UMAR IZAT BIN NUBLI
IZAT & ASSOCIATES
LWH08F
SENTENCING PRINCIPLES
Case 1 = PP v Jamalul Khair
- a magistrate is not functus officio until he has passed a sentence.
Case 2 = Maleb Bin Su v PP
- the sentence is the final order disposing of a case in court.
1. AIMS OF SENTENCING
Case 3 = PP v Govindnan
- in passing sentence, a court has to consider not only the offence and the offender but also the
interests of society.
I. RETRIBUTION “an eye for an eye, a tooth for a tooth”
Case 4 = PP v Muthu Lingam
- in retribution, the court showing abhorrence of particular type of crime through the length of
sentence passed.
II. DETERRENCE
- to deter the offender from reoffending or the public from committing an offence.
- deterrent sentence usually means a sentence which is higher than that which would normally
be proper for the offence concerned, not because of the facts of the case but in order that others
should be dissuaded in the future from committing offences of a similar kind.
Case 5 = PP v Ismail Loyok
- the object may not be to punish the offender but also to deter others from succumbing to
temptation.
Case 6 = PP v Gurmit Singh
- a deterrent sentence is entirely within the court’s jurisdiction.
III. PREVENTION
- prevention rests on the principle of taking away from the offender the power of offending.
Case 7 = Abdul Wahab v PP
- the court in enhancing the accused’s sentence thought the accused was ‘incorrigible’ and that
it may perhaps do the society some good if he was kept away from the public.
IV. REFORMATION
- the principle that generally finds favour in the public interest.
Case 8 = Lim Yoon Fah v PP
- public interest could be best served by helping the offender from criminal ways to honest
living.
UMAR IZAT BIN NUBLI
IZAT & ASSOCIATES
LWH08F
2. CIRCUMSTANCES OF COMMISSION OF OFFENCE
- the circumstances surrounding an offence are generally submitted as aggravating factors in
support of a deterrent sentence although there can be some situations where the facts can be
presented to operate in favour of leniency. The circumstances surrounding an offence:
I. TYPE OF OFFENCE
- there are certain types of offences which are viewed seriously by the courts. Type offences:
house breaking, robbery with firearms, theft.
Case 9 = Radin Ibrahim v PP
- one such offence is burglary because it involves intrusion into homes of the victims.
Case 10 = Hasanuddin v PP
- 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. Not only material losses must
be considered, but also the traumatic experience.
Case 11 = PP v Ismail Loyok
- another offence is that of criminal breach of trust by persons in high positions.This offence is
characterised by the betrayal and disloyalty of the person entrusted with the property and ‘the
normal punishment’ is insufficient.
Case 12 = PP v Ng Chong Wan
- the offence of possession of firearm is considered as a serious offence.
Case 13 = Ng Ah Tak v PP
- acid-throwing offence is considered as a serious offence.
Case 14 = Bhandulananda v PP
- the FC dismissed the appeal of the accused who had pleaded guilty to giving false evidence at
a murder trial. The offence of giving false evidence also evokes similar outrage.
II. NATURE OF OFFENCE
- the degree of malignity reflected in the offence is another factor considered in the assessing of
sentence. Nature: premeditated (higher punishment compared to the impulse and sudden
temptation offence), impulse, sudden temptation.
Case 15 = Mohd Jalani v PP
- the fundamental role of criminal judicature is that the measure of punishment should be in
proportion to the malignity appearing in the commission of the offence.
Case 16 = PP v Loo Chang Hock
- the Court would take into consideration whether an offence was clearly premeditated,
committed with deliberation and professional skill such as housebreaking and theft and not at
the spur of the moment.
Case 17 = PP v Chot Saik Kam
- provocation is another factor considered for leniency.
UMAR IZAT BIN NUBLI
IZAT & ASSOCIATES
LWH08F
Case 18 = Lee v R
- sudden temptation and sudden weakness are also regarded as factors for leniency.
Case 19 = Lee Peng Kong v PP
- it suggests the possibility that the strong temptation was such as to overwhelm reasonably
normal controls. However, temptation would not be a mitigating factor in cases where the
accused is expected to withstand the temptation which accompanies the trust reposed by the
position.
III. MANNER OF COMMISSION
- the circumstances surrounding the commission of the offence.
Case 20 = PP v Safian Abdullah
- two youthful offenders had, in the course of robbery, strangled a man dying of mortal wounds
which they had inflicted. In sentencing them to 14 years, the court placed emphasis on the
deterrent aspect despite the offenders’ youth because of the brutal nature of the offence.
Case 21 = PP v Emran Nasir
- involving the rape and outrage modesty. The victim was 17 and was married to a foreigner
who has problems with his travel documents. While the husband was interrogated, the wife was
taken into another room and was raped. The police said the girl consented as she did not
struggle and scream. The court held that the consent might due to fear that something might
happen to her or her husband. Court in this case stated that “it is a serious aggravation of what
is itself a grave crime, that the defendant abused his position as a guardian of law with a duty to
uphold it. Such conduct must constitute a blow to public confidence”.
Case 22 = Sia Ah Kew v PP
- 5 appellants sentenced to death for an offence of kidnapping. However, the court took into
consideration the circumstances including the plea in mitigation, that the victim had been kindly
treated and that no violence had been shown towards him in captivity. The circumstances did
not point to the case being one where sentence of death would be the appropriate sentence.
IV. PREVALENCE AND RAMPANCY
- prevalence of an offence is usually submitted by the PP in urging that a deterrent sentence be
imposed.
Case 23 = PP v Alfred Vincent
- it is the practice that statistics or some form of evidence is tendered in support of such a
submission.
Case 24 = Raden Ibrahim v PP
- the Court took judicial notice of the rampancy of thefts in Sabah and Sarawak because of the
intrusion into property which caused insecurity and fear to householders even in their own
home.
Case 25 = Wong Yuk Ai v PP
- the converse is not relevant and a submission that a particular offence was not rampant was
rejected.
UMAR IZAT BIN NUBLI
IZAT & ASSOCIATES
LWH08F
V. IMPACT OF OFFENCE ON VICTIM
Case 26 = Shafruddin v PP
- the concern of the court for the psychological effect of the accused’s act in molesting a 15
year-old girl was factored in the sentence.
3. BACKGROUND OF OFFENDER
- the court requires knowledge of the background and antecedents of the accused to assist it in
assessing sentence. While the approach is to strike a balance, as far as possible, between the
interests of the public and the interests of the accused, the public interest is best served if the
accused is induced to turn from criminal ways to honest living. It is for this reason that evidence
of antecedents and character is taken before sentence in respect of each convicted person.
Case 27 = Tukiran Taib v PP
- before sentencing, magistrates should make careful enquiries regarding the background,
character of the offender, especially if the offender is a youth. There are a number of factors
relating to the background of an offender that are of assistance in assessing sentence.
- mitigating facts which relate to an accused person’s background (are not exhaustive) but some
of the common factors:
I. AGE
- age particularly youth at the time of commission of the offence is an effective mitigating
factor.
Case 28 = Teo Siow Seng v PP
- in the case of a young offender, there can hardly ever by any conflict between the public
interest and that of the offender. The public has no greater interest than that he should become a
good citizen. However, where circumstances so warrant, the age of the offender will be
disregarded by the court, particularly where the species of the crime is very serious.
Case 29 = PP v Mohamed Ali Kipli
- the court took into account the youth of the offender despite noting that the offence was a
deliberate and vicious attack on a teacher (grievous hurt).
Case 30 = PP v Tan Bok Yeng
- the age of the offender will be disregarded by the court where the species of crime is one
‘which the alacrity of mind and body, the dare, clash and defiance of the youth is capable of
performing and producing.
Case 31 = PP v Teh Ah Cheng
- unlawful possession of firearm. If a person is not too young to possess firearms unlawfully, he
is certainly not too young to suffer the penalties therefore prescribed by law.
Case 32 = PP v Kow Ngo
- old age and poor health alone cannot be a barrier or mitigating factor for one to go around
committing crimes and getting away for the same reason.
UMAR IZAT BIN NUBLI
IZAT & ASSOCIATES
LWH08F
Case 34 = PP v Yahya Selaman
- Old age is not a mitigating factor. It was held if one’s age and health reasons are accepted as
an ingredient to light punishment, the court will give a wrong description to the public that old
and aged people are given special treatment if found convicted.
