BETWEEN BUDIMAN BIN CHE MAMAT... APPELLANT AND PUBLIC PROSECUTOR... RESPONDENT. GROUNDS OF JUDGMENT (On Sentence)

Transcription

1 DALAM MAHKAMAH TINGGI MALAYA DI KOTA BHARU DALAM NEGERI KELANTAN DARUL NAIM DI DALAM KES RAYUAN JENAYAH NO: 42S-62-12/2016 (DALAM MAHKAMAH SESYEN GUA MUSANG, NO: /2016) BETWEEN BUDIMAN BIN CHE MAMAT... APPELLANT AND PUBLIC PROSECUTOR... RESPONDENT GROUNDS OF JUDGMENT (On Sentence) A. BACKGROUND [1] The Appellant/Accused was charged at the court below for having in his custody and control in a public place, a dangerous weapon that was a 50 cm sword, without lawful excuse or authority, an offence under section 7(1) of the Corrosive and Explosive Substances and Offensive Weapons Act 1958 (Act 357) punishable under the same section. He was also charged for a second offence, that was failure to produce his identity card to the police upon request, an offence under section 25(1)(n) AKTA PENDAFTARAN NEGARA 1990, punishable under the same act. 1

2 [2] The Appellant/Accused was represented at the court below. After the charge was read and explained to him, the Appellant/Accused pleaded guilty to both charges. After being satisfied that the Appellant/Accused understood the nature and consequences of his plea of guilty, and after being satisfied that the plea given was unequivocal and unqualified, and that the facts of the case to which the Accused admitted had revealed that the Appellant/Accused committed the offence, the Session s Judge convicted him and sentenced him to a minimum of 5 years imprisonment for the first charge and 1 year imprisonment respectively for the second charge. [3] The learned judge ordered the 2 sentences to run concurrently. However the learned judge rejected the request to have these sentences to run concurrently with an earlier sentence under Section 326 of the Penal Code (Case Mahkamah Sesyen Gua Musang no /2016)/Rayuan Jenayah no. 42S-61-12/2016). Instead the learned judge ordered these sentences to be served, upon the Accused/Appellant completing that earlier sentence. Put it in another fashion, the sentences are to run consecutively. [4] Dissatisfied, the Appellant/Accused filed an appeal on sentence on the above decision. After hearing submissions by both parties, this court dismissed the appeal and affirmed the decision of the trial judge. [5] Dissatisfied with the decision, the Accused/Appellant filed an appeal to the Court of Appeal. These are the grounds for the decision of this court. 2

3 B. THE CHARGE First Charge Bahawa kamu pada jam lebih kurang 2.00 petang bertempat di Kawasan Belukar Kampung Sungai Kepar, Daerah Gua Musang, dalam Negeri Kelantan, telah didapati dalam milikan dan kawalan kamu sebilah pedang bersarung besi warna hitam ukuran panjang lebih kurang 50 cm dipegang di tangan kanan kamu tanpa sebarang kebenaran yang sah. Oleh yang dermiklan kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 7(1) Akta Bahan-Bahan Kakisan Dan Letupan Dan Senjata Berbahaya 1958 (Akta 357). Second Charge Bahawa kamu pada jam lebih kurang 2.00 petang bertempat di Kawasan Belukar Kampung Sungai Kepar, Daerah Gua Musang, dalam Negeri Kelantan, telah didapati gagal mengemukakan kad pengenalan diri kepada pihak polis. Oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 25(1)(n) Akta Pendaftaran Negara C. FACTS OF THE CASE [6] The brief facts of the case which was tendered by the Prosecution and marked as P 1 are reproduced in verbatim as follows: 3

