuah kamera jenama Pentax,
4. Sebuah beg bersisi peralatan pembelajaran
g
yang berharga lebih kurang RM1,200, kepunyaan LABATJO BIN
TAGILIN, L/36 THN. BUGIS, oleh itu anda telah melakukan kesalahan
yang boleh dihukum di bawah Seksyen 457 Kanun Kesiksaan.

(ii) Second Charge:

h
Bahawa anda, pada 03hb. April, 2001, jam lebih kurang 2.00 pagi,
bertempat di Flat Guru SMK. Tawau, Jalan Kg. Jawa, di dalam Daerah
Tawau, di dalam Negeri Sabah, telah melakukan di dalam bangunan yang
digunakan sebagai tempat kediaman orang, telah mencuri:

i
[2002] 3 CLJ Hasanuddin Abd Hamid v. PP 499

1. KPT. No. 640517-12-5435, a

2. KPT. No. 660513-12-5196,
3. Lesen Memandu Kelas ‘D’,
4. Talipon Bimbit Jenis Ericcson No. 019-6917664,
5. Talipon Bimbit Jenis Motorolla No. 019-8336819,
b
6. Barang kemas bernilai RM400.00,

7. Wang tunai RM550.00.

yang berharga lebih kurang RM1,400.00 kepunyaan Mohd Maksid bin Masrie,
tanpa kebenarannya, oleh itu anda telah melakukan kesalahan yang boleh
dihukum di bawah Seksyen 380 Kanan Keseksaan. c

(iii) Third Charge:

Bahawa anda, pada 09hb. April 2001, jam lebih kurang 3.00 pagi,
bertempat di TB 5561, Taman Ria 6, Jalan Utara Baru, di dalam Daerah
Tawau, di dalam Negeri Sabah, telah melakukan pencerobohan bangunan d
pada waktu malam hari, dengan memasuki ke dalam bangunan
kepunyaan Azunizad bin Aziz, L/23 thn. Melayu, yang mana bangunan
tersebut digunakan sebagai tempat kediaman orang, selepas matahari
jatuh dan sebelum matahari keluar, dengan niat hendak melakukan
kesalahan yang boleh dihukum dengan penjara, iaitu mencuri, telah
mencuri barang-barang seperti berikut:- e

1. Sebuah topi keledar, warna kelabu gelap,

2. Sebuah kamera, jenis Canon warna hitam,
3. Sebuah telefon bimbit, jenis Siemens C25,
4. Kad Kredit Public Bank f
5. Kad ATM Bank Bumiputra,
6. Kad ATM Sabah Bank,
7. Wang tunai sebanyak RM400

yang berharga lebih kurang RM1,340, kepunyaan Azunizad bin Aziz

g
L/23 thn. Melayu, oleh itu anda telah melakukan kesalahan yang boleh
dihukum di bawah Seksyen 457 Kanun Keseksaan.

(iv) Fourth Charge:

Bahawa anda, pada 09hb. April 2001, jam lebih kurang 3.00 pagi,
bertempat di TB 5561, Taman Ria 6, Jalan Utara Baru, di dalam Daerah h
Tawau, di dalam Negeri Sabah, telah mencuri sebuah motorsikal nombor
ST 5928 E jenis Honda Ex 5, yang berharga RM3,000 kepunyaan
Azunizad bin Aziz tanpa izinnya, oleh itu anda telah melakukan
kesalahan yang boleh dihukum di bawah seksyen 379A Kanun
Keseksaan.
i
 500 Current Law Journal [2002] 3 CLJ

a (v) Fifth Charge:

Bahawa anda bersama seorang lagi yang masih bebas, pada 12hb. April
2001, jam lebih kurang 1.00 pagi, bertempat di Tingkat 2B, Flat Guru
SMK Kuhara, Jalan Kuhara, di dalam Daerah Tawau, di dalam Negeri
Sabah, dengan niat bersama, telah melakukan pencerobohan bangunan
b pada waktu malam hari, dengan memasuki ke dalam bangunan
kepunyaan SAMSU BIN KULLU, L/31 THN. BUGIS, yang mana
bangunan tersebut digunakan sebagai tempat kediaman, selepas matahari
jatuh dan sebelum matahari keluar, dengan niat hendak melakukan
kesalahan yang boleh dihukum dengan penjara, iaitu mencuri, telah
mencuri sebuah dompet jenama YSL, warna hitam yang mengandungi:
c
1. Wang tunai RM720,
2. Sekeping KPT No. 700810-12-5583 atas nama Samsu bin Kullu,
3. Sekeping Lesen memandu kelas ‘D’ atas nama Samsu bin Kullu,
4. Sekeping Sijil Lahir kepunyaan Samsu bin Kullu,
d 5. 5 keping Kad ATM (Hong Kong Bank, Hong Leong Bank, Giro,
Public Bank dan Maybank)

yang berharga lebih kurang RM750, kepunyaan SAMSU BIN KULLU,

L/31 THN. BUGIS, oleh itu anda telah melakukan kesalahan yang boleh
dihukum di bawah Seksyen 457 Kanun Keseksaan dan dibaca bersama
e Seksyen 34 Kanun yang sama.

(vi) Sixth Charge:

Bahawa kamu, pada 4hb. Mac, 2001, jam lebih kurang 1.00 pagi,
bertempat di Sekolah Kebangsaan Tanjong Batu Keramat, di dalam
f Daerah Tawau, di dalam Negeri Sabah, telah melakukan pencerobohan
bangunan pada waktu malam hari, dengan memasuki ke dalam Sekolah
Kebangsaan Tanjong Batu Keramat, yang mana bangunan tersebut
digunakan sebagai tempat menyimpan harta, selepas matahari jatuh dan
sebelum matahari keluar, dengan niat hendak melakukan kesalahan yang
boleh dihukum dengan penjara, iaitu telah mencuri:
g
1. Sebuah radio jenama Panasonic,
2. Sebuah gitar kayu,
3. 5 keping cek Bank Islam

yang berharga lebih kurang RM2,000.00, kepunyaan Sekolah Kebangsaan

h Tanjong Batu Keramat, oleh itu anda telah melakukan kesalahan yang
boleh dihukum di bawah Seksyen 457 Kanun Keseksaan.

Briefly the facts as admitted by the appellant in respect of each of the charges
are as follows:
i
[2002] 3 CLJ Hasanuddin Abd Hamid v. PP 501

(i) For the first charge, it was admitted that on 18 February 2001 at about a
2am the appellant entered alone the house of the complainant, Labatjo
bin Tangilin, with the intention to steal. He went through the window
by removing the glass louvers and cutting the mosquitoes netting. Once
inside he managed to take the items as per charge. Then he left the
place and went to Kunak where he gave the camera to his friend and b
the rest he took home. Investigation revealed that he threw away the
hand phone while the typewriter was subsequently handed to the police
by his father. As for the camera it was discovered that it was sold for
RM30. It was subsequently recovered from a lady on 16 April 2001.
The estimate loss was put at RM900. That did not take into account c
the damage to the window of the complainant.
(ii) In respect of the second charge, investigation revealed that on 3 April
2001 at around 2am the appellant entered the Teachers’ Flat of SMK
Tawau along Jalan Jawa, Tawau and managed to take the items
belonging to the complainant. The estimated total loss was put at d
RM1,400. But that amount did not take into account the inconvenience
for the loss of the Identity Cards and driving license. The hand phone
was recovered.
(iii) As for the third and fourth charges, the facts as admitted by the appellant
e
were that on 9 April 2001 at around 3am he gained entry into the
dwelling house of the complainant by climbing from a window and into
the ceiling of the house through the gap between the wall and the roof.
Thereafter he removed the cover of the opening of the ceiling found in
the toilet of the house. While inside he took the wallet, camera, hand
phone and so forth. And on his way out through a door that he had f
opened the Appellant also took the motor cycle of the complainant. The
estimated loss was put at RM4,340. The items recovered were the
motorcycle, the helmet, the hand phone and the camera. That was
possible when the Police managed to go to an unnumbered house at
Lorong Mohd. Salleh, Batu 2, Jalan Apas, Tawau on 13 April 2001 g
following a tip-off.
(iv) For the fifth charge the facts as presented by the prosecution were that
on 12 April 2001 at around 1am the appellant with another accomplice
who is still at large but known as Faizel, went to the compound of SMK
h
Kuhara Tawau with the intention to commit theft. But having entered
the school building his accomplice waited for the appellant at the school
hall while he went into one of the Teachers’ apartment. The appellant
entered the apartment of the complainant by climbing to the kitchen
corridor of the building. Then he removed the glass louvers to gain
i
 502 Current Law Journal [2002] 3 CLJ

a entry. While inside the apartment the appellant took the items as listed
in the charge. And in the course of him doing that the complainant was
awaken. On seeing the appellant inside the apartment the complainant
shouted and the appellant fled the scene via the entry window. But that
did not prevent him from carting away the items such as the Identity
b Card, birth certificate and driving license of the complainant. Five ATM
cards of the complainant were also taken along with cash of RM720
which amount was considered as the estimated loss of the complainant.
Obviously the inconvenience of losing the other documents was not
taken into account but such loss in my view does have more impact at
c times than actually losing cash. Moreover the shock felt by the
complainant on seeing the appellant ransacking his apartment in wee
hours of the morning must have been quite an experience.
(v) And finally for the last charge, it was admitted by the appellant that
on 4 March 2001 at around 1am he went to SK Tanjong Batu Keramat,
d Tawau, with the intention to commit theft. He climbed over the school
fence and into the teacher’s room by climbing into the ceiling of the
building. While inside he took the items as per charge and brought them
back to his rented house at Mile 2 Jalan Apas, Tawau. None of the items
taken were recovered from the appellant and the estimated loss was put
e at RM2,000.
(vi) The appellant was apprehended on 12 April 2001 at 11pm along Jalan
Habib Sheikh, Tawau by the police acting on information.
(vii) At the time of convictions on the above charges the appellant was
f already serving two sentences of imprisonment for offences under s. 457
of the Penal Code whereby for the first offence he was sentenced to
24 months’ imprisonment and for the second offence he was sentenced
to 42 months’ imprisonment. The sentences were ordered to run
concurrently and that he would be due for release on 25 August 2003.
g
Following the respective convictions of the appellant upon pleas of guilty to
each of the charges as per para. 2 above, he was sentenced as follows (the
sequence herein as per the charges):
(a) ten months’ imprisonment;
h (b) twelve months’ imprisonment;
(c) twenty months’ imprisonment and one stroke of the rattan
(d) thirty months’ imprisonment;
(e) forty-eight months and fined RM2,000 in default two months’
i imprisonment; and
(f) forty-eight months with two strokes of the rattan.
[2002] 3 CLJ Hasanuddin Abd Hamid v. PP 503

The above sentences would run concurrently and to take effect after the a
sentences on LDA (83) 123/2001 and LDA (83) 124/2001 have been served.
The appellant was dissatisfied with the sentences imposed and appealed to this
court. He was unrepresented.
At the hearing of the appeal the appellant did not say much other than b
requesting that the sentences be reduced. He also explained why he committed
the offences. The learned deputy on the other hand contended that the appeal
should be dismissed as the appellant was a habitual offender. She also urged
the court to exercise its power of revision as the sentences having being made
to run concurrently were manifestly inadequate in the circumstances. To this c
request the appellant did not say much as indeed throughout the proceeding
he only requested for the reduction of the sentences imposed.
Having heard the matter as a whole including the request to have the sentences
revised, I dismissed the appeal of the appellant and granted the request by
d
the learned deputy that I should exercise my revisionary power under s. 325
of the Criminal Procedure Code (CPC).
Upon revision the concurrent order for the sentences to be served was set aside
and substituted with an order that the sentences would run consecutively save
for the sentences on the Criminal Appeal No. T (41) 11 of 2001 which would e
remain to run concurrently. In addition the number of strokes was increased
in that for Criminal Appeal T (41) 11 of 2001 it was increased to four strokes
of the rattan and for Criminal Appeal T (41) 13 of 2001 it was increased to
three strokes of the rattan.
I also indicated that in the event of further appeal I would give my grounds. f

