Chapter 16 - Sentencing Flashcards

Question

TYPES OF SENTENCE Overview

Answer 1

1) Imprisonment 2) Whipping 3) Death sentence 4) Fine, compensation & costs 5) Good behaviour bonds 6) Police supervision

Answer 2

1) Category of imprisonment 2) Execution of imprisonment 3) Shall be punished & shall be liable 4) Concurrent or consecutive 5) Stay of execution for imprisonment

Answer 3

1) Imprisonment for life 2) Life sentence 3) Imprisonment for a fixed term by court 4) Imprisonment in default of payment of fine

Answer 4

1) Meaning of imprisonment for life - S.3 Criminal Justice Act: - sentence of imprisonment for thirty years. 2) Meaning of imprisonment for life - for offences under FIPA - S.2 FIPA: - imprisonment for the duration of the natural life of the person sentenced. 3) Meaning of imprisonment for life - S.57 PC: - imprisonment for thirty years.

Answer 5

1) Meaning of life sentence - Penal Code (Amendment & Extension) Act 1976: - Life sentence means a sentence till death. 2) Meaning of imprisonment for life - for the purpose of offences against the state in Ch. VI Penal Code - 130A PC: - imprisonment until the death of the person on whom the sentence is imposed. - i.e. life sentence.

Answer 6

1) General rule: S.282(d) - the date it was passed. 2) Exceptions: S.282(d) - unless Court directs otherwise. 3) Include period of detention - Muharam bin Anson v PP: - period of detention ought to be taken into account for the purpose of passing sentence & discount must be given. 4) Power to backdate - PP v DSAI: - the power to backdate the effective date of imprisonment is purely discretionary and not as of right. 5) For convicted person who is currently serving term - S.292(1): - court has discretion to order the imprisonment to run immediately or after expiration of the current imprisonment term he has been previously sentenced.

Answer 7

PP v Loo Choon Fatt: - appellate court will not normally alter the sentence; - unless it is satisfied that the sentence passed by the lower court is; 1) manifestly inadequate or excessive; or 2) it is illegal; or 3) it is not a proper sentence having regard to all the facts disclosed; or 4) the court has clearly erred in applying the correct principles in the assessment of sentence.

Answer 8

1) whether mandatory - PP v Leonard Glenn Francis: - imprisonment is mandatory. S.294 cannot be invoked when it is provided that the accused "shall be punished with imprisonment”. 2) whether mandatory - cf. PP v Mohamed Noor: - ‘shall be punished with imprisonment’ does not remove the discretion to apply s. 294 of the CPC. - If a minimum sentence of imprisonment is featured in the provision, the court is obliged to abide by the same but only if the court decides pass a jail sentence in the first place. 3) PP v Agambaran: - it is mandatory in law for the court to impose a sentence of imprisonment where the penalty is preceded by phrase “shall be punished”.

Answer 9

1) Public Prosecutor v Mohd Salim Hamiddulrahman: - the words ‘shall be liable’ do not make the prescribed form of punishment mandatory. - Instead there are construed as merely permissive or directory. 2) Jayanathan v PP: - imprisonment is not mandatory. S.294 can be invoked & court is entitled to bind-over the accused instead of holding the accused "liable for imprisonment".

Answer 10

1) Discretion of court 2) One transaction principle 3) Totality principle 4) Recent application

Answer 11

1) The law: - S.292(1) & S.102 SCA 2) Scope of discretion: i) S.292(1) CPC: - Imprisonment for prisoner already undergoing imprisonment; - Court shall direct the sentence to run either immediately (concurrent) or at the expiration of the imprisonment he is currently undergoing (consecutive). ii) S.102 SCA: - Sentencing power in the case of conviction for several offences at one trial; - Court may direct the sentence to run concurrent or consecutively in case of conviction for several offences. 3) When no direction is given - Datuk Haji Harun Idris v Officer-In-Charge of Pudu Prison: - assumption on the grounds of fairness is that, they were to run concurrently or simultaneously.

Answer 12

1) The principle 2) Meaning of one transaction 3) Example of one transaction 4) Recent application

Answer 13

Bachik Abdul Rahman v PP: - for there to be one transaction, elements that must be present are: - - proximity of time & place and continuity of action & purpose or design.