4 Pada tarikh 02/11/2016 jam lebih kurang 2.00 petang sepasukan anggota JSJ IPD Gua Musang telah membuat serbuan dan tahan (1)(l)(m) di kawasan belukar di Kampung Sungai Kepar Gua Musang dan menjumpai sebatang besi warna hitam yang dipegang di tangan kanan dan hasil pemeriksaan dapati besi tersebut adalah sebilah pedang bersarung ukuran lebih kurang 50 cm dan semasa tangkapan dibuat penama juga gagal mengemukan sebarang dokumen diri sebagaimana Gua Musang rpt: /16. Hasil soal siasat penama: Budiman bin Che Mamat no. Kpt: Tempat kejadian telah dilawati, gambar tempat kejadian telah dirakam, hasil soal siasat yang dijalankan tertuduh menyatakan sebilah pedang bersarung besi hitam adalah kepunyaannya dan juga menyatakan kad pengenalannya telah hilang hampir tempoh 1 tahun yang lalu. Hasil siasatan dan keterangan serta bukti-bukti yang ada, tertuduh telah melakukan satu kesalahan yang boleh di hukum di bawah seksyen 7 (1) Akta Bahan-bahan Kakisan Letupan dan Senjata Berbahaya 1958 dan Seksyen 25 (1) (n) Akta Pendaftaran Negara D. THE LAW ON APPEAL AGAINST SENTENCE [7] The law on appeal against sentence is trite, that the appellate court should be slow to interfere or disturb with the sentence passed by the court below unless it is manifestly wrong or unsuitable to the proved facts and circumstances of the case. In fact in the case of Adam Atan V PP (2009) 1 CLJ 33, the Court of Appeal in an appeal against sentence said, the initial function of the appeal court is one of review only. The mere fact that 4

5 another court might pass a different sentence provides no reason for the appellate court to interfere if the trial court applies the correct principles of sentencing. [8] Although there is a plethora of authorities on this point, suffice for this Court to apply the principles of sentencing as enunciated in the decision of the Court of Appeal in PP v Ling Leh Hoe (2015) 4 CLJ 869 viz: [14] The appellate court can and will interfere in the sentence imposed by the lower court if it is satisfied that any of the following four grounds are made out: (a)the sentencing judge had made a wrong decision as to the proper factual basis for the sentence; (b)there had been an error on the part of the trial judge in appreciating the material facts placed before him; (c) The sentence was wrong in principle; or (d)the sentence imposed was manifestly excessive or inadequate. (See R v. Ball [1951] 35 Cr App. R 164; Loo Weng Fatt v. Public Prosecutor [2001] 3 SLR 313 at para [65]; Public Prosecutor v. UI [2008] 4 SLR (R) 500). [9] To generalize it, whilst an appellate court should be slow in interfering the sentence imposed by the trial court in the exercise of their discretion as sentencing is not a science of mathematical application, an appellate court can interfere on the sentence if it is wrong in principle or the sentence 5

6 imposed is manifestly excessive or manifestly inadequate. In fact the court of Criminal Appeal in Dookes v PP (2010) SCJ 71 said: However, even if there is nothing wrong with the principle, the sentence may be increased by the appellate court if it is unduly lenient. E. THE FINDING OF THE SESSIONS JUDGE ON SENTENCE [10] The learned judge in his grounds of judgment had ordered that both the sentences to run concurrently as inter alia, it was committed in one transaction. In arriving at his decision the learned judge had taken all the relevant factors into consideration such as the surrounding facts of the case, the mitigation by the defence counsel and the submission by the Prosecution to enhance the sentence. [11] Regarding the first offence of having in his custody and control of an offensive weapon, the learned judge considered that this is a serious offence, reflected by the recent amendment where the minimum sentence of 2 years imprisonment was raised to 5 years. [12] For the second offence of failure to produce his identity card upon request by the policeman, the learned judge had considered the lackadaisical attitude of the accused in making no attempts to replace his old identity card which was lost about a year ago as claimed. 6

7 [13] The learned judge also ordered that these 2 sentences to run consecutively after serving the first sentence of which he was earlier charged and sentenced to 8 years imprisonment, under section 326 of the Penal Code as he opined that the present offences were not committed in the same transaction with the earlier offence and also they were separate and distinct offences. F. SUBMISSIONS BY PARTIES [14] The learned counsel in her written submission submitted primarily on the sentences for all the 3 offences to run concurrently. Towards that end she submitted that the learned trial judge was wrong in not considering that these 2 sentences and the earlier sentence (under section 326 of the Penal Code) should run concurrently and not consecutively to each other. [15] This was because, according to the learned counsel, the weapon used in the commission of the offence of grievous hurt under section 326 of the Penal Code apparently was the same weapon. Hence it merited a consideration that all the 3 offences should run concurrently. [16] Hence the sole issue before this court for consideration was primarily on whether the sentences for all the 3 offences should run concurrently or consecutively to each other. [17] For easy reference, the Accused/Respondent was earlier charged for an offence of causing grievous hurt by dangerous weapon, an offence punishable under section 326 of the Penal Code (Case Mahkamah Sesyen 7

8 Gua Musang no: /2016/rayuan Jenayah no: 42S-61-12/2016). The charge reads as follows: Bahawa kamu pada jam Iebih kurang 9.00 pagi bertempat di kawasan pembinaan Ladang Chin Teck, di dalam Daerah Gua Musang, di dalam Negeri Kelantan, telah didapati dengan sengaja menyebabkan cedera parah iaitu patah kedua-dua belah tangan dan telinga hampir putus ke atas penama Wan Azmi Bin Wan Hasasan KPT: dengan cara memukul dengan menggunakan kayu dan besi kuku kambing. Oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 326 Kanun Keseksaan. [18] It was evidently clear that the dangerous instrument used was besi kuku kambing which is a weapon with the tip resembling like a claw or nails. However the instrument used in the case before this court was sebilah pedang which was a sword. Hence the learned counsel s submission that the instruments used in both the charges were the same was evidently wrong. Further the learned counsel s submission that the similarity in the weapon used could be a factor to be considered in determining whether the sentence to run concurrently or consecutively was also misconceived, as the following paragraphs would show. [19] It is to be noted that the exercise of the discretion of the court to determine the date of the commencement of the imprisonment is dependent on the facts and circumstances of each case. In determining whether the sentences are to run concurrently or consecutively, the courts 8

9 may use the one transaction principle or the totality principle [see Bachik Bin Abdul Rahman V PP (2004) 2 MLJ 534 (CA)]. [20] The one transaction principle applies where 2 or more offences were committed in the course of a single transaction, and the sentences for these offences should be concurrent. For there to be one transaction 4 elements should be present i.e. proximity of time, proximity of place, continuity of action and continuity of purpose or design [see Jayaraman V PP (1979) 2 MLJ 88; Amrita Lal Hazra V Emperor 42 cal 957]. [21] This can be well explained by referring to the case of PP v Prabu Veeramuthu (2009) 3 MLJ 470. On the facts, both the accused were charged with two charges of culpable homicide not amounting to murder under section 304(a) of the Penal Code. The court ordered the sentences of 16 years imprisonment on each charge to run concurrently since the offences were committed in a single transaction. [22] Similarly in Annantan Subramaniam v PP (2007) 8 CLJ 1, the appellant pleaded guilty for the offence of rape under section 376 of the Penal Code and for voluntarily causing grievous hurt to the same victim under section 326 of the Penal Code. On appeal, the court held that there was continuity of action since both offences were clearly connected by proximity of time and place. Thus the sentences should run concurrently. [23] In Ayob Abdul Jabar v PP, the accused was charged with an offence of resisting lawful apprehension under s 224 of the Penal Code and four charges of house-breaking under s 457 of the Penal Code. Here the 9

10 trial court ordered that the sentences of imprisonment to run consecutively, a total of 17 years, and the accused had to pay a fine of RM12,000. On appeal to the High Court, Abdul Kadir Sulaiman J upheld the trial court's order and held that: Each distinct offence must be dealt with separately when imposing sentence. Offences in respect of infringements of the same section of a particular law must be regarded as distinct if the offences were committed against different persons or at different times or at different places. In the instant appeal, each of the five offences was committed at a different date, time, place and upon different persons. Thus, the offences committed are distinct offences and further, each offence is a principal offence. In these circumstances, the sentence imposed in respect of each offence cannot be concurrent with one another. [24] On the other hand, on the totality principle, the court will look at the total sum of the sentences imposed and whether in totality, they are excessive or harsh or having a crushing effect on the accused. If the total sentence is excessive then the court may order two or more sentences to run concurrently. The totality principle was applied in the Federal Court case in Sau Soo Kim v PP (1975) 2 MLJ 134. The accused in that case was sentenced to 10 years imprisonment on the first charge for attempt to commit murder by firing a revolver at a police party under section 307 of the Penal Code and 4 years each on two other unlawful possession of firearms and ammunition respectively under section 3 of the Arms Act 1960, i.e. a total of 18 years of imprisonment. 10

11 [25] The Federal Court held that the consecutive sentences of 18 years' imprisonment were too excessive and harsh and ordered the sentences for the second and third charges to run concurrently as they were offences which were similar in nature, thus making a total sentence of 14 years' imprisonment - (see also Bachik Bin Abdul Rahman (2004) 2 MLJ 534). [26] Reference can be made on Emmins on Sentencing (2 nd Edition at page 151 which said: It is well established that sentences must have regard to the total length of sentence passed, particularly where consecutive sentences have been imposed, to ensure that the sentence properly reflects the overall seriousness of the behavior. [27] As there are no hard or fuss rule as to which principle to apply, the courts in Malaysia seems to apply a fusion of both principles. [28] Reverting back to the case at hand, in the light of the authorities and the laws averted to earlier, as the present offences were not committed on the same day, same time and at the same place with that of the earlier offence (Section 326 Penal Code) and that there was no continuity of action and purpose hence clearly the one transaction principle cannot apply. What is more, the earlier offence under section 326 of the Penal Code was totally distinct from that of the present offences. [29] Further, the total aggregate sentence of 13 years for all the sentences to run consecutively will not offend the totality principle too as 11

12 they are not excessive and would not have a crushing effect on the Accused. [30] The learned judge was correct when he said the following at pages 13 to 15 of Jilid 1 of the Appeal Record: Dalam menentukan hukuman kedua-dua kes patut berjalan berasingan atau secara serentak, saya berpandukan kepada prinsip rukun satu transaksi (one transaction rule) dan prinsip keseluruhan (totality principle). Rukun satu transaksi telah dijelaskan dalam banyak kes antaranya Amrita Lai Hazra v Emperor, Jayaraman & Ors v PP [1979] 2 MLJ 88, Chin Choy v PP [1955] 2 MLJ 36. Merujuk kepada kedua-dua kes ini, GM(T) /2016 dan GM(T) /2016 saya berpendapat ianya tidak tergolong kepada rukun satu transaksi di mana tidak terdapatnya empat unsur-unsur yang terdapat iaitu kedekatan masa, kedekatan tempat, kesinambungan tindakan dan kesinambungan tujuan atau reka bentuk. Kesimpulannya kedua-dua kes ini tiada kedekatan masa dan tempat kerana pertuduhan berkaitan dengan masa dan tempat yang berbeza dan juga perbezaan tujuan. Selanjutnya, saya berpendapat bahawa agregat hukuman juga tidak bertentangan dengan prinsip keseluruhan. Hukuman 13 tahun penjara kesemuanya bagi kedua-dua kes dan setelah remission, pada pendapat saya tidak akan membawa 'crushing effect' kepada tertuduh dalam kes ini. 12

13 [31] As such this court found that there was no reason for this court to disturb the finding as the learned judge did not commit any error. G. CONCLUSION [32] In the upshot, the appeal by the Appellant/Accused was dismissed and the decision of the learned Session s Judge affirmed. The sentences in this appeal are to run consecutively to the earlier sentence under section 326 of the Penal Code [kes Rayuan Jenayah No: 42S-61-12/2016/( /2016)]. Put it in another fashion, the Appellant/Accused will serve the existing prison sentences immediately upon completion of the 8 years imprisonment sentence imposed under section 326 of the Penal Code. Dated: 30 th November 2017 (DATO AHMAD BIN BACHE) Judicial Commissioner Mahkamah Tinggi Kota Bharu Kelantan. 13

14 Pendakwa Raya/ Responden: TPR Puan Ainul Wardah binti Shahidan, Pejabat Penasihat Undang-Undang Negeri Kelantan, Blok 5, Tingkat Bawah, Kota Darulnaim, Kota Bharu, Kelantan Peguamcara/Pemohon: Puan Ariyani Tetuan Zulfikri, Ariyani, Sh Mahanom & Co, Lot 1704, Batu 3 ½, Kg. Kenali, Jalan Sultan Yahya Petra, Kota Bharu, Kelantan. 14