Reports of Experts

Sec. 399(1): A report may be tendered as evidence in a trial, unless the maker is required to
attend as a witness:
- (a) by the court; or
- (b) by the accused, who must give notice to the prosecution not less than three clear
days before the commencement of the trial;
Provided that the prosecution has delivered a copy of the report to the accused not less
than ten clear days before the commencement of the trial.
Calculation of ‘clear days’:
- KFC Sdn Bhd v Lembaga Bandaran Petaling Jaya: A period of days from the happening
of an event or the doing of any act or thing shall be deemed to be exclusive of the day
in which the event happens or the act or thing is done.
- Thus, the ‘clear days’ should exclude the date the report/notice was served as
well as the date upon which the trial is set to commence.
- E.g: Where the trial is set to commence on 12th May, the report must have
been delivered to the accused by 1st May and the accused must have given a
notice (if any) by 8th May.
Delivery of a copy of the report to the accused:
- In order to successfully tender a report as evidence, the prosecution must prove that
a copy of the report was delivered to the accused within the time stipulated.
- Failure to do so renders the report inadmissible in evidence.
- Wong Kok Keong v R: In this case, the trial commenced on 28 October, but a
copy of the chemist’s report was served on the accused on 18 October. Held:
The report was inadmissible as the copy was not served ten clear days before
the trial.
- The trial court erred in thinking that adjourning the case till the
following day, when the ten clear days have run out, would cure the
defect.
- An adjournment before any evidence is tendered would have rectified
the defect; but once the trial had commenced no adjournment could
alter the fact that a copy of the report had not been served ten clear
days before its commencement.

- Safri Koboy v PP: In this case, where the prosecution failed to serve a copy of
the medical report ten clear days before the trial, the court held: It is
incumbent on the prosecution to obtain the necessary evidence from the
doctor through an oral examination of him from the witness box and the
evidence of the doctor must be viewed and considered on its own without
relying on the medical report.

- However, where there is a retrial, a fresh copy of the report must be served.
 - Tan Lay Chen v PP: Where an accused pleads guilty, the proviso to Sec. 399(1) does
not need to be complied with.
- The proviso to Sec. 399(1) becomes applicable only in a case where the Public
Prosecutor ‘intends to give in evidence’ any report. Following a guilty plea, the
prosecution is only required to give a summary of the facts of the case. This
does not require the facts of the case to be proved by calling evidence. If the
need arises, the chemist report can be proved with ease by calling the chemist.
Therefore, there is no necessity to comply with the ten-day rule following a
guilty plea as there is no requirement to adduce any evidence at that stage.
Attendance of the maker:
- Where the defence requires the attendance of the maker, notice must be given not
less than three clear days before the commencement of the trial.
- The absence of such notice means that the report is accepted as conclusive
evidence of its contents.

- Once a notice is given by the accused, the prosecution cannot dispense with calling
the maker as a witness and the report cannot be admissible in evidence.

- Chah Siew Kok v PP: In this case, the chemist’s report, which the prosecution heavily
relied on, was duly served in accordance with Sec. 399. The accused then gave notice
to the prosecution not less than three clear days before the commencement of the
trial that the chemist would be required by the defence to attend as a witness.
However, despite the notice from the accused, there was no objection to the
admission of the report or any mention of the request by the accused’s counsel, thus
the chemist was not called to the witness box. In its submission of no case to answer,
there was also no objection raised by the defence to the admission of the report. Only
at the defence stage was an objection raised, but this was overruled and the accused
was then convicted. On appeal, the defence contended that the report was
inadmissible, whereas the prosecution contended that there was a waiver by the
defence with regards to the calling of the chemist because of their silence or inaction
when it was put in evidence and thus, the report was properly admitted. In allowing
the appeal and setting aside the conviction, the court found the report to be
inadmissible and held:
- Sec. 399 confers a discretion on the court to allow the admission in evidence
of a report without calling the maker. The court can conversely exercise its
discretion to refuse its admission in evidence. If a report is admitted in
contravention of the provisions of Sec. 399, it will be an irregularity of a serious
nature and the report in such circumstances is inadmissible evidence.
- The report in this instance has throughout the case remained inadmissible,
without undergoing any change, regardless of whether the calling of the
chemist was waived by silence or inaction of the accused, or not.
- A waiver cannot be raised against Sec. 399 which imposes a duty on the
prosecution to call the chemist as a witness, for the benefit of accused persons
 who form a section of the public. Thus, any admission of inadmissible
evidence even with consent or by a waiver of the accused is wrongful and
such inadmissible evidence remains inadmissible evidence, the effect of
which is open to any court to assess.
Use of the report:
- The effect of the compliance with the proviso to Sec. 399(1) allows the report to be
received at the trial as evidence of the truth of its contents without the need to call
the maker as a witness.
- PP v Lam Peng Hoa: In this case, the chemist report had been served on both the
accused persons in compliance with the requirement under Sec. 399. The chemist was
then called by the prosecution to clarify the report. Held: As the defence had not given
any notice under Sec. 399(1)(b) to require the attendance of the chemist, the report
must therefore be accepted as conclusive evidence for the prosecution of the finding
of the chemist.
- The chemist, if called, would not be allowed to give any evidence in respect
of the conduct of her analysis of the drug.
- (i) As the chemist report had been tendered as substantive evidence
under Sec. 399, no oral evidence can be given by the chemist of her
analysis of the drug. To allow the chemist to give such evidence would
tantamount to allowing the admission of two sets of substantive
evidence from the same witness.
- (ii) Once a report has been admitted as substantive evidence under
Sec. 399 it falls squarely into that class of matter ‘required by law to be
reduced to the form of a document’ under Sec. 91 of the Evidence Act.
It would not therefore be permissible by the operation of Sec. 91 of
the Evidence Act for the prosecution to give any other evidence in
proof of the matter, except the document itself.

- However, in Muhammed Hassan v PP: In this case, despite having served a copy of the
report as substantive evidence in compliance with Sec. 399, where the prosecution
chose to not rely on the report, the court held that the prosecution was not barred
from calling the chemist as a witness. Therefore, the report was no more than
corroborative evidence affirming the chemist’s evidence that he had examined and
analysed the plant materials and found them to be cannabis.

- Thus, although the general rule is that the maker of the report cannot be called if his
presence is not required by the court or the defence (through a notice given) under
Sec. 399, the exception is that the maker can be called for the purpose of clarification
or corroboration.
Calling or Recalling of Witnesses
Sec. 425: Any court may at any stage of the trial summon any person as a witness, or examine
any person in attendance, or recall and re-examine any person already examined, if his
evidence appears to the court to be essential to the just decision of the case.
In determining whether an application to recall a witness should be allowed, the court should
consider:
- (i) At what stage is the evidence sought to be adduced
- After the close of the prosecution’s case, but before a prima facie case has
been established:
- The general rule is that once the prosecution has closed its case, the
court will not allow the recalling of any witnesses.
- PP v Kenneth Fook Mun Lee: Where the defence suggested in the
course of the case for the prosecution strikes at the very core of its case
and evidence to rebut the suggestion is available, the prosecution must
adduce such evidence before closing its case.
- PP v Kow Yew Lee: At this stage, the power of the court under Sec. 425
should only be exercised with strong and valid reasons as the effect of
recalling witnesses after the close of the prosecution’s case would be
as if the prosecution has not closed their case.

- At the defence stage; whether the evidence is foreseeable:

- Balfour v PP: The court’s power under Sec. 425 should be exercised only
in rare cases, for instance, where one side has raised a point which the
other could not have foreseen.
- PP v Kenneth Fook Mun Lee: Where the evidence sought to be
introduced is itself evidence probative of the guilt of the accused and
where it is reasonably foreseeable by the prosecution that some gap
in the proof of guilt needs to be filled by evidence called by the
prosecution, then the court is likely to rule against the closing of any
such gap.
- In order to successfully introduce new evidence at this stage, it
is sufficient if such evidence was not reasonably foreseeable.

- (ii) The nature of the evidence

- The court must determine whether the evidence sought to be adduced is of a
formal or technical nature.
- PP v Phon Nam: In this case, two chemist reports were served on the accused
by one Detective Police Constable (DPC) Yunan. However, the prosecution
failed to call him or offer him to the defence. At the close of the prosecution’s
case, the prosecutor conceded that the omission to call the constable was an
oversight on the part of the prosecution and an application was made under
Sec. 425 to call DPC Yunan, but was then refused by the trial judge. On appeal,
 the Supreme Court held: Where no challenge was in fact made by the defence
counsel that the service was not properly effected, evidence by DPC Yunan
would be a mere formality to confirm the endorsements that the accused had
made on the reverse of the reports. The judge clearly failed to appreciate this
and consequently there was a failure to exercise his discretion properly.
- However, after the case was remitted to the High Court, in Phon Nam
v PP: The prosecution, even after having called DPC Yunan, failed to
establish proper service of the reports as DPC Yunan could not
remember if copies of the reports were served on the accused. At the
close of the prosecution’s case, the trial judge invoked Sec. 425 and
allowed the prosecution to recall two witnesses, including DPC Yunan,
to clarify the dates of the chemist reports. This subsequently led to the
accused’s conviction. On appeal, the Supreme Court, in allowing the
appeal, held: The trial judge went beyond the object of the law and
did not properly exercise his discretion under Sec. 425. The exercise
of the discretion is not an arbitrary decision to favour the prosecution
or the defence.
- PP v Lin Lian Chen: The discretion is never intended to make
‘emergency repairs’ to the prosecution’s case.
- Thus, a balance must always be maintained between the interest of the
accused and the duty of the prosecution.

