HOW AND WHY DOES THE COURT DECIDE PUNISHMENT AGAINST CRIMINALS?
Artist unknown, wood engraving. Nouveau dictionnaire encylopédique universal illustré. Paris (1885-1891). The word in English means : Pillory, after an old engraving.
I feel the need to write on the issue of sentencing so that the public can better understand how the Court imposes the punishment for each case. The thrust of this writing is to show that the Court is not supposed to impose punishment based on whether the offender is rich or poor, but based on recognised principles of law which may in the right cases consider mitigating factors comprising facts that coincide with poverty. Sometimes though, we do get headlines like this:
Credit : Free Malaysia Today
Earlier this month, Abdul Rahman Abdullah, 28 was punished with 2 weeks jail term and a fine of RM9,000 by Magistrate Amanina Mohamad Anuar, for a charge of reckless and dangerous driving, punishable under Section 42(1) of the Road Transport Act 1987. The maximum sentence for that offence is 5 years imprisonment plus fine of minimum RM5000 and maximum RM15,000. The news report above by Free Malaysia Today show that he had no driver’s licence at the time, and was thereby banned from applying for a new licence for 5 years.
Society often does not consider Lamborghini-driving 20-somethings with no drivers licence deserving of a lenient sentence, what more with the wanton endangerment of human life. The photo shows an upturned Proton Perdana (said to weigh some 1.5 tons), part of a multi-vehicle pile-up caused by the incident. Perhaps the learned Magistrate considered the plea of guilt and other factors submitted by the unrepresented accused person. For his benefit, sometimes the media does not capture accurately what actually happened in Court.
And then we have headlines like these:
Credit : Malaysia Today sourced from Bernama.
Father of two, T. Gopal, 34, pleaded guilty for shoplifting baby formula (4 boxes of Enfalac and 2 tins of Frisocal Gold) priced RM502.60 at a Speedmart 99 on the night of 6 Jan 2017. Magistrate Mahyudin Mohamad Som imposed 3 days imprisonment and a fine of RM1,200. If he failed to pay the fine, he would have to serve 2 months jail.
The Court imposes the punishment based on what the law provides, not simply what the Judge personally thinks is deserving upon the offender. 3 of the most widely recognized principles are as follows:
Retaliation (memberikan hukuman balasan, hukuman menyeksa) : It means that the law punishes the offender because that is what they deserve for harming the victim. It claims to follow the ancient philosophy of “eye for an eye”. It is coupled with society’s need to express disgust and disapproval for the heinous offence.
Deterrance (hukuman untuk mencegah daripada kesalahan berulang atau mencegah pesalah lain daripada melakukan kesalahan yang sama): It means that the punishment is aimed to deter or prevent the offender from committing the same crime again, and to deter other would be offenders from committing the crime, because they have seen what happened to the first criminal.
Rehabilitation (hukuman bertujuan untuk memulihkan pesalah atau berbentuk pengajaran supaya dapat pulang ke pangkal jalan yang benar): It means that the role of the State is to reform the offender so that after a period of “educating” them, they can realise their wrong ways and turn a new leaf so that they may be returned to society as better citizens.
Generally, the first two principles (retaliation and deterrence) are assumed to be best served with heavier sentences. It is assumed that if the punishment is lenient, it will not be a satisfying retaliation, and it will likewise not deter criminals from reoffending.
For the third principle (rehabilitation), heavier sentences may sometimes be counterproductive. An overly long jail sentence, for example, may or may not be good for the rehabilitation of a prisoner.
There are other principles but they have made less of an impact in our jurisprudence.
Factors that the Court Considers when Imposing a Punishment
Aggravating Factors (faktor pemberatan) – These factors are put forward by the prosecutor during the sentencing stage of a case to persuade the Court to impose a heavier sentence. Sometimes the aggravating factors are actually provided (required or made available) by law. Examples:
Section 376(1) of the Penal Code provides the punishment for the crime of rape (up to 20 years imprisonment plus whipping). However Subsection (2) provides a list of aggravating factors which imposes a minimum 10 years’ imprisonment and an increased maximum of 30 years’ imprisonment:
at the time of, or immediately before or after the commission of the offence causes hurt to her or to any other person;
at the time of, or immediately before or after the commission of the offence, puts her in fear of death or hurt to herself or any other person;
the offence was committed in the company of or in the presence of any other person;
without her consent, when she is under sixteen years of age;
with or without her consent, when she is under twelve years of age;
with her consent, when the consent is obtained by using his position of authority over her or because of professional relationship or other relationship of trust in relation to her;
at the time of the offence the woman was pregnant;
when by reason or on occasion of the rape, the woman becomes insane;
when he knows that he is afflicted with the Human Immuno-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is or may be transmitted to the woman;
when by reason or on occasion of the rape, the woman commits suicide; or
when he knew of the mental disability, emotional disorder or physical handicap of the woman at the time of the commission of the crime
Subsection (3) also provides a statutory aggravating factor.
Section 39C of the Dangerous Drugs Act 1952 is an interesting provision that provides the statutory aggravating factor as well as the procedure to establish the same, which has special rules.
Section 382A of the Penal Code: Not a true aggravating factor, but it has a compounding effect on the sentencing based on previous conviction. An offender found guilty of any one of offences under Sections 379, 380 and 382 of the Penal Code are deemed to have committed offences of the same type, even though the previous convictions were of the lesser of the 3 sections. Therefore offenders who commit progressively heavier crimes over time, do not benefit from an argument to distinguish previous (lighter) offences from the current.
Below are some examples of non-statutory or generally uncodified aggravating factors. Please note that there are many aggravating factors that have been codified especially for agency-based offences (i.e. offences under the specific purview of a designated authority — so it is not only in the law but even their KPI reporting).
Gravity of the offence – The seriousness of the case, the fact that the victim was a child, the principle effect of the offence on society and its general offensiveness against public morals. In simple words, the sentiment factor.
Abuse of Position – E.g. breach of trust by a trusted statesman, incest by parent upon child, etc. There are some laws like the Sexual Offences Against Children Act 2017 that add an extra 5 years’ imprisonment on top of the prison term ceiling for offences committed by persons in a position of trust such as school teacher, coach and caretaker.
Cruelty of the Act – I have used this argument only once. This is also subjective – don’t all crimes have some element of cruelty at some level? I think the concept should be unusual cruelty that inspires our collective revulsion.
New Amendment – Especially for cases where “life sentence” has been increased from 20 to 30 years, prosecutors like to use this argument. This argument means that because Parliament has increased the ceiling for maximum punishment, it means that the Court should give effect to the intention of Parliament. This argument is fallacious but a lot of Courts buy it. If Parliament wanted the entire sentencing trend to gravitate upward, it would legislate for minimum sentence and remove low punishment from discussion. An increased ceiling just means that Parliament gives the Court the power to impose a higher sentence if it sees fit, not that any trend should be affected. If lawmakers are unhappy that the Courts have been imposing low sentences, then the problem is not with the law. My comments:
The range of sentencing is there for a reason : to empower the Court latitude to impose a sentence within a continuum of facts and circumstances. The Prosecution also benefits in it allows them more leverage in plea bargaining. Minimum prison sentences actually deter accused from pleading guilty. How well have lawmakers been advised that going for trial is always a risk, a risk of acquittal?
Perhaps lawmakers need to look at the real reason why Courts impose low sentences. It could be that the Court (or the Prosecution via plea bargaining) wishes to encourage the accused to plead guilty. Or that the facts actually do not move the Courts to impose a heavy sentence. Lawmakers need to accept that the Courts consider cases on a case by case basis. Unfortunately sensational headlines (like the ones I have pasted above) can sometimes motivate lawmakers to consider a distorted, uninformed view of the law based on media reports.
The public should not show favour to a lawmaker just for increasing penalties. Credit should be given to reform the law and solve social problems.
Repeat Offender – The accused has a previous record of crime. There are rules applicable, for example the gap principle where if there is too great a gap in time from one crime to another, then it should not count toward this as an aggravating factor. The crimes should be of the same type (but need not be of the exact same section or provision of the law creating the offence). There are also specific provisions that the Prosecution must comply with to prove the criminal record.
Rampancy of the Crime – Depending on who you ask, this is a subjective term. There was a season where jenayah jalanan (street theft, kes ragut) was said to be rampant. There was season where sexual crimes were said to be rampant. There was a season where corruption was rampant. It is really subjective and everyone has an opinion on this from prosecutors to journalists to politicians. The fact is, the individual criminal probably didn’t know nor care whether the act committed was rampant or not. I have witnessed Her Ladyship Tengku Maimun Tuan Mat chastise a prosecutor who failed to substantiate what she meant by the offence being prevalent and followed a particular trend.
Offence Caused Financial Loss – Almost all offences cause some form of financial loss to someone. If the victim can quantify the loss and its impact perhaps through a well drafted Victim Impact Statement, hopefully it is given due weight by the Court. The DPP if persuaded can make the necessary post-conviction application for an order that the accused pays compensation to the victim.
Extent of Falsity – I have seen this argued only once in a case prosecuted by the Securities Commission Malaysia. I think this is an extension of the need to punish particularly audacious offenders. The senior management of a technology company cooked the accounts and sales reports to inflate the value of the company just in time for IPO. My head of department at that time felt strongly about this argument and represented it as “percentage of falsity” – I agree with her and the Court of Appeal eventually increased the punishment.
Mitigating Factors (faktor mitigasi) – These are factors put forward by the defence counsel at the stage of sentencing in an attempt to obtain a lenient sentence. Sentence is determined by the Court but the Court can take into consideration such factors to a lighter punishment, whether in terms of imprisonment, amount of fine or whipping. Compelling reasons can also move the Court to consider an order under Section 173A or 294 of the CPC, releasing the Accused on a bond of good behavior. Certain laws do not permit the Court to make such orders. In certain situations, the Court also has the power to order the Accused to perform community service as part of his sentence served.
Plead Guilty – This factor is taken into consideