Sentencing and The Criminal Justice Process

Criminal Procedure Sentencing and the criminal justice process Lecture
1. When an accused has been found guilty and convicted the court
will proceed to impose sentence according to law.
2. Issues on the type and extent of sentence to be imposed are solely
within the discretion of the Court meting out the sentence.
3. The parties to a criminal proceeding are the court, prosecution, the
accused and now the victim of the crime.
4. In New Tuck Shen [1982] 1 MLJ 27, Wan Yahya J pronounced:
The right to impose punishment on a guilty party is absolutely the
discretion of the court. It will exercise that power judicially but
will not tolerate any encroachment or even semblance of
encroachment either by the prosecution or the defense in respect of
such right.1
5. The court meting out sentence has the discretion to decide if it
wishes to be lenient or severe.
6. After which the court will decide on an appropriate sentence
according to law.
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Currently parties to a criminal proceeding have the authority to discuss on an appropriate sentence to be meted
out by the court on an accused by way of an agreement which may be reached as a result of a plea bargaining
process.
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7. Section 173(m)(ii) CPC relates to the conclusion of a summary
trial at the subordinate court and provides that If the Court finds
that the prosecution has proved its case beyond reasonable doubt,
the Court shall find the accused guilty and he may be convicted on
it and the Court shall pass sentence according to law..
8. Section 183 CPC which relates to the conclusion of a trial at the
High Court provides that If the accused is convicted, the Court
shall pass sentence according to law.
9. Likewise if an accused pleads guilty to a charge, the plea shall be
carefully recorded and once the plea of guilty is accepted, he may
be convicted on the plea of guilty and the court shall pass sentence
according to law. See respectively section 173 (b) as well as
178 (2) and 183 CPC.
10. Common to the provisions referred to above is that the court
shall pass sentence according to law. The case of Jafa bin
Daud [1981] 1 MLJ 315 illustrates the phrase to mean as:
A sentence according to law means that the sentence must not
only be within the ambit of the punishable section, but it must also
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be assessed and passed in accordance with established judicial
principles. In assessing sentence, one of the main factors to be
considered is whether the convicted person is a first offender. It is
for this purpose that before passing sentence, a magistrate is
required to call for evidence or information regarding the
background, antecedent and character of the accused. Where the
convicted person has previous records and admits them as correct,
the court must consider whether the offence or offences committed
previously were of similar nature as the one with which he is
presently charged. The court must then consider the sentences
imposed in the previous convictions for similar offences to
determine whether they have had any deterrent effect on him.
Where he is found to be a persistent offender for a similar type of
offences, then it is in the interest of justice that a deterrent
sentence should be passed and, in such a case, unless there are
exceptional circumstances, the quantity, nature or value of the
subject-matter of the offence with which he is currently charged
can very rarely constitute a mitigating factor.

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11. In arriving at an appropriate sentence according to law the
court in the main will consider the:
Accuseds plea in mitigation.
Any submission the prosecution may make on the
aggravating factors relevant for the court to consider.
The victim impact statement by the victim of the offence or
a member of the victims family.
12. Whether the prosecution will press for a deterrent sentence or
not depends entirely on the facts, circumstances of the case as well
as the criminality of the accused.
13. But it is important and salutary for the accused to plead in
mitigation of the sentence.
14. The plea in mitigation is central to the sentencing process as
when the court assesses an appropriate sentence to be passed, it
will observe first the maximum punishment prescribed by the law
in the penal provision and then it may make an allowance
according to the plea in mitigation by the accused. As DA Thomas
says in his book entitled Principles of Sentencing at page 39

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(quoted in the case of PP v Dato Seri Anwar bin Ibrahim (No 3)
[1999] 2 MLJ 3 at page 231):
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.
15. However on no account should a DPP ask for a specific term
of imprisonment. But is it proper for the DPP to suggest or
indicate an appropriate sentence for the court to consider?
16. It is also not wrong for the accused or his counsel to suggest
an appropriate sentence to be meted out by the court. When can it
be done? Can it be done whilst the plea in mitigation is advanced?
What will be the basis or criteria for doing so?
17. In deciding whether to press for a deterrent sentence or not
the prosecution may take the following factors into consideration:

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Previous conviction(s)or antecedents (past history,
background, previous circumstances) of the accused;
Serious nature of the offence;
Prevalence or rampancy of the type of offences;
Status of offender;
Difficulty in detecting such offences;
Manner in which an offence is committed (criminality of the
accused, criminal enterprise, criminal design, syndicated
crime etc.);
Degree of violence used;
The effect a deterrent sentence will have on the accused as
well as on others;
The public interest; and
The national interest.
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18. On the other hand the accused himself or through his counsel
will advance a plea in mitigation which comprise inter alia the
following aspects:
Age of offender;
Record of the offender;
Effect of conviction or sentence on the accused person;
Circumstance before commission of offence;
Health of offender;
Behavior of offender after commission of offence;
Cooperation with the police at all material times;
Plea of guilty.
Other factors like the offence is already stale, no violence
used or no injuries inflicted and status of the offender,
remorseful of the act committed, family history, period of
remand etc.
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19. When meting out an appropriate sentence according to law,
the court is ever mindful as to the aims of sentencing. In the main
they are:
Deterrence (general and specific);
Retribution;
Rehabilitation;
Restorative;
20. Lawton LJ in Sargeant [1974] 60 Cr. App. R. 74 pronounced:
Society, through the courts, must show its abhorrence of
particular types of crime, and the only way which the courts can
show this is by the sentences they pass. The courts do not have to
reflect public opinion. On the other hand courts must not disregard
it. Perhaps the main duty of the court is to lead public opinion.
21. The oft quoted case of R v Ball 35 Cr. App. R. 164 is relevant
and to be remembered at all times. Hilbery J pronounced:
In deciding the appropriate sentence a court should always be
guided by certain considerations. The first and foremost is the
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public interest. The criminal law is publicly enforced, not only
with the object of punishing crime, but also in the hope of
preventing it. A proper sentence, passed in public, serves the
public interest in two ways. It may deter others who might be
tempted to try crime as seeming to offer easy money on the
supposition, that if the offender is caught and brought to justice,
the punishment will be negligible. Such a sentence may also deter
the particular criminal from committing a crime again, or induce
him to turn from a criminal to an honest life. The public interest is
indeed served, and best served, if the offender is induced to turn
from criminal ways to honest living. Our law does not, therefore,
fix the sentence for a particular crime, but fixes a maximum
sentence and leaves it to the court to decide what is, within that
maximum, the appropriate sentence for each criminal in the
particular circumstances of each case. Not only in regard to each
crime, but in regard to each criminal, the court has the right and
the duty to decide whether to be lenient or severe.
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22. The case of R v Ball ought to be read in the Malaysian
context as cautioned by the eminent Judge Wan Yahya J in the
case of New Tuck Shen when he decided as follows:
In that case the learned judge was not laying any rules on public
interest but was merely observing what public interest would be in
relation to the 23 years old offender who had exceptional
antecedents and character. (In that case the appellant Ball aged 23
years had a bad record. His friend aged 29 years also had a bad
record. Both were accused of three offences of burglary but
because there were exceptional matters affecting the character of
the co-accused, he was placed on probation for three years while
the appellant was sentenced to five years imprisonment. On
appeal, the Court of Criminal Appeal decided not to interfere with
the sentence of the appellant).
Public interest varies according to the time, place and
circumstances of each case including its nature and prevalence.
What may be of public interest in one place may differ from
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another. Similarly inducement to turn from criminal ways into
honest living can take several forms and will have to depend to a
greater extent on the attitude of the offender and his suitability for
any particular type of reformation.
23. In the case of Loo Choon Fatt [1976] 2 MLJ 186, the learned
judge gave due consideration to the age of the offender, which is
twenty years, and the fact that he was the only son for his parents.
Both parents were separated and he lived with his mother in a
squatter area infested with gangsters and drug addicts. He also
gave due consideration to the intention of Parliament when passing
the statute seeking to control the abuse of dangerous drugs. The
statute was even amended to increase the punishments for certain
offences. These amendments reflected public policy and this in
turn was the public interest. Because of this, the court viewed
the offence seriously and imposed the sentence of
imprisonment for six months as a substitute of the bond of
good behavior under section 294 of the CPC.
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24. In the case of Teh Ah Cheng [1976] 2 MLJ 186, the court
considered deterrence and prevention as important for offences of
unlawful possession of firearms when it decided:
Deterrence in this case would be that of the respondent and likely
offenders similarly inclined, but there is an ancillary but no less
important aspect to deterrence in cases involving unlawful
possession of firearms in preventing the possible progression from
mere possession to sinister (threatening) user deterrence relates
not only to the offence of unlawful possession but also serves the
double purpose in such cases of at least reducing the possibilities
of the possessor transforming into an active user of such offensive
weapons. The sentence is enhanced to three years imprisonment
for each charge, the sentences to run concurrently with the hope
that the creaking of the prison doors closing shut behind him
will afford the respondent ample opportunity to ponder on his
folly in the company he keeps, and give others of his ilk and
equally gullible, cause to reflect on the desirability of the
company they should or rather should not keep.

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25. In the case of Raja Izzuddin Shah [1979] 1 MLJ 270, Hashim
Yeop Sani J had to resolve a conflict between the deterrent and
reformative aims of sentencing. Here, the accused had pleaded
guilty to an offence of assaulting a public servant and was
sentenced to three years imprisonment. He appealed against
sentence. The learned judge was of the view that:
The public interest is in no way better served by committing the
appellant to prison. The primary purpose of punishment is
reformatory and it is clear in this case that the appellant has
received that notwithstanding his status, he is not above the law.
26. In the case of young offenders there can hardly ever be any
conflict between the public interest and that of the offender. The
public have no greater interest than that he should become a
good citizen.
(See the case of Teo Siew Peng & Ors [1985] 2 MLJ 125.
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POWER OF THE COURT TO SENTENCE
Offences under the Penal Code may be tried by the High Court,
Sessions Court or Magistrates Court (which include the Court for
Children).
The said offences are triable subject to the applicable provisions in
the Courts of Judicature Act 1964 (Act 91), Subordinate Courts
Act 1948 (Act 92) and the CPC.
For offences under other laws, it is tried by the court specified in
those laws; and when no such court is specified the applicable
provisions in Act 91, Act 92 and the CPC are applicable.
For child or juvenile offenders, namely a person under the age of
eighteen (18) years who has committed an offence not punishable
with death, he may be tried by a Court for Children specially
empowered under the Child Act 2001.
A High Court Judge may pass any sentence authorized by law.
A Sessions Judge may pass any sentence authorized by law, but
not a sentence of death.
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Magistrates may pass a sentence only as authorized by Act 92 or
by the other applicable written law.
It is settled law that a court shall when sentencing an accused, take
into account all relevant considerations applicable to the facts and
circumstance of a case, including the gravity of the offence, the
circumstances surrounding the commission of the offence, the
antecedents of the accused, the deterrent effect that
punishment is to have, intention of the Parliament when it
prescribed a minimum or maximum punishment, the doctrine
of custodial preference (as oppose to fine only), if the sentence
passed is going to be merely a tap on the wrist, any factor
that warrants special attention either in favor or against the
accused, and above all public interest. (See Lim Guan Eng v
Pendakwa Raya [1998] 1 MLJ 14 as well as PP v Dato Seri
Anwar bin Ibrahim (No 3) [1999] 2 MLJ 3 at page 230).
Essentially the type of sentence available under the law are:
Death;
Imprisonment;
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Whipping;
Fine;
Compensation order and costs;
Good behavior bonds;
Police Supervision;
Rehabilitative counseling;
Community service orders;
Orders in relation to children (juveniles) under the Child Act
2001.
The above type of sentence may be categorized in the following
cluster:
Capital death by hanging for offences carrying the death
penalty2 as either mandatory or a form of punishment.
Corporal punishment whipping3.
Incarcerative imprisonment4.
2
See section 275, 276, 292 (2) CPC and section 97 Child Act 2001 (Act 611). Reference is also made to lecture
delivered on these provisions.
3
See section 286, 287, 288, 289, 290, 291, 293 (1) (c) CPC. Reference is also made to lecture delivered on these
provisions.
4
See section 282, 283 (1) (b) (iv), 283 (1) (c), 284, 292 CPC. Reference is also made to lecture delivered on these
provisions.
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Supervisory good behavior bond5, community service
order6, police supervision7, rehabilitative counseling8.
Pecuniary fine9, compensation10amount from the accused,
costsof prosecution11 to be paid by the convicted accused.
Mandatory term of imprisonment
Some offences such as rape, theft in dwelling under section 380
PC, theft by servant under section 381PC are punishable with a
mandatory term of imprisonment.
The court may due to an oversight not impose the mandatory term
of imprisonment or impose a punishment of fine only for such
offences.
Should this happen the prosecution should tactfully remind the
court of the provisions of the law in respect of the sentence and
have the matter rectified before the court rises for the day.
5
See section 173A, 293 (1) (b), 294, 294A CPC. Reference is also made to lecture delivered on these provisions.
6
See section 293 (1) (e) CPC.
7
See section 295, 296, 297 CPC.
8
See section 295A CPC.
9
See section 2 (1), 283, 284 CPC. Reference is also made to lecture delivered on these provisions.
10
See section 426, 432 CPC.
11
See the same section 426, 432 CPC.
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What will be the role of the counsel for the accused in such a
circumstance? If the court does that and none of the parties to the
proceedings remind the court appropriately, what will be the
recourse?
CONCURRENT AND CONSECUTIVE TERM OF IMPRISONMENT
Where an accused upon conviction at one trial for two or more
distinct offences (what comes to your mind?) is sentenced to a
term of imprisonment for each offence or
If he is already undergoing a term of imprisonment the court
has the discretion to order the sentences to run concurrently or
consecutively.
But if the sentence for any one offence is imprisonment and fine,
then the term of imprisonment imposed in default of payment of
such fine must be consecutive to the substantive term of
imprisonment imposed. In such a situation the court does not have
the discretion to order the term of imprisonment to run
concurrently.
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A Magistrate may award a term of imprisonment in default of
payment of fine as authorized by law.
Such an imprisonment in default is in addition to the substantive
sentence of imprisonment for a minimum or maximum term as
authorized by law.
The term of imprisonment in default of payment of fine must not
be in excess of the Magistrates power of sentencing.
Where the offence carries a sentence of imprisonment and fine and
a term of imprisonment is passed as part of the substantive
sentence together with a fine, the term of imprisonment awarded in
default of payment of fine shall not exceed half of the maximum
term of imprisonment. An example is:
The charge is for an offence of robbery in daylight under section
392 PC.
The maximum term of imprisonment prescribed under the law is
ten (10) years imprisonment (which is 120 months).
The offence is triable by a Magistrate.
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The court may impose a substantive sentence of three (3) years (36
months) imprisonment and a fine of RM10000.
In default of the payment of fine, the accused may face an
imprisonment of five years (which is sixty (60) months).
This is half of ten (10) years which makes up to sixty (60)
months, and the period of default which may be ordered is up to
that length of time. See section 283 (1) (c) CPC.
The term of imprisonment in default of payment of fine shall not
be in excess of the Magistrates power of sentencing under section
87 of Act 92.
Although the imprisonment in default of fine is in excess of any
other imprisonment pursuant to section 283(1)(b)(iv), the
provision does not specify whether the term of imprisonment in
default of payment of fine should run concurrently or
consecutively with the substantive term of imprisonment imposed.
Section 102, proviso (c) of Act 92 spells out clearly that:
When imprisonment is directed in default of payment of a fine or of
costs or compensation ordered under the authority of any law for

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the time being in force, the imprisonment shall be consecutive to
any other term or terms of imprisonment so directed and to any
sentence of imprisonment otherwise imposed.
CONVICTION OF SEVERAL OFFENCES AT ONE TRIAL12
In such a case, the court may:
Sentence the offender to the several punishments prescribed
which it is competent to inflict.
If the punishments consist of terms of imprisonment, it may
direct the order in which they are to run unless they are
directed to run concurrently.
Where the sentences are consecutive it is not necessary to
send the offender before a higher court because the aggregate
punishment is in excess of that which the court is competent
to inflict on conviction of a single offence.
12
This issue has to be now viewed in the light of the latest amendment to the CPC vide Criminal Procedure Code
(Amendment) Act 2016 (Act A1521). Section 282 of the CPC is now amended with the addition of subsection (e)
which states when a person is convicted at one trial of any two or more offences, the Court shall not order the
sentences of imprisonment to run concurrently. Reference is also made to lecture delivered on this current
provision.
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In the event a court has to impose more than one sentence of
imprisonment at one trial, section 102 of Act 92 applies. This
section applies to Magistrates. By virtue of this section, the
court may order the prison sentences to run either
concurrently or consecutively, subject to proviso (a) of the
same section which restricts the maximum of such period to
twenty (20) years.
Other courts are not restricted by proviso (a).
Consecutive and concurrent sentencing is relevant only for
imprisonment but not whipping.13
It is the courts discretion to order sentences of imprisonment to
run concurrently or consecutively. The exercise of discretion is
governed by two (2) important principles of criminal justice, which
are the totality principle and the one transaction principle.
According to the one transaction principle, where two or more
offences are committed in the course of a single transaction, all
sentences in respect of these offences should be concurrent rather
13
See the case of Peter Ting Chiong King [1987] 2 MLJ 69.
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than consecutive. The rationale being when all the offences are
taken together constitute a single invasion of the same legally
protected interest, consecutive sentences are inappropriate.
Example of such instance is where two or more offences arise from
the same set of facts.
Where offences are committed simultaneously or in close
proximity in terms of time, it does not necessarily mean that they
are committed in one transaction.
The one transaction principle is found in section 165 (1) CPC. The
four tests to be applied are proximity of time, proximity of place,
continuity of action and continuity or unity of purpose or design.
One good example is the case of Yap Huat Heng [1985] 2 MLJ
414, wherein the offences were two counts of rape and two counts
of robbery committed by the appellant on two sisters. Although
there was proximity of time among the offences committed, the
appellant had committed two distinct offences of rape on two
separate persons. Similarly there were two distinct offences of
robbery on two separate persons. The sentences for rape were

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ordered to run consecutively to each other; the sentences for
robbery should similarly run consecutively to each other, but
concurrently with those for rape. Shaik Daud J decided that
sentences should only be made concurrent when an offender had
been convicted of a principal and a subsidiary offence. In all other
cases sentences should be made to run consecutively. Hence, in
that case where the offender was found guilty of two counts of rape
and two counts of robbery, the offences were distinct and should
not be made to run concurrently.
The totality principle demands the court to look at all the
sentences 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.
The court should not impose lighter sentences for individual
offences simply because when the court orders the punishments to
run consecutively the totality appears reasonable.
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After imposing the sentences, should the court find in totality it is
excessive, it should order them to run concurrently or partially
concurrent and partially consecutive.
The case of Faulkner (1972) 56 Cr. App. R 594 serves as a guide.
In that case the accused was charged with seven (7) offences and
sentenced to a total of fifteen (15) years imprisonment, all to run
concurrently, except for two sentences of three years which were
to run consecutively. Widgery LCJ decided in that case:
At the end of the day, as one always must, one looks at the totality
and asks whether it was too much We have to ask ourselves
whether the six years is too great a sentence for the catalogue of
offences We do not think it was and the appeal will therefore be
dismissed.
In Marimuthu Balakrishnan v PP [1974] 2 MLJ 145, the accused
was charged with possession of firearms and ammunition and
sentenced to three years imprisonment for each offence, the
sentences to run consecutively. On appeal, the Singapore High
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Court affirmed the sentences of three years for each charge to run
consecutively.
In Lee Chow Meng v PP [1976] 1 MLJ 287, the appellant was
charged and convicted by the sessions court with three offences,
namely armed robbery, possession of firearms and possession of
ammunition. He was sentenced to seven years on the first charge,
ten years on the second charge and seven years on the third charge.
The sentences were ordered to run consecutively. On appeal the
enforcement of the sentences were affirmed.
However in the case of Sau Soo Kim v PP [1975] 2 MLJ 134 (FC),
the appellant was convicted of three charges, namely for
discharging a firearm towards a group of policemen, possession of
a firearm and possession of ammunition. He was sentenced by the
High Court to ten years imprisonment for the first offence, four
years for the second and four years for the third, all sentences to
run consecutively. On appeal, the then Federal Court ordered
the second and third sentences to run concurrently but
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consecutively to the first. According to the Federal Court, the
second and third charges were of the same nature.
Police Supervision
Found in section 295 of the CPC.
It is often overlooked.
If an accused person is convicted of an offence which carries a
punishment of imprisonment for a term of two (2) years or more
and has previous conviction for any offence carrying a
punishment of imprisonment for a term of two (2) years or more
then that accused person will be liable to police supervision.
A High Court or Sessions Court Judge may direct that an
accused person be placed under police supervision for a period of
not more than three (3) years and a Magistrate for not more than
one (1) year.
The order of police supervision is to commence immediately after
the expiration of the sentence passed on the accused for the last of
such offences.
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What if the accused subjected to an order of police supervision
commits another offence, convicted and sentenced to a term of
imprisonment for that offence, how is the period for police
supervision computed?
When applying for an order of police supervision from the court,
the prosecution should be fully aware of the details of an accused
persons previous convictions and not hesitate to bring to the
notice of the court the provisions of this section if applicable.
It will be then up to the court to decide whether or not police
supervision should be imposed. Is the court in a position not to
make such an order? What will be basis for doing so?
On the requisitions and obligations of the police supervisee (the
accused), take note of section 296 of the CPC.
The penalty for non-compliance by the accused of an order of
police supervision and its requirements and obligations is
imprisonment for one (1) year. Must he be prosecuted for such
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non-compliance? What defense can the accused/supervisee
advance to such non-compliance?
On police supervision see cases like, Abdul Wahab v PP [1970] 2
MLJ 203, PP v Haled [1981] 2 MLJ 211, Roslan bin Haji Yahya v
PP [1985] 2 MLJ 218, Zakariya bin Musa v PP [1985] 2 MLJ 221,
PP v Sulaiman bin Ahmad [1993] 1 MLJ 74.
When an accused is convicted of an offence under section 376,
377C, 377CAor 377E of the PC, the court (which court?) shall
direct that he be subject to police supervision for a period of one
(1) year and not more than three (3) years, commenced
immediately after the expiration of the sentence passed on him.
This is found in section 295(1A) of the CPC.
In addition to an order of police supervision, in such cases the
court may order a period of rehabilitative counseling for the
accused within the period of his detention
(imprisonment/incarceration). The type, manner and period of
rehabilitative counseling are under the purview of the Prisons
Authorities. This is found in section 295A of the CPC.

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NON-CUSTODIAL SENTENCING OPTIONS
Non-custodial sentences are alternative options to a sentence of
imprisonment.
Alternative sentences are equally if not more effective in treating
offenders.
It serves to be an advantage not only to offenders but also the
society.
It syncs with the ultimate aim of the criminal justice system which
is the reintegration of the offender into the society. This is part and
parcel of restorative justice.
The liberty of the offender is restricted only to the extent of public
safety, crime prevention, retribution and deterrence.
Malaysia too has the problem of overcrowding in prisons which
give rise to other social problems.
Hence the need for alternative sentencing options in the criminal
justice system so as to divert away from the traditional prison
system.
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Although imposition of a fine is an alternative to imprisonment,
but if the offender does not pay the fine he has to face the default
term of imprisonment. So imprisonment is sometimes inevitable.
GOOD BEHAVIOUR BOND UNDER SECTION 173A CPC
The power to discharge an offender conditionally or
unconditionally is one alternative sentencing option wherein the
offender is not sent to the prison.
A conditional discharge is commonly referred to as a good
behavior bond. It is also referred to as binding over.
The power to discharge is set out in section 173A CPC.
When a charge is proved against the offender, the court can make
an order under section 173A which reads:
having regard to the character, antecedents, age, health or
mental condition of the person charged, or to the trivial nature of
the offence, or to the extenuating circumstances under which the
offence is committed
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Pursuant to section 173A CPC, for minor violation of the law or
when an offence is said to be committed under compelling
mitigating circumstances, the court does no more than give an
admonition or caution to the offender. This is commonly referred
to as the accused is cautioned and discharged (C & D).
Alternatively the court may discharge the offender conditionally on
a bond of good behavior.
The conditions are imposed with the aim of ensuring the offender
is of good behavior during the period of the bond.
Such bond shall not exceed three (3) years although the court may
order a shorter period.
If the offender remains on good behavior during the specified
period, he will not be called back to the court.
No conviction on the charge is recorded under section 173A
against the offender.
Thus, the offender is assured of a clean record.
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So what the offender would have gone through is the charge and
the trial.
With the bond under section 173A, the offender continues to live
and work in the community.
There is no more lasting shame or dishonor against the offender as
a result of the offending or the offence committed.
BOND OF GOOD BEHAVIOR UNDER SECTION 294 CPC
A bond of good behavior under section 294 CPC is a variation
from the similar bond under section 173A CPC.
The consideration by the court to order a bond of good behavior
under section 294 CPC is similar to that of section 173A CPC,
which is:
having regard to the character, antecedents, age, health or
mental condition of the person charged, or to the trivial nature of
the offence, or to the extenuating circumstances under which the
offence is committed
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But unlike 173A, the offender has to be convicted first before a
bond of good behavior is considered under section 294 CPC.
Section 294 CPC is applicable to offences of a more serious
category where a record of the offending by the offender is
necessary.
But, the offender is allowed to remain in the community and will
be free from any restraints once the bond period expires and he has
complied with all the conditions imposed.
Under section 294A CPC, the court can require that there is
included in the bond one or more of the following conditions:
(a) a condition that the person shall remain under the
supervision of some other person name in the bond during
such period as may be specified in it;
(b) such conditions for securing the supervision as the court may
think it desirable to impose;
(c) such conditions with respect to residence, employment,
association, abstention from intoxicating liquors or with
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respect to any other matter whatsoever as the court may
think it desirable to impose.
Generally a good behavior bond under section 173A and 294
CPC is applicable where any offence is committed, unless
specifically excluded by a penal provision.14
BREACH OF BOND OF GOOD BEHAVIOR
In case of any breach of a bond of good behavior under section
173A or section 294 CPC the court may issue a warrant for the
arrest of the offender.
If the court accepts the explanation by the offender or his
answer to his conduct relating to the alleged breach of the bond,
the bond of good behavior executed continues.
14
See the latest amendment to section 173A and 294 CPC vide Criminal Procedure Code (Amendment) Act 2016,
Act A1521 which now provides that both these sections shall not apply if the offender is charged with a serious
offence or if the offender is charged with the commission of an act of domestic violence as defined under section 2
of the Domestic Violence Act 1994 (Act 521). Reference is also made to lecture delivered on these current
provisions.
35
Where the breach is clearly made out by the prosecution, the
bond of good behavior is cancelled and the court can proceed to
sentence the offender as it deems appropriate.
On good behavior bonds, see cases like PP v Idris (1955) MLJ
234, Shanmuganathan v PP [1967] 1 MLJ 204, Jayanathan v
PP [1973] 2 MLJ 68, PP v Tan Eng Hock [1970] 2 MLJ 15, PP
v YeohEngKhuan [1976] 1 MLJ 238, PP v Teh Ah Cheng
[1976] 2 MLJ 186, PP v Loo ChoonFatt [1976] 2 MLJ 256, PP
v Yeong Yin Choy [1976] 2 MLJ 267, PP v Datuk Tan Cheng
Swee [1980] 2 MLJ 276, TeoSiewPeng& 4 Ors v PP [1985] 2
MLJ 125, Tan TekSeng [1990] 2 CLJ 103, Lim Kim Poh v PP
[2000] 3 MLJ 411.
RESTITUTION IN SENTENCING
The principle of restitution in sentencing is addressed in the
CPC by the provision pertaining to the payment of
compensation by the offender to the victim of crime.
36
Such compensation may be ordered by the court which
sentences the offender in addition to a bond of good behavior
under section 173A CPC.
However, generally for all convictions, the court may order
compensation under section 426 CPC. Pursuant to this section
the court is empowered to fix the sum of compensation. Hence
the court may order a fair compensation in accordance with the
facts and circumstances of the case.
In addition to the payment of compensation, the court may also
order the offender to pay the costs of his prosecution.
On this see section 426 and 432 CPC, which have been
extensively amended.
See cases like Mohamed Johan Mutalib v PP [1978] 1 MLJ
213, Raja Izzuddin Shah v PP [1979] 1 MLJ 270.
OFFENDERS COMPULSORY ATTENDANCE ACT 1954 (ACT

461)
This statute too provides for an alternative to a sentence of
imprisonment.
37
Instead the court makes a Compulsory Attendance Order.
With this order, the offender has to attend daily at a Centre to be
specified in the order and to undertake compulsory work for a
period not exceeding 3 months and for such hours, not exceeding 4
hours, as may be specified in the order.
It is important to take note of section 5 of the Act. It renders that
where a person has been convicted of an offence for which he is
liable to be sentenced to imprisonment or is liable to be committed
to prison for failure to pay a fine or debt, and the court is of the
opinion that such person would have been adequately punished by
a sentence of imprisonment for a period not exceeding 3 months,
and having regard to the character of such person, the nature and
seriousness of the offence or the circumstances of such persons
failure to pay (as the case may be) and all the other circumstances
of the case, it is inexpedient to commit him (meaning to
imprisonment), the court may in lieu of such sentence or
committal, make a Compulsory Attendance Order (CAO).
38
The obligations of the offender under the CAO is set out in section
6 of the Act which states:
6 (1) subject to the provisions of any Rules made under this Act
and to the terms of the CAO, an offender shall, during the
continuance in force of such Order report daily at such time and
place as, having regard to the offenders circumstances, the CAO
may specify.
(2) An offender shall each day undertake such compulsory work
as may be ordered by the CAO officer, which shall be such work as
can, in the opinion of that Officer, be completed by the offender
having regard to his physical capacity during the number of hours
specified in the CAO.
(3) If an offender is gainfully occupied in employment, the time
at which he is ordered to report daily under subsection (1) shall be
such as not to interfere with such employment.
(Gainfully employed here means that the offender who is
subject to the CAO continues to be gainfully employed)
39
COMMUNITY SERVICE ORDER
This is provided for under section 293 (1) (e) CPC.
As the section suggests, it is only applicable to youthful offenders,
meaning those who are convicted of an offence punishable by fine
or imprisonment who is of or above the age of 18 and below the
age of 21. (see section 2(1) CPC)
Community service means any work, service or course of
instruction for the betterment of the public at large and includes,
any work performed which involves payment to the prison or local
authority. At times, the prison authorities engage in rendering
services to its clients like supply of handicraft items, carpentry,
painting etc.
The community service shall be under the purview of the Minister
responsible for community.
The Community Service Order (CSO) requires the youthful
offender to perform community service, not exceeding 240 hours
in aggregate.
40
The CSO will relate to such service which is of a specified nature
and at such time and place subject to such conditions as may be
specified by the court which makes the CSO.
The CSO also syncs with the ultimate aim of the criminal justice
system which is the reintegration of the offender into the society.
This is again part and parcel of restorative justice.
SOME OTHER SALIENT CASES ON SENTENCING AND THE

CRIMINAL JUSTICE PROCESS
1. Seargeant (1974) 60 Cr. App. R.74.
The courts must show its abhorrence (disgust or repugnance)
of particular types of crime.
For example offences like snatch theft (robbery), rape,
incest, possession of drugs which are on the rise in the
country. The court in fact can take judicial notice of this fact.
On judicial notice by the court when it exercises its
sentencing powers, see the case of Yong [1959] MLJ 176.
The only way it can show is by the sentence it passes.
The court has a duty to lead public opinion.
41
The court has to be sensitive to the opinion expressed by the
public in the mass media or the alternative media. It can even
be sensitive to crimes committed in other jurisdiction. For
example the use of designer drugs, the recent rape case in
Delhi, India where the victim dies as a result of a violent
gang rape.
2. Ball 35 Cr. App. R.164
In deciding an appropriate sentence to be meted out by the
court, the foremost consideration is public interest.
A proper sentence passed, will reflect public interest, in two
ways; general deterrence that is, deter others who might be
tempted to try crime as seeming to reap profit, as the saying
goes crime pays and specific deterrence that is, to deter
the particular criminal from repeating the crime or to induce
him to turn on from criminal ways to honest living, as the
saying goes turning on a new leaf.
42
The penal law provides for the maximum sentence and it is
for the court to decide either to be severe or lenient. The
court in doing so will have to consider the mitigating factors
advanced by the accused, the aggravating factors advanced
by the prosecution and the victim impact statement proffered
by the victim or his family member etc.
3. Ong Lai Kim [1991] 3 MLJ 111
Deterrence is the appropriate aim of sentencing where the
offences are rape and robbery.
Rape is rampant and the court had to deter not only the
appellants from committing a similar offence in the future but
also deter others from committing such an offence.
The same considerations are appropriate for a serious crime
involving violence, like premeditated offences such as;
burglary and the use of firearms.
4. Loh Hock Seng & Anor [1980] 2 MLJ 13
43
The purpose of the Parliament prescribing maximum
sentence for any offence is to mark the limits of the courts
discretionary power as to sentence.
Ordinarily it prescribes what the sentence should be in the
more serious type of case.
Hence for the less serious type of case, the court will mete
out an appropriate sentence subject to the mitigating factors,
aggravating factors advanced as well as the victim impact
statement.
5. Lim Guan Eng [1998] 1 MLJ 14
The court when sentencing an accused, take into account all
considerations relevant to the case.
That will include the
gravity of the offence;
the circumstances surrounding the commission
of the offence;
44
the antecedents (past history, backgrounds,
previous circumstances etc) of the accused;
the deterrent effect the punishment is to have;
any other factors that warrant special
attention, either in favor or against the
accused;
And above all, PUBLIC INTEREST.
This case too illustrates the point that if a penal provision
provides the first option of sentence as imprisonment and
the second option of sentence as fine then the court must
have due regard to the intention of Parliament that the
legislature favors imprisonment as the preferred option.
This is described in the case as the doctrine of custodial
preference.
6. Teo Woo Tin [1932] MLJ 124 followed in the case of Zakariya bin
Musa [1985] 2 MLJ 221.
When imposing a fine, the court must pay attention to the
following factors:
45
the profit arising from the offence;
the value of the subject matter of the offence;
the amount of injury done;
And the financial position of the offender.
7. Lee Yu Fah [1937] MLJ 171
A fine should seldom be excessive as to ruin completely
the people on whom it is imposed.
Wealth and poverty are factors which should be
considered on almost every occasion in assessing fines.
8. Tan Kah Eng [1965] 2 MLJ 272
A fine should always be related to the means of the
offender.
The imposition of a fine beyond the appellants means or
six months imprisonment in default of payment was
46
tantamount to sentencing the appellant to six months
imprisonment without the option of a fine.
In this case the fine was set aside and substituted with a
conditional discharge.
9. The plea of guilty is often accepted by the courts as a mitigating
factor. This is because it not only saves the country a great expense
of a lengthy trial but also saves time and inconvenience of many,
particularly the witness. See the case of Sau Soo Kim [1975] 2
MLJ 134 at 137.
10. However, be mindful of the principle that even if there is a
plea of guilt thus entitling the accused to some credit for that but it
has to be set off against the enormity and seriousness of the crime
committed. Hence severity (seriousness) of the offence is always
given the paramount consideration. See Leo Say & 2 ors [1985]
2 CLJ 155 and Loh Hock Seng [1980] 2 MLJ 13.
11. If the offender is a child or a youthful offender under 21
years old and found guilty, then a probation report must be
submitted and the probation officer who prepared the report is

47
subject to cross-examination if the facts in the report is disputed by
the offender. See the case of PP v Koh Puay Khoon & 3 ors [1984]
1 CLJ 193.
12. The court will then decide based on the probation report
whether to make an order for the offender to be detained in an
approved school until he attains the age of 21 years. See section 76
of the Child Act 2001. The provisions of the Child Act 2001 apply
when sentencing a child.
DISPARITY IN SENTENCING
Every sentence reflects a complex amalgam of numerous and

various factors and imponderables and requires the very careful
evaluation of matters such as public interest, the nature and
circumstances of the offence and the identity of the offender. It
calls for embodiment of individualized justice. See the case of
Dinesh Singh Bhatia v Amarjeet Singh v PP [2005] 3 SLR 1 at
page 24.
The sentence passed or meted out by a court of competent
jurisdiction which is in accordance with law and settled judicial
48
principles cannot be a subject matter of adverse criticism if one

sentence passed is harsher or lighter than another.
This is simply because the sentence passed is subject to the facts
and circumstance of each individual case.
That is the principle of embodiment of individualized justice as
referred to in the case of Dinesh Singh Bhatia referred to above.
This may be a plausible argument against disparity in sentencing.
**************
KM/CRIM PROC APRIL 2017.
49

Sentencing and The Criminal Justice Process

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Criminal Procedure Sentencing and the criminal justice process Lecture

will proceed to impose sentence according to law.

2. Issues on the type and extent of sentence to be imposed are solely

within the discretion of the Court meting out the sentence.

3. The parties to a criminal proceeding are the court, prosecution, the

accused and now the victim of the crime.

4. In New Tuck Shen [1982] 1 MLJ 27, Wan Yahya J pronounced:

The right to impose punishment on a guilty party is absolutely the

discretion of the court. It will exercise that power judicially but

will not tolerate any encroachment or even semblance of

encroachment either by the prosecution or the defense in respect of

5. The court meting out sentence has the discretion to decide if it

wishes to be lenient or severe.

6. After which the court will decide on an appropriate sentence

7. Section 173(m)(ii) CPC relates to the conclusion of a summary

it and the Court shall pass sentence according to law..

8. Section 183 CPC which relates to the conclusion of a trial at the

High Court provides that If the accused is convicted, the Court

shall pass sentence according to law.

9. Likewise if an accused pleads guilty to a charge, the plea shall be

carefully recorded and once the plea of guilty is accepted, he may

according to law. See respectively section 173 (b) as well as

178 (2) and 183 CPC.

10. Common to the provisions referred to above is that the court

shall pass sentence according to law. The case of Jafa bin

Daud [1981] 1 MLJ 315 illustrates the phrase to mean as:

A sentence according to law means that the sentence must not

be assessed and passed in accordance with established judicial

principles. In assessing sentence, one of the main factors to be

considered is whether the convicted person is a first offender. It is

for this purpose that before passing sentence, a magistrate is

required to call for evidence or information regarding the

background, antecedent and character of the accused. Where the

convicted person has previous records and admits them as correct,

the court must consider whether the offence or offences committed

previously were of similar nature as the one with which he is

presently charged. The court must then consider the sentences

imposed in the previous convictions for similar offences to

determine whether they have had any deterrent effect on him.

Where he is found to be a persistent offender for a similar type of

offences, then it is in the interest of justice that a deterrent

sentence should be passed and, in such a case, unless there are

exceptional circumstances, the quantity, nature or value of the

subject-matter of the offence with which he is currently charged

can very rarely constitute a mitigating factor.

11. In arriving at an appropriate sentence according to law the

court in the main will consider the:

Accuseds plea in mitigation.

Any submission the prosecution may make on the

aggravating factors relevant for the court to consider.

The victim impact statement by the victim of the offence or

a member of the victims family.

12. Whether the prosecution will press for a deterrent sentence or

not depends entirely on the facts, circumstances of the case as well

as the criminality of the accused.

13. But it is important and salutary for the accused to plead in

mitigation of the sentence.

14. The plea in mitigation is central to the sentencing process as

when the court assesses an appropriate sentence to be passed, it

will observe first the maximum punishment prescribed by the law

in the penal provision and then it may make an allowance

according to the plea in mitigation by the accused. As DA Thomas

says in his book entitled Principles of Sentencing at page 39