lOMoARcPSD|41722766
MITIGATING FACTORS
The plea in mitigation is central to the sentencing process.
There is no provision in CPC for plea in mitigation.
However, it is established practice to allow a plea in mitigation before sentence is passed.
Further under s.176(2)(r), the C is required to record particulars of the case such as the C’s note
on previous conviction and plea in mitigation
When the C assesses an appropriate sentence to be passed,
- it will observe first the max punishment prescribed by the law in the penal provision;
and then
- it may make an allowance according to the plea in mitigation by the A.
DA Thomas says in his book entitled Principles of Sentencing at p.39 (quoted in the case of
Dato’ Seri Anwar bin Ibrahim (No 3) [1999]: From the initial figure calculated by reference to
the seriousness of the offence, allowance may be made by way of mitigation for good character,
or for moderately good character. However, in assessing the allowance to be given from my
calculation of the initial figure, I had to strain myself to look for mitigating circumstances in
favor of the accused in the absence of any plea in mitigation from him or his counsel.
Mohamed Jusoh Abdullah [1947] 13 MLJ 130 Willan CJ held:
"In our view no sentence can be assessed by a simple mathematical formula. Many factors must
be taken into account according to the circumstances of each individual case. In that respect
we would draw attention to the matters which should be taken into account in fixing
punishments as set out in Halsbury 's Laws of England (Hailsham Edition) volume 9, para.
365:
"The C, in fixing the punishment for any particular crime, will take into consideration the
nature of the offence, the circumstances in which it was committed, the degree of deliberation
shown by the offender, the provocation which he has received, if the crime is one of violence,
the antecedents of the prisoner up to the time of sentence, his age and character."
Loh Oi Lin [1949] MLJ 120: There are factors such as prevalence, difficulty of detection and
injury to public revenue which operate in the direction of severity and others such as leniency
to first offenders which operate in the other direction and where as frequently happens a number
of these factors applied in one case. The court must balance them as best as it can. Among the
factors more commonly advanced are age, antecedence, family hardship, conduct subsequent
to the offence, impact of conviction, health, and delay in disposal of cases.
lOMoARcPSD|41722766
1. Antecedent (past history, previous circumstances of the A)
Clean record - No previous convictions
First offender, not repeat/habitual offender
The court will consider if the offender has any previous conviction. If the offender is a first-
time offender, the court will normally not impose custodial sentence.
Hoo Chee Keong v PP: Since the accused was a first-time offender, consideration of
rehabilitation must be given to him instead of incarcerating him for long time in prison.
Jafa bin Daud v PP: If the accused is a first-time offender, evidence must be shown to prove
it. Even if the accused had a previous conviction, the court shall consider if the previous
conviction is of the same nature with the current one. If the court found that the accused is a
persistent offender, then deterrent sentence must be imposed on him.
S.173A and S.294: the C may proceed to bound over an offender because of his
antecedence/that he is a first offender.
Exception
(i) Serious Offence
PP v Leo Say: The fact that a person has no criminal record is not a factor to be considered in
mitigating the sentence to be imposed when it involves a grave and serious offence.
(ii) Long Gap
Zaidon Shariff v PP: A previous conviction will only be taken into consideration if it is of a
similar nature with the current charge. In this case, since there was a long gap between the
accused’s last conviction, a mitigation shall be given as the long gap principle suggested that
the offender has made an effort to rehabilitate himself.
2. Behaviour of the accused after committing the offence
If the accused remorse or repent after commission of the offence, it is an effective mitigation.
The court will consider if the accused has taken any positive step to resolve the problems
resulted from his commission of crime. E.g. payment of voluntary compensation to victim,
making good the damage caused, voluntarily attending treatment classes or counselling (if the
A is an alcoholic/drug addict), cooperating in the investigations.
Raja Izzuddin Shah v PP: The accused repaid the money to the victim, and this fact is an
effective mitigating factor to reduce the accused’s sentence of imprisonment to good behaviour
bond.
PP v Jessica Lim: The sentence was reduced because the accused had been cooperative with
the police to raid the house and to exonerating any person involved with drugs.
lOMoARcPSD|41722766
3. Characteristic of the Accused
The personality of the accused and his contribution shall be considered.
Counsel should call character witnesses to give evidence and obtain written references from
people of good standing within the community who are known to the accused. E.g. colleagues,
employers, teachers, doctors.
PP v Jafa bin Daud: The court may assess the character of the accused by adducing evidence
before passing sentence. It is stated in assessing sentence, one of the main factors to be
considered is whether the A person is a first offender. It is for this purpose that before the C
passes the sentence, the Judge / Magistrate is required to call for evidence or information
regarding the background, antecedent (past character), and character of the A.
However these considerations was disregarded by the C in Datuk Haji Harun [1978]
4. Delay / Time Lapse
Normally for unbailable/non-bailable offence
When there is a long delay in the disposal of the case, and the accused has already been in
custody, the court will reduce the sentence imposed because a long delay may place the accused
into a long intense anxiety until he was being charged.
Remand period can also be taken into consideration.
PP v Mark Koding: Since the investigation had begun in 1978 but the accused was only then
charged in 1981, such time lapse was considered for mitigating the sentence.
Eg. Person arrested in 2020, but the case settled in 2025, he was in prison for 5 years since he
committed unbailable offence but not yet been convicted. As a counsel, can argue that if he is
sentenced to imprisonment, the imprisonment should start from date of arrest, so when the
person been convicted for 5 years imprisonment he can be released since he ady been
imprisoned for 5 years, if convicted for 8 years, then just imprison for another 3 years, no need
imprisonment for 8 years again.
5. Effect of the Sentence to Accused family
Court will consider the impact on the accused and his family if sentence is passed.
E.g. the accused will lose his job, suffer humiliation, accused’s family losses support.
This may persuade the C to impose a community penalty instead of imprisonment. Vijaya Raj
An offender may be the sole bread-winner in his family or have aged parents to support.
Parents are sick, they rely on the A to bring them to hospital for treatment.
PP v Yap Koon Mong: Court consider that if accused was imprisoned, hardship will be caused
to his family as he is the father and support of the family. It is necessary for court not only to
consider the suitable and necessary punishment, but also the appropriate extend of punishment.
lOMoARcPSD|41722766
PP v Loo Choon Fatt: The court must strike a balance between the public interest and the
accused’s interest. It must not be over-sympathetic in considering the mitigation plea based on
the hardship of the family.
PP v Teh Ah Cheng: The court will not excite any sympathy to the offender on any hardship
arise from the consequences of his act because the court was of the view that the accused should
have thought of the consequences before committing the offence.
Winston Rajah, Richard Malanjum :-"Reverting therefore to the present case I am of the view
that based on the fact that the appellant is a first offender and that currently he is undergoing a
course in computer, an immediate custodial sentence may not be appropriate. His learned
counsel in his submission has also listed and annexed copies of certificates or documents to
show the healthy activities the appellant had participated before. And I think those should
reflect his antecedent and character to a certain extent. It was unfortunate that the learned
magistrate did not have the benefit of those materials. But then A was not represented at that
stage. I also note that s. 294 was not even considered or discussed in the court of first instance."
Xavier Lourde Nathan: Held that "Having said that, and after hearing the submissions from
both sides of the bar table, this Appellant had indeed committed the offence as per charged, but
to my mind, this is a fit and proper case for me to invoke section 173A of the CPC taking into
account factors in this case which are rather extenuating. The parties were not total strangers
but were family friends working in the same workplace. The Appellant was a man of 50 over
years old and could lose everything that he had nurtured all through his working life with the
company where he had been working. He had poor health conditions as well and these could
be observed in court. Judging from the overall tenor of the evidence laid before the lower court,
there was no evidence of premeditation involved. To my mind, public interest can be best
served if social relationships can be strengthened instead of being further eroded. Any
weakened social relationship eats away at the very fabric that is so very important in keeping
our society together as a coherent whole. I have no doubt in my mind that an order such as this
will best serve the public interest under the circumstances oh this case."
6. Form / Nature of the Offence
The type and nature of the offence will be considered by court before sentencing the accused.
If the offence is rampant or violent, this will not be a mitigating factor.
If the offence is not a serious offence or the offence has not caused any loss, it is a good
mitigating factor.
If the accused is only an accessory who is helping another person to commit an offence, a
lighter sentence will be imposed.
Hoo Chee Keong v PP: The offence committed was a credit card fraud. Since there was no
violence involved and the offence had not caused any heavy financial loss, the court considered
the nature of the offence as a mitigating factor.
lOMoARcPSD|41722766
7. Guilty Plea
GR: The court will give the accused credit or discount for entering an early guilty plea to the
offence as it helps to save time and money of the public.
Sau Soo Kim v PP: In determining whether a person is a hardened criminal or not, the court is
of the view that a plea of guilty should be treated as a mitigating factor, as it not only helps to
save expense of a lengthy trial but also save time and inconvenience of all parties involved.
PP v Ravindran: The accused should be given credit for pleading guilty as he has saved the
time and public money for going into a trial.
Mohamed Abdullah Ang Swee Kang v PP: When an accused pleads guilty, it gives rise to
public advantage and avoids the expense and nuisance of a trial, where the court will encourage
an accused to plead guilty by imposing a lesser sentence.
Before trial – fixed rule
S.172G of CPC: When an accused pleads guilty at any time before the commencement of his
trial, court shall sentence the accused based on S.172D(1)(c)(ii) of CPC, whereby the sentence
shall not be more than half of the maximum term of imprisonment provided by the law.
During trial – no fixed rule
Happens when the accused first claimed trial, then changed to pleading guilty.
Based on court practice, cases and trend, a reduction between 1/4 to 1/3 of the sentence
prescribed by the law will be imposed.
Mohamed Abdullah Ang Swee Kang v PP: It is normal for the court to provide a discount of
1/4 or 1/3 if an accused has pleaded guilty. However, this is a guideline only, it is not mandatory.
R v Ravindran: The credit is not to be given on the maximum sentence proscribed by the law
but rather on the sentence which would have been imposed on the accused if he has opted to
claim trial and convicted.
Exceptions (Pleading guilty is not always a mitigating factor)
It is to be noted that a plea of guilty will not always entitle the accused to a reduction of sentence
as a matter of right.
Fu Foo Tong v PP: It is not the general rule that every plea of guilty “entitles” the accused a
reduction of sentence.
Wong Kai Chuen Philip v PP: The voluntary surrender of the accused and a plea of guilty
made are mitigating factors which the court would take into account because it may be evidence
of remorse and a willingness to accept punishment for his wrongdoings. However, the court
opined that the weight to be placed on such surrender and plea shall depend on the
circumstances of each case. In this case, the sudden shift of behavior to make a plea of guilty
seemed to be a purely tactical move which did not indicate genuine remorse, the plea was
therefore not accorded significant weight.
Circumstances where the court refused to give reduction of sentence based on plea of guilty:
(a) Serious offence involved
Leo Say v PP: The severity of an offence may outweigh the mitigating effect of pleading guilty
by the accused.
(b) No defence (if there is nothing else to support)
Low Kok Wai v PP: A plea of guilty cannot be a powerful mitigating factor when effectively
no defence to the charge was available to the accused.
(c) Protection of public
Fu Foo Tong v PP: The accused persons had committed gang robbery for many times, where
the first exception to the general rule that pleading guilty will warrant a reduction of sentence
is the protection of the public. When it is necessary that a long sentence should be passed in
order to protect the public, a plea of guilty may not result in any reduction.
PP v Murugesan Muniyandi: The court will not consider the plea of guilty because ethe
murder was cruel and premediated, and public interest is more paramount.