Answer 14

Offence tried together: 1) Abu Seman v PP: - when the offences are tried together, the sentence imposed for those offences should be made concurrent. 2) cf. Iwan Bujang Dara v PP: - "Where two or more distinct offences had been committed, sentences of imprisonment should be made to run consecutively.” (i.e. even when it is tried together). - It should only be made concurrent when an offender had been convicted of a principal and subsidiary offence.

Answer 15

Yap You Jee v. Public Prosecutor & Other Appeals (CA, 2015): - in determining whether the sentences should be concurrent or consecutive, courts are guided by the one transaction rule; - four elements must be present, that is to say, proximity of time, proximity of place, continuity of action and continuity of purpose or design.

Answer 16

1) The principle 2) Meaning of totality principle 3) Example of application on totality principle

Answer 17

1) The principle 2) Meaning of totality principle 3) Example of application on totality principle 4) Recent application

Answer 18

- court decide the appropriate sentence for each of the several offences. - court look at the aggregate and decide whether, in totality, the aggregate is excessive. - if it is excessive, sentence is to be run concurrently to reduce its excessiveness.

Answer 19

Bachik Abdul Rahman v PP: - where consecutive sentence is imposed, the sentence must have regard to the total length of the sentence passed. - this is to ensure that the sentence properly reflects the overall seriousness of the behaviour.

Answer 20

Hashim bin Pawanchee & Anor v PP: - court ordered the reduced term of one year for six offences to run consecutively in view of gravity of offences.

Answer 21

P v Abdul Malik Abdullah (HC, 2013): - Where two or more offences committed by the accused are distinct offences, the appropriate sentence should be consecutive rather than concurrent. - However, the totality principle must also be taken into consideration; - The totality principle requires the court to look at all the sentence imposed and decide whether in totality they are excessive. - The court has to consider an appropriate punishment for each offence and then look back to view them in totality.

Answer 22

1) PP v Muhammad Fauzi Abdul Razak & Anor (CA, 2012): - The concurrent sentence of imprisonment is appropriate only if both the offences have connection with one another. 2) PP v Ooi Sim Yin: - kami berpendapat bahawa hukuman penjara secara serentak (concurrent) hanya wajar dikenakan sekiranya kedua-dua kesalahan itu mempunyai kaitan di antara satu sama lain, iaitu kesalahan kedua merupakan kesalahan subsidiari kepada kesalahan utama.

Answer 23

1) The law 2) Discretionary power of the court 3) Date of imprisonment

Answer 24

S.283(1)(b)(iv) & (c)

Answer 25

PP v Amir bin Mahmood: - The word “may” gives the court discretionary power to exercise discretion according to common sense and justice.

Answer 26

Irwan Abdullah & Ors v PP: - When the accused is sentenced to imprisonment in default of fine, court has the discretion to order imprisonment run either from the date which the order was passed or some other date; - This is to be decided depending on the particular facts & circumstances.

Answer 27

Bail pending appeal: S.311 CPC + S.57 CJA

Answer 28

1) Circumstances where it cannot be passed; 2) Males sentenced to death; 3) Execution of whipping; 4) Stay of whipping

Answer 29

1) The law - S.289: - woman; - males above 50 y/o with some exceptions under S.289(c); - males sentenced to death; 2) Scope of 50 years old - PP v Anuar Layani Saidon: - 50 years old is considered as referred to the age of the person at the time of imposition of the sentence of whipping & the time of its infliction; - i.e. whipping cannot be passed when the accused is 50 years old at the time sentence is passed; - i.e. if whipping is passed when the accused is less than 50 years old, it cannot be inflicted when the accused has reached 50 years old at the time of infliction. 3) Setting-aside on revision - PP v Tan Kim Chok: - HC acting on revision set aside the sentence of whipping as the accused was over 50 years old. 4) Exceptions - S.289(c): - Males convicted under convicted under 376, 377C, 377CA, 377E can be passed with sentence of whipping regardless of his age.

Answer 30

1) Suzimi Shaari v PP (CA, 2011): - as the accused had been sentenced to death for his first offence, CA refused to impose the mandatory whipping for an offence under DDA; - This is so as to impose sentence of whipping will offend against S.289. 2) cf. Ang Meng Leong v PP (CA, 2014): - A precedent in Ahmad Najib Aris by FC had already been set that a person facing the death penalty must also be liable to the mandatory sentence of whipping.