The appellant is dissatisfied with the dismissal of his appeal and the
enhancement of his sentences and has therefore filed a Notice of Appeal to
the Court of Appeal. Accordingly this is my grounds in coming to my decision
as I did. g
To begin I must state here that when I first perused the notes of proceedings
I had reservation on the procedure adopted by the learned magistrate when
hearing the cases against the appellant bearing in mind ss. 163 and 164 of
CPC. But on being assured that each of the charges was dealt with individually
though the recording of the full transcripts was done on one particular docket h
such reservation was tapered. Anyway the basic elements of the trials seemed
to have been recorded separately. Only the details were recorded in one docket
and hence I was of the view that such step would not have caused any
prejudice or injustice to the parties. Accordingly I did not deem it necessary
to set aside the proceedings and to order retrials. And to do so would have i
 504 Current Law Journal [2002] 3 CLJ

a further added to the current problems arising from the shortage of magistrate
and would have delayed the disposal of these cases. Of course I would have
done so regardless if the situation warranted as justice should never be
sacrificed for whatsoever reason.
And before me the appellant requested that his sentences be reduced without
b
making any effort in showing why. In fact he did not say much and only spoke
when prodded. All he did was to tell me another story which he never did
before the learned magistrate. He seemed to me that he was justifying what
he did and my impression of him was that he was far from remorseful for
what he had done. As indeed before the learned magistrate he seemed to be
c quite familiar with the justice system as I noted that he even went to the extent
of asking for all the sentences to run concurrently including those he was
serving relating to earlier convictions despite being unrepresented and at the
age of 23 years old to boot. At any rate I did consider his explanation, namely,
to get funds to look for his wife who was kept away from him by his in-
d laws, but that did not match with the strings of burglaries of dwelling houses
and public building committed within a span of three to four months. And he
had an accomplice who is still at large in the commission of one of the
offences. Surely the appellant could have secured a job as he is not a disabled
person if indeed he required the money to look for his wife.
e
From her grounds of judgment I find that the learned magistrate did consider
all the circumstances including those favourable to the appellant. She listed
several factors in coming to her decision in sentencing the appellant as she
did. Those factors, inter alia, were that the appellant was a habitual offender
with modus operandi in selecting the victims of his crimes, that the appellant
f was noted for carrying his activities in the rural areas and was still serving
his terms for those offences, that the age of the appellant was taken into
account while at the same time the appellant was found to be physically fit
to serve the punishment, that in allowing the appellant to serve his sentences
concurrently the appellant would have benefited from the discount of the total
g term of imprisonment he would have to undergo for the offences he had
committed, that the categories of offences that were committed by the appellant
were rampant as could be seen from the fact that within the period of three
months the appellant managed to burgle four dwelling houses and a building,
that in sentencing the appellant it was hoped that he would learn his lesson
h and as deterrent to would-be offenders and that from the crimes committed
the appellant profited from them and losses to the victims without any chance
of being compensated. From the foregoing I would say that the learned
magistrate had taken the relevant factors and I would further say that she
seemed to have gone to the far end of the lenient side of the scale in that
i the sentences were made to run concurrently. But I will deal with this point
later.
[2002] 3 CLJ Hasanuddin Abd Hamid v. PP 505

Now it is settled law that an appellate court is not to interfere with a sentence a
passed by a trial court unless it is wrong in law or is manifestly excessive or
inadequate in the circumstances of the case. (See: R v. Ball [1951] 35 Cr.
App R 164; Public Prosecutor v. Loo Choon Fatt [1976] 2 MLJ 256; Public
Prosecutor v. Fam Kim Hock [1954] 23 MLJ 20; New Tuck Shen v. Public
Prosecutor [1982] 1 MLJ 27). b
In the present case I do not think that the sentences meted out by the learned
magistrate can be taken as excessive in the circumstances of these cases. And
as stated earlier that the appellant seemed to have gone on rampages in
breaking into dwelling houses, vehicle and building, to wit, a school, and
taking things to be sold for profits. It is on record that only one-third of the c
values of those goods taken were recovered with the balance presumably
already consumed by the appellant and his side-kick who is still at large. As
the learned magistrate noted, it appeared that the appellant adopted a modus
operandi in carrying out his illicit activities. So his age is deceptive and it is
obvious from the facts as admitted that led the way. d

In considering these cases I was reminded of what was said by his Lordship
Vincent Ng J in the case of Gek Sing a/l Kaliappan v. Public Prosecutor
[1999] 4 CLJ 292 at p. 303:
In dispensing justice, magistrates should not be oblivious of the feel of e
temperature outside their courts and continue to adopt the same approach in
sentencing while (as here) there is laughter in the air outside by certain
characters on their way to the bank. Counsel for the applicant had submitted
that as the accused was a first offender, the learned magistrate ought not have
imposed a term of imprisonment. This may be quite so, in fact patterns of
normal cases. Indeed, I couldn’t have agreed more with this approach when, f
in Goh Keng Seong v. PP, I had occasion to say:

In short, there should be sufficient culpability on the part of the accused

to justify imprisonment. This ought to be so as the court has to bear in
mind that sending a motorist to prison, especially for a substantial term,
would entail his having to commune and react with characters of an g
entirely different ken and may thus emerge from prison metamorphosed
into a personality, the worse for society. Here, I am mindful of Professor
TTB Koh’s stimulating speech on a plea for penal reform which he
delivered to the Kiwanis Club Singapore on 18 April 1972, wherein he
expressed his concern about the probable ‘corrupting influence of the h
inmate sub-culture’, and which is reproduced in [1972] 1 MLJ lvii. This
itself is inimical to public interest.

i
 506 Current Law Journal [2002] 3 CLJ

a However, just as the contention that the provision for minimum mandatory
imprisonment in a non-capital case is anathema to criminal jurisprudence, so
also, we must be mindful that there is no law which precludes the magistrate,
in a given peculiar set of circumstances, from imposing a term of imprisonment
even for first-time offenders. Thus, when sentencing in certain exceptional cases,
the court may factor into its deliberations on the question of public interest,
b not only patent but also latent circumstances that may operate for or against
the accused person.

Certainly, given the above fact matrix, even the appellant’s counsel would
concede that the learned magistrate had consciously carried out a carefully
considered and calculated exercise of his discretion to mete out, what was to
c him, a condign penalty while constrained by the then prevailing circumstances,
with the sole objective of deterring humdrum recurrence of such offences.

Thus, this court is entirely satisfied that the sentence of the fine coupled with
imprisonment imposed by the learned magistrate was not manifestly excessive
under the circumstances of the case and he had adequately taken into
d consideration – certainly, mulled over – all the relevant factors necessary to
maintain an equitable balance between prosecution and the offender. Quite
obviously, the prevalence-of-offence factor had indeed tipped the scales in
favour of a custodial penalty. I therefore dismissed the appeal after applying
the above guidelines to the present case.
e However, confronted with the unfortunate fact disclosed in the appeal record
that about 1,893 snakes had died while awaiting disposal resulting in undue
hassle on the authorities (as pointed out by the learned deputy), and considering
that the maximum term of imprisonment allowed under the relevant sections
is three years, I then called upon the defence to show cause why this court
should not exercise its powers of revision under s. 325 of the Criminal
f
Procedure Code to enhance the term of imprisonment. And, after having heard
counsel, I decided that as a forewarning to characters of the appellant’s ilk,
this was a proper case to invoke s. 325 to increase the respective seven days
period of imprisonment to 14 days on each of the three charges, all to be
served by the appellant concurrently. And it was so ordered.
g
I am in complete agreement with his Lordship in his observation in that in
the present cases for instance it is obvious that the Appellant must have gone
to the ‘bank’ laughing as only one-third of the loots were recovered.
For the above reasons I did not find any basis to allow the appeal of the
h appellant against the sentences imposed and hence dismissed it.
During the hearing of the appeal of the appellant the learned deputy urged
me to exercise my revisionary power to vary the order of the learned
magistrate so that the sentences would run consecutively instead of concurrently
and that the number of strokes of the rattan imposed on the appellant should
i
[2002] 3 CLJ Hasanuddin Abd Hamid v. PP 507

also be reviewed. Learned deputy explained why the prosecution could not a
appeal in time. She said that the investigation papers were sent to her office
on piece-meal basis and so the sentences were considered individually. I was
satisfied with the explanation and if one were to only consider each of the
charges individually the magnitude of the crimes would not be apparent. From
the charges and the facts as presented and admitted by the appellant it would b
not be far-fetched to categorise the offences as one of serial in nature. And
as indicated above my impression of the appellant was that he was not
remorseful for what he had done. He was only interested in getting a light
punishment but was not willing or even prepared to give a credible reason
for his request. He did not say much even when the learned deputy asked for c
the sentences to run consecutively. And as found by the learned magistrate
the appellant appeared to have adopted a system in selecting his victims and
obviously therefore the crimes were premeditated.
The charges preferred against the appellant relate to offences of which the
punishments provided are as follows: d

(i) for s. 457 of the Penal Code the penalty is a mandatory imprisonment
‘for a term which may extend to five years, and shall also be liable to
fine, and if the offence intended to be committed is theft, the term of
the imprisonment may be extended to fourteen years; and for every second
e
or subsequent offence shall in either case be liable to fine or whipping.’
(ii) for s. 379A of the Penal Code the penalty is a mandatory ‘imprisonment
for a term of not less than one year and not more than seven years, and
shall also be liable to fine.’
f
(iii) for s. 380 of the Penal Code the penalty is a mandatory ‘imprisonment
for a term which may extend to ten years, and shall also be liable to fine,
and for a second or subsequent offence, shall be punished with
imprisonment and shall also be liable to fine or to whipping.’
Out of the six charges preferred four were under s. 457. g

From some of the past cases it would appear that the range of imprisonment
for an offence under s. 457 of the Penal Code was between six (6) months
to ten (10) years’ imprisonment with or without additional fines or strokes of
the rattan even where the accused pleaded guilty.
h
(See: (a) Tan Teow Swee v. Regina [1955] MLJ 76 – Spencer-Wilkinson J
increased the sentence from six months imprisonment to twelve months
imprisonment on an accused who was convicted of an amended charge
from s. 457 to s. 380 of the Penal Code. The subject matter involved
was only 12 sacks of tea bags. There was a trial in this case. i
 508 Current Law Journal [2002] 3 CLJ

a In passing sentence the learned judge said this at p. 78:

The learned Deputy Public Prosecutor pressed upon me that from any
point of view and whether the offence was in respect of 12 or 26
sacks of tea dust a sentence of six months’ imprisonment was, in
view of the previous convictions of the accused, manifestly
b inadequate; and in spite of the eloquent plea put forward on behalf
of the appellant by his Counsel I could not but agree with the
submission of the Deputy Public Prosecutor.

It may be that the learned President went rather too far in assuming
the possibility of mitigating circumstances, but he cannot in my
c opinion be blamed for this as the desertion of the appellant by
Counsel at the trial placed the learned President as well as the
appellant in a very difficult position.

I therefore felt it my duty to enhance the sentence, and taking into

consideration the fact that the charge stood only as one in respect
d of 12 bags of tea dust I increased the sentence from one of six
months’ imprisonment to one of twelve months’ imprisonment.

(b) Abdul Wahab v. Public Prosecutor [1970] 2 MLJ 203 – Justice Sharma
enhanced the sentence of the accused to ten (10) years’ imprisonment for a
conviction on his own plea of guilty under s. 457 of the Penal Code.
e The accused had twelve previous convictions. At pp. 204-205 his
Lordship said this, inter alia:
The appellant has given me no satisfactory explanation or put forward
any reasonable plea why the sentence of imprisonment should not be
enhanced in this case. I am of the view, looking at the previous history
f
of the appellant and his whole criminal record right from his childhood
days, that he has proved himself incorrigible.

A great part of his adulthood has been spent in prison and it may
perhaps do the society some good if he is kept away from the public.
I therefore set aside the order of the learned magistrate and substitute
g
therefor a sentence of 10 years’ imprisonment and six strokes of the
rattan followed by 12 months’ police supervision. I would have preferred
to put him under a longer police supervision but as this is an appeal
which is by way of a retrial I am of the view that I should not impose
upon him a punishment higher than what the learned magistrate could
h have imposed, or subject him to such period of police supervision which
the learned magistrate could not have lawfully subjected him to.

(c) Public Prosecutor v. Rajandran & Anor [1985] 2 MLJ 260 – three
charges of housebreaking and theft committed. The accused pleaded
guilty to the charges preferred against them. The trial court only imposed
i fines on all the offences. His Lordship Chan J (as he then was) called
[2002] 3 CLJ Hasanuddin Abd Hamid v. PP 509

for the cases to be revised. Subsequently the sentences were enhanced a

to eighteen months, two years and two and half years’ imprisonment for
each of the charges and to run concurrently. As for the fines they were
set aside. But then again this case was decided even before the penalty
under s. 457 was increased. In his judgment the learned judge said this
at pp. 260-262: b
Burglary in the form of housebreaking is a very serious crime indeed.
When one considers the extent to which housebreaking is rife at the
present time then the courts inevitably must take a serious view. Because
of the prevalence of this class of crime it must necessarily attract an
immediate sentence of imprisonment. The public are entitled to be c
protected against burglars and they are not likely to be protected if
lenient sentences are passed on such offenders. This is what Lawton LJ
said in Reg v. Smith [1978] 67 Cr App R 211, 212 at p. 212:

It may be necessary to set out and stress the reasons why at the
present time offences of this kind should be dealt with severely d
and usually by a custodial sentence. It is within the knowledge
of this court, and the criminal statistics bear it out, that one of
the growth criminal industries in this country is burglary. The
particular type of burglary which is becoming very common
indeed is breaking into other people’s homes. On all sides
members of the public, if they have not been burgled themselves, e
hear that their friends and relatives have been. This court knows
that when there is a burglary in a house great distress is caused.
Not only is there a loss of property but there is induced a feeling
of insecurity. This court knows that when the householders are
women they sometimes worry a great deal about what has
happened to them. It has been said, and rightly said, that when f
a house has been burgled it never seems the same again.

...

Where persistent burglars have deliberately set out to break into other
people’s homes to steal their possessions with the intention of g
disposing them, the kind of sentence which was passed in this case
by the magistrate was not realistic.

Let it be repeated: it may be necessary to set out and stress the

reasons why at the present time offences of this kind should be dealt
with severely and usually by a custodial sentence. Burglary in the h
form of breaking into other people’s homes is becoming very
common indeed. On all sides members of the public, if they have
not been burgled themselves hear that their friends and relatives have
been. When there is a burglary in a house, it is frequently turned
upside-down. Burglary in the form of housebreaking is a very serious
crime indeed. Offenders are not likely to be discouraged by sentences i
which do not involve loss of liberty.
 510 Current Law Journal [2002] 3 CLJ

a What ought to be the proper length of sentence? “A good deal

depends upon the concept of what is necessary. There are of course
the classical considerations relevant to all sentences: retribution,
deterrence, prevention and rehabilitation.” – said Lawton LJ in Reg
v. Davies [1978] 67 Cr App R 207, 210.

b …

As I have already stressed in this judgment, burglary of private

dwelling houses is a very grave crime indeed. The retribution element
is very strong in this case. I am satisfied that in most cases fines
are not sufficient punishment for this class of crime. The time has
c come when those who indulge in breaking into other people’s homes
to steal their possessions must expect to receive sentences of longish
terms of imprisonment.

d The deterrent element is very strong in the present case. As was said
by Lawton LJ, burglars may very well be put off by deterrent
sentences. Deterrent sentences are of considerable value where crime
is premeditated.

From the record, it appears that neither Rajandran nor Ragupathi has
e ever been given a sentence of immediate imprisonment. “As a general
rule it is undesirable that a first sentence of immediate imprisonment
should be very long, disproportionate to the gravity of the offence
and imposed … for reasons of general deterrence, that is as a
warning to others. The length of a first sentence is more reasonably
determined by considerations of individual deterrence” said
f MacKenna J in Reg v. Curran (1973) 57 Cr App R 945, 947-948.
It is right that they should receive substantial sentences for this class
of crime but a sentencing court must be careful not to pass a sentence
which is disproportionate to the gravity of the offence. It is
undesirable that a first sentence of immediate imprisonment should
be imposed for reasons of general, as opposed to individual,
g deterrence. But it might be said that a thief who is minded to break
into other people’s homes to steal their goods is not likely to be
deterred by the fact that he may get three years rather than two years
or six years rather than three years. The hearing of prison gates
closing behind him is an experience which he does not want again.
That is right, but what has got to be maintained is this; if persistent
h
burglars are caught they will be punished and punished very severely.
Therefore it must be made clear that anyone found deliberately
breaking and entering homes for the purpose of stealing substantial
quantities of goods for disposal must expect a severe sentence.

i
[2002] 3 CLJ Hasanuddin Abd Hamid v. PP 511

(d) Public Prosecutor v. Loo Chang Hock [1988] 1 CLJ 76; [1988] 2 a
CLJ (Rep) 263 – his Lordship Zakaria Yatim J (as he then was) imposed
sentences of two years’ imprisonment for each of the charges under
s. 457 of the Penal Code although he ordered them to run concurrently.
There the accused had no previous conviction. He pleaded guilty to the
charges brought against him. But the learned judge took a serious view b
of the fact that the offences were committed within three days apart and
that there was premeditation in their commissions. The loss and the
modus in carrying out the offences were also taken into account. At
p. 318 of the judgment his Lordship said:
In my opinion, the element of public interest was considered for the c
purpose of passing a deterrent sentence. See R v. Ball [1952] 35 Cr App
R 164. But what the magistrate had in mind was reformative punishment.
If the purpose of punishment was to reform the respondent, the
magistrate should have bound him over for a period of up to three years.
Instead, the magistrate ordered a short term imprisonment of six months.
d
In his grounds of judgment, the magistrate also stated that his sentences
were not adequate.

In the circumstances, this is a proper case for the court to interfere with
the sentences passed by the magistrate. The next question to consider
is, what is the proper punishment to be imposed on the respondent?
e
In both these cases, a retributive punishment has no application.
Preventive punishment, too, is not an appropriate punishment. The
question is whether reformative punishment is appropriate in the instant
case. In my opinion, in view of the fact that the respondent had
committed two serious offences within a period of three days,
f
reformative punishment is not an appropriate punishment. It will be
recalled that he committed the first offence on December 11, 1984
between 2.00 a.m. and 7.00 a.m. The second offence was committed
on December 14, 1984 at 3.22 a.m., three days after the first offence
was committed. In the circumstances, the proper punishment is a
deterrent punishment. The main aim of deterrent punishment is to protect g
the public interest: R v. Ball [1952] 35 Cr App R 164 at p. 165. It is
generally accepted that the purpose of deterrent punishment is to deter
others as well as to deter that particular criminal, in this case the
respondent, from committing crime again: R. v. Ball (supra). See also
R v. Sargeant [1974] 60 Cr App R 74. Under what circumstances does
the court impose a deterrent sentence? A deterrent sentence is of little h
value if it is passed in respect of an offence which is committed on the
spur of the moment. In the instant case, both the offences were
committed with premeditation and planning. The respondent and the
other person at large brought together with them the equipment in order
to effect entry into the premises. The offences were committed
i
 512 Current Law Journal [2002] 3 CLJ

a deliberately and with professional skill. It was not done on the spur of
the moment. A deterrent sentence is, therefore, appropriate in this case
since there was clearly premeditation. Premeditated crimes include crimes
of burglary, robbery and use of firearms. See R v. Sargeant [1974] 60
Cr App R 74 at p 77.

b In this case, having taken into consideration the amount of goods stolen,
the modus operandi of the respondent in committing the offences and
the other relevant factors, I order that the respondent be sentenced to
two years’ imprisonment, in respect of the first case and two years’
imprisonment in respect of the second case. Both sentences are to run
concurrently. The respondent had already served six months. The
c remaining period will be served from today.

In addition to the custodial sentences, it is also necessary to impose a

fine in respect of each of the offences. First of all, the value of the
goods stolen was $70,000. Secondly, the respondent must have made a
large profit from the offences committed. In view of the circumstances
d in this case, it is justified to impose a fine on each of the offences.
See Zakariya bin Musa v. Public Prosecutor [1985] 2 MLJ 221. I
accordingly order that the respondent be fined, in addition to the prison
sentences, $5,000 in respect of each case, in default one year’s
imprisonment.
e I must add here that in enhancing the sentences, I have not overlooked
the fact that the respondent was a first offender, that he was eighteen
years old and that he pleaded guilty to the charge in both cases. I have
taken into consideration all these factors as well as the facts and
circumstances of the two cases.
f (e) Basir bin Badonggo & Ors v. Public Prosecutor [1988] 2 MLJ 442
– a case from Brunei where the appellate court there affirmed the
sentence of the accused to four years’ imprisonment for an offence under
s. 457 – housebreaking. They pleaded guilty in the lower court.

g (f) Radin Ibrahim bin Gusti Yassar v. Public Prosecutor [1988] 3 MLJ
237 – his Lordship Chong Siew Fai J (as he then was) upheld the
sentence of six months for an offence under s. 457 of the Penal Code.
No previous conviction and only one charge preferred against the accused.
The accused also cooperated with the Police and pleaded guilty to the
charge. It was observed that a conviction under s. 457 entailed a custodial
h
sentence in view of the penalty provided therein.
It seems to me that the common ground of the above cases is that all the
sentencing courts thereof have taken the view that burglary especially at night
should be taken as a very serious offence that attracts custodial punishment
i even for a first offender and despite the guilty plea. And such view was held
[2002] 3 CLJ Hasanuddin Abd Hamid v. PP 513

even before the amendment to the penalty for an offence under s. 457 of the a
Penal Code. Further, not only material losses to the victims were considered
but also the traumatic effect of having being burgled.
As for s. 379A of the Penal Code it is relatively a new provision added in to
meet the increasing incidents of theft of vehicles. The imposition of a
b
minimum period of imprisonment is mandatory.
And the term of imprisonment for such offence in previous cases ranged from
one year which is mandatory to the maximum term of seven years of
imprisonment.
c
(See: (a) Public Prosecutor v. Govindnan a/l Chinden Nair [1998] 2 CLJ 370
– a conviction under s. 379 of the Penal Code on a repeat offender the
High Court on appeal by the Prosecution increased the sentence to a
maximum of seven years’ imprisonment. The accused pleaded guilty to
the charge.
d
(b) Public Prosecutor v. Wong Chak Heng [1985] 1 CLJ 375; [1985]
CLJ (Rep) 717 – two charges of theft of spare parts of motor vehicle
led the accused on appeal by the Prosecution to face eighteen months
imprisonment plus a fine of RM200 for the first offence and a term of
two years’ imprisonment for the second charge plus fine of RM300. The e
accused pleaded guilty as well.
(c) Zakariya bin Musa v. Public Prosecutor [1985] 2 MLJ 221 – the
accused on his own plea of guilty was initially sentenced to two and
a half years’ imprisonment plus a fine of RM3,000 in default six months
imprisonment for a theft of a motor car. This was before the inclusion f
of s. 379A of the Penal Code. The High Court on appeal set aside
the fine but not the imprisonment. Police supervision for twelve months
was also ordered.
(d) Public Prosecutor v. Tan Eng Hock [1970] 2 MLJ 15 – theft of a g
motor car. After pleading guilty to the charge the trial court ordered a
binding over but the High Court on appeal varied the sentence to one
of eighteen months imprisonment. The appellate court took into account
the rampancy of car theft.
(e) Narayasamy v. Public Prosecutor [1968] 1 MLJ 273 – the accused h
had twenty-two previous convictions and the trial court imposed
a sentence of twelve months imprisonment although it was mindful of
imposing three years. On appeal the High Court enhanced the sentence
to three years’ imprisonment. The accused pleaded guilty to the charge.
i
 514 Current Law Journal [2002] 3 CLJ

a In respect of s. 380 of the Code the previous cases seem to indicate that the
usual punishment imposed ranges from one year to three years.
(See: (a) Mohamed Ali v. Public Prosecutor [1956] MLJ 84 – accused had
previous convictions and was therefore sentenced to one year imprisonment.
However the order of six strokes of rattan was set aside on appeal as
b
the learned judge was of the opinion that whipping should only be
imposed where there was violence involved.
(b) Tinit & Ors v. Public Prosecutor (No 2) [1964] MLJ 389 – the accused
after pleading guilty was sentenced to fifteen months imprisonment.
c
(c) Gurdit Singh v. Public Prosecutor [1983] 1 CLJ 89; [1983] CLJ (Rep)
575 – on revision the charge was amended to s. 380 from s. 454 of the
Penal Code. Subsequently the accused was sentenced to three years
imprisonment. The accused claimed trial on the initial charge.
d (d) Roslan bin Haji Yahya v. Public Prosecutor [1985] 2 MLJ 218
– his Lordship Gunn Chit Tuan J (as he then was) affirmed the sentence
of two years’ imprisonment. The accused was charged and convicted on
his plea of guilty for stealing crockery from his father’s house. And he
had a previous conviction of stealing his father’s watch.
e
The total length of imprisonment imposed by the learned magistrate on the
appellant comes up to one hundred and eight (108) months, that is, nine (9)
years. But with the order for the term to run concurrently the length of
imprisonment to be served would only come up to forty-eight (48) months
(four (4) years). And with remission of one-third (1/3) effectively the appellant
f would only be in imprisonment for a period of thirty-two (32) months (two
(2) years and eight (8) months). That in my view is contrary to the intention
of the legislature in amending those provisions relating to the offences
committed by the appellant wherein the maximum terms of imprisonment were
increased with additional fines and whipping for subsequent commissions. The
g increment in the punishments can only mean one thing, that is, that Parliament
deemed it very serious the types of offences that were committed by the
appellant. As to the view that only where violence was employed in the
commission of the offence that whipping should be imposed, with respect, I
cannot agree. The fact that Parliament has amended to increase the penalty
h for such an offence in particular upon second commission is indicative of its
abhorrence to it. Further it would have been stipulated in the amendment if
that was in mind. I do not think it is justified to add to the provision words
or conditions which are not there in the first place.

i
[2002] 3 CLJ Hasanuddin Abd Hamid v. PP 515

I was therefore in agreement with the learned deputy that ordering the a
sentences to run concurrently made the punishment meted upon the appellant
disproportionate to the offences committed and thus manifestly inadequate in
the circumstances. Incidentally and just for comparison purposes it may be
appropriate here to recall some of the punishments meted out by the same
learned magistrate on similar cases. For instance around the same period when b
the cases of the appellant were heard there were two earlier charges (TA-83-
41-2001 and TA-83-42-2001) under s. 379 of the Penal Code (the Code)
preferred against two accused. On the plea of guilty the accused were
respectively sentenced to twenty-four (24) months imprisonment with one
stroke of the rattan for the first charge and another forty (40) months with c
two strokes of the rattan for the second charge with the sentences of
imprisonment to run consecutively. These sentences were to run after the
accused have served their sentences in their convictions wherein the first
accused has two and the second has one. And taking the view that the
sentences in those cases were appropriate in the circumstances I dismissed the
d
appeal by those accused. So if these two sets of cases are compared there
seems to be a dichotomy in the punishments meted out. In the case of the
appellant he committed a string of burglaries and theft. He has previous
convictions as well. And the ways he executed the tasks could be said to be
well-performed in that he had shown his agility in climbing, entering into a
building, taking the items he wanted and escaping without difficulty. Thus it e
is my view that there should at least be some semblance of consistency in
our sentencing process. And I think that is why the request by the learned
deputy for the custodial sentences of the appellant to be made consecutive is
justified. Furthermore, judging from the sentences in the cases referred
hereinabove a longer term of imprisonment for the appellant would be in f
tandem with the current demand of public interest. The learned magistrate had
acknowledged the rampancy of burglaries and theft in the district of Tawau.
I do not think such observation can be doubted if one goes by the daily reports
in the print media. Such incidents have been exacerbated by the presence of
large population of foreigners, legal and illegal in the district. That fact itself g
should be considered by the courts as a distinguishing factor of the district
when comes to dealing with the offences of burglary and theft. Lenient
punishment may be misinterpreted as acceptance by the local population of
such a crime as being unavoidable and of trivial nature. Hence, a clear message
should be sent to those would-be offenders that a lengthy custodial sentence h
awaits them if they are convicted for such offences as burglary and theft.
Accordingly, in the exercise of my revisionary power under s. 325 of the Code
I proceeded therefore to vary the order of the learned magistrate thereby
making the custodial sentences of the appellant to run consecutively save for
the two charges as indicated above since there the offences were committed i
 516 Current Law Journal [2002] 3 CLJ

a almost at the same time and place. But with the remission the appellant will
only serve a period of six (6) years and two (2) months for the default in
paying a fine of RM2,000 in one of the subsequent offences under s. 457 of
the Penal Code. And in order to highlight the seriousness of the crimes I also
increased the strokes of the rattan as indicated above. In varying the order it
b was also in the forefront of my mind the mitigating factors as raised by the
appellant including the fact that he pleaded guilty to the charges. Unfortunately
there was nothing on record that he co-operated with the Police during the
investigation of the crimes committed.
In coming to my decision as I did, I also took into account several other
c factors in addition to what were considered by the learned magistrate and what
I have stated above. In giving the appellant more time in prison it was not
intended for retribution and deterrent effects only. I had in mind as well that
perhaps while in custody the appellant could pick some form of skill which
would be useful to him upon release. That would be a kind of rehabilitation
d for him. (See: Reg v. Sargeant [1974] 60 Cr App R 74). Further the period
would serve as a buffer and hopefully will sever the ties between him and
his accomplice. If the appellant were to serve only a short period then at no
time he could be back in business. That would defeat one of the aims of our
justice system, namely, to allow an offender to turn into a new leaf. A shorter
e period in custody may also prevent the appellant from undergoing such a
change. Public interest, a paramount consideration, was also given its
appropriate place. I noted that the learned magistrate did not expressly address
such a factor in her deliberation.
Of course in so doing I was well aware of some of the earlier decisions of
f the courts of this country on sentencing. Perhaps I should refer to a few of
them. In the case of Mohamed Abdullah Ang Swee Kang v. Public Prosecutor
[1987] 2 CLJ 405; ([1987] CLJ (Rep) 209) the relevant parts in the judgment
of his Lordship Mohd. Azmi provide a good guide when he said this, at
pp. 409-411 (at pp. 213-215):
g
When the legislature fixed a maximum penalty for an offence, the discretion
of the court in determining the extent to which in a particular case the
punishment should be awarded must be exercised judicially.

…
h
In assessing the length of custodial sentence, the court must look at the overall
picture in perspective by considering, firstly, the gravity of the type of offence
committed; secondly, the facts in the commission of the offence; thirdly, the
presence or absence of mitigating factors, and, fourthly, the sentences that have
been imposed in the past for similar offences to determine the trend of
i sentencing policy, if any. The fact that a sentence of imprisonment is imposed
[2002] 3 CLJ Hasanuddin Abd Hamid v. PP 517

as a deterrence does not justify the sentencer in passing a sentence of greater a

length than what the facts of the offence warrant. The gravity of the type of
offence involved must be considered in the light of the particular facts of the
offence. As stated by James LJ in R v. Ladd & Tristam [1975] Cr LR 50;
Thomas Encyclopaedia of Current Sentencing Practice p. 1058:

We have to look at the overall picture of what is the right sentence for b
the total involvement, the total degree of criminality involved, and we
have to keep the sentences in perspective with the sentences that have
been passed on other occasions for offences involving criminal activity
of this kind, though of course varying in their gravity. Clearly a deterrent
element has to be involved, but because the offences are very serious,
it does not necessarily follow that on the particular facts very long c
sentences are justified.