II. ANTECEDENTS (Clean Records)
Case 35 = PP v Selvarajah
- the fact that the accused person is a first offender is a consideration for leniency.
Case 36 = Winston Rajah v PP
- there is a provision under Section 173A and 294 of CPC to empower the court to proceed only
bind over the offender because of his character or antecedents or that he is a first offender
instead of imposing any punishment on him.
Case 37 = DR Garner v PP
- a clean record or that the accused is a first offender, will not necessarily be a factor in
mitigation where there are no mitigating factors in the circumstances of the case (in acid-
throwing and rape cases).
Case 38 = PP v Ng Ah Tak
- where the offence committed is a serious one such as acid throwing even though there was no
previous offence.
III. FAMILY HARDSHIPS
- the adverse effect of a term of imprisonment on the accused’s wife and family is a common
defence submission for leniency.
Case 39 = PP v Loo Choon Fatt
- it was said of family hardship, the correct approach is to balance the interest of the public and
the interest of the accused.
Case 40 = Mohd Hashim v PP
- the family difficulties of the accused were taken into consideration. The accused’s wife had
been mentally and physically ill for some time when the offence of misappropriation was
committed. The court found this had resulted in the respondent experiencing mental anxiety and
additional financial expenditure.
Case 41 = PP v Mohamed Ismail
- the view more generally subscribed to by the courts is the accused ought to have thought of
his wife and family not after, but before the commission.
Case 42 = PP v Amir Hamzah
- the effect of the conviction on the accused’s family does not automatically become a
mitigating factor. The accused cannot be allowed to commit offence and then to hide behind the
possible hardship of family.
UMAR IZAT BIN NUBLI
IZAT & ASSOCIATES
LWH08F
IV. CONDUCT SUBSEQUENT TO OFFENCE (Co-operation with the police)
Case 43 = Vennel v PP
- a valid factor in mitigation is whether the accused person is genuinely contrite and regrets
what he has done.
Case 44 = Kesavan v PP
- this may take the form of cooperating in the investigations, pleading guilty, and making
amends with the victim of the crime such as by paying compensation.
Case 45 = PP v Ismail Loyok
- subsequent conduct in making restitution of property.
V. IMPACT OF CONVICTION
- the person convicted of an offence not only suffers a consequential loss of employment but
also carries the stigma of being a convicted person.
Case 46 = Vijaya Raj v PP
- a former headmaster was charged but was acquitted of three charges of misappropriation of
school funds. He was acquitted but the court held that this should serve as a lesson to him. If
he’s convicted, even one day in prison, he would lose everything.
Case 47 = Datuk Hj Harun v PP
- the FC disregarded the fact that the appellant had to endure the loss of professional and
personal reputation. It was decided a deterrent sentence was warranted because of the need for
people in public life to show a good example to those below them.
VI. HEALTH
Case 48 = PP v Sulaiman Ahmad
- health is another consideration in the assessing of sentence.
Case 49 = PP v Dato Nallakaruppan
- the accused claimed he was suffering from asthma, bronchitis, etc., the could while noting that
health was a factor to be taken into consideration the health factors, the accused could receive
treatment in the prison hospital while serving sentence and that arrangements to receive
treatment were not difficult to arrange by the prison authority.
VII.DELAY IN DISPOSING OF THE MATTER
Case 50 = Balakrishnan v PP
- a delay in disposal of the case brought against the accused resulting in the charge becoming
‘stale’ or the fact that the matter has long been hanging over the accused’s head may be a
mitigating factor.
Case 51 = Jessica Lim v PP
- the mental state to constitute emotional punishment etc.
UMAR IZAT BIN NUBLI
IZAT & ASSOCIATES
LWH08F
Case 52 = PP v Oh Keng Seng
- the trial judge took cognisance of the fact that the accused had suffered long enough with the
agony of having the charge hanging over his head for over four years.
Case 53 = Cheng Lian Eng v PP
- the sentence of 3 years’ imprisonment was reduced to 8 months after the court found that
nearly 3 and a half years had elapsed since the commission of the offence and that the appellant
had been of good character, both before and after the offence.
