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IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR
IN THE FEDERAL TERRITORY, MALAYSIA
[CRIMINAL APPEAL NO: WA-41H-47-10/2021]
BETWEEN
PENDAKWA RAYA ... PERAYU
AND
ADRIAN KHEUNG PENG YIN
[NRIC NO: 661221-10-6123] … RESPONDEN
GROUNDS OF JUDGMENT
[1] This is an appeal by the Public Prosecutor against the sentence
of fine RM1,800 (in default 1 month imprisonment) and
additional cost of RM2,000 (in default 1 month imprisonment)
awarded to the Attorney General’s Chambers (AGC) upon a
conviction of s323 Penal Code.
[2] The Respondent was convicted of voluntarily causing hurt to the
left cheek of one Madam Tan Peek Guat (IC No: 470502-08-
6040) in front of the Respondent’s office at No 37C Jaian Desa
Bakti, Taman Desa, 58100 Brickfields Kuala Lumpur on
04.04.2017.
The basis of the Appeal
[3] The Appellant cited that the said sentence of fine RM1,800 and
additional cost of RM2,000 awarded to AGC is manifestly
inadequate on the basis that the victim is an old woman aged 69
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years old at the time of the incident and does not reflect
deterrence to society.
[4] The Appellant submitted that the court on behalf of the
community must show disapproval of such criminal conduct and
a jail sentence is warranted as exemplary sentence. It was
submitted that this would deter the Respondent to repeat the
offence and others especially so onto elderly members of the
society.
[5] The Appellant also contended that there was an error in the
finding of facts by the trial judge was there is no evidence that
the victim had trespassed upon the Respondent’s property.
[6] In seeking for this Court to enhance the sentence to include a
term of imprisonment, the Appellant referred to Sundrarajan a/I
Sokalingam v. PP [2011] 7 CLJ 995 where the court must
consider the general approach with regard to a sentence of fine
should not be imposed if the offender can easily pay up and
regard the punishment with impunity.
[7] The case of PP v. Khairuddin [1982] 1 MLJ 331 was also
referred to citing the decision that fines are inappropriate where
the offender comes from a class of persons who have ample
funds which to pay fines, and would regard being fined as of the
risks of business.
[8] The Appellant had also submitted that the trial judge had
considered the Respondent’s interest over the victim’s and the
public, citing Public Prosecutor v. Loo Choon Fatt [1976] 2
MLJ 256, R v. Ball [1951] 35 Cr App Rep 164, Lim Yoon Fah v.
Public Prosecutor [1971] 1 MLJ 37, Mohamed Abdullah Ang
Swee Kang v. Public Prosecutor [1988] 1 MLJ 167.
[9] The Appellant lastly contended that the trial judge erred in
taking judicial notice over the trend of sentencing in courts of
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Kuala Lumpur, Kota Kinabalu and those stated in the case
management system where the punishment ranged from a fine of
RM800 to RM1,500 without specifically visiting each facts of
the respective cases.
The grounds of the trial court when sentencing
[10] The trial judge cited great authorities supporting court’s
discretion in meting out sentences and its option to impose a
sentence of fine instead of or in addition to imprisonment and
also in deciding the quantum of such fines. In this case the
imposition of fine RM1,800 where the maximum fine of
RM2,000 as prescribed by law is legal and allowed vis-a-viz
s323 Penal Code. The cost of RM2,000 that was ordered to be
awarded to AGC from the Respondent is as provided by s426
Criminal Procedure Code (CPC).
[11] The trial court stated the factors it had considered relating to the
gravity or severity of the facts constituting the offence and
“remains in its opinion that the nature of the offence committed
by the accused was perceived by this Court as an offence
comparatively within the lower range of the detrimental
spectrum. The facts constituting the offence as silhouetted by the
elaborated evidence of the prosecution witnesses and exhibits
tendered by the prosecution did not reflect an offence of
violence that resulted in irreversible damages, griev ous hurt or
severe physical injuries towards the complainant or any other
person except for the complainant’s traumatic experience. The
gravity of the offence is equally reflected in the punishment of
this offence specified in s323 Penal Code that entitles this Court
to merely impose an imprisonment sentence of less than a year
or a fine not more than RM2,000.”
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[12] Aside from taking into account the facts and circumstances in
which the offence was committed, the fact that the Respondent
was a first-time offender and had also pleaded guilty before the
victim completed her examination in chief were considered by
the trial judge. The Respondent, willing to apologize publicly in
open court to the victim and also to cough up costs to AGC, was
taken as an accused repented and remorseful.
[13] Having verified that this case was the first full trial for that
offence in its court for the first 9 months of 2020 unlike
offences charged under s323/326A CPC, the trial judge could
not agree on the rampancy of the offence. That in its
consideration, warranted the imposition of a fine.
[14] The trial judge had also considered the mitigating factors on
behalf of the Respondent aside from his outward remorse, his
age, antecedents personal hardship and also his co-operation
with the police. In the light of the pandemic COVID19 and the
very real problem of its spread behind prison bars and also the
difficulty of our hospitals coping, the trial judge had also
considered the effect of those being incarcerated on their health
and opined that “the consequence of an imprisonment sentence
upon the accused affected with such medical condition may even
conclude in the mortality of the accused in detention “
[15] As such, this Court has no quarrel with the trial judge’s legal
reasoning that the fact and circumstance of this case does not
call for the Respondent to be placed behind bars.
[16] At this appeal, this Court had sought for the sentencing trend for
this particular offence though unfortunately the Appellant was
unable to offer it. The Appellant had also confirmed that the
same was not accorded in seeking sentence before the trial
judge.
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[17] Nonetheless, the trial judge had taken effort to look into similar
sentences of other courts to provide a general guideline as no
two cases can have exactly the same facts to the minutest detail.
As the sentence of fine did not differ from previous sentences by
the courts, the trial judge in taking all those considerations
iterated above, “decided for the punishment of RM1,800 or 1
month imprisonment in the event of failure to pay fine as the
most suitable and proportionate punishment upon the accused in
this case.”
Decision of this Court
[18] Premised on trite law, this Court will only interfere with the
sentence should it be found that the said sentence of fine
RM1.800 and the said order of costs RM2,000 to be illegal or
manifestly inadequate or that the trial judge had erred in
applying the principles of sentencing. Guided by the Court of
Appeal in Amir Hassan bin Ali Usin v. Public Prosecutor [2018]
it upheld:
“This court in Cha Siang Hock v. Public Prosecutor
[2018] MLJU 437, Idrus Harun JCA delivering judgment
of the court emphasised that:
In considering an appeal against sentence, it is necessary
to draw attention to the trite principle that an appellate
court should be slow to interfere with the sentence passed
by the court below if the trial court applies the correct
principles in the assessment of the sentence. However,
where it can be shown that the sentencing court have erred
in principle in that it has passed a sentence which is
manifestly wrong in the sense of being illegal or of being
unsuitable to the proven facts and circumstances, it would
be legitimate for the appellate court to intervene in order
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to come to a correct and just sentence. This court in the
case of Wong Chee Kheong v. Public Prosecutor [2016]
MLJU 1750; [2016] 6 CLJ 68 in discussing the above
principle had referred to the case of Public Prosecutor v.
Karthiselvam a/l Vengatan [2011] 4 MLJU 212; [2009] 4
CLJ 68 in which it said at p635:
An appellate court should not intervene unless the
court below has erred in principle, that is to say, it
takes into account irrelevant consideration or failed
to take into account relevant considerations or
passed a sentence that is manifestly excessive or
manifestly inadequate or not permitted by law. In
short, an appellate court has no original discretion
of its own but may act when sentencing court has
gone wrong in the sense just discussed
[19] The relevant factors to be taken into consideration for trial in
assessing and meting out sentence were then tabulated.
However, it is noted that the list is not exhaustive.
[20] This court finds that the trial judge had not erred in taking into
account all those considerations stipulated in her grounds of
judgment.
[21] The fine RM1,800 is almost the maximum stipulated by the law.
Even though the Respondent had pleaded guilty at an early stage
of trial - before the completion of the examination in chief of
the complainant (first witness), the trial judge had meted out a
fine on the higher end of the spectrum, instead of imposing a jail
sentence. The Respondent could not be sentenced to whipping as
he was 55 years old at the time of sentencing.
[22] This Court will not disturb the sentence imposed and the order
for costs just because it may have imposed a different quantum
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of sentence - the principle enunciated in Abdul Hamid CJ in
Public Prosecutor v. Mohamed Nor & Ors [1985] 1 LNS:
The question now remains whether we should disturb the
sentence in instant case.
In this regard we should observe that it is the established
principle that an appellate court should be slow to
interfere or disturb with a sentence passed by the court
below unless it is manifestly wrong in the sense of being
illegal or being unsuitable to the proved facts and
circumstances. And the mere fact that another court might
pass a different sentence provides no reason for the
appellate court to interfere if the court below applies the
correct principles in the assessment of the sentence.
[23] This Court does not agree that the sentence of fine of RM1,800
is manifestly inadequate on the reasons submitted by the
Appellant. The victim’s age was already before the trial judge
and that as a result of the slap on the left cheek there was no
bleeding and no sign of physical trauma was noted (P5) and a
matter of the soft tissue injury two year later (P6) had already
been before the trial judge.
[24] Going through investigation, prosecution and also a criminal
conviction together with RM1,800 fine (and the costs awarded to
the AGC) reflect the punishment and deterrent factors upon the
Respondent. The trial judge had also rightly considered the
effect of the heightened situation of the COVID19 pandemic at
the time of sentencing. The spread of the early variant of
COVID19 and the struggle of our medical staff and facilities
then were very real. The argument put forth by the Appellant
that the sentence does not deter would be offenders is untenable
on the premise that the fact and circumstance of this case does
not call for the Respondent to be placed behind bars.
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[25] As to whether the contended error on finding of facts influenced
the trial judge in not meting out an imprisonment sentence, this
Court does not find so. From the grounds of judgment, the trial
judge was guided by the sentencing trend of the courts with
regard to this particular type of offence.
[26] This Court further does not accept the argument by the
Appellant that the sentence of fine is manifestly inadequate on
the contention that the Respondent could afford to pay. The
submissions by the Appellant that those who can afford to pay
should attract custodial sentences is flawed.
[27] This Court refers to the decision by the Court of Appeal in
Masni bin Yusoff v. Public Prosecutor [2019] MLJU 1729:
“The trial court is allowed to impose a legal sentence
within permissible limits in the exercise of its sentencing
discretion although another trial court or the appellate
court may have not necessarily imposed the same sentence .
Otherwise the ‘discretion’ in ‘sentencing discretion’ would
be meaningless. Interference with the punishment imposed
by the trial court is only justified if the sentence is
manifestly excessive or manifestly inadequate or if the said
court omitted to apply the correct sentencing principles
and failed to have regard to the relevant aggravating or
mitigating factors.”
[28] The Appellant has not been able to demonstrate as to why the
fine of RM1,800 (and costs of RM2.000 to the AGC) is
manifestly inadequate. This Court had also given the
opportunity to the victim to address this Court through the
learned Deputy Public Prosecutor on behalf of the Appellant and
was informed that the victim is still pursuing a civil suit against
the Respondent. Be that as it may, it has no bearing on the trial
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judge’s decision and this Court’s duty is to ensure the said
decision is arrived correctly in law.
[29] On the other hand, this Court agrees with the submission by the
Respondent that he had demonstrated his remorse by pleading
guilty at an early stage of trial and by publicly apologising to
the victim in open court. To this, a sentence of imprisonment
may not be appropriate and that the said fine commensurate the
offence. This Court agrees with the decision of the trial judge,
as with reference to Chang Min Tat J’s finding in Lim Yoon Fah
v. Public Prosecutor [1971] 1 LJ 37:
“A particular criminal may be so induced only by a
deterrent sentence of a tong imprisonment Another may
well profit by given a second chance. “
[30] As this Court is satisfied that the trial judge had exercised her
mind to all the legal sentencing principles and as upheld by the
Federal Court in Letitia Bosman v. Public Prosecutor [2020] 5
MLJ 277:
“In passing sentence the court takes into consideration the
mitigating and aggravating factors in order to ensure that
the sentence is in accordance with the law. Passing a
sentence according to the law means the sentence imposed
must not only be within the ambit of the sentence period
stipulated but also assessed and passed according to
established judicial principles. “
[31] In the premises, this appeal is dismissed, the sentence of
RM1,800 fine and costs of RM2,000 awarded to the AGC is
upheld.
Dated: 23 MAY 2022
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(ROZ MAWAR ROZAIN)
Judicial Commissioner
High Court of Malaya
Kuala Lumpur
COUNSEL:
For the appellant - DPP Fatin Hanum Abdul Hadi; Deputy Public
Prosecutor
For the respondent - Mohd Arfizi Mohd Ramli; M/s Arfizi & Co
Case(s) referred to:
Sundrarajan a/I Sokalingam v. PP [2011] 7 CLJ 995
PP v. Khairuddin [1982] 1 MLJ 331
Public Prosecutor v. Loo Choon Fatt [1976] 2 MLJ 256
R v. Ball [1951] 35 Cr App Rep 164
Lim Yoon Fah v. Public Prosecutor [1971] 1 MLJ 37
Mohamed Abdullah Ang Swee Kang v. Public Prosecutor [1988] 1
MLJ 167
Amir Hassan bin Ali Usin v. Public Prosecutor [2018]
Abdul Hamid CJ in Public Prosecutor v. Mohamed Nor & Ors [1985]
1 LNS
Masni bin Yusoff v. Public Prosecutor [2019] MLJU 1729
Lim Yoon Fah v. Public Prosecutor [1971] 1 LJ 37
Letitia Bosman v. Public Prosecutor [2020] 5 MLJ 277
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Legislation referred to:
Penal Code, s. 323
Criminal Procedure Code, ss. 326A, 426
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