Mohd Abdullah Ang Swee Kang
[1987] 1 MLRA v. PP 43
MOHD ABDULLAH ANG SWEE KANG
v.
PP
Supreme Court, Kuala Lumpur
Mohd Azmi, Hashim Yeop Sani, Wan Hamzah SCJJ
[Criminal Appeal No: 91 Of 1986]
22 July 1987
JUDGMENT
Mohd Azmi SCJ:
[1] We have allowed this appeal and we now give our reasons for reducing the
custodial sentence and setting aside the sentence of fine.
[2] The appellant was convicted in the High Court at Kuala Lumpur on his
plea of guilty to a charge of criminal breach of trust offence under s 409 Penal
Code. The charge was in the following terms:
That you on 9 April 1985 at No 91, Jalan SS 21/1A, Damansara
Utama, Petaling Jaya, in the State of Selangor, being an agent of
Malaysia Overseas Investment Corporation Sdn Bhd to wit, the
managing director and in such capacity entrusted with dominion over
certain property, to wit, RM338,808.80, committed criminal breach of
trust in respect of the said property and you thereby committed an
offence punishable under s 409 of the Penal Code.
[3] After hearing a plea in mitigation from his Counsel, the appellant was
sentenced to eight years' imprisonment and a fine of RM100,000 in default
another six months' imprisonment. The appeal to us was against the said
sentence on the ground that:
(1) The sentence imposed by the trial Judge was manifestly excessive
in all the circumstances of the case; and
(2) The trial Judge failed to take into account relevant considerations
and/or took into account irrelevant considerations.
[4] Although the classical principles applicable to all sentences were summed
up in Reg v. Sergeant [1974] 60 Cr App R 74 as retribution, deterrence,
prevention and rehabilitation, in view of the prevalence of criminal breach of
trust cases at the present time, we agreed to adopt the argument of Lawton LJ
in Reg v. Davies [1978] 67 Cr App R 207 and accordingly we held that in this
particular case only the elements of retribution and deterrence needed to be
considered. As such, binding over the accused under s 173A or s 294 Criminal
Procedure Code (which in effect is similar to suspended prison sentence) or
imposing a term of one day's imprisonment with fine would seldom be a
Mohd Abdullah Ang Swee Kang
44 v. PP [1987] 1 MLRA
suitable sentence to fit the crime of breach of trust particularly under ss 48 and
409 of the Penal Code. As stated in PP v. Khairuddin [1981] 1 MLRH 109;
[1982] 1 MLJ 331; [1981] CLJ (Rep) 234 @ 332, an authority cited by the
learned trial Judge:
The number of people placed in position(s) of trust has been growing
steadily and rapidly both in the private and public sectors with
corresponding increase in opportunities for such people to make easy
money by dishonest means.
... Public interest demands that cases of this nature involving persons
in positions of trust, particularly in financial institutions, must be dealt
with severely, in the hope that would-be offenders would be deterred.
Until it is understood by such people that the normal punishment for
helping themselves to their employers' money is to be sent to prison,
there will continue to be officials in commercial and cooperative banks
and similar institutions, prepared to pilfer the till.
[5] Consequently we agreed with the principle laid down in Reg v. Barrick
[1985] 81 Cr App 78 that in breach of trust cases in general a term of
immediate imprisonment would be inevitable, save in very exceptional
circumstances or where the amount of money involved was small. This must
be the current sentencing policy even if the accused pleaded guilty.
[6] What had caused anxiety to the learned trial Judge in this appeal was the
length of the custodial sentence that should be imposed on a managing
director of a company for committing breach of trust involving the sum of
more than RM300,000 but less than RM400,000. In his 15 page judgment the
learned trial Judge relied heavily on two English authorities - Reg v. Barrick
(ante) and Reg v. Davies (ante), and after comparing them with two local cases
- PP v. Khairuddin (ante) and PP v. Muthu Lingam [1985] 1 MLRH 567; [1986]
1 MLJ 432; [1986] CLJ 603 (the latter case was incidentally decided by the
learned trial Judge in 1985) he came to the following conclusion:
If this Court is to follow the trend set by these two cases (Khairuddin
and Muthu Lingam) on the proper sentence to be passed in breach of
trust cases which seems, albeit coincidentally, to be in the line with the
guidelines which have been given in the English case of Barrick, then,
a term of 3½ to 4½ years would appear to be justified in the present
case where the amount involved is RM338,808.80. But then United
Kingdom law is not nearly the same as local law in breach of trust
cases.
[7] Indeed, we held the view that the learned Judge would have been perfectly
justified if he had sentenced the appellant to a term between 3½ and 4½ years,
because such sentence would not only be consistent with the two local
authorities but would also be within the spirit of the guidelines suggested in
Barrick . But unfortunately, the learned Judge found it necessary for the
purposes of s 409, to depart from the English guidelines by extending the
recommended prison term to twice as long, and as well as to decline from
Mohd Abdullah Ang Swee Kang
[1987] 1 MLRA v. PP 45
following the trend of local authorities by imposing a very severe sentence of
eight years, in addition to a fine. In Barrick case the Lord Chief Justice of
England gave the following guidelines at p 82:
The sum involved is obviously not the only factor to be considered,
but it may in many cases provide a useful guide. Where the amounts
involved cannot be described as small but are less than £10,000 or
thereabouts, terms of imprisonment ranging from the very short up to
about 18 months are appropriate (see for example Weston [1980] 2 Cr
App 391).
Cases involving sums of between about £10,000 and £50,000 will
merit a term of about 2 to 3 years' imprisonment. Where greater sums
are involved, for example those over £100,000, then a term of 3½
years to 4½ years would be justified (see for example the case of
Strubell [1982] 4 Cr App 300).
[8] The reason given by the learned Judge for doubling the length of the
suggested custodial sentence from 3½ to 4½ years to eight years was
apparently due to the fact that the twenty years' maximum, sentence in our s
409 was twice the length of the maximum sentence in England for similar
offence. Having considered the maximum punishment prescribed by ss 406,
407, 408 and 409 of our Penal Code, he concluded that the gravity of CBT in
this country depended on the occupation of the offender, whereas, it was not
so in United Kingdom. As such the learned Judge seemed to argue that since
the sentence of four years' imprisonment in Davies was confirmed on appeal,
in which the maximum sentence provided by English law was seven years, the
English Court would have sentenced Davies to eight years if the maximum
sentence had been twenty years as provided for in our s 409. This
mathematical approach in doubling the term of imprisonment imposed in
Davies and recommended in Barrick on the basis of the amount defalcated and
assumed legislative intent could be found in the following passage of the
learned Judge's judgment:
In Barrick, the total amount of the defalcations involved was £9,000
and the maximum sentence for the offences for which he was charged
was 10 years. He received concurrent sentences of 2 years which were
held, on appeal, to be not excessive. In Davies , the total amount
involved in the defalcations amounted to £260,000 and the maximum
sentence that could be imposed was 7 years. His sentence of 4 years'
imprisonment was confirmed on appeal. But in this country for the
offence under s 409 of the Penal Code the maximum sentence is 20
years...
In the case of a s 409 offence,however, since the crime is considered by
the legislature as very grave criminal conduct, the punishment, in
order to fit the crime, is made especially severe - 20 years as the
maximum term of imprisonment. The maximum punishment for this
offence is twice the length of the maximum of the harshest United
Kingdom punishment in breach of trust cases. Nonetheless, the Barrick
Mohd Abdullah Ang Swee Kang
46 v. PP [1987] 1 MLRA
guidelines are still useful but with this additional stipulation or rider
in mind - that the length of the terms of imprisonment recommended
in the guidelines be made twice as long. In view of these
considerations and with the benefit of hindsight, it seems to this Court
that the sentence imposed by me in Muthu Lingam (supra) to which I
have referred in this judgment was too lenient.
[9] In our view, this approach of assessing sentence supposedly based on
English authorities by harmonising them with the maximum sentence of
twenty years in s 409 of the Penal Code was not only misleading but was
wrong in principle. 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.
It must first be borne in mind that the guidelines in Barrick was introduced
because of some divergence of opinion in the Courts in England as to the
policy of sentencing in breach of trust cases, particularly in the apparent
leniency accorded by some Courts to dishonest solicitors as compared to
dishonest postmen and other lesser mortals, brought about no doubt by the
criminal law in that country which did not seem to provide any difference in
punishment on the basis of the offenders' occupation as was apparently done
here by ss 406 to 409 of the Penal Code. We believed such divergence of
opinion had not occurred here. Nevertheless, it seemed to us, the guidelines in
Barrick though useful, was only meant to emphasise that whatever the
offenders' occupation might be there should be no great disparity in the
sentence and that in CBT cases custodial sentence should be immediate and
not suspended. Nothing more should be read into the judgment as intending to
alter the established sentencing principles. In fact at p 81, before laying down
the guidelines, the Lord Chief Justice expressly made the following caution:
It is, we appreciate, dangerous to generalise where the circumstances
of the offender and the offender may vary so widely from case to case.
In the hope that they may be helpful to sentences generally, and may
lead to a little more uniformity, we make the following suggestions.
[10] Secondly, it must also be observed that at p 82 immediately after the
guidelines, the Lord Chief Justice emphasised:
The terms suggested are appropriate where the case is contested. In
any case where a plea of guilty is entered however the Court should
give the appropriate discount.
[11] Thus, under Barrick guidelines, when the amount defalcated was over
£100,000 (which would be equivalent to more than RM400,000) then the term
of imprisonment should be one of 3½ to 4½ years, if the offender claimed trial
and was found guilty. On these guidelines, it would be impossible to justify the
sentence of eight years on the appellant where the amount defalcated was less
than RM400,000 and where he had pleaded guilty, notwithstanding the
disparity in the maximum sentence between the law in England and this
country for criminal breach of trust by a company managing director. There is
Mohd Abdullah Ang Swee Kang
[1987] 1 MLRA v. PP 47
therefore no real basis for holding the sentence of three years involving
RM100,000 where the accused had claimed trial in Muthu Lingam, or the one
and a half years involving about RM129,000 where the accused had pleaded
guilty in Khairuddin, as too lenient or wrong in law or contrary to current
sentencing policy in breach of trust cases. As regards Davies, it must not be
overlooked that the four- year term was imposed not on a single charge of
CBT but representing the concurrent sentences of several distinct charges. It
was also the same in Barrick where the concurrent sentences imposed were two
years.
[12] The next question which we had to determine was whether the learned
Judge had given adequate discounts for mitigating factors to as to justify the
sentence imposed. In short, was the sentence imposed manifestly excessive?
What were the facts in this case relevant for the purpose of assessing sentence?
The appellant was 40 years old, and was married with three children. He had
made no financial gain at all himself from the criminal breach of trust. The
charge indicated a loss of RM338,808.80 to Malaysia Overseas Corporation
Sdn Bhd (MOIC) of which he was the managing director at the relevant time.
But, it was common ground that not a single cent of that sum entered his
pocket. The money misappropriated was for the benefit of the National
Rubber Small Holders Product Sdn Bhd (NARSPRO) who were in need of
financial aid to buy machineries without which their factory could not operate.
Full restitution with interests had been made by NARSPRO on 2 May 1986. It
was therefore fair to say that MOIC had been deprived of their money from 9
April 1985 to 2 May 1986 - a period of just over a year. As a result of the
financial assistance NARSPRO became a successful business venture. The
Judge made special emphasis on the fact that the appellant had an interest in
NARSPRO through a company known as MMB Holdings Sdn Bhd., but this
interest turned out to be a mere 6.7 per cent participation which was
comparatively quite minimal. The use to which MOIC money was put, was a
far cry from a classic case of CBT as in Barrick and Davies where the money
was used for the offenders' personal and immediate benefit, and where the
offence was committed with a good deal of ingenuity and skill in covering up
the criminal activities. In this appeal, the CBT was not committed secretly by
the appellant alone. In fact another director of MOIC together with the
appellant had signed the cheque with which the money was misappropriated.
Up to date, the said director had apparently not been prosecuted for any
offence which to us, did not lend support to the prosecution contention that
the CBT in the instant case was one of the worst kinds that merited
extraordinary deterrent sentence. On the facts, there was no similarity between
the present case and the two English cases. The appellant's conduct in
misappropriating MOIC money on a single occasion, was purely for the
purpose of saving NARSPRO from their initial financial difficulties with the
apparent promise that NARSPRO would pay back the sum advanced, though
this was done without the authority of MOIC's board of directors.
