SENTENCE
When I asked the Defence to address the Court on
sentence learned counsel applied for the case to be stood down in order
to confer with the accused. I allowed the request. When Court resumed learned
counsel said that the accused would like to address the Court himself.
After some initial reluctance I allowed the application. The accused then
proceeded to read his plea in mitigation from a prepared text. It centred
on the allegation of political conspiracy against him and attacks on the
judiciary. It was not what one would call a plea in mitigation. The Honourable
Attorney General felt compelled to object several times to what the accused
was reading. Being concerned, I reminded the accused to confine himself
to a proper plea in mitigation to better serve his own interests. He persisted
in reading his text. When he finished reading I turned to his counsel and
asked him whether he had anything to say in the confident expectation that
he would put up a plea in mitigation. But counsel replied that he did not
wish to say anything. The Honourable Attorney General then spoke of the
seriousness of the offence for which the accused had been found guilty.
He added that the accused, apart from being the Deputy Prime Minister and
Minister of Finance at the material time, was also the Chairman of the
Cabinet Committee on Management and Integrity. The task of that committee
is to ensure that the government is free from corruption. By committing
these offences the accused had betrayed the trust that YAB Prime Minister
and the Government had in him. The offences committed by the accused must
be viewed at gravely as it undermines the administration of justice. What
he did was for his own personal advantage. The Honourable Attorney General
then prayed for a deterrent sentence and said that the sentences in respect
of the first and third charges and the second and fourth charges should
run consecutively as they relate to offences committed at different times.
I then asked learned counsel again whether he had anything to say. On this
occasion too he said that he does not wish to say anything. This indicates
that there was not only an absence of remorse on the part of the accused
but also an unwillingness to make a plea in mitigation.
It is settled law that a Court should, when sentencing
an accused, take into account all considerations relevant to the case,
including the gravity of the offence, the circumstances surrounding the
commission of the offence, the antecedents of the accused, the deterrent
effect that punishment is to have, any factor that warrants special attention
either in favour or against the accused and above all the public interest
(see Lim Guan Eng v Pendakwa Raya (1998) 3 AMR 2079). I hasten to
reiterate that the Defence deprived me of the benefit of information regarding
factors that may be in favour of the accused in assessing sentence by failing
to advance a proper plea in mitigation. This was despite my requests to
the accused himself when he was reading the text to concentrate on matters
that may mitigate the sentence to be imposed. My repeated requests to learned
counsel for anything that he may wish to say was also futile as he declined
to address the Court on sentence. Thus I had to carry out the sentencing
exercise only on the material available to me.
In assessing the appropriate sentence to be passed
on the accused the first matter to be considered is the object of Ordinance
No. 22, under which the accused was charged and found guilty, which was
enacted to widen the campaign against corruption. It serves to strike at
any act done by a politician or public officer whereby he has used his
public position to his advantage. In my opinion any sentence passed for
an offence under Section 2(1) of Ordinance No. 22 must take into account
the position occupied by the politician or public officer concerned and
the nature of the abuse of office. Even in Nunis v PP (1982) 2 MLJ
114, a case involving abuse of office by a fire officer, the sentence imposed
was two years’ imprisonment after due consideration having been given to
the fact that the charge was hanging over his head for several years. In
commenting on the severity of offences of this nature Abdul Hamid FJ (as
he then was) said in Nunis v PP (1982) 2 MLJ 114 at p 118,
"Perhaps it would also be appropriate
to say that if there is a hope for the country to have a clean and efficient
administration it is essential that members of the administration should
not be corrupt. Offences for corrupt practice committed by a public officer,
Members of Parliament and Assemblymen must therefore be dealt with severely.
Public interest demands it."