- (iii) Whether the evidence will help the prosecution’s case; how does it fit with the
rest of the evidence adduced
- If the application is allowed, will the evidence adduced strengthen the
prosecution’s case; close any gap in the prosecution’s case; or rectify any
defects in the prosecution’s case?
- PP v Ibrahim Arifin: Such discretion should not be exercised where the
defence has begun their submission of no-case-to-answer and the
application of the prosecution is for the purpose of effecting repairs on the
prosecution case to counter points submitted by defence in their submission.
- In this case, the court was of the opinion that the defence was not
prejudiced by the prosecution being allowed to call witnesses
considering that the application was made immediately after the close
of the prosecution’s case for the purpose of ascertaining the
whereabouts of a witness and it was not a case where the defence had
begun their submission of no-case-to-answer and the application was
for the purpose of effecting repairs on the prosecution’s case to
counter points submitted by the defence in their submission.
- (iv) Whether the evidence will be prejudicial to the accused
- The application, if allowed, should not deprive the accused of the benefit of
raising doubt in the prosecution’s case.
- PP v Seach Bee Lye: In this case, the accused was charged with an offence under
the Dangerous Drugs Act. During the trial, the investigating officer (IO) was not
questioned on the custody of the drugs, resulting in a gap in the prosecution’s
case. At the close of the prosecution’s case, an application was made to recall
the IO and a Sergeant for the purpose of explaining the custody of the drugs
and other related exhibits. The application was allowed. On appeal, the High
Court ruled: It is unfair for a court to allow the application after the
prosecution had closed its case where the calling or recalling of witnesses
would help tighten the prosecution’s case. This would close off any
opportunities for the accused to use the weaknesses and mistakes of the
prosecution in his defence and to make use of the benefit of the doubt.
Where the carelessness was caused by the prosecution, the court cannot help
it to such an extent that it jeopardises the rights of the accused.
Change of Magistrate
Sec. 261: Whenever there is a change of Magistrates, the second Magistrate may act on the
evidence recorded by the previous Magistrate, or partly by his predecessor and partly
recorded by himself or he may re-summon the witnesses and recommence the inquiry or
trial:
- Provided that:
- (a) in any trial the accused may, when the second Magistrate commences his
proceedings, demand that the witnesses or any of them be re-summoned
and re-heard.

- The provision accords a Magistrate or President with complete discretion in relation

to part heard cases, whereby he may elect to order a retrial (trial de novo) or continue
the trial from where it was left off by the previous Magistrate or President.

Trial de novo:
- Chong Kwee Hian v PP: Despite the fact that the provision accords the Magistrate
complete discretion, it is always very highly desirable that judgment should be given
in any case by a Magistrate who has heard and recorded all the evidence himself and
has seen and heard all the witnesses.

- Teay Wah Cheong v PP: Unless it would cause hardship and great inconvenience to
the accused and witnesses, it is much better for a President or a Magistrate to hear
the case ab initio rather than take over the recording of evidence from the other
President or Magistrate. For one thing, the succeeding President or Magistrate
cannot assess the value of the evidence recorded by his predecessor with regards to
the credibility of the witness.
- In this case, where the accused was charged under Sec. 304A, a President of
the Sessions Court recorded evidence of eight witnesses. He was then
succeeded by another President of the Sessions Court. The second President
recorded further evidence and came to a finding. In his grounds of judgment,
the President stated there was in fact only one eye-witness to the accident,
whose evidence was recorded by the present President. However, the whole
record showed there were in fact two other eye-witnesses whose evidence
was recorded by the former President. Thus, the High Court set aside the
conviction of the accused.

- Mohamed Idris Haji Mohamed Said v R: The accused was convicted by a Magistrate on
evidence partly recorded by him and partly by his predecessor. The witness whose
evidence was acted on by the succeeding magistrate was a crucial witness and there
was nothing to prevent this witness from giving evidence if there had been a trial de
novo. In ordering a new trial, the High Court held: The power given under the provision
is of value, particularly when it is used for evidence of a more or less formal character,
or where the witness cannot be produced. In the present case the witness whose
 evidence was so acted on was a crucial one and a decision cannot be regarded as
satisfactory where it is based on evidence given before another Magistrate,
particularly when there is nothing to prevent the witness from giving evidence on
the further hearing.

- Oh Keng Seng v PP: The provision which empowers the succeeding Magistrate or
President to act on the evidence recorded by his predecessor is no doubt intended to
save time and money and to expedite the disposal of part-heard criminal cases. This
provision however should be exercised with caution. It must be appreciated that the
succeeding Magistrate or President who acts on the evidence of witnesses whom he
has not heard and seen is obviously at some disadvantage particularly in respect of
the demeanour and credibility of those witnesses. There is therefore a real risk that
evidence not wholly recorded by a Magistrate or President but which is acted on by
him may materially prejudice an accused person where a decision involving the
credibility of a witness is based on that evidence. The provision however may
generally be exercised where the evidence to be acted on is more or less formal or is
largely uncontroversial and where the credibility of any material witness is not
involved.
- In this case, where the accused was charged with uttering seditious words, by
the very nature of the charge the credibility of witnesses is bound to be of
paramount importance. Therefore, it was not a proper case where the present
President of the Sessions Court may continue from where it was left by his
predecessor and act on the evidence already recorded. Furthermore, all
thirteen prosecution witnesses were readily available to give evidence. Where
the hearing by the previous President lasted only six days, a new trial would
not result in much loss of time and expense. Thus, the High Court ordered for
the accused’s trial to be heard de novo.
Continuation of the trial:
- If the Magistrate or President chooses to continue the trial, he is empowered to act
on the evidence which has already been recorded by his predecessor, subject to the
right of recalling witnesses as provided for in the proviso.

- PP v Goh Chooi Guan: In this case, where there was a change of the President of the
Sessions Court, the defence counsel requested for the trial to be commenced de novo.
In exercising its revisionary powers, the High Court found that the circumstances of
the case are such that if the trial is ordered to be heard de novo, it would affect (i) the
six accused persons who are already acquitted and discharged, (ii) the trial within a
trial in which the statement by the sixth accused has been admitted because the
prosecution witnesses will have to be recalled for their evidence to be recorded, and
(iii) the evidence of the witnesses which may change due to the lapse of two years.
Thus, the High Court ordered for the case to continue to be heard by the President of
the Sessions Court.
 - Mohamed Anuardin Abdul Salam v PP: In this case, the accused appealed against the
decision of the Sessions Court judge to exercise his discretionary power in ordering
that the case against the accused which was partly heard by the previous Sessions
Court judge be continued by him from the point where it had been left, and not de
novo. In dismissing the appeal, the High Court held: To hear the case de novo would
not be the best course to adopt as the ability of the witnesses to recall events may
have diminished with a lapse of six years. It would also unnecessarily prolong the
trial and increase the expenses.

- Mohamed Idris Haji Mohamed Said v R: In exercising his right to continue the trial, the
Magistrate or President should, whenever possible, have crucial witnesses recalled.
Proviso (a) to Sec. 261:
- Chelliah v PP: Where a case is partly heard before one Magistrate and adjourned and
the hearing is resumed before another Magistrate, it is obligatory for the second
Magistrate to recall witnesses if the accused asks for them.
- The word ‘demand’ makes it obligatory for the Magistrate to recall such
witnesses and leaves no discretion to the Magistrate to act upon evidence
partly recorded by his predecessor and partly by himself.

- Abdul Hamid Udin v PP: However, the proviso does not apply where the defence has
been called since there can be no question of the succeeding judge changing that
decision. The succeeding judge can only proceed with hearing the defence and render
a decision upon a review of the written record of evidence from the preceding judge,
and it is for the appellate court later to consider the issue whether the accused has
been materially prejudiced.
Adjournment
Sec. 259: A court has the discretion to order a postponement or adjournment of a trial where:
- There is an absence of a witness, or
- Tan Foo Su v PP: A postponement or adjournment of a trial becomes desirable
when a witness who has been named by an accused person is absent on the
date of trial. The absence of a witness affords a reasonable cause for
adjourning a criminal trial. Every latitude must be given to an accused person
to defend his case and to call witnesses, more so when the accused person is
not represented. The court found that circumstances of this case warranted an
adjournment to allow the witness named by the accused to be called.

- PP v Low Yong Ping: In this case, after the evidence of three prosecution
witnesses had been taken, the prosecution sought for an adjournment on the
ground that the Investigation Officer and the Police Photographer were not
available as they had gone to the High Court for a case. The other witnesses
were also not available although subpoenas had been issued for their
attendance. The prosecution applied for an adjournment to another date.
However, the Magistrate refused the application and acquitted the accused.
On appeal, the High Court in allowing the appeal and setting aside the
acquittal, held: The absence of prosecution witnesses “because they had
gone to the High Court for a case” is undoubtedly reasonable cause for an
application for adjournment because there can be no suggestion that
attending the High Court as a witness is even remotely likely to be considered
a frivolous ground. Nor had there been any repeated postponements or
adjournments previously obtained on frivolous flimsy grounds by the
prosecution disentitling it to any further adjournments.

- For any other reasonable cause

- Mohd Ekram v PP: Two days before the trial counsel for the accused sent a
letter along with a medical certificate to the Magistrate. The Magistrate
refused an application for an adjournment on the ground that “there had been
many postponements already.” There were several adjournments before
counsel was engaged, but there was nothing in the record to indicate at whose
request they were made (whether it was on the request of the prosecution or
the accused). After counsel was engaged there were also several
adjournments until the case was finally fixed for hearing. In allowing the appeal
and ordering a re-trial, the court held: A postponement is not automatic
following the production of a medical certificate to account for absence of
counsel. Each case should be considered on its merits.

- Kahar Tongah v PP: In this case, counsel for the accused sought adjournment
on the ground that he was just engaged. The prosecution objected and the
Magistrate refused the request stating that the accused had as early as 1988
 (when he was charged) to engage counsel. On appeal it was argued that the
accused was denied legal representation and the court held: There is no
question of refusing or depriving the accused from being represented by
counsel of his choice. The accused had ample time to engage counsel and this
is not a case where the accused was not given a reasonable opportunity to
obtain the service of counsel. Thus, if counsel accepts a brief at the last
minute, he should be prepared to proceed with the hearing or, at least, not
complain in the event of request for adjournment, if applied for, being refused.
- Por Choo Aik v PP: A magistrate must be firm when considering an
application for an adjournment and should not adjourn a case unless
on reasonable grounds. It is not reasonable for an accused to appoint
a counsel at the last moment and then apply for an adjournment.

- Awaluddin Suratman v PP: In this case, the accused were abandoned by their
counsel, but the Sessions Court judge proceeded with the trial. After a few
days, counsel for the accused returned to act for them upon their request, but
disappeared again during the trial-within-a-trial, upon which the case was
stood down. When the trial resumed, the first accused had retained a new
counsel, one Mr Vadiveloo and a short adjournment was requested as he
needed the notes of evidence. The request was not allowed. On appeal, the
court held: Although the court should be strict in dealing with an application
for postponement, the court owes a duty to an accused person to ensure that
he has the benefit of counsel who would be properly able to act on his behalf.
In this case, since counsel had just been retained for the first accused, a short
adjournment would further the interest of justice as counsel needed the notes
of evidence to be better and properly prepared to safeguard the interests of
the first accused.

- Lee Fook Sam v PP: During his arrest the accused engaged the services of two
counsel who then withdrew from the case. The accused was then assigned a
junior counsel by the court. At the commencement of the trial, the accused
expressed dissatisfaction with the counsel and said he wished to engage
another. He was granted an adjournment of 14 days during which he engaged
experienced senior and junior counsel who appeared at the trial. On the third
day of the trial, the senior counsel informed the court that the accused had
withdrawn his instructions from both counsel. The accused confirmed this and
sought for an adjournment to engage another counsel. The request was
refused and on appeal, it was argued that the accused was unduly prejudiced
in the conduct of his defence. Held: When the incident occurred the trial was
entering its third day and all the prosecution’s evidence had been called except
the medical evidence which was not of a controversial character. The fact
remains that for two days, the accused allowed the counsel to conduct his
defence without protest. Thus, his request for an adjournment was
unreasonable and was properly rejected.
- PP v Tan Kim San: The accused was alleged to have committed CBT over a
period of four years. It took the police more than a year to investigate, yet
when the case came up for trial eight months after the accused was charged,
investigations had still not been completed and the police said they needed at
least another six months. Thus, the prosecuting officer applied for
postponement on the ground that investigations had not been completed,
which was granted by the magistrate. On appeal, the court held: This is a clear
case of premature prosecution. What if the investigations disclose that there
is insufficient evidence to prosecute the accused or worse, if he was innocent?
On these facts, the charge as it stands, is clearly groundless. In these
circumstances, the Magistrate ought to have exercised his powers under
Sec. 173(g) and discharge the accused instead of granting a postponement of
the case.

- PP v Mohtar Abdul Latiff: In this case, counsel for the accused applied
successfully for the postponement of the trial as he claimed to be engaged in
other courts. On appeal, the court held: The general rule is that trial dates are
fixed at the convenience of the court on a first come-first served basis. Thus,
the counsel had no good or cogent reasons to apply for postponement and
when the dates for trial were fixed he should not have accepted briefs which
clashed with the trial date of the case.
Questions by the Court
Sec. 256(1): The court has the discretion, at any stage of the trial, to put questions to the
accused as it may consider necessary.
- The questions put to the accused are to:
- Enable him to explain any circumstances appearing in the evidence against him
- Ascertain how he may be able to meet facts disclosed in evidence against him
in order for such facts to not stand against him unexplained

- However, the questions put should not be:

- A general examination by the court
- Merely to supplement the prosecution’s defective case
- For the purpose of inducing the accused to make incriminating statements
Sec. 165, Evidence Act: A judge may, in order to discover or obtain proper proof of relevant
facts, ask any question he pleases, in any form, at any time, of any witness or of the parties,
about any fact relevant or irrelevant.
- The power to ask questions under this provision does not apply to a Magistrate.
Scope of questioning:
- Jones v National Coal Board: The plaintiff, a widow of a coalminer, who died in the
course of his employment, brought an action against the National Coal Board. The trial
was concluded and the plaintiff filed a notice of appeal stating several grounds
including: “that the nature and extent of the judge’s interruptions during the hearing
of the evidence called on behalf of the defendants in particular made it virtually
impossible for counsel for the plaintiff to put the plaintiff’s case properly or
adequately or to cross-examine the witnesses called on behalf of the defendants
adequately or effectively.” The Court of Appeal, in allowing the appeal, found:
- During the examination-in-chief of two of the defendants’ witnesses, the judge
by his interventions took a substantial part of the examination out of the
hands of counsel for the defendants; and by interventions in the course of
cross-examination of the defendants’ witnesses, counsel for the plaintiff was
unduly hampered in his task of testing their evidence.
- Although the judge was actuated by good intentions, the interventions, taken
together, were far more than they should have been.
- The judge’s part in all this is to listen to the evidence, only himself asking
questions of witnesses when it is necessary to clear up any point that has
been overlooked or left obscure; to see that the advocates behave
themselves seemly and keep to the rules laid down by law; to exclude
irrelevancies and discourage repetition; to make sure by wise intervention
that he follows the points that the advocates are making and can assess their
worth; and at the end to make up his mind where the truth lies. If he goes
beyond this, he drops the mantle of a judge and assumes the role of an
advocate; and the change would not do him well.
The intervention by a trial judge becomes inappropriate when:
- The questioning interrupts the conduct of an orderly trial
- Teng Boon How v PP: The accused was charged and convicted of drug
trafficking under the Dangerous Drugs Act. One of the grounds of appeal was
that the judge had assumed the role of a prosecutor by cross-examining the
accused and the defence witnesses not just for the purpose of clarifying
testimony given, but to include matters not arising from the evidence
adduced, and the conviction was based mainly upon the results of such cross-
examination.
- On appeal, the Supreme Court held: Excessive interventions by the trial
judge add great weight to the substance of the appeal, and may result
in the setting aside of a conviction in a criminal case. In certain
circumstances, the criticism of the conduct of the trial judge is of such
magnitude as to constitute a sufficient ground for reversal of the
judgment or quashing of the conviction. In other cases, the appellate
court may reduce the sentence so as to give effect to the disapproval.
Justice is best done by a judge who holds the balance between the
contending parties without himself taking part in their disputations.
- Despite the wide ambit of Sec. 165, the nature of examination under
the provision is not examination or cross-examination for the purpose
of entrapping an accused or of extracting from him damaging
admissions to build up a case against him or to supply a gap in the
evidence for the prosecution, especially in the case of a capital charge.
The failure of a trial judge sitting alone, to direct himself correctly in
accordance with these principles must be treated in the same way as a
failure to direct a jury correctly.
- In this case, the learned judge had fallen into error in descending into
the arena of dispute and in allowing his judgment of the facts to be
clouded by the results of his cross-examination. Taken together these
errors were sufficient to lead to the quashing of the conviction.

- Yap Yeok v PP: In this case, the accused was convicted for possession of
chandu. One of the grounds of appeal was that when the prosecution witness,
an officer, was offered for cross-examination he was interrogated by the
judge before the defence cross-examined him, and that it was this
interrogation which brought out the evidence which bore a lot of weight in the
consideration of the case by the judge. However, the court held: Although it
would have been more correct for the judge to postpone his interrogation until
after the cross-examination and re-examination, if any, of such a witness, it is
open to him to question any witness in the interests of justice, and it is clear
from other evidence adduced that the procedure followed by the judge did not
in any way harm the accused’s case or embarrass him.
- The questions and conduct cause anxiety or concern of bias or prejudgment
- Roseli Amat v PP: In this case, the accused were convicted for raping a
prostitute whom they arrested. On appeal, it was claimed that the judge had
intervened excessively on such a scale that the accused were deprived of a fair
and impartial trial. Amongst the interventions were that the judge had made
adverse comments that strongly indicated that he had pre-determined the
guilt of the accused before considering all the evidence before him. Upon a
review of the passages of transcript, the court, in quashing the convictions,
held: The judge had during the course of the trial, even before the prosecution
had closed its case, indicated that he was certain that the complainant had told
the truth. When the defence was called, the judge in questioning the accused
prematurely expressed his disbelief in their testimony. His interventions
pointed very strongly to the fact that he had not kept an open mind
throughout the trial, nor weighed the evidence carefully and indicated
blatantly that he had pre-determined the material issues adversely against
the accused long before they had fully presented their case.

- The criticism against the counsel suggests a lack of merit in the defence’s case
- Juraimi Husin v PP: The accused who were convicted of murder filed an appeal,
one of the grounds being that the judge was impatient, frequently interrupted
the proceedings by preferring criticism of conduct and made facial grimaces to
such an extent that his behaviour deprived the accused of a fair trial. In
dismissing the appeal, the Court of Appeal held: Cases may occur where
experienced counsel who sees the evidence going against his client, conducts
himself in such a manner as to draw adverse criticism from the trial judge
with a view of later complaining that the ensuing exchange had deprived the
accused of a fair trial. It is therefore of the utmost importance that this court
acts with great care and restraint when entertaining applications that seek to
put in issue the conduct of a trial judge. Unless the evidence sought to be
adduced shows an attack on the case rather than upon the attitude of counsel,
the court should be very slow in a matter of reception of fresh evidence for the
purpose of establishing the deprivation of a fair trial.

- Lim Guan Eng v PP: In this case, the accused was convicted of making seditious
remarks. On appeal, one of the grounds of appeal was that the accused’s trial
was vitiated by reason of certain criticism levelled against his counsel by the
judge in the written grounds of judgment.
- On the first day of the accused’s trial, the court convened at 9 am, but
only at 9.22 am did counsel for the accused (En. Karpal Singh) arrive.
An exchange took place between him and the judge which included
an apology for his tardiness, a remark by the judge about the
punctuality with which he sat, response by counsel that even judges
do not always sit on time and that he would not be cowed by the
court. After the brief distraction, the trial proceeded smoothly to its
 conclusion with no further reference to the exchange between counsel
and the court. However, when the judge came to write his judgment,
he adverted to the incident. He made certain adverse remarks about
the conduct of En. Karpal Singh in relation to the exchange that had
taken place. In particular, he referred to the remark by counsel that he
would not be cowed by the court.
- The Court of Appeal held: The written judgment of the trial judge is
surprising because there was never at any time an indication from him
that he did not intend to let the matter rest. Further, the way in which
the trial proceeded appears to indicate that the incident was over and
long forgotten. In these circumstances, it was wrong for the judge to
have borne the matter in mind and dealt with it the way he did in his
written judgment. However, while the court agrees that the criticism
of counsel by the judge was certainly unnecessary and unwarranted,
it is unable to agree that it had the effect of vitiating the trial. Clearly,
the comments made by the judge against the counsel ought to be
expunged from the record as lacking any proper basis. However, it has
in no way affected the propriety of the trial.
Holding a view of the locus in quo (crime scene)
- The purpose of holding a view of the crime scene is to enable the judge to understand
the questions that are being raised, to follow the evidence, and to apply the evidence.
- R v Lee Ah Phua: A view should take place only after the hearing has begun and its
scope should be limited to an examination of the place. A view should only be used
for the purpose of examining the permanent features of the place. For merely
temporary features, e.g. the position of marks on a road, full use should be made of
plans and photographs coupled with the oral evidence of reliable witnesses. If a view
attempts to do more than this, there is always the objection that the judge is being
converted into a witness.

- Manager, Tuborg (Malaysia) Sdn Bhd v PP: The viewing of the locus in quo may either
be a simple view of an object or place or a view with witnesses in attendance and
giving oral evidence or demonstration. In the first case, no evidence need be recorded
but in the second one, the words spoken by the witnesses form part of the evidence
and should be recorded.
- It is a fundamental principle that a judge must act on the evidence before him
and not on outside information; and, further, the evidence on which he acts
must be given in the presence of both parties. Thus, a view is part of the
evidence, just as much as an exhibit and the judge must make his view in the
presence of both parties, or, at any rate, each party must be given an
opportunity of being present.

- Goh Ah San v R: It is not safe to lay down any rigid rule for the conduct of a view, but
so long as everything said or done is said or done openly in the presence of the
accused and his counsel and is interpreted to the accused, if necessary, and so long
as any new matter or new aspect arising during the view is tested by examination or
cross-examination on return to court, there would be no irregularity in the trial nor
would there be any ground for suspecting that justice did not appear to be done.

- Harban Singh v R: In this case, the accused was charged for an offence under the Road
Traffic Ordinance. The Magistrate after the conclusion of the evidence visited the
scene of the incident in the company of the prosecuting officer but without the
presence of the accused or his counsel, and without having informed either of them
of the time when he proposed to view the scene. As a result of his visit he formed
certain opinions on which his judgment was largely based. On appeal, the court in
ordering a retrial held: If the layout of the scene was of such great importance to the
case, evidence should have been produced on the subject so as to provide the defence
with an opportunity to deal with the matter.

- Thus, the holding of a view must be made in the presence of both parties and
evidence gathered from the view must be subjected to examination before it can be
used.
Impeachment of Witnesses
- A witness, during his testimony, may give evidence which is inconsistent with his
previous statement and the difference may be so material as to amount to a
discrepancy affecting his credit.
- In order to successfully impeach a witness, it must be proven that:
- There was a material discrepancy between the statements made
- The statement was the witness’ own statement
- A statement made by a third party cannot be used to impeach a witness

- The court in Muthusamy v PP found that there are four types of discrepancies:
- (i) Minor differences not amounting to discrepancies
- (ii) Apparent discrepancies
- (iii) Serious discrepancies
- (iv) Material discrepancies

- Minor differences not amounting to discrepancies refers to differences in

interpretation and the way in which the statement was taken and sometimes
to differences in recollection. A perfectly truthful witness may mention a
detail on one occasion and not remember it on another. Thus, a mere omission
is hardly ever a discrepancy.
- However, where the difference is so material (the inconsistency strikes at the
root of the issue) as to amount to a discrepancy affecting the credit of the
witness, the court may permit the witness to be asked whether he made the
alleged statement. If he denies having made it, then either the matter must
be dropped or the document must be formally proved, by calling the writer or,
if he is not available, by proving in some other way that the witness did make
the statement. If the witness admits making the former statement, or is
proved to have made it, then the two conflicting versions must be carefully
explained to him, preferably by the court, and he must have a fair and full
opportunity to explain the difference. If he can, then his credit is saved,
though there may still be doubt as to the accuracy of his memory. This
procedure is cumbersome and slow and therefore should not be used unless
the apparent discrepancy is material to the issue.

- Thus, in determining the credibility of a witness, the court must:

- Identify whether there are any discrepancies
- Determine whether the discrepancies go to the root of the matter (material)
- Identify the inconsistency between the statements
- Seek clarification from the witness
- Determine how much weight should be attached to the witness’ evidence
- Muthusamy v PP: In this case, during the trial he witness, one Usop said “all the
present witnesses were there but I did not notice Mansoor ... there were many people
there.” However, in his investigation statement he had said “I saw A, B, C and one
Mansoor there.” On appeal, the court held: Where A, B and C, and also Mansoor, had
all given evidence and it was not disputed that Mansoor had in fact been present at
the incident, the difference was at most only a difference in recollection as to the
number of persons and no further explanation was necessary. Thus, the trial court had
elaborately investigated a point of no significance.

- PP v Goh Kim Looi: The accused, a 55-year-old woman, was charged for four offences
under the Dangerous Drugs Act. One of the prosecution’s witnesses was her son.
Halfway through his evidence the prosecution applied for the court’s leave to impeach
him due to the following contradictions between his statements:
- In his testimony, he said that he stayed in Room No. 3 upstairs, whereas in his
earlier statement he stated: “Emak saya tinggal di bilik sebelah saya.”
- In his evidence he said: “Saya selalu ada di rumah tersebut”, whereas in his
earlier statement he said: “Saya jarang ada di rumah.”
- In court he said that his mother stayed upstairs in Room No. 1, but in his earlier
statement he stated: “Saya tidur di sebelah bilik emak saya di tingkat atas.”
The defence did not call the witness and did not deny that the statements were in fact
made by him, but left it to the court to consider whether the contradictions, or
apparent inconsistencies were serious enough to warrant impeachment. Held: The
impeachment was refused as the court was of the view that the contradiction centred
on the use of the word ‘sebelah’ and that other inconsistencies in his evidence did not
strike at the root of the issue.
Sentencing
Aims of sentencing:
- Retribution
- Associated with revenge
- Although the justice system has progressed from the practice of “an eye for an
eye” and “a tooth for a tooth”, retribution can be seen through the length of
sentence passed by the courts for serious offences.
- However, the sentence must be proportionate to the crime:
- Cardinal proportionality: Deals with the magnitude of the
penalty requiring that it is not out of proportion from the crime
- Ordinal proportionality: Requires the creation of a scale of
values which is used to assess the gravity of each type of offence
- E.g: Sec. 283(1)(c)

- Deterrence
- To prevent the offender or other likely offenders from repeating the offence
or committing a similar crime in the future
- Specific deterrence: Against the offender
- General deterrence: Against likely offenders
- A deterrent sentence, which is a sentence higher than what is normally
imposed for a certain offence, is of little value with regards to offences which
occur as a spur of the moment, but is of considerable value for premeditated
acts of crime

- Rehabilitation
- Focuses on serving the public interest by helping the offender turn away from
a life of crime and make an honest living
- Aimed at the reformation of an offender’s law-breaking tendencies

- Prevention
- Intends to take away from the offender the power of offending
- This is reflected in sentences such as life imprisonment

- Restoration
- Focuses on the needs of the victims and the offenders, as well as the involved
community
- Provides the offender with the opportunity to integrate back into the society
Mitigating factors:
Age
- Age can only become a mitigating factor where the accused is a minor or a youthful
offender.
- Sec. 2, Age of Majority Act, ‘minor’: A person below 18
- Sec. 96(2), Child Act: A child aged 14 or above shall not be ordered to
be imprisoned if he can be suitably dealt with in any other way.
- Sec. 2, ‘youthful offender’: A person above 18, but below 21
- At the time of the conviction, the accused must be within the age range.

- Teo Siew Peng v PP: In the case of a young offender there can hardly ever be any
conflict between the public interest and that of the offender. The public has no greater
interest than that he should become a good citizen.
- In this case, the accused were convicted of gang robbery and placed under
good behaviour bonds under Sec. 294.

- Tukiran Taib v PP: In this case, the accused, a youthful offender, pleaded guilty to theft
of 167 coconuts. The High Court, in quashing the sentence of 4 months’ imprisonment
ordered by the Magistrate, ordered that the accused be committed for three years to
the Henry Gurney School.
- It is very desirable that a young first offender who is between the ages of 17
and 21 should be kept out of prison, if possible; it would be more beneficial
to him, and in the long run to the community at large, to send him to an
advanced approved school.

- Nor Afizal Azizan v PP: In this case, the accused, a youthful offender, pleaded guilty to
a charge of statutory rape. The Court of Appeal, in affirming the order by the Sessions
Court of a bind over under Sec. 294, held: It is a well-accepted principle of sentencing
that young offenders, wherever possible and depending on the nature of the
offence, should be kept out of prison, especially where there are other adequate
means of dealing with them. The accused was not only a young offender but also a
first offender and considering the nature of the offence and other extenuating
circumstances, the Sessions Court judge was right in exercising his discretion not to
sentence the accused to prison.

- Teh Ah Cheng v PP: The accused, who was a youthful offender, pleaded guilty to two
charges of unlawful possession of firearms. The court in this case did not take into
account his age as a mitigating factor and held: If a person is not too young to have
in his possession and to handle firearms and does so unlawfully then he is certainly
not too young to suffer the penalties prescribed by law.
 - PP v Yeoh Eng Khuan: The accused, a youthful offender, was convicted of drug
possession under Sec. 39A of the Dangerous Drugs Act. The Sessions Court ordered
for him to be bound over for 2 years. On appeal against the inadequacy of the
sentence, the High Court held: Unless the courts take a firm stand in the matter, the
whole purpose of the legislature in enacting Sec. 39A which imposes a minimum
mandatory term of imprisonment of 3 years and a maximum of 14 years would be lost.
Considering the amount and quantity of the drugs found in his possession, the accused
was not merely an addict but an operator of somewhat greater significance. Thus,
the order of the Sessions Court should be set aside and the accused sentenced to
imprisonment for 3 years.

- Koay Teng Soon v PP: The accused, who were youthful offenders, pleaded guilty to a
charge of culpable homicide and were sentenced to 12 years’ imprisonment. On
appeal against the sentence, the Court of Appeal held: The public interest far
outweighed the mitigating factors put forward for the accused with regards to their
age. Given the facts and the serious injuries inflicted that resulted in the death of the
victim, the appropriate sentence would be a custodial sentence of 9 years’
imprisonment on each of the accused.

- Old offenders:
- Sidek Ludan v PP: The accused, a 63-year-old man, was convicted of statutory
rape. The High Court in affirming the trial court’s sentence held: There are no
mitigating factors in favour of the accused aside from the fact that he is 63
years old and cannot be whipped pursuant to Sec. 289. What the appellant
did was indeed despicable and public interest would be best served if he is
kept longer in prison. Age, under such circumstances, becomes an aggravating
rather than a mitigating factor.
Family hardship
- If the commission of an offence occurred as a result of the hardship the accused was
facing with his family, the court may take such mitigating factor into consideration.
- PP v Mohamed Hashim: At the time the accused committed the offence of
misappropriation, his wife was mentally and physically ill as a result of a recent
confinement which caused the accused mental anxiety and placed him in
financial difficulty. This was taken into account by the Sessions Court in
assessing an appropriate punishment.

- However, the fact that the accused’s family will face hardship as a result of the court
sentencing him will not be taken into consideration as a mitigating factor.
- PP v Mohamed Ismail: The accused was convicted under Sec. 39B of the
Dangerous Drugs Act. The court in sentencing him to life imprisonment and 6
strokes of the rattan did not take into consideration the fact that the accused
was married and had children as a mitigating factor since he ought to have
thought about them not after, but before, committing the offence.
 - PP v Yap Koon Mong: The accused was convicted of five charges of rape against
his own daughter. In his plea of mitigation, it was submitted that his family was
unable to cope financially without him and the flat they were living in had not
been fully paid up. The trial court took this into consideration and sentenced
him to a total of 10 years’ imprisonment. On appeal against the inadequacy of
the sentence, the Court of Appeal held: While it was true that a longer
sentence might result in the family suffering from severe financial hardship,
that was not a relevant consideration and, even if that was a relevant
consideration, by the time the accused had served his 10-year sentence, the
victim and her sisters would have grown up and would no longer be reliant
on the accused to provide for them financially. In any event, the family would
be deprived of 10 years’ income from the accused while he was serving his
sentence. Thus, the court sentenced him to a total of 30 years’ imprisonment.
- The crux of the matter is that part of the price to pay when committing
a crime is that imprisonment does involve hardship on the wife and
family, and it cannot be one of the factors which can affect what
would otherwise be the right sentence.
Subsequent conduct
- Where the accused pleads guilty:
- Sec. 172G: If an accused pleads guilty any time before the commencement of
the trial, the court shall sentence him in accordance with Sec. 172D(1)(c)(ii).

- Sec. 172D(1)(c)(ii): Where there is plea bargaining in relation to the sentence,

the court shall sentence the accused to not more than half of the maximum
punishment of imprisonment provided for the offence.
- E.g: Where the maximum term of imprisonment is 7 years, 50% of
which is 3.5 years, the court is allowed to impose a period of 2.5 years’
imprisonment, but not 4 years’ imprisonment.

- Sec. 172D(2): The accused shall not be sentenced to a term of imprisonment

lesser than the minimum term of the offence.

- Sec. 172D(3): Sec. 172D(1)(c)(ii) is inapplicable:

- (a) Where a serious offence is concerned, the accused has a previous
conviction for a similar or related offence.
- (b) Where the offence is:
- (i) One which the prescribed punishment is only a fine
- (ii) One which the prescribed punishment is imprisonment for
natural life
- (iii) A sexual related offence
- (iv) Committed against a child below 12 years old
 - Bachik Abdul Rahman v PP: The position in law is that it is generally accepted
that an accused person should be given credit or discount for pleading guilty.
The discount that is given is normally a reduction of the sentence by about a
third of what would otherwise have been imposed. However, this is not a
strict rule as the court may, in the exercise of its discretion, refuse to grant
any discount in an appropriate case. The circumstances in which a guilty plea
will not have any weight are varied:
- The severity of the offence committed
- Where public interest demands a deterrent sentence in the
circumstances of a particular case
- When no defence to the charge is available to the accused
- If a plea of guilty is made too late in the trial
- The absence of mitigating factors in favour of the accused
There can therefore be no automatic rule that a guilty plea on its own entitles
an accused to a lesser punishment.
- In this case, the accused was charged with raping an 11-year-old. He
pleaded guilty and was sentenced to 18 years’ imprisonment and 12
strokes of the rattan. On appeal to the High Court, the term of
imprisonment was reduced to 15 years on the ground that the Sessions
Court failed to consider the guilty plea of the accused.
Health
- Although an accused’s poor health may help justify a reduction in the sentence
imposed, it can never become a license to commit crime.
- PP v Wong Ah Kean: The fact that the accused had Hepatitis B, high blood
pressure, rheumatism and gastritis and was 61 years old were not considered
as mitigating factors because of his act of terminating a pregnancy with intent
to cause a miscarriage which resulted in the victim dying from severe loss of
blood.
Clean record
- The fact that an accused person is a first offender is a consideration for leniency.
- Abdul Karim v R: In this case, the accused was sentenced to 3 months’
imprisonment on a charge of driving under the influence. On appeal, the High
Court quashed the sentence and imposed a fine of RM400.
- In considering whether a prison sentence should be imposed in the
case of a first offender the facts of the case must be carefully
considered and the gravity assessed according to the yardstick
afforded by the legislature in providing a maximum term of
imprisonment.
- In this case, there was no justification for the imposition of a prison
sentence upon a first offender.
 - However, a clean record will not necessarily be a factor in mitigation where the
offence committed is of a serious nature.
- PP v Ng Ah Tak: In this case, the accused was convicted of acid-throwing and
sentenced a fine of RM400. On appeal, the High Court set aside the sentence
and order a sentence of 3 years’ imprisonment and 6 strokes of the rattan.
- Of all the offences against a person, with the exception of murder,
causing hurt by acid-throwing is the worst; and people who indulge in
it are savages who deserve no mercy as they have shown no mercy to
the people they have attacked. It is absolutely no mitigation in a case
of this kind to say that it is a first offence. The severest penalty is called
for in all cases of acid-throwing.
Impact of conviction
- The person convicted of an offence will not only suffer a consequential loss of
employment, but will also carry around the shame of being a convicted person.
- PP v Vijaya Raj: In this case, the accused, a former headmaster, faced three
charges of misappropriation of school funds. Upon an acquittal by the lower
court, an appeal was made to the High Court. The High Court in convicting the
accused sentenced him to a day’s imprisonment and a fine of RM2500, in
default 5 months’ imprisonment.
- It is distressing to note that a single act of dishonesty had demolished
a respectable profession which had taken the best years of your life to
build. The loss of your job and the humiliation suffered by this
conviction are by themselves a substantial part of your punishment.
Aggravating factors:
Type of offence
- Certain types of offences committed by the offender warrant a deterrent sentence
because they are viewed by the court as capable of causing anxiety to the society.
Rampancy of offence
- The prevalence of an offence urges that a deterrent sentence be imposed.
- Lee Chow Meng v PP: This was an appeal against sentences imposed in the
Sessions Court for the offences of armed robbery, possession of arms and
possession of ammunition. On appeal to the High Court, the main grounds of
appeal were that the President had erred in law (i) when she allowed herself
to be influenced by the alleged increase of late of armed robberies in the city
when no such evidence was ever led by witness or witnesses for the
prosecution on record, and (ii) when she took judicial notice of the fact that
hardly a day has passed without such incidents being reported in the
newspapers when there was no evidence on record to support such a finding.
In dismissing the appeal, the High Court held: There is absolutely no merit in
the appeal. The President took the view that it was in the public interest that
 deterrent sentences be imposed. The prosecution submitted in the trial court
that there were 677 robberies within a period of 4 months in Kuala Lumpur
alone and half of them were armed robberies, a fact which the President took
into account. Although she allowed herself to be influenced by such fact, it is
a matter of common knowledge and a notorious fact that there have been of
late an increase in armed robberies. The President therefore acted correctly
when she took this fact into account and there is absolutely no valid ground to
say that she had erred in law.
Status of offender
- The status of an offender in society may be taken into consideration as an aggravating
factor, especially where the offence involves an abuse of his powers.
- Lim Guan Eng v PP: In this case, the accused was convicted of publishing
seditious material whereby he was imposed a fine of RM10,000 in default 6
months’ imprisonment on the first charge and a fine of RM5,000 in default 3
months’ imprisonment on the second charge. On appeal against the
inadequacy of the sentences, the Court of Appeal substituted the sentences
ordered with sentences of 18 months’ imprisonment on each charge.
- Those possessed with the power to influence public opinion bear a
heavy responsibility to ensure that they do not mislead the general
public because of the grave consequences that may ensue by reason
of what they publish. The malicious publication of false news by people
who wield considerable influence over public opinion can destroy the
equilibrium of society and cause untold harm and injury to the peace
and security of this country. In these circumstances, it is the plain duty
of the courts to impose a sentence that brings home the seriousness
with which the law views such criminal conduct.
Use of violence
- Where the offence was brutally committed and involved the use of violence, a
deterrent sentence is likely to be imposed by the court.
- PP v Roslan Imun: The accused, a grass cutter and an ex-convict, who was just released
from prison after serving a 20-year jail sentence for raping a minor, committed a
heinous crime by violently shoving a 60 cm stick up the anus of his victim, a young
innocent schoolboy. The accused after luring the schoolboy into his trap, repeatedly
punched the schoolboy until he fell unconscious. Having successfully overpowered
the young boy, the accused then used a 60 cm stick with its leaves and branches
protruding and forcefully shoved it into the school boy’s anus. Upon revision of the
sentence, the High Court imposed 20 strokes of the rattan on top of the sentence of
20 years’ imprisonment.
- The crime committed by the accused - its high degree of physical violence and
the pressing need to protect the nation’s young citizens must certainly
override everything else. There was no redeeming feature in favour of the
accused for this court to consider.
Previous convictions
- Zaidon Shariff v PP: A previous conviction should only be taken into consideration if it
is of a similar nature with the current charge.