[13] 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
Mohd Abdullah Ang Swee Kang
48 v. PP [1987] 1 MLRA
sentences that have been imposed in the past for similar offences to determine
the trend of sentencing policy, if any. The fact that a sentence of imprisonment
is imposed as a deterrence does not justify the sentencer in passing a sentence
of greater length than 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] Crim LR 50;
Encyclopedia of Thomas Current Sentencing Practice p 1058:
We have to look at the overall picture of what is the right sentence for
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 sentences are justified.
[14] 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 in the sentencer not exercising his or her discretion judicially
in assessing the level of custodial sentence. In R v. Meade [1982] 4 Cr App 193;
Encyclopedia of Thomas Current Sentencing Practice p 1060 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, 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 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.
[15] In this appeal, certainly a sentence of immediate imprisonment for the
offence of CBT involving a sum of considerable magnitude had to be imposed
and had to be one that should be sufficiently long to signify the gravity of the
offence. But on the length of the sentence, we had come to the conclusion, as
indeed was the initial finding of the learned Judge himself that a term of
between 3½ and 4½ years would be fair and adequate on the basis of
Khairuddin and Muthu Lingam, and on the principles laid down in Barrick.
For determining the length of custodial sentence in pleading guilty cases, the
test to be adopted could be found in R. v. Boyd [1980] 2 Cr App 234;
Encyclopedia of Thomas Current Sentencing Practice p 1061 where
Cumming-Bruce LJ said:
The policy of the Courts is that where a man does plead guilty, which
does give rise to public advantage and avoids the expense and
Mohd Abdullah Ang Swee Kang
[1987] 1 MLRA v. PP 49
nuisance of a trial, which may sometimes be a long one, the Court
encourages pleas of guilty by knocking something off the sentence
which would have been imposed if there had not been a plea of guilty.
So one asks oneself, if there had been a plea of not guilty, and he had
been convicted, what would have been the appropriate sentence? The
answer to that is that the appropriate sentence in these circumstances
would not have been more than three years. That points to the fact
that this sentence was rather on the heavy side, because it did not give
sufficient allowance for the plea of guilty.
[16] When we asked ourselves the same question here, the appropriate
sentence if the appellant had claimed trial would have been around eight years,
regard being had to the amount of money defalcated and the other
circumstances of the case. Clearly on this test, the sentence imposed on the
appellant was manifestly excessive. It is generally accepted that the extent of
the reduction on account of a plea of guilty would be between one-quarter and
one-third of what otherwise would have been the sentence. In this particular
case apart from plea of guilty, the sentence must also be discounted to reflect
the full restitution made and the other mitigating factors. Although the learned
Judge indicated in his judgment that he had given the necessary discounts,
they were not reflected at all in the sentence imposed. We were satisfied from
his judgment that the learned Judge had imposed the eight years' sentence
purely on the basis of extending twice as long the English guidelines found in
Barrick and the sentence imposed in Davies, without regard to the particular
facts of this case and without giving the appellant any or sufficient credit for all
the mitigating circumstances. The recommended prison terms in Barrick were
not meant for pleading guilty cases. If the learned Judge had not fallen into
error in misreading the facts and the law in Barrick and Davies, he would
probably have found that a four-year sentence would adequately fit the crime
which by any standard was severe enough to satisfy the justice of this case. In
our view, the fact that our Penal Code had prescribed a longer maximum
sentence for s 409 offences than for similar crime in England, did not justify
the imposition of a sentence more severe than the gravity and circumstances of
the offence would warrant. 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.
[17] Bearing in mind all those matters, we have allowed this appeal by
reducing the sentence imposed on the appellant to four years' imprisonment
from the date of his arrest, and by setting aside the fine of RM100,000.
Quote
[18] A sentence 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 in the sentencer not exercising his or her discretion judicially in assessing
Mohd Abdullah Ang Swee Kang
50 v. PP [1987] 1 MLRA
the level of custodial sentence.
(Per: Tan Sri Dato Hj Mohd Azmi SCJ.)