In this case the accused was the second highest ranking
official in the country at the material time. The manner in which he abused
his office hits at the very core of the administration of justice. Its
seriousness cannot be underestimated. It is not the act of a minor official
upon another. It is the act of the second most powerful official in the
country upon two ordinary citizens who led ordinary lives. If complaints
of ordinary citizens like them can be caused to be retracted by persons
in high authority, with impunity as in this case, through misuse of agencies
such as the police or Special Branch the ordinary citizen would be deprived
of justice and protection of the law. There can be no double standards
in the administration of justice. It is the birthright of every citizen.
It is ironical for a person to make use of the police and the Special Branch
to stifle or suppress complaints for his own benefit and, when the truth
is exposed, turn the tables against the same agencies and boldly accuse
them of fabrication of evidence against him. I was therefore of the opinion
that the accused must be given an appropriate custodial sentence. Upon
a consideration of the maximum term of imprisonment under Section 2(1)
of Ordinance No. 22 which is 14 years I was of the view that the initial
calculation of the sentence to be imposed should be in the range of nine
years’ imprisonment. As D A Thomas says in his book entitled Principles
of Sentencing at p 39,
"From the initial figure calculated
by reference to the seriousness of the offence allowance may be made by
way of mitigation for good character, or for moderately good character."
However, in assessing the allowance to be given from
my calculation of the initial figure I had to strain myself to look for
mitigating circumstances in favour of the accused in the absence of any
plea in mitigation from him or his counsel. I considered, on my own, the
accused’s service to the nation for 16 years, his previous clean record
and that he is a married man with several young children. The factors against
the accused are the attempted use of tampered evidence and a good part
of the defence consisting of after-thoughts. The offences for which I had
found the accused guilty do not reveal them to be merely inadvertent and
technical in nature but ones that were pre-meditated and executed over
a period of time. The accused did not display any sign of remorse from
the very beginning of the trial till its conclusion.
I also considered the period the accused had been
in remand from the date of his arrest. As he had been in remand for about
seven months prior to being found guilty I had to determine whether it
should be taken into account in assessing sentence. It will have a bearing
on the commencement of the date of sentence. This is governed by Section
282(d) of the Criminal Procedure Code which reads as follows:
"With regard to sentences of imprisonment
the following provisions shall be followed:
(a)
(b)
(c)
(d) every sentence of imprisonment
shall take effect from the date on which the same was passed unless the
Court passing such sentence otherwise directs."
The sub-section makes it clear that the normal rule
is that a sentence takes effect from the date on which it is passed. A
departure from this rule is permissible if the Court so directs at its
discretion. As it is a discretionary power an application to that effect
must be made by the accused when he is making his plea in mitigation. Where
a person has been in remand prior to his conviction such period may be
taken into account in one of two ways in determining the sentence. The
method chosen will play a decisive role in fixing the date of commencement
of the sentence. It may be considered as a factor in assessing the sentence
to be imposed in which event the sentence must commence from the date of
conviction. If it is not so considered the sentence may be ordered to take
effect from the date of arrest. In the case of the former the length of
the sentence that would otherwise have been imposed would be reduced. In
the case of the latter no such reduction would be ordered but the sentence
would be back-dated so as to span the period of the remand. As it is a
matter of discretion a Court may decline to take any account of the period
in remand (see R v Clarke (1996) 87 A Crim R 441). There is no obligation
to back-date a sentence in all cases (see Muir v H M Advocate 1985
SCCR 402). As a matter of fact I had the occasion to consider this area
of the law in PP v Iran bin Sakdon (1998) 4 J Cr 415 where I said
at pp 421-422,
"The learned Magistrate has taken
into account the period of remand of the accused prior to his conviction
in imposing sentence and has at the same time ordered the imprisonment
term to commence from the date of arrest. Section 282(d) of the Criminal
Procedure Code provides that every sentence of imprisonment shall take
effect from the date on which the same was passed unless the court passing
such sentence otherwise directs. Such a direction may include an order
that a sentence of imprisonment is to take effect from the date on which
the offender was arrested. The exercise of this power is discretionary
(see Sinniah Pillay v PP (1992) 1 SLR 225). A court may also make
some allowance in imposing sentence where the accused has spent a long
time in custody while awaiting trial (see R v Layton (1959) Crim
LR 61; R v Newman (1959) Crim LR 138; R v Yakimovitch (1960)
Crim LR 66). The exercise of this power is again discretionary and thus
I would not agree, with respect, with the view expressed in Lian Kian
Boon v PP (1991) 1 MLJ 51 ‘that in the ordinary course of events the
period of his detention should have been taken into consideration and deducted
from the sentence of 12 months.’ In my opinion a period of remand can therefore
operate in favour of an offender in only one of the two following ways.