- PP v Jafa Daud: The accused was charged under the Dangerous Drugs Act for being in
possession of heroin. He pleaded guilty to the charge and was convicted and
sentenced to 8 months’ imprisonment. The prosecution appealed against the
sentence and argued that the sentence was grossly inadequate on the ground that the
Magistrate had failed to appreciate the seriousness of the offence and also had
failed to consider that the respondent had five previous convictions, two of which
were connected with drugs. Held: The accused’s previous convictions should have
been taken against him on the ground that despite the sentence of imprisonment on
the two previous drug offences, he had continued to flout the law by promoting
himself from being an illegal possessor of opium to one of heroin. The Magistrate
had misdirected herself on the facts and the law, and the sentence of 8 months’
imprisonment was manifestly wrong and inadequate as a deterrent for the accused as
well as for would-be offenders. Thus, the sentence was enhanced from 8 months’
imprisonment to 18 months’ imprisonment.

- The ‘gap principle’: Where there has been a long lapse of time between the accused’s
previous conviction and the current offence for which he is charged, the court should
take the gap into consideration as a mitigating factor.
- Zaidon Shariff v PP: In this case, the High Court found that the fact that there
was a 10-year gap in the accused’s criminal record was not duly appreciated
by the Magistrate. The accused’s clean record since his last conviction in 1986
ought to have operated as a mitigating rather than as an aggravating factor.
The rationale of the gap principle is that the offender has made an effort to
rehabilitate himself and it should, accordingly, operate in his favour.
- The fact that an offender who has a criminal record has made an effort
to ‘go straight’ (stay free of any crime) since his last conviction or
release from prison counts as a substantial mitigating factor if he
subsequently commits an offence. In cases where the previous
offences were trivial and committed in the long distant past, the court
will normally disregard them entirely and treat the offender as a man
of previous good character. Even where the previous convictions are
more numerous or are for offences of a more serious character, the
existence of a period free from conviction immediately before the
commission of the present offence still has substantial mitigating
effect.
Form of sentences available:
Imprisonment
- Life imprisonment:
- Sec. 57, Penal Code: Imprisonment for life shall be equivalent to imprisonment
for thirty years.
- Sec. 130A(f), Penal Code: Imprisonment for life under Chapter 6 of the Penal
Code (offences against the State) means imprisonment until death.

- Definite period of imprisonment:

- The sentence ought to be within the limits prescribed under the Penal Code as
well as the sentencing powers of the judge.
- It must be personal to the accused and take into account his moral and
financial situation and the nature of the offence.

- ‘Shall be liable to imprisonment’: The court has an absolute discretion to award a

sentence of imprisonment.
- Jayanathan v PP: The words ‘shall be liable’ do not make the term of
imprisonment mandatory.
- Goh Kheng Seong v PP: The words ‘shall be liable ... to imprisonment’, with or
without the option of a fine does not overrule the exercise of the court’s
discretionary powers to bind over the accused under Sec. 294 (released on a
bond). Even offences under the Penal Code where whipping is only optional
which bears the expression ‘shall be sentenced’ rather than ‘shall be liable to
be sentenced’ do not debar the courts from exercising its powers under Sec.
294.

- ‘Shall be punished’: The sentence prescribed is mandatory and binding over orders
would be unlawful.
- PP v Man Ismail: If the legislature had intended that all persons convicted of
an offence under a specific provision should be sent to prison, whatever the
circumstances may be, it would have used the expression ‘shall be punished
with imprisonment’.

- Term of imprisonment:
- Kesavan Senderan v PP: In determining the term of imprisonment to be
imposed, the following factors must be considered:
- The nature and seriousness of the particular offence: Given that some
offences may in their commission and circumstances be more serious
than others, a sentence of 40% to 50% of the maximum sentence
would be an appropriate median point to start with. It would
sufficiently reflect the legislature’s intent as to the nature and
seriousness of the offence.
 - The deliberateness with which and the circumstances in which the
offence was committed: If the commission of the offence was planned,
it would warrant a sentence higher than 40% to 50% of the maximum
sentence. The same applies if the offence was committed against an
infant, a child, the weak and defenceless and the old. If the offence
was committed accidentally, it would warrant a substantial reduction
from that median point.
- To give a discount for genuine regret: Whether an accused person is
genuinely contrite and regrets what he has done. There are many ways
to show such regret. It could be shown by cooperation with
investigation, pleading guilty and making amends with the victim of
the offence. In such circumstances a very substantial reduction from
the median point would be warranted. Thus on a plea of guilty alone,
a discount of 20% to 30% from the sentence that would otherwise
have been passed is warranted.
- The balance between the public interest in deterrence not only of the
accused but of others, and of enabling the accused a chance to turn
over a new leaf: It would have to be a fine balance between the need
for deterrence of others from committing similar offences, and a
consideration of the likelihood of the offender from committing the
same offence again. Regarding the latter, the age of the offender, that
he is a first offender, that he has responsibilities of which he may have
become even more aware of since the threat of imprisonment hung
over him and similar circumstances come into consideration. But
these matters on their own are secondary to the main issue, which is
the balance between the public interest in deterrence and enabling the
convict to turn over a new leaf.
Whipping
- Sec. 288(1): The number of strokes to be inflicted must be specified in the sentence
and shall not exceed 24 strokes for adults, or 10 strokes for youthful offenders.
- Chai Ah Kau v PP: In this case, the accused, who was a teenager at the time of
the commission of the offences, was convicted at one trial of the offence of
armed robbery and at another trial of another similar offence. He was
sentenced in the first trial to 18 months’ imprisonment and 10 strokes of the
cane and at the second trial to 3 years’ imprisonment and 10 strokes of the
cane. On appeal against the sentence, the court held: Although the accused
was a teenager at the time of the commission of the offence, when the
sentences were passed he no longer fell within the definition of a ‘youthful
offender’. Further, even if he was a still a youthful offender at the time the
sentences were passed, there were two distinct trials in this case, which
therefore warranted the sentences passed.
- Sec. 289: Persons who shall not be punished with whipping are females, males
sentenced to death, males more than 50 years old.
- PP v Tan Kim Chok: Where the accused was clearly a man above the age of 50
years old, the sentence passed by the Sessions Court for four months’
imprisonment and two strokes of rattan was set aside for being in breach of
Sec. 289.

- PP v Anuar Layani Saidon: A sentence of whipping cannot be imposed on a

male who is more than 50 years of age at the time sentence is passed, and, if
passed when he was 50 years of age or less at that time it cannot be inflicted
if he is more than 50 years of age at the time of its infliction.
- In this case, where the accused was exactly 50 years old at the time the
sentence was passed, the sentence ordered was correct in law as he
had yet to become a male who was ‘more than 50 years old’. However,
the sentence of whipping could not be inflicted in view of Sec. 287(1),
which prescribes the time to execute the sentence at the expiration of
7-14 days after the date of sentence, as the accused would have
become a male of ‘more than 50 years old’ contrary to Sec. 289.

- Sec. 289(c): However, this provision is subject to males sentenced to whipping

under Sec. 376 (rape), 377C (carnal intercourse against the order of nature
without consent), 377CA (sexual connection by object) or 377E (inciting a child
to an act of gross indecency).

- Carrying out the sentence in instalments:

- Liaw Kwai Wah v PP: The accused in this case pleaded guilty to a charge of
armed robbery and were imposed two years’ imprisonment and one stroke of
rattan on each of them. The sentence of whipping was carried out three
months after the date of the sentence. Three months later the accused were
summoned by the High Court to appear before it for a revision. The judge
enhanced the sentence of imprisonment on each accused to five years and the
sentence of whipping to five strokes. Thus, the issue is whether the High Court
had the power to increase the strokes after the sentence of whipping
imposed by the Magistrate’s Court had already been executed. In quashing
the additional strokes imposed, the Supreme Court held: The Code clearly
prohibits whipping to be executed in instalments. By imposing additional
strokes after a sentence of whipping by a lower court had already been
executed, it necessarily means that such strokes shall have to be further
executed. The whipping would therefore be inflicted on two separate
occasions and in two instalments. In such a case, it is clearly improper for a
judge to exercise his revisionary power to impose additional strokes. He would
under those circumstances be acting contrary to law.
- Sec. 290(1): Before the sentence of whipping can be inflicted, the Medical Officer
must be present to certify whether or not the offender is fit enough to undergo
whipping.
- PP v Leonard Glenn Francis: In this case, the accused was convicted under
Sec. 8 of the Firearms (Increased Penalties) Act 1971, which carries a
mandatory punishment of imprisonment no more than 14 years and 6 strokes
of whipping. However, a consultant psychiatrist whom the accused had been
seeing recommended for the accused to not be whipped. Thus, the Sessions
Court ordered a bound over under Sec. 294. On appeal, the High Court held:
Once a conviction is recorded for an offence under Sec. 8 of the Act, the
provisions of Sec. 294 are overridden. Thus, the sentence ordered cannot be
justified either in law or on principle. Further, although the consultant
psychiatrist had recommended in his report that the accused be spared from
any whipping for health reasons, his report was an unsworn statement which
was not tested by cross-examination, despite its contents not being disputed.
Pursuant to Sec. 290, it will be for the Medical Officer to examine the offender
in order to determine if he is fit enough to undergo whipping. In considering
this, he will be provided with copies of the consultant’s reports which he will
no doubt take into consideration in arriving at his own conclusion on the
offender’s fitness. Hence, the court must proceed to impose a sentence of
imprisonment and whipping of not less than 6 strokes.