Answer 31

1) Number of strokes 2) Youthful offender 3) At one trial 4) Cannot be by instalment

Answer 32

1) The law: - S.288(1) 2) Must not exceed 24 - Tuan Mat Tuan Lonik v PP: - For offences legally punishable by whipping, the combined sentences of whipping should not exceed a total number of 24 strokes for adults. 3) Additional strokes - Liaw Kwai Wah v PP: - appellate or revisionary court cannot impose additional strokes after a sentence of whipping by the lower courts have been executed.

Answer 33

1) The law: - S.288(5) 2) Meaning of at one trial - Chai Ah Kau v PP: - since there were two separate trials, the total of 20 strokes was well within the maximum of 48 strokes. - At one trial means that the person is convicted at one trial of two or more distinct offences.

Answer 34

1) The law: - S.289 2) Scope - PP v Roslan bin Imun @ Mon: - Whipping must be carried out in one go; - It cannot be executed on an instalment basis. 3) Additional strokes at appeal - Liaw Kwai Wah v PP: - appellate or revisionary court cannot impose additional strokes after a sentence of whipping by the lower courts have been executed.

Answer 35

S.311: - automatically stayed when an appeal is lodged.

Answer 36

1) Can be passed 2) Cannot be passed 3) Whether it is constitutional 4) Execution of death sentence

Answer 37

Letitia Bosman v PP & Other Appeals: - The mandatory death penalty satisfied the test of reasonable classification, and hence was not unconstitutional vis-à-vis cl. (1) of art. 8 of the FC

Answer 38

1) Fine | 2) Compensation & costs

Answer 39

1) The law & scope 2) Factors for consideration 3) Stay of fine 4) Examples of application 5) Default of payment of fine 6) Levying unpaid fines

Answer 40

1) The law: - S.2 - S.283

Answer 41

1) Principle - PP v Najib Razak: - a fine should always relate to the means of an accused. - imposition of a fine beyond the accused’s means or a term of imprisonment in default of payment is tantamount to sentencing the accused to imprisonment without the option of a fine. - court should not impose a fine which it knows or ought to have known that the accused is not in a financial position to pay. 2) Example of factors - Rex v Teo Woo Tin: - the profit arising from the offence; - the value of the subject matter involved; - the amount of injury caused; the financial position of the offender.

Answer 42

PP v Najib Razak: General rule: - a stay is not usually given for the sentence of fine for the reason that a fine already paid can be refunded should the sentence be set aside, as opposed to the loss of liberty which is irreversible. Exception: - special circumstances. Held: - s. 311 of the CPC as referred to earlier is widely drafted to permit the court to order a stay of the sentence of fine. - OTF, the accused has been ordered by other High Court to pay RM1.69 billion in additional taxes and penalties, on top of extremely large sum of RM210 million of fines in the present case. - The judge is of the opinion that this constitutes a special & exceptional circumstance for the judge to grant stay of fine.

Answer 43

1) Mohamed Abdullah Ang v PP: - court took into account the fact that there was a full restitution and no personal enrichment of the offender and ordered the fine to be set-aside. 2) PP v Loo Chang Hock: - the court observed that the total value of the goods involved totalled of RM70k has profited the accused from the offence. - as such, the accused was fined for RM5000.

Answer 44

1) The law: - S.183(1)(b)(iv) 2) Application - PP v Amir bin Mahmood: - court should not arbitrarily apply as the section gives some measure of discretion when imposing fines. 3) Guiding principles: - R v Lim Cheng Tong: default term must bear some proportion to the amount of the fine imposed. - Cheong Ah Cheow v PP: court must adhere to the scale set out under (c)(ii).

Answer 45

1) The law: - S.283(1)(g) 2) Application - PP v Amir bin Mahmood: - As to what prosecution can do in terms of recoverability of the fines imposed, judge held that this section is applicable. - discretion is at the prosecution to decide whether to pursue the matter against the accused under this provision.

Answer 46

1) Costs: S.426(1)(a) | 2) Enforcement of payment: S.432

Answer 47

1) Discharge conditionally or unconditionally - S.173A 2) First offenders binding-over - S.294 3) Youthful offender - S.93(1)(b)

Answer 48

1) The law & scope 2) No conviction 3) Exercise of discretion 4) Whether apply to serious offence

Answer 49

1) The law: - S.173A 2) Scope - PP v Yeong Yin Choy: - to be used for minor cases calling for mild treatment affecting youth & adult offenders; - taking into account nature of the offence, extenuating circumstances of the case & factors peculiar to the offender. 3) Applicability - Remely bin Hussain v PP: - It is not restricted for an accused who has pleaded guilty. 4) Does not apply to serious offence - PP v Najib Razak: - S.52B of the Penal Code states that a “serious offence” denotes an offence punishable with imprisonment for a term of ten years or more. - For the purposes of the instant case however the CBT charges are an example of a serious offence under s. 52B of the Penal Code. - In light of amendments such as now found in s. 173A(8) which states that s. 173A shall not apply if the offender is charged with a serious offence, the discretion to bind over the accused is not available in the instant case.

Answer 50

Re Badri Abas: - Court should not proceed to conviction if he intends to invoke this. - It is however, cannot claim as of right & entirely within the discretion of the court. - Regard must be given to factors under (2), i.e antecedents, age etc.

Answer 51

PP v Loo Choon Fatt: - Discretion must be exercised judicially, i.e. not just because the accused is a youth. the trivial nature of the offence that aggravate the circumstances must be taken into account.

Answer 52

PP v Najib Razak: - S.52B of the Penal Code states that a “serious offence” denotes an offence punishable with imprisonment for a term of ten years or more. - For the purposes of the instant case however the CBT charges are an example of a serious offence under s. 52B of the Penal Code. - In light of amendments such as now found in s. 173A(8) which states that s. 173A shall not apply if the offender is charged with a serious offence, the discretion to bind over the accused is not available in the instant case.

Answer 53

1) The law & scope 2) When it can be invoked 3) Exercise of discretion 4) Recent example

Answer 54

1) The law: - S.294 2) Scope: - applies to first time offenders, adults & youthful offenders. - conviction is recorded. - only for offence punishable with imprisonment or fine-only. - must NOT be serious offence or offence under Domestic Violence Act. - it must appear that it is expedient (i.e. conveniently practical although immoral) that the offender be released on probation of good conduct.

Answer 55

1) PP v Idris: - can ONLY be invoked where the offence is punishable with imprisonment only without options of fine or any other options. 2) cf. PP v Yeong Yin Choy: - also can be invoked where the offence is punishable with imprisonment and options of fine or any other options.

Answer 56

Nor Afizal Azizan v Pendakwa Raya: - each case is to be examined based on its own peculiar facts; - exercise of discretion should not be misconstrued as intending to have a blanket application or being applicable to all cases involving young offenders charged with a similar offence.

Answer 57

1) The law & scope 2) Meaning of youthful offender 3) Exercise of discretion

Answer 58

1) the law: - S.293 2) scope - Pendakwa Raya v Redzohan Abdullah & Satu Lagi: - applicable to youthful offender (18-21 y/o) who has been convicted for an offence punishable with imprisonment or fine. - S.293(1) can only be used as an alternative to imprisonment or fine.

Answer 59

S.2(1) CPC: - A person convicted of an offence who is of or above the age of 18 & below 21 years old.

Answer 60

Mohd Amirnudin Ahmad v PP: - cannot be used arbitrarily just because the accused is a youthful offender.

Answer 61

1) The law & scope 2) Pre-requisites 3) Exercise of discretion 4) Period of supervision 5) Obligations for person under obligation 6) Non-compliance with order

Answer 62

1) The law: - S.295; - S.296 2) Scope - Police supervision is not an additional punishment or sentence - Re Bakar bin Ahmad: - Police supervision should not be imposed by way of as additional punishment. - It is an order to ensure that in the interests of public security the police are in a position to exercise some measure of control of people of known bad character.

Answer 63

S.295(1): - must have previously convicted of an offence punishable with imprisonment for term of 2 years & upwards. - present conviction must be in respect of an offence punishable with imprisonment for term of 2 years & upwards.

