1.

0 Case: PP v MOHAMMAD ARFAH JASMI [2008] 7 CLJ 836

High Court Sabah & Sarawak, Kuching-Appeal Case

1.1 Facts of the case:

This is an appeal for a statutory rape case on the ground that the sentence given in the trial
court was inadequate.

The 20 years old accused was charged with statutory rape of his lover aged 13. It was evident
that she consented to have sexual intercourse with the accused when they spent the night
together at a friend’s house. It is disclosed that while the victim was playing at her neighbor’s
house, the accused came and took her out to Pertrajaya Complex. Later around 11.30pm, the
victim refused to go home in fear of being scolded by her father. Thus, the Respondent
brought the victim to the house of Raduan bin Mos (a friend) at about 12.30am where they
were allowed to sleep in the sitting room. Then, the offence was alleged to have been
committed at about 3am.

1.2 Ratio Decidendi:

1.2.1 Session Court

The judge in the session court found that 5 years of imprisonment per se is sufficient to be
imposed to the offender. She quoted the case of Mohd Salleh bin MK Mohd Yusof v
Pendakwa Raya [2005] 3 AMR 107 in deliberating the correct judgment. In this case, two
victims aged 14 and 15 were deceived by the accused into believing that he was a movie
producer and a bomoh to which consent was given for the act of sexual intercourse. The
Session Court sentenced him to 5 and a half years of imprisonment for each offence but the
punishment was enhanced to 10 years and 3 strokes of the rotan by the High Court upon
appeal. Nevertheless, the Court of Appeal then took into account the consent and restored the
sentence of the Session Court.

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Therefore, the Session judge in the instant case was of the opinion that there is all the more
reason to adopt the approach of the Mohd Salleh case as the accused and the victim were
lovers and the accused was also young (20 years old) at the time of the commission. After
undertaking the forgoing circumstances, 5 years of imprisonment was sentenced and no
whipping was imposed as there was no violence used for the commission of the offence.

1.2.2 High Court

i) The Appellant’s contentions

In pursuit of seeking a higher imposition of punishment, the appellant firstly referred to the
case of Leken @ Delem Ak Gerik (m) v. Public Prosecutor [2007] 3 AMR 230 where it was
stated that whipping has a practical and tactical significance in that even ferocious mammals
have been trained by a cane, notwithstanding the fact that it can also be achieved by love and
affection. The appellant quoted the word of the present judge in the case where he (Hamid
Sultan Abu Backer JC) propounded as follows:

“In the case of unchaste act between consenting parties, and for the first time
offenders, the punishment of whipping without the need for long term
imprisonment will be a sufficient deterrent and effective form of rehabilitation and
to some extent will be seen as retributory punishment to heal the unseen wounds
of the victim, their family, as well as the public sentiments for harsh punishment
for perpetrators of the sin”

Secondly, the appellant referred to PP v Loo Choon Fatt [1976] 2 MLJ 256, where Justice
Hashim Yeop A Sani opined that:

“President and Magistrate are often inclined quite naturally to be over-

sympathetic to the accused. This is a normal psychological reaction to the
situation in which the lonely accused is facing an array of witnesses with
authority. This in my view is a wrong approach. The correct approach is to strike
balance, as far as possible, between the interests of the public and interests of the
accused”

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Thirdly, the appellant cited the observation of Lord Goddard LCJ in Rex v. Grondkowski
(supra), where it was stated that:

“The judge must consider the interests of justice as well as the interests of the
prisoners. It is too often nowadays thought, or seems to be thought, that the
interest of justice means only the interests of the prisoners.”

Lastly, in PP v. Yap Huat Heng [1986] 1 CLJ 81, Justice Shaik Daud expressed that:

“In specific offences the court should not place too much emphasis on the fact
that the offender is young and a first timer. Public interest demands that in such
cases a deterrent sentence ought to be given.”

In short, all of the five judgments quoted by the Appellant depict the reluctances of the courts
to give away inadequate sentences to the accused. This is because the judiciary body carries
the burden in delivering justice for all parties but it currently seems that the court is more
inclined to preserve the interest of the prisoner due to sympathetic sense.

ii) High Court Judge

The High court judge then relentlessly repeated that it is wrong in principle for the
prosecution to file appeals and clog the criminal administration of justice purely on the
grounds of inadequacy of sentence; that too in cases of first offenders when the prosecution
cannot demonstrate that the trial court has erred in law in failing to take into considerations
the guiding principles for sentencing. The court referred to the judgment in the Brunei case of
Taib bin Gemok v. Public Prosecutor [1984] 1 MLJ 313 which states that:

“The modern tendency in sentencing, as I understand it, is not to try to fill the jails
at every conceivable opportunity, but only to send people to prison where this is
essential in the interest of society. I certainly do not regard it as in the interest of
society to send people previously of good character, particularly young people, to
prison when there are other adequate means of dealing with them.”

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The above quote is one which the prosecution must be in a position to comprehend with
before approaching the appellate bench as the judge in the instant case is of the opinion that
the accused is a good young man who repented for the offence committed. Thus, such
stringent approach will only defeat the purpose of justice.

1.3 Held:

In dismissing the appeal, the High Court concluded that it is principally wrong for the
prosecution to file appeals and clog the criminal administration of justice purely on the
grounds of inadequacy of sentence especially in cases of first offenders when the prosecution
has failed to demonstrate that the trial court has erred in law to abide by the considerations in
the guidance principles of giving sentences.

1.4 Legal Reasoning:

The reasoning behind the decision deduced was because in the instant case, it is unlike rape
where it is a violent offence. Statutory rape is an offence of passion and consent by parties.
Thus, Parliament has left the discretion entirely to the court to impose sentences subjected to
the minimum sentence of five years and whipping is only optional. Also other circumscribed
factors that reflect the court’s judgment includes that the offence committed was based on
mutual consent by both parties. Secondly, it is convinced that the accused has a good sense in
pleading guilty to a charge of rape and was cowered with remorse who knew about his
wrongdoing and willing to pay for his mistake. Also, there was no physical force used.
Lastly, he was willing to marry the victim but his intention was rejected by the victim’s
parents as she was still schooling. All of these facts were taken into account in sentencing the
accused and were deemed to be a proper and adequate sentence in accordance with Section
376 of Penal Code.

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1.5 Conclusion:

From critically scrutinizing the application of the rule of law, this writer humbly opines that
the trial court has been over-sympathetic to the accused. Irrespective of the mutual consent
and that he was a first time offender; the judicial precedents and deliberation by judges from
cases cited by the appellant have vividly laid the importance of being strict in imposing
sentence. The court needs to consider public policy and the tactical significance of whipping
envisioned by the Parliament. It is the judiciary’s duty to restore rule of law and preserve the
interest of the public where in such cases, a preventative punishment is ought to be given.

Nevertheless, not to emasculate the principle propounded by the High Court judge, it has
been concluded that the essence of the case in PP v Mohammad Arfah Jasmi is that it is not
permissible for the prosecution to file appeals and clog the criminal administration of justice
solely on the basis that the sentence imposed previously was inadequate as the court has the
discretion to impose punishment provided that it is subjected to the statutory provision under
the Penal Code. Therefore, without any substantive basis, the High Court could not overturn
the sentence imposed by the trial court.

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2.0 Case: HERLINA TRISNAWATI v PP [2008] 1 MLJ 478

Court of Appeal Putrajaya-Appeal case

2.1 Facts of the case:

This is an appeal case for the offence of murder sentencing the appellant to be hanged.
The appellant was sentenced for death penalty in the High Court for the murder of her female
employer, Soon Lay Chuan (“hereinafter referred as the deceased”). The appellant, who
worked as a domestic maid, contended that she was often abused mentally and physically by
the deceased throughout the course of her employment. The deceased often shouted “emak
kau mati!” and “bodoh!” in anger to the accused each time she made a mistake.

On 14th August 2001, the deceased’s husband (“hereinafter referred as Yegaraj”) went off to
Kota Bharu for business to which he then received a call from his secretary informing that
there was a police officer waiting outside his house as a report that his maid was bleeding had
been made. However, Yegaraj was further informed by his secretary that his maid has refused
to open the gate in allowing the policeman to enter the house with the reason that she was not
allowed to let anyone in when there is no one at home. Upon convincing that the cut she had
that caused the appellant to bleed was from her cutting the chicken, the officer was left with
no choice but to leave.

Meanwhile, Yegaraj attempted to call the deceased many times but to no avail. Therefore,
Yegaraj sought the help of his friend, Simond Soon Lian Bend (“SP7”) to check the house
but was restricted from entering once again by the appellant. However, upon forcing the
appellant to let him in, SP7 found patches of blood stains and the body of the deceased lying
prone on the toilet floor with pestle and two knives near to the deceased’s leg. SP7 then
called the police.

Upon hearing the testimony of the appellant, the trial judge decided that she was not being
consistent in respect to the event and that she lied about having the cut from cutting chicken.
Therefore, she was sentenced to be hanged and further made an appeal.

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2.2 Ratio Decidendi:

The appellant’s counsel contended that the learned judge has misdirected himself and erred in
law when he stated categorically that the distinction between culpable homicide not
amounting to murder and murder is only if any one of the five exceptions set out in section
300 of the Penal Code applies.

