IN THE COURT OF APPEAL MALAYSIA
CRIMINAL APPEAL NO: S-05(SH)-130-03/2016
(In the matter of Criminal Trial No: BKI-45B-5/8-2015 in the High
Court in Sabah and Sarawak at Kota Kinabalu)
BETWEEN
…
USMAN BIN JUMASAN
APPELLANT
AND
… RESPONDENT
PUBLIC PROSECUTOR
CORAM:
ROHANA YUSUF, JCA
VERNON ONG LAM KIAT, JCA
HASNAH MOHAMMED HASHIM, JCA
GROUNDS OF JUDGMENT
INTRODUCTION
[1]
This is an appeal against sentence. The appellant was originally
charged in the High Court at Kota Kinabalu for murder under s 302 of the
Penal Code. Subsequently, the prosecution preferred an alternative
charge under s 304(a) of the Penal Code for culpable homicide not
amounting to murder.
[2]
On 14.3.2016, the appellant pleaded guilty to the alternative charge
whereupon the learned judge convicted and sentenced the appellant to
imprisonment for a term of 30 years.
SUBMISSION OF PARTIES
[3]
The appellant’s appeal is mounted on two main planks. First,
learned counsel argued that a plea of guilty is a strong mitigating factor as
it saves a great deal of public time and expense of a lengthy trial. Public
interest also demands that criminal cases are disposed expediently.
Notwithstanding the appellant’s plea of guilty, the learned judge imposed
the maximum sentence of 30 years imprisonment under s 304(a) of the
Penal Code on the appellant (PP v Mohd Zainuddin bin Ali [2010] 1 LNS
1060; PP v Jessica Lim Lu Ping & Anor [2014] 2 CLJ 763). Further,
instead of imposing the maximum sentence the appellant should have
been given a credit or a discount for pleading guilty (PP v Ravindran &
Ors [1993] 1 MLJ 45). Learned counsel argued on the authority of
Jessica Lim Lu Ping (supra) that it is generally accepted that the extent
of the reduction on account of a plea of guilty would be between onequarter and one-third of what otherwise would have been the sentence.
[4]
In this connection, it was argued that the learned judge failed to
consider similar trends of sentencing for similar offences. In particular,
learned counsel referred to four cases. In PP v Zainal bin Ibrahim [2010]
1 LNS 1061 where after nine prosecution witnesses were called the
prosecution preferred an alternative charge under s 304(a) of the Penal
Code to which the accused pleaded guilty. The accused was convicted
and sentenced to a term of 7 years imprisonment. In PP v Mohd
Zainuddin bin Ali (supra) the prosecution preferred an alternative charge
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under s 304(a) after seven prosecution witnesses were called. The
accused pleaded guilty to the alternative charge and was convicted and
sentenced to 9 years imprisonment. In PP v Kalaiselvan a/l Munisamy
[2011] 1 LNS 14, the accused pleaded guilty to the amended charge
under s 304(a) which was preferred after 14 prosecution witnesses were
called. In that case, the learned judge imposed a term of 9 years
imprisonment on the accused. Lastly, in Yong Teng Fun & Anor v PP
and Anor Appeal [2015] 5 CLJ 636 (CA), the Court of Appeal affirmed
the sentence of 9 years and 7 years imposed on the first appellant and
second appellant respectively on a conviction under s 304(a) after a full
trial.
[5]
Second, learned counsel argued that the learned judge failed to take
into consideration the fact that the appellant is a first offender as a
mitigating factor in passing sentence (Ravindran (supra); Zainal bin
Ibrahim (supra); Mohd Zainuddin (supra), Kalaiselvan (supra).
[6]
As such, learned counsel for the appellant argued that the sentence
passed by the learned judge is manifestly excessive and not justified
having regard to the facts and circumstances of the case.
[7]
In a short reply, learned DPP submitted that the learned judge took
all relevant matters into consideration and applied the correct principles of
law on sentencing. It is not a strict rule that the giving of a discount is
automatic; the court may in its discretion, refuse to grant any discount in
an appropriate case (Bachik Bin Abdul Rahman v Public Prosecutor
[2004] 2 MLJ 534 (CA)). It was also submitted that the learned judge
refused to give a discount after considering the facts of the case. In
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particular the deceased suffered a fatal 9 cm wound which was 1.5 cm
deep on her head.
DECISION
[8]
Insofar as sentencing is concerned, the general rule is that the
power of the court in sentencing is discretionary. The only exception to
this general rule relates to certain sentencing provisions where no
discretion is conferred (e.g. drug trafficking (s 39B, Dangerous Drugs Act
1952) and murder (s 302, Penal Code)).
[9]
In the exercise of his discretionary power the sentencing judge must
apply his mind to the factual matrix of the case. In other words, the
sentence passed must relate to the facts and circumstances of each case
(PP v Loo Choon Fatt [1976] 2 MLJ 256; PP v Dato’ Waad bin Mansor
[2005] 2 MLJ 101; [2005] 1 CLJ 421 (FC)).
[10] The basic principles governing the role of an appellate court in an
appeal against sentence are well settled. In exercising its jurisdiction to
review sentence an appellate court does not alter a sentence on the mere
ground that if it had been trying the case it might have passed a somewhat
different sentence. It is only when a sentence appears to be wrong in law
or is manifestly excessive or inadequate having regard to the facts and
circumstances that an appellate court will interfere (Public Prosecutor v
Lee Seng Seh [1966] 1 MLJ 266).
[11] Accordingly, an appellate Court starts on the premise that it should
be slow to interfere with the sentence passed by the court below unless
the appellate court is satisfied that (i) the sentence is manifestly excessive
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or inadequate (Dato’ Seri Anwar Ibrahim v PP [2002] 3 MLJ 193; 3 CLJ
457 (FC); PP v Loo Choon Fatt (supra); Tan Koon Swan v PP [ 1986]
SLR 126), (ii) the sentence is manifestly wrong in the sense of being illegal
or being unsuitable to the proved facts and circumstances (Fan Yew Teng
v PP [1975] 2 MLJ 235 (FC); Dato’ Seri Anwar Ibrahim (supra); Loo
Choon Fatt (supra); R v Teo Cheng Lian [1949] MLJ 70), (iii) the trial
judge had acted on wrong principles (R v Leo De Cruz [1935] MLJ 1
(CA); PP v Dato’ Waad bin Mansor (supra); Soosainathan v PP [2001]
2 MLJ 377; [2001] 6 CLJ 44); (iv) the trial judge had erred by taking into
consideration irrelevant matters or by committing some error of law
(Bhandulanda Jayatilake v PP [1982] 1 MLJ 83 (FC); Rahim bin Usoff
v PP [1985] 1 MLJ 241; PP v Yap Huat Heng [1985] 2 MLJ 414); there
has been an infringement of an essential principle of justice as to occasion
a substantial miscarriage of justice (Ramli Kechik v PP [1986] 1 CLJ 308
(SC); PP v Shari bin Mohd Shariff [2005] 4 MLJ 763;[2005] 5 CLJ 439;
Anuar Abdul Aziz v PP [2005] 6 CLJ 309); (v) the judge failed to
appreciate the proper factual basis and materials placed before him
(Dato’ Waad bin Mansor (supra); Tan Koon Swan (supra); and (vi) the
judge had embarked on some unauthorised or extraneous or irrelevant
exercise of discretion (Bhandulanda Jayatilake (supra).
[12] In this case, the events leading to the victim’s untimely demise are
set out in the facts of the case. On the morning of 22.2.2014, the appellant
had an altercation with his wife at their home; at that time, the appellant’s
wife was carrying the deceased, their one year old infant daughter. A
friend (Syukri) who was present tried to intercede but to no avail. The
appellant attacked his wife, the deceased infant daughter and Syukri with
a parang. As a result of the appellant’s attack, the infant daughter suffered
a fatal chop wound on her head and died. The appellant absconded from
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the scene after the incident. The deceased infant daughter was taken to
Queen Elizabeth Hospital for post-mortem.
[13] According to the post-mortem report, the deceased infant 1 year 2
months of age suffered a chop wound measuring about 9 cm long on the
frontal region of the head. The cut on the frontal lobes of the brain
measured about 1.5 cm deep and involved the grey and white matter of
the brain. The cause of death was hypovolaemic shock due to or as a
consequence of the chop wound on the head.
[14]
Sentencing in a criminal case must bear relation to the particular
circumstances of the offender as well as the particular circumstances of
the offence. In the learned judge’s judgment, the learned judge considered
the following factors: (i) public interest, (ii) severity of offence, (iii),
domestic abuse and violence, (iv) guilty plea, and (v) plea in mitigation.
In our view the learned judge had the percipience to see the aggravating
features of the offence. We have perused the grounds of the learned
judge’s judgment and are satisfied that the learned judge have taken
every relevant fact and circumstance into consideration. There would
appear to be no redeeming features in this instance.
[15] Whilst it is generally accepted that credit or a discount should be
given for a guilty plea, it is equally important to bear in mind that this is not
a strict rule. The court may, in the exercise of its discretion refuse to give
any discount in an appropriate case (Zaidon Shariff v Public Prosecutor
[1996] 4 CLJ 441; Public Prosecutor v Leo Say & Ors [1985] 2 CLJ
155; Bachik Bin Abdul Rahman v Public Prosecutor (supra). Its
application in favour of an accused person depends on the facts and
circumstances of each case.
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[16] It is also our view that the prescribing of a maximum penalty in
respect of an offence only marks the limits of the court’s discretionary
power as to sentence, it also ordinarily prescribes what the penalty should
be in the more serious type of cases falling within the relevant class of
offence meriting the maximum punishment prescribed.
[17] We are of the view that in the circumstances of the appellant’s case,
the imposition of the maximum sentence prescribed under s 304(a) of the
Penal Code is not manifestly excessive having regard to the facts and
circumstances. The sentence reflects the court’s abhorrence of crimes of
domestic abuse and violence resulting in loss of a human life. The injuries
suffered by the deceased infant daughter constitute an aggravating factor
which attracts a more severe sentence concomitant with public interest
and as a sufficient factor of deterrence to others.
[18] For the foregoing reasons, we accordingly dismissed the appeal.
The sentence passed by the High Court is hereby affirmed.
sgd
(Vernon Ong)
Judge
Court Of Appeal
Malaysia
Dated : 20th September 2016
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Counsel:
Joyce Blasius - Tetuan Lim Guan Sing & Co, Shoplot No. 2, Block II, Jalan
Serih/Jalan Pinang, Tanjung Aru, 88100 Kota Kinabalu, Sabah - Perayu.
Tengku Intan Suraya binti Tengku Ismail Peguam Negara, Putrajaya - Responden.
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Timbalan Pendakwa Raya, Jabatan