(d) The plea is tactical
Xia Qin Lai v PP: If the accused pleaded guilty because of knowing that the prosecution will
be proving the case without any difficulty, or he was caught red handed, no value of mitigation
shall be placed here.
(e) The accused has no other choice but to plead guilty (no choice because the evidence is too
strong)
Fu Foo Tong v PP: A plea of guilty can have no mitigating value, such as when the evidence
overwhelmingly supports a conviction.
8. How the offence was committed / Circumstances of the offence committed
The court will consider the manner (no violence / injuries) and reason (forced by others, bad
company, driven by debts) of commission.
If the commission of offence does not involve violence and injuries, it will be a good mitigating
factor.
Seah Ah Kew v PP: The sentence of death penalty was reduced to life imprisonment, because
the accused treated the victim kindly and no violence was involved.
Hoo Chee Keong: Credit card fraud - no evidence had caused heavy financial loss
Reasons for commission: The reason why committed the offence – was force; encouragement;
bad company; driven by debts; victimization
lOMoARcPSD|41722766
9. Information relating to the accused / Background of the A
Commonly used by defence counsel, but court sometimes will accept and sometimes will reject,
must be supported by evidence.
The background of the accused will be taken into account as mitigating factor, e.g.
- Level of education,
- place of residence,
- sole breadwinner / unemployed / poor,
- family background, troubled/disrupted family background,
- condition of wife and children.
PP v Loo Choon Fatt: The court considered that the accused is the only son of the family and
he was living with his family at a squatter area with gangsters and drug addict. Such factor was
taken into account where the court is required to strike a balance between the accused’s interest
and public interest.
PP v Mohd Hashim: The mental and physical illness of the accused’s wife was considered,
which such illness had resulted the accused to have mental anxiety and financial difficulties,
and this is the main reason why the accused committed the crime.
However, it must be taken note that the background of the accused depends on circumstances
and judges.
PP v Leo Say: Hardship is not a factor to be considered, because the accused should have
thought of it before committing such offence.
Health of the Accused
If the accused is suffering from a long-term illness or injury, a more lenient sentence will be
imposed.
E.g. Mental illness (depression, under the influence of extreme mental or emotional disorder
at the time of committing the offence), pregnancy, drug addict, alcoholic (should go for drug
rehabilitation or alcohol treatment)
PP v Ehsan bin Mohd Rani: The accused was suffering from gastrointestinal stomal tumour
with duodenal extension, where such pain may itself serve as a punishment for the accused and
be a form of rehabilitating the accused.
PP v Chot Saik Kam: The sentence was mitigated because of the accused’s depression illness.
EXCEPTION (e.g. the offence is very serious)
PP v Rozita bt Mohamad Ali: The fact that the accused suffered from emotional distress and
poor health cannot outweigh the gravity of the offence committed.
lOMoARcPSD|41722766
Age of the Accused – Youthful Offender
S.2 of CPC: “Youthful offender” refers to a person convicted of an offence who is 18 years old
or above but is below the age of 21.
A lighter sentence will be imposed on a youthful offender because it is assumed that the young
do not know better, where they have not enough experience to realise fully the consequences
of their actions.
GR: Youthful offenders should be given non-custodial sentence. (This is to prevent him from
being placed with other adult prisons which may negatively influence him.)
S.96(2) of Child Act 2001: A child who is of 14 years old or above shall not be imprisoned if
they can be suitably dealt with in any other way.
Tukiran bin Taib v PP: The accused was 18 years old and was convicted for the offence of
theft. He pleaded guilty and was sentenced to four months imprisonment. The court concluded
that it is very desirable for a young offender who is between the age of 17 and 21 to be kept
out of prison if possible. This would be more beneficial to him by sending him to an advanced
approved school.
Teo Siew Peng v PP: Age will be a factor for the court to consider in sentencing an accused, as
the public interest will have no interest against the young offenders to become a good citizen
in the future.
Tang Ka Wak v PP: Due to the factor of age and health consideration, the court reduced the
sentence of imprisonment from nine years to four years.
EXCEPTIONS
(i) Public interest calls for a severe sentence
PP v Yap Huat Heng: The gravity of the offence should take priority over the age of the
accused. In certain specific offences, the courts should not place too much emphasis on the fact
that the offender is young, especially when public interest demands that a deterrent sentence
ought to be given.
(ii) Court thinks that deterrence aim should be given priority
Tan Bok Yeng v PP: The court was aware that a lesser sentence should be imposed on a person
of young age, but since certain species of crimes have emerged in the recent years, the factor
of young age cannot remain as a mitigating factor if justice has not been served from its
application. It is not merely the correction of the offender is the main object of punishment, but
the public interest shall also be taken into account. In certain types of offences, a sentence has
to be deterrent in order to restrain any person who is like-minded from committing such
offence.
(iii) The offence is serious or grave (e.g. murder)
PP v Teh Ah Cheng: The court was of the view that if the person is not too young to handle
firearms, he is certainly not too young to suffer penalties.
lOMoARcPSD|41722766
(iv) The accused is charged with security offence
Lim Hang Seoh v PP: The accused was 14 years old and convicted for the offence of
possession of a pistol and ammunition, where he was sentenced to death under S.57 of the
Internal Security Act. The Federal Court affirmed the sentence of death imposed by the High
Court. (But this case a final appeal was made to the YDPA where the death sentence was
subsequently commuted to detention until the age of 21.)
(v) Dangerous young criminal
No reduction of sentence will be given to a youthful offender if there is no indication of
immaturity in their act at the time of committing the offence.
PP v Safian bin Abdullah: Two youthful offenders had in the course of robbery, strangled a
man dying of mortal wounds. The maximum sentence prescribed by the law was passed by the
court.
**Old age is NOT a mitigating factor, because old age should make one more mature in taking
power and experience.
- because if old age is accepted as an ingredient to light sentence, the C will give the
wrong description to the public that old people are given special treatment if found
guilty and by right, old age should make one more mature in taking power and
experience.
PP v Yahya Salaman: Old age shall not be a reason for a lighter sentence to be imposed as it
will give the impression that old people will have special treatment.
10. Justification
No Benefit Gained from the Offence
If the accused is not benefited from committing the crime, the sentence may be reduced.
Gabriel v PP: The court decided that no fine should be imposed on the accused because the
stolen goods were recovered, and the accused had not gained any benefit from the offence. The
sentence of imprisonment was also reduced to eight months although the offence committed
was not a minor one, because the prosecution had erred in his oral statement that one of the
stolen items was not recovered.
Making restitution indicate repentance.
PP v Loo Cheng Hock: Since the accused failed to return all the stolen goods to the police, no
repentance and remorsefulness was shown on the part of the accused.
AGGRAVATING FACTORS
Aggravating factors are any relevant circumstances, supported by the evidence presented
during the trial, that makes the harshest penalty appropriate.
The existence of aggravating factors may have the effect of enhancing the sentence to be
passed.
1) Antecedent
Previous conviction/bad record
Before passing sentence, C is required to call for evidence/information regarding the
background, antecedent & character of the A.
It is the usual practice for P to inform the C that the A has previous convictions.
The C may view the A's previous convictions as aggravating factors, particularly if the relevant
offences were committed recently were the same type of offence as the one for which he is to
be sentenced.
PP v Aris Mohamed: The court held that since the accused is a habitual offender, there is no
hope for him to reform. Thus, it will be an aggravating factor to lengthen his imprisonment.
PP v Jafa Bin Daud: The court held that if the accused is a first offender, then evidence must
be shown to prove it. Even if the accused had a previous conviction, the court must consider
whether the offence is similar in nature. If he was found to be a persistent offender, then
deterrent sentence must imposed on him.
Not every previous conviction was relevant in the sentencing process.
The sentence should not amount to the imposition of a fresh penalty for a past offence.
2) Background of the Accused
Status of the offender.
Datuk Haji Harun bin Haji Idris v PP: The accused was the menteri besar of Selangor. Since
he is using his status to commit CBT, this was considered as an aggravating factor.
DSAI v PP: The court had considered the fact where the accused had taken the advantage of
his position to direct the police officers to obtain written statements from 2 person in denying
the accused’s sodomy act, such factor was considered as an aggravating factor by the court.
Dato Sri Mohd Najib b Abdul Razak v PP: Even though the accused as the PM of Malaysia,
who is the highest executive position in nation, but yet he had committed financial crimes.
Therefore, public interest will warrants a custodial sentence.
lOMoARcPSD|41722766
3) Nature and Circumstances of the Offence
(a) Serious nature / gravity of the offence
Chong Kwong Huah: A man who carries a gun has a capacity to use it and it is too easy to
make a transition from possession to use with disastrous results.
Khairil Anwar Abdul Rahim: The court should consider the type of drugs involved and the
weight of the drugs.
Loh Hock Seng v PP: The court had considered the fact where the accused was trafficking
1.55kg of heroin. By considering the public interest, a death penalty was imposed.
(b) Prevalence or rampancy of the type of offences
If the offence is committed frequently in an area, the court must impose a higher sentence to
deter any person in the public to commit the same offence.
Mustapha Abdullah: The C is entitled to take judicial notice of what is notorious and prevalent.
For example, this could include taking notice that the area in which the offence was committed
in is notorious for that particular offence.
PP v Tan Eng Hock: Court granted good behaviour bond at the trial stage. But due to the fact
that offence of stealing car is rampant, court had substituted with 18 months of imprisonment.
Muhammad Alif Haikal Abdullah v PP: Held that punishment must not only deter the accused
from committing the offence, but also to deter others to commit the same offence. Therefore,
punishment must be sufficiently harsh to reflect the public disapproval on certain crimes.
PP v Rajandran: Held that burglary by house breaking is common indeed and it is a serious
crime. Thus, offenders will unlikely be discouraged by sentences.
4) Circumstances of the Case
The victim
- The victim was very young.
- the victim was an officer
- the victim was particularly vulnerable because of his or her age or health or because of
any other factor known to the offender:
The manner of commission
- It was planned by the A.
- The presence of violent criminal activity by the A.
Chia Kim Heng Frederic v PP: The court held that since the accused was using his position of
trust in the family, such abuse of trust will justify a longer sentence. (this case good for incest
and close relationship sexual offences)
Hassan Nordin v PP: The court held that offence of house breaking will cause traumatic effect
to the victim, and therefore custodial sentence must be imposed.
lOMoARcPSD|41722766
5) The Extent of any Loss, Damage or Harm Resulted from the Offence
The endless psychological and mental effect that victim had to undergo and overcome in facing
the family, school and society.
Hassan Nordin [2002] 3 CLJ 495: Among offences that normally attract custodial sentence,
even for a first offender and despite a plea of guilty would be offences of house breaking
because of the traumatic effect on the occupiers.
Loh Oi Lin [1949] MLJ 120: injury to public revenue.
6) Behaviour of the Accused after the Commission of the Offence
any failure by the offender personally (or failure by the offender’s lawyer arising out of the
offender’s instructions to, or failure or refusal to co-operate with, his or her lawyer) to comply
with a procedural requirement that, in the court’s opinion, has done either or both of the
following:
(i) caused a delay in the disposition of the proceedings:
(ii) had an adverse effect on a victim or witness.
7) Intention of the Parliament
reflect public policy & public interest
PP v Loo Choon Fatt: The court had consider the intention of the parliament in passing DDA
for the controlling of drugs, and heavier penalties was even amended in DDA. It shows that
the parliament is viewing the offence under DDA as a serious offence that should be imposing
with imprisonment for the purpose of public interest.