Therefore, in correcting the principle that portrays the difference of the two, the court firstly
referred to the case of Tham Kai Yau & Ors v Public Prosecutor [1977] 1 MLJ 174 where
at p 176 Raja Azlan Shah FJ discusses on the distinctions between the provisions of s 299,
Penal Code and s 300, Penal Code.

“Where there is an intention to kill, as in (a) and (1), the offence is always murder.
Where there is no intention to cause death or bodily injury, then (c) and (4) apply.
Whether the offence is culpable homicide or murder depends upon the degree of
risk to human life. If death is a likely result, it is culpable homicide; if it is the most
probable result, it is murder.”

This bears the meaning that if the act must in all probability to cause death; the offence is
within s 300 of the Penal Code. However, if the act is only likely to cause death, the offence
falls within s 299 of the Penal Code.
In the present case, the nature of the injuries sustained by the deceased in respect to the time
and place of the incident, there was substantiation of an intention on the part of the appellants
to cause bodily injury to the deceased. As aforementioned, it seemed that 90% of the injuries
on the body could not have caused death but only to cause hurt.

Secondly, the court quoted the case of Nor Hasnizam bin Abd Latif v Public Prosecutor
[2002] 1 MLJ 154 where Mohd Saari JCA after referring to Tan Buck Tee v Public
Prosecutor [1961] MLJ 176, said that on the question of intention to kill, it is a matter of
inference from the nature of the wounds.

In the instant case, it was found that 90% of the injuries on the body could not have caused
death but only to cause bodily injury.

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Thirdly, in the case of Tan Buck Tee, Thompson CJ observed that there was the body with
five appalling wounds on it, wounds penetrating to the heart and liver which must have been
caused by violent blows with a heavy sharp object such as an axe. Thus, in the absence of any
material circumstance, whoever inflicted those blows must have envisioned and intended to
kill the victim.

In the instant case, the Appellant’s counsel contended that the trial judge has erred in fact and
law when he rejected the sworn testimony of the appellant on the basis that her verification
was not supported by the evidence deduced.

It was further clarified by Mokhtar Sidin JCA, that since the head and neck injury were the
direct cause of the death of the deceased, the only issue to be determined is whether the said
injuries were caused, directly or indirectly, by the accused with the intention to kill the victim
or with the intention of causing such bodily injury sufficient in the ordinary course of nature
to cause death to the victim. It was then deliberated that the determination of the degree of
force with which the pestle was in fact used cannot be of paramount significance in
relation to the charge of murder.

2.3 Held:

Allowing the appeal, the learned trial judge has erred in sentencing death penalty to the
accused for the offence of murder by virtue of Section 300. It was held that the learned judge
should have considered whether the evidence deduce by the appellant, irrespective of its
truthfulness, had raised a reasonable doubt in his mind. The learned judge should have
considered whether there was a probability in the evidence and not whether he believed the
testimony or vice versa. Therefore, the Court of Appeal has concluded that the learned judge
had erred in omitting to evaluate the appellant’s evidence holistically solely on the ground
that she did not reveal truthfully with regard to the way she obtained her injury. As a
consequence of that, the evidence illustrated that the appellant had committed culpable
homicide punishable under the first limb of Section 304 of the Penal Code and not murder as
the appellant’s doing only constitutes an act of causing bodily injury as was likely to cause
death.

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2.4 Legal Reasoning:

The reason behind the decision concluded in this case was due to the fact that the act of the
Appellant in causing the death of the deceased through the head and neck injury have raised a
doubt in respect to the actual intention of her causing the death. The trial judge has erred in
deciding that the degree of the intention is amounting to murder as there is a fine line
between intending to kill and intending to cause bodily injury which eventually resulting to
cause death. In the instant case, the trial court did not take into account the accused’s
testimony when it is apparent that it is the situation of the latter. Hence, it is predominantly
crucial for the court to take into account every evidences put forward as it reflects the degree
of intention on the part of the accused. It is also substantial as the court is ought to impose the
correct charge and sentences for the accused.

2.5 Conclusion:

It is fundamental to distinct the degree of intention in determining the case of murder or

culpable homicide. In the case of Herlina Trisnawati v Public Prosecutor, irrespective of the
fabrication asserted by the appellant during her testimony, it is the judge’s obligation to
consider whether such occurrence could incite any reasonable doubt. Hence, it has been
concluded that the act of causing head and neck injury to the deceased did not illustrate an
intention to kill as punishable for the offence of murder under Section 300. Nevertheless, it
will result to the offence equating to culpable homicide punishable under the first limb of
Section 304 of the Penal Code. As a result, the appeal was allowed and the accused was
sentenced to 18 years imprisonment and not hang to death.