Answer 64

1) Zakariya bin Musa v PP: - Supervision orders should be sparingly used by Magistrates and should be restricted to the most appropriate & suitable case. 2) PP v Sulaiman b Ahmad - The use of police supervision orders should be sparingly used by Magistrates and should likewise be restricted to the most appropriate or suitable cases.

Answer 65

S.295(1A): - not less than 1 year and not more than 3 years.

Answer 66

1) The law: - S.297 2) Imprisonment - Darus v PP: non-compliance with the order can render a person liable for imprisonment up to maximum 1 year. lesser term may be imposed if it is considered appropriate. 3) Rehabilitative counselling: - S.295A & 295(1A)

Answer 67

1) Importance of mitigating process 2) Right to make plea in summary trials 3) Right to make plea in high court trials 4) Making false statement in mitigation 5) Procedure in mitigation 6) Examples of mitigation 7) Recent application of various offences

Answer 68

Importance of mitigation - Re Izzudin Shah v PP: - No plea in mitigation should be thrown aside lightly; - It must be considered equally with the facts presented by the prosecution. 1) The law: - S.173(m) - S.176(2)(r) - S.173A 2) Scope - Zaidon Shariff v PP: - An accused person must be given an opportunity to make a plea in mitigation praying for a lenient sentence. - It is a constituent element of the sentencing process.

Answer 69

Letitia Bosman v PP & Anor Appeals: - Although there is no provision in the CPC for a plea in mitigation in High Court trials, nevertheless as a matter of fact, in practice it is quite common to allow a plea in mitigation before the court imposes sentence.

Answer 70

Re Mohammad Shariff: - An accused person who made a false statement in mitigation cannot be charged in respect of such false statement; - An unsworn statement made in such circumstances is privileged and cannot be a subject matter of a further charge.

Answer 71

1) Mitigation before recording conviction - Maung Ming Aung v PP: - a conviction must be recorded only after the plea in mitigation has been made and before sentence is passed, i.e. finding guilty > mitigation > conviction > sentencing. - Any conviction recorded before a plea in mitigation may render nugatory the application of s. 173A which provides for certain orders to be made without recording a conviction. 2) Mitigation followed by reply by PP - Lian Kian Boon v PP: - After a plea of mitigation having been made, it is reasonable and usual for the prosecution to reply. - This reply should be limited to matters raised in mitigation. - No controversial facts should be raised in the reply or taken into consideration in the matter of sentencing. - Facts that can be considered are the facts relevant to the charge or which have been admitted by the accused. 3) Whether mitigation can be deferred after conviction - PP v Najib Razak: - The judge accept that by virtue of S.311 CPC & S.57 CJA, upon finding an accused guilty and convicting him the courts have the power to postpone sentencing and have it heard on a later date. - However, the general rule should be that the courts should as far as possible proceed to hear the mitigation and sentence the accused immediately upon conviction. - Only exceptionally good reasons should warrant the court to defer the mitigation and sentencing to another date by staying the conviction under s. 311 CPC. - Examples of good reasons include if it is deemed necessary, to call for a probation officer’s report to establish the background of the accused who is below the age of 21 about to be sentenced (such as in the case of Lian Kian Boon v. PP [1991] 1 MLJ 51) or if there is a request by the victim of the crime or the victim’s family, for the court to call upon them to make a statement on the impact of the offence on the victim or his family under s. 173(m)(ii) and s. 183A of the CPC.

Answer 72

1) Record of offender | 2) Plea of guilty

Answer 73

1) Clang of gates principle - Siah Ooi Choe v PP: - relevant in the case of man with no previous record; - the fact that he now has a criminal conviction and finds himself in a prison is a very grave punishment. - in such circumstance, a short prison term should be sufficient. 2) Gap principle - Zaidon Shariff v PP: - a 10-year gap ought to have operated as a mitigating rather than aggravating factor. - rationale: the offender has made an effort to rehabilitate himself and it should operate in his favour. - the longer the gap between a previous conviction, the greater the mitigatory effect. 3) Unrelated conviction - Soosainathan v PP: - previous offences that are significantly different from the current offence may be given little or no weight.