A sentencer must give sufficient discount for all extenuating circumstances

pertaining to the degree of culpability or criminality involved, which must
necessarily vary from case to case apart from other mitigating factors. Unless
there is a proper reason for withholding such credits, failure to do so may result d
in the sentencer not exercising his or her discretion judicially in assessing the
level of custodial sentence. In R v. Meade [1982] 4 Crim App R (S) 193; Cr
LR 613, a young man who pleaded guilty to arson was granted a reduction in
his sentence of six years’ imprisonment in what would otherwise have been
the proper sentence for such a serious offence. In the course of his judgment,
e
Lord Lane CJ said:

A term of five to six years, whatever the age of the offender may be,
is in many cases of using a petrol bomb a perfectly appropriate sentence,
because these weapons are rightly called bombs. They can cause the
most fearful injuries and this case demonstrates the sort of damage they
f
can cause to property. But having said that, the help that he gave to
the police and his plea of guilty earn him a discount, which does not
appear to have been given by the judge.

...

It is generally accepted that the extent of the reduction on account of a plea g

of guilty would be between one-quarter and one-third of what otherwise would
have been the sentence. In this particular case, apart from the plea of guilty,
the sentence must also be discounted to reflect the full restitution made and
the other mitigating factors.

… h

It was wrong in principle to double without any good reason what would
otherwise be an adequate and fair period of imprisonment. Since full restitution
had been made and the appellant had not enriched himself personally by the
crime, we found no purpose in imposing a fine in addition to custodial
sentence. i
 518 Current Law Journal [2002] 3 CLJ

a In Public Prosecutor v. Ravindran & Ors [1993] 1 MLJ 45 there was quite
an extensive discussion on the principles of sentencing. His Lordship Visu
Sinnadurai J made the following observations at pp. 50-53:
However, wide as this discretion may appear to be, the court must act
judiciously in determining the sentence to be imposed. The court must act in
b accordance with the relevant sentencing practice.

A leading writer on sentencing policies in criminal law has aptly stated the
following reasons as to why the courts are given such a wide discretion.
Ashworth in ‘Judicial Independence and Sentencing Reform’ in The Future of
Sentencing (1982) Cambridge University Institute of Criminology, at p 50 points
c out:

The purpose of discretion is certainly to allow the sentencer to select

the sentence which he believes to be the most appropriate in the
individual case, considering both the facts of the case and any reports
on the offender’s character. The purpose of discretion is surely not to
d enable individual judges and magistrates to pursue purely personal
sentencing preferences.

The various theories and principles applicable in sentencing are now well
documented. However, one important feature which has repeatedly been
emphasised is the public interest aspect of sentencing principles. Hashim Yoep
e Sani J (as he then was) said in PP v. Loo Choon Fatt 2 at p. 257: ‘One of
the main considerations in the assessment of sentence is of course the question
of public interest.’ His Lordship quoted with approval the dictum of Hilbery J
in R v. Kenneth John Ball.

Abdoolcader J (as he then was) in PP v. Teh Ah Cheng at p. 187 observed:

f
In sentencing generally the public interest must necessarily be one of
the prime considerations … public interest should never be relegated to
the background and must of necessity assume the foremost importance.

Raja Azlan Shah Ag LP (as his majesty then was) made the following
g observations in the Federal Court decision of Bhandulananda v. PP, on an
appeal against sentence for the offence of giving false testimony in court:

He (the trial judge) took the course he did, in outweighing the plea of
mitigation in favour of the public interest with a desire to uphold the
dignity and authority of the law as administered in this country. We
h agree. That must receive the greatest weight. It is a serious offence to
give false testimony, for it is in the public interest that the search for
truth should, in general and always, be unfettered. The courts are the
guardians of the public interest.

i
[2002] 3 CLJ Hasanuddin Abd Hamid v. PP 519

It should be emphasised that whilst public interest plays an important role in a

sentencing practice, there are other important factors which a court needs to
consider in imposing a particular sentence. Whilst it is recognised that no two
cases may be the same, the exercise of the court’s discretion should be in
accordance with certain accepted principles or guidelines so as not to have too
great a disparity in sentences for the same offence.
b
Of particular importance to the case at hand are the consideration of the
following guidelines or principles involved in sentencing:

(i) discount or credit for the plea of guilty;

(ii) comparison of sentences in other cases for a similar offence;
c
(iii) disparity of sentence amongst the accused persons; and
(iv) mitigating factors relevant to the present case.

...

Discount or credit for the plea of guilty d

It is an accepted rule of practice that an accused person should be given credit

or discount for pleading guilty. The rationale for this rule is that much public
time and money will be spared if an accused admits his guilt, thus avoiding a
prolonged and unnecessary trial. This rule however, is not a strict rule as the
courts may, in exercise of their discretion, in exceptional cases, refuse to grant e
any discount The credit or discount to be given in favour of the accused
person is not on the maximum sentence imposed by law but rather on a
sentence which would have been imposed on the accused if he had claimed
trial and had been found guilty. Cumming-Bruce LJ in R v. Boyd 10 above
said: ‘So one askes oneself, if there had been a plea of not guilty, and he had
been convicted, what would have been the appropriate sentence?’ f

...

If two or more persons had either pleaded guilty or had been found guilty for
the same offence committed jointly, the general rule is that any unjust disparity
should be avoided. However, there is nothing to prevent the court from g
imposing a range of sentences on the accused persons if there are important
considerations for so doing. The ages of the accused, the degrees of culpability
and the differences in mitigation are amongst some of the important factors
which warrant a disparity in sentences.

Bearing in mind the principles mentioned in the foregoing cases and in the h
light of what I have discussed above as regards the present cases I am of the
view that ordering the sentences of imprisonment to run consecutively is not
excessive in the circumstances.

i
 520 Current Law Journal [2002] 3 CLJ

a Accordingly the above are my reasons for revising the order of the learned
magistrate and ordering that the sentences imposed upon the appellant should
be made consecutively and the number of strokes of the rattan increased.