If the sentence of imprisonment is to take effect from the date it was
passed then the period spent in remand may be considered in assessing the
prison term. If that course is adopted then the prison term cannot be ordered
to take effect from the date of arrest. If the period spent in remand is
not taken into account in assessing sentence then the sentence of imprisonment
imposed may be ordered to take effect from the date of arrest. A consideration
of the period in remand in assessing sentence followed by an order that
the sentence of imprisonment is to take effect from the date of arrest
amounts to double credit being given for the same factor. This is wrong
in law."
In the case of the accused it must be observed that
he has been in remand in respect of 10 charges five of which relate to
sodomy allegedly committed by him. Thus his remand is also in respect of
offences other than the four charges for which I had found him guilty.
In R v McHugh (1985) 1 NSWLR 588 it was held that it is desirable
to back-date a sentence where the pre-trial custody exclusively refers
to the offence for which sentence is being passed (see also R v Reed
(1992)
2 VR 484). As the accused’s remand is also in respect of other offences
the commencement of the sentence from his date of arrest will therefore
be not appropriate. Thus I took into account the period spent by the accused
in remand, even in the absence of any application having been made to that
effect, by reducing the length of sentence that would otherwise have been
imposed. In the circumstances I convicted the accused and passed a sentence
of six years’ imprisonment in respect of each of the four charges. I ordered
that the sentences are to run concurrently notwithstanding the fact that
there was no reply from the Defence to the prosecution submission for the
sentences to be consecutive. As I have taken account of the period the
accused had spent in remand in assessing the sentence my order was that
the sentence shall commence from the date of conviction.
The Defence applied for a stay of execution pending
appeal and referred to me cases such as Re Kwan Wah Yip & Anor (1954)
MLJ 146 and Ganesan v PP (1983) 2 MLJ 369. The prosecution relied
on the same cases in opposing bail. In considering the application I took
into account factors such as the seriousness of the offences for which
the accused has been found guilty and the defence advanced which consisted
of after-thoughts and the attempted use of tampered evidence. Accordingly,
I dismissed the application.
Date: 14 April 1999
Sgd
( DATUK AUGUSTINE PAUL )
Judge,
High Court of Malaya,
Kuala Lumpur
Counsel:
For the Prosecution:
Tan Sri Mohtar bin Abdullah
(Dato’ Heliliah Yusof, Dato’ Abdul Gani Patail,
Mr. Azahar bin Mohamed, Mr. Mohd. Yusof Hj. Zainal
Abidin,
Mr. Stanley C. Augustin, Mr Nordin Hassan and
Mr Shamsul Sulaiman with him),
Jabatan Peguam Negara,
Tingkat 5, 11 — 20, Bangunan Bank Raykat,
Jalan Tangsi,
50512 Kuala Lumpur
For the Defence:
Y.M. Raja Aziz Addruse
(Haji Sulaiman Abdullah, Mr. Christopher Fernando,
Mr. Gurbachan Singh Pannu, Mr. Zainur Zakaria,
Mr. Pawan Chik Marican, Ms. Kamar Ainiah Kamaruzaman,
Mr. Sankara N. Nair, Mr. Zulkifli Noordin and
Ms Robyn Choi with him),
Messrs. Raja Aziz Addruse,
Advocates & Solicitors,
No. 29, Jalan Nusa,
50480 Kuala Lumpur
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