Answer 74

Bachik Abdul Rahman v PP: - a convicted person should be given a discount for pleading guilty. - reduction of about one third of the sentence is normally given. - H/ever, the court may, in the exercise of its discretion, refuse to grant any discount. - The severity of the offence or the existence of a previous conviction may outweigh the mitigating effect of the guilty plea; - i.e. the guilty plea does not automatically entitle the convict to a lesser punishment.

Answer 75

1) How much it is reduced - PP v Ravindran: - plea of guilty calls for a reduction between one quarter to one third of what would have otherwise be sentenced. 2) Refusal to give discounts - Tan Lay Chen v PP: - where there is a departure from general rule of giving discount, the reason for not treating plea of guilty as mitigating factor must be reflected in the grounds on judgment.

Answer 76

1) Severity of offence - Loh Hock Seng v PP: - where the severity of offence outweigh the mitigating effect of the guilty plea. 2) Demands of public interest - PP v Govindnen Chinden Nair: - where the public interest demands a deterrent sentence in the circumstances of the case. 3) Made too late - PP v Dato Nallakaruppan: - where a plea of guilty is made too late in the trial, it ceases to have a mitigating effect.

Answer 77

1) Drug offence 2) Terrorism-related offence 3) Mandatory death penalty offence 4) Serious offence within PC

Answer 78

PP v Ling Leh Hoe (CA, 2015) - While it is generally accepted that an accused person should be given credit for pleading guilty, there can be no automatic rule that a guilty plea on its own entitles an accused to a lesser punishment. - However, neither the guilty plea of the respondent nor the fact that the respondent was a first-time offender could be considered too favourable for the respondent. - Offences relating to possession of dangerous drugs are a major national problem & public interest called for deterrent sentence.

Answer 79

1) PP v Mohamed Danny Mohamed Jedi (CA, 2018): - While it is generally accepted that an accused person should be given credit for pleading guilty, there can be no automatic rule that a guilty plea on its own entitled an accused to a lesser punishment. - Malaysia has an international obligation to deter terrorism on the world front, and Malaysian courts must assist in fulfilling that obligation by ensuring severe punishment for terrorist offences to reflect the abhorrence and condemnation of the Malaysian community against such crime. - Therefore, severity of the offence herein outweighs the respondent's plea of guilty. 2) Mohd Anwar bin Azmi & Anor v PP (CA, 2018): - For such offences, private factors such as mitigation are of little/no value. - This is due to, amongst others, the extremely severe nature of the offence. - “Dalam keadaan sebegini, faktor peribadi sebagai mitigasi tidak mempunyai kesan yang tinggi atau tidak bernilai langsung”.

Answer 80

Letitia Bosman v PP & Anor Appeals (FC, 2020): - Such offences include murder, drug trafficking, and treason. - Where the legislature has by proper exercise of its powers prescribed that for drug trafficking and murder offences the offenders shall be punished with a mandatory death penalty, the duty of the court is to impose the legislatively prescribed punishment on offenders. - The court has no choice but to impose the mandatory sentence provided by law as enacted in Parliament.

Answer 81

PP v Najib Razak: - Public interest must indeed take precedence over other considerations, and in that regard, the gravity of the offence as demonstrated by the facts of the case must be placed in its proper context and perspective. - Mitigating factors in favour of the accused person are especially pertinent too, if not strong considerations. - Each case must be evaluated on its own peculiar facts and circumstances.

Answer 82

1) Previous convictions 2) Position or status of offender 3) VIS

Answer 83

PP v Jafa bin Daud: - Bad antecedents or previous convictions of an offender are generally considered as aggravating factor, calling for deterrent sentence.

Answer 84

Ahmad Rashidi Zainol & Anor v PP - the victim's impact statement received scant attention despite the gravity of the criminal offence of gang robbery. - The only words which captured the mind of the judge were "traumatised" and "inconvenience" when the learned judge mentioned that "after the incident, SP3 was too afraid to stay alone in her own house and always require a companion to be with her. - Certainly this has cause inconvenient to SP3 and her family members”. - The learned judge had not given proper weightage to the VISs and ruled that the sentence meted by the lower court must be enhanced not because of factors relating to the victim, but rather because of the nature of the crime, ie, gang robbery, which must naturally meet a heavy and not a lenient sentence.

Chapter 16 - Sentencing Flashcards

(115 cards)