- Sec. 291(1): If in any case a sentence of whipping cannot be executed wholly or

partially, the court may instead sentence the offender to imprisonment of up to 24
months.

- Whipping for non-violent crimes:

- Yong Pak Yong v PP: In this case the accused, who was an active member of a
secret society, was convicted of extortion and was sentenced to two years’
imprisonment and whipping of 8 strokes. The appeal was against the sentence
and was based on the ground that no actual violence was used by the accused
in commission of the crime. In dismissing the appeal, the court held: In cases
in which although no violence is actually used, or brutality actually shown,
but where violence and brutality are undoubtedly involved (such as secret
society extortion demands) the accused who did not have the opportunity to
implement his threat of violence deserves corporal punishment just as much
as if he had inflicted it. Thus, in this case, the threat of violence was sufficient
to warrant the court to order the sentence of whipping.
Fine
- R v Teo Woo Tin: Factors to consider in imposing a fine:
- The accused’s profit from the offence
- The value of the subject matter involved
- The amount of injury caused
- The financial position of the offender

- Mohamed Abdullah Ang Swee Kang v PP: The accused was convicted for CBT and
sentenced to eight years’ imprisonment plus a fine of RM100,000, in default a further
six months’ imprisonment. On appeal against the sentence, the Supreme Court held:
Since full restitution had been made and the accused had not enriched himself
personally by the crime, there was no purpose in imposing a fine in addition to the
sentence of imprisonment. Thus, the fine of RM100,000 imposed by the trial judge
should be set aside.

- Gabriel v PP: The accused pleaded guilty to a charge of theft and was sentenced to a
year’s imprisonment and a fine of RM2000. On appeal against the sentence, the High
Court in setting aside the fine held: A fine is normally imposed to ensure that the
offender does not profit from the offence. In this case all the stolen items were
recovered and the accused had not derived any monetary gain from the offence.

- PP v Loo Chang Hock: In this case, two appeals, which involved the same accused
person, were heard together. In both cases, the accused pleaded guilty to charges of
house-breaking under Sec. 457. For the first appeal, he was sentenced to 6 months’
imprisonment and a fine of RM3,000, in default 5 months’ imprisonment. For the
second appeal, he was sentenced to 6 months’ imprisonment from the date of
sentence and a fine of RM2,500, in default 5 months’ imprisonment. On appeal against
the inadequacy of the sentences, the High Court held: The proper punishment to be
imposed in this case is a deterrent punishment. First, the total value of the goods
stolen was RM70,000. However, only RM11,000 worth of goods were recovered. If
the accused had repented, he would have returned, if not all, at least some of the
goods to the police. He had not shown any cooperation with the police to return the
stolen goods. Secondly, the accused must have made a large profit from the offences
committed. In view of the circumstances in this case, it is justified to impose a fine on
each of the offences. Thus, the accused was fined RM5000 for each offence, in default
a year’s imprisonment.

- Sec. 283(1)(a): Where there is no limit as to the amount of fine that can be imposed,
the fine shall not be excessive.

- Sec. 283(1)(b): The court in passing the sentence of a fine may:

- (i) Allow time for its payment
- (ii) Direct for payment to be made in instalments
 - (iii) Issue a warrant for the amount through any sale of the offender’s property
- (iv) Direct that in default of payment, the offender shall be imprisoned
- (v) Direct for the offender to be searched for any money which will be applied
towards the payment of the fine

- PP v Amir Mahmood: The accused were convicted of drug trafficking under the
Dangerous Drugs Act. The first accused was sentenced to 5 years’ imprisonment and
fined RM1,500, while the third accused was sentenced to 5 years’ imprisonment and
fined RM3,000. The High Court in this case chose to not apply Sec. 283(1)(b)(iv) which
allows for a term of imprisonment to be imposed in default of payment. It held: The
courts should not arbitrarily apply, as they have done in the past, Sec. 283(1)(b)(iv)
when imposing fines. The words employed give some measure of discretion to the
courts to decide on what to do when imposing fines. The choice is entirely with the
court. The word ‘may’ appearing in Sec. 283(1)(b) gives a discretionary power to the
court to exercise according to common sense and justice. Where the court has chosen
to not exercise its discretion under Sec. 283(1)(b)(iv), in ensuring that the fine is
eventually paid, Sec. 283(1)(g) can be invoked by the prosecutor.
- Section 283(1)(g): A fine, which remains unpaid, may be levied at any time
within 6 years after the passing of the sentence.
- In the final analysis, the discretion is entirely with the prosecutor to decide
whether to pursue the matter against the accused persons under
Sec. 283(1)(g).

- Sec. 283(1)(c)(i): The period of imprisonment to be imposed in default of payment,

where the offence is one punishable with imprisonment:

Maximum term of imprisonment: The period of imprisonment in default of

payment shall not exceed:
Not more than 6 months The maximum term of imprisonment
More than 6 months, but not more 6 months
than 1 year
More than 1 year, but not more than 1 year
2 years
More than 2 years Half of the maximum term of imprisonment

- Where the accused is unable to pay the fine imposed, the period of
imprisonment in default of such payment shall run consecutively.

- Cheong Ah Cheow v PP: The accused was convicted under Sec. 6(3) of the Betting
Ordinance which carries a fine which may extend to RM20,000 and imprisonment for
two years. The Magistrate in this case sentenced the accused to 18 months’
imprisonment with a fine of RM20,000, in default 12 months’ imprisonment. On
appeal against the sentence, the High Court held: Pursuant to the proviso to Sec. 87(1),
SCA, the Magistrate has the jurisdiction to award the full punishment for the offence.
However, Sec. 283(1)(c)(i) (as it was then) provides that for offences in which the
 maximum term of imprisonment is not more than 2 years, the period of imprisonment
imposed in default of payment shall not exceed 6 months. Thus, the Magistrate had
clearly failed to adhere to Sec. 283(1)(c)(i) by imposing a term of imprisonment of 12
months in default of payment. The High Court therefore reduced the term to 6
months.

- Sec. 426(1) & (1A): Before an accused is convicted of an offence, the court may order
the accused to make payment of the cost of his prosecution, as well as payment of
compensation to his victim.
- Raja Izzuddin Shah v PP: In this case, the accused pleaded guilty and was
convicted of the offence of assaulting a public servant and sentenced to 3
months’ imprisonment. With regard to the injuries caused on the complainant
the court made an order under Sec. 426 for the accused to pay a compensation
in the sum of RM200 to the complainant within one month from the date of
the order.

Passing sentence:
Number of offences
- Where there are multiple offences, the court must pass sentence for each charge.
- Bujang Johny v PP: The accused was charged with two offences under
the Forests Ordinance. Upon his conviction, the Magistrate merely stated that
he sentenced the accused to 4 weeks’ imprisonment. On appeal, the High
Court held: The Magistrate had erred in law as it is most important that a
separate sentence be passed on each conviction. The magistrate should then
indicate whether the sentences were to run concurrently or not. Magistrates
must realise that if separate sentences were not passed this court would be
faced with difficulty if the appellant successfully appealed against one of the
charges.

- Where a composite offence is committed, namely where there are a number of acts
which form component parts of one offence or are so closely connected that it
cannot be said that more than one offence was committed, there should only be one
charge and therefore, one sentence.
- E.g: In a case of rape, each act of penetration cannot be considered as a
separate offence.
Concurrent or consecutive sentences
- Sec. 102, SCA: The court has the discretion to order a sentence of imprisonment to
run consecutively (one after the other) or concurrently (at the same time).
Consecutive sentences:
- When offences committed are separate and distinct, separate sentences are to be
ordered for each offence. Thus, the sentences of imprisonment ought to run
consecutively.
- Offences are separate and distinct when they involve different victims:
- PP v Yap Huat Heng: In this case, a girl aged 17 years old and her sister aged 13
years old were in their house when 4 men, one of which was the accused,
forced themselves into the house. They then threatened and robbed the girl
and her sister and took turns raping them both. The four men were
subsequently arrested and charged. Thus, the charges against the accused
were two charges of rape and two charges of robbery. The accused pleaded
guilty to all four charges. The Sessions Court sentenced the accused to 3 years’
imprisonment on each of the charges and ordered the sentences to run
concurrently. On appeal against the inadequacy of the sentence, the High
Court held: The sentences imposed by the President were not only manifestly
inadequate but also wrong in law. Where two or more distinct offences have
been committed, sentences of imprisonment should not be made concurrent.
Thus, the offences of rape were ordered to run consecutively to each other
and the offences for robbery to similarly run consecutively to each other, but
concurrently with the sentences for rape.
Concurrent sentences:
- When the offences are committed in the same transaction as under Sec. 165, the
sentences of imprisonment ought to run concurrently.
- Amrita Lal Hazra v Emperor: Offences are committed in the same transaction
if it fulfils the tests of proximity of time, unity or proximity of place, continuity
of action, and continuity of purpose or design.

- Jamil Md Yusof v PP: The accused was charged with four offences under
Sec. 420 and the offences were tried in two proceedings. The first trial
concerned only one offence to which the accused pleaded guilty and was
sentenced to 2 years’ imprisonment and 3 strokes of the rattan. The second
trial concerned the remaining three offences to which the accused pleaded
guilty and was sentenced to 2 years’ imprisonment and 3 strokes of the rattan
for each of the three offences. The Magistrate further ordered that the terms
of imprisonment for the three offences in the second trial are to run
consecutively of one another and consecutive to the term of imprisonment
ordered in the first trial. The accused appealed against the sentences imposed
in the second trial and raised the following issues: (i) whether sentences of
 imprisonment in two separate trials can be made to run consecutively with one
another; and (ii) whether the offences in this appeal were of the same nature
and transaction so as to warrant concurrent rather than consecutive terms of
imprisonment. The High Court in allowing the appeal, set aside the
consecutive sentence imposed with the first proceeding and instead ordered
for the sentence imposed for the three offences in the second proceeding to
run concurrently with that in the first proceeding, and enhanced the sentence
of 4 years for each of the three offences with 3 strokes of the rattan.
- The four tests to determine what makes offences distinct from one
another as set out in Amrita Lal Hazra v Emperor are mutually exclusive
and not cumulative. Therefore, it is not obligatory for a magistrate or
judge to find that all the four tests are satisfied to conclude that two
offences are of the same transaction or otherwise.

- Abu Seman v PP: The accused was charged on 3 counts of giving cash of RM5
to 3 electors in order to induce them to vote and thereby committed offences
under Sec. 10(a) of the Election Offences Act 1954. The Magistrate convicted
him of all the charges and sentenced him to 5 days’ imprisonment and RM100
fine in default 2 weeks’ imprisonment under each offence. The imprisonment
sentences were to run consecutively. On appeal, the High Court held: It is a
generally accepted working principle that where several offences committed
in the same transaction are tried together the sentences imposed for those
offences should be made concurrent. Though there has been no precise
definition on the term “the same transaction” for the purpose of deciding
when consecutive sentences are appropriate, it is evident that in the instant
case the offences arose out of the same transaction. In the circumstances, the
sentences of imprisonment should have been made concurrent.

- Sentences cannot be made to run concurrently despite the offences occurring in the
same transaction where there are different victims involved in that same transaction.

- However, sentences may still be ordered to run concurrently when the offences
against the different victims are so interwoven as to constitute one transaction
(single invasive incident)
- PP v Elwan Abd Rahim: The accused pleaded guilty to two charges of
voluntarily causing grievous hurt against two persons. For the first offence, the
accused was sentenced to 2 years’ imprisonment and 2 strokes of whipping.
For the second offence, the accused was sentenced to 3 years’ imprisonment
and 4 strokes of whipping. Both sentences were ordered to run concurrently.
The prosecution appealed against the sentences contending that the judge had
failed to balance the interest of the public, the seriousness of the offence of
causing grievous hurt by the accused and the rampancy of such incidents. The
prosecution contended that two separate offences were committed and
therefore the sentences should run consecutively. The High Court in dismissing
 the appeal, held: The judge had considered this to be a group fight, a single
invasive situation thereby differentiating it from two distinct incidents
involving two separate individuals. It was within her discretion which she had
properly exercised whether she would want to impose consecutive sentences
in a single invasive situation, which she had not because of consideration of
the sufficiency of adding whipping to reflect the seriousness of the offences
committed by the accused.
Commencement of imprisonment
- Sec. 282(d): Every sentence of imprisonment shall take effect from the date on which
it was passed unless the court passing the sentence otherwise directs.
- This provision accords the court with the discretion to backdate a sentence.
- Muharam Anson v PP: Where the accused was detained for a period of time
pending trial, such period was taken into consideration by the court and the
sentence of imprisonment was ordered to take effect from the date of arrest.
- However, the period of remand must be in relation to the offence for
which the accused is charged with in order for the court to backdate
the sentence to the date of arrest.

- PP v Foo Koh Sen: Where the accused was charged with culpable homicide, the
court found the offence to be of such a heinous nature and that there were no
mitigating factors in favour of the accused, thus ordering the 10 years’
imprisonment to take effect from the date of commencement of trial.

- Sec. 292(1): When a person who is an escaped convict or undergoing a sentence of

imprisonment is sentenced to imprisonment, such imprisonment shall commence
immediately or at the expiration of the imprisonment to which he was previously
sentenced.
- Bachik Abd Rahman v PP: The combined effect of Secs. 282 and 292 is that
unless the court imposing a sentence says anything to the contrary, the
sentence runs from the date on which it was passed.
- In this case, the accused was charged with raping an 11-year-old girl.
He pleaded guilty and was sentenced to 18 years’ imprisonment and 12
strokes of the rattan. The sentence was ordered to take effect
consecutively to another term of imprisonment of 16 years that the
accused was then serving, for an offence that was committed on 14
October 2001. On appeal, the High Court reduced the period of 18
years to 15 years’ imprisonment, but maintained that it should take
effect consecutively to the 16 years’ of imprisonment the accused was
already serving. The Court of Appeal in affirming the High Court’s
decision, held: Although both offences were executed in the same
manner and are of the same severity, both offences are unrelated.
Totality principle
Kanagasuntharam v PP: The totality principle has two limbs:
- (i) The cumulative sentence should not substantially exceed the normal level of
sentences for the most serious of the individual offences involved.
- The court has the discretion to pass sentence within their sentencing
competence so long as the total cumulative sentence is not considered
excessive.
- Sessions Court, Sec. 64, SCA: May pass any sentence allowed by law
except the death penalty.
- Magistrate’s Court, Sec. 87(1), SCA: May only pass sentences of
imprisonment not exceeding 5 years or fine of RM10,000 or whipping
up to 12 strokes, or a combination of any sentence.
- However, under Sec. 102 SCA: It is not necessary for the court,
by reason only of the aggregate punishment for the several
offences being in excess of the punishment which it is
competent to inflict on conviction of one single offence, to send
the offender for trial before a higher court.
Provided that:
- (a) The periods of imprisonment in the aggregate
amount to not more than 20 years;
- (b) The aggregate punishment does not exceed twice
the amount of punishment which the court is
competent to inflict; and
- (c) When imprisonment is directed in default of
payment of a fine, the imprisonment shall be
consecutive to any other term of imprisonment
imposed.

- Kanagasuntharam v PP: When applying the totality principle, the duty of the
sentencer is to ensure that the aggregate sentence is not excessive.

- Sau Soo Kim v PP: In this case, the accused was charged for attempt to murder,
possession of firearms and possession of ammunition. Upon his conviction, the
court imposed 10 years’ imprisonment for the first charge, and 4 years’
imprisonment each for the second and third charge, all of which were to run
consecutively. However, on appeal, the Federal Court held: The totality of 18
years is rather severe in the circumstances. Thus, the sentence should be
reduced to the total amount of 14 years’ imprisonment.
 - (ii) The aggregate sentence should not have the effect of imposing on the offender
a crushing sentence.
- The crushing effect refers to the loss of hope in the offender to reintegrate into
the society and to make an honest living.
- The determination of whether the sentence imposed will have a crushing
effect upon the offender depends on the circumstances of the case.
- Mansor Meyon v PP: The accused, who was charged for three offences of
raping his daughter, was sentenced to 18 years’ imprisonment and 8 strokes
of the whip for each offence, all of which were to run consecutively, amounting
to 54 years’ imprisonment. On appeal, the High Court held that the aggregate
sentence was manifestly excessive for a first offender despite what he
shamefully did, such that it would have a crushing effect upon the accused as
it eliminated all prospects of him being a free man again.

The totality principle is therefore applied in situations where the cumulative effect of the
sentence of imprisonment is substantially above the normal level of sentence for the most
serious of the individual offences involved and its effect is to impose a crushing effect on the
offender.
However, the exclusion of its application may be justified by the record of the offender or
the circumstances of the offence.
- Bachik Abdul Rahman v PP: The accused was charged with raping an 11-year-old girl.
He pleaded guilty and was sentenced to 18 years’ imprisonment and 12 strokes of the
rattan. The sentence was ordered to take effect consecutively to another term of
imprisonment of 16 years that the accused was already serving for an offence of rape.
The accused applied for an order that the current sentence run concurrently with the
earlier sentence. On appeal to the High Court, the term of imprisonment was reduced
to 15 years, but the High Court maintained that it should run consecutively to the 16
years’ imprisonment that the accused was serving. The Court of Appeal in affirming
the High Court’s decision, held: It cannot be denied that the cumulative effect of both
the sentences will have a crushing effect on the accused bearing in mind his age. But
this effect must be balanced against the seriousness of the offences committed by
him and the need to protect young females from him. The order made by the High
Court is therefore correct in law.
Appeals
- Sec. 305: Where an accused has pleaded guilty, he can only appeal against his
sentence and not his conviction.

- Sec. 306: Where an accused has been acquitted, an appeal against his acquittal can
only be made with a written sanction by the Public Prosecutor.

- Sec. 307(1): Where a person is dissatisfied with any judgment, sentence or order
pronounced (error in law, error in fact, severity of sentence or inadequacy of
sentence), he may appeal to the High Court by filing a notice of appeal within 14 days
from the judgment, sentence or order.

- Where a person who wishes to appeal has failed to file a notice of appeal within the
prescribed 14 days, he must first apply to enlarge the period (extension of time)
under Sec. 310 in order to file the notice of appeal.
- Once an extension is granted, he must then proceed to filing a notice of appeal
under Sec. 307(1).

- Sec. 307(3): Once a notice of appeal is lodged, the grounds of decision must be served
upon the appellant.
- Delay by the court in delivering the grounds of decision cannot be a ground of
appeal.

- Sec. 307(4): Once the grounds of decision has been delivered, the appellant must
lodge the petition of appeal within 14 days.
- Sec. 307(9): If the appellant fails to lodge the petition of appeal within 14
days, the appeal shall be deemed to have been withdrawn.
- An application for an extension of time to file a petition of appeal can be
made under Sec. 310. However, the court, in considering the application, will
look at whether the delay was for a short period (less than a month) or a long
period of time (a month or more).
- Zulkifli Puasa v PP: There are two factors to be considered upon an application
for an extension of time:
- (i) the length of the delay and whether it can be satisfactorily explained
- (ii) whether the application is likely to succeed
Where the delay is of a short duration the court may disregard the delay, even
in the absence of satisfactory reasons, but where a substantial interval of time
(a month or more) has elapsed, an extension of time will not be granted, as a
matter of course, without a satisfactory explanation. Where the delay is
minimal the court will still not grant an extension of time if the application
for which the extension is sought is bound to fail: there must be an arguable
case, and even though the subsequent application may be likely to succeed,
the court will not grant an extension of time as a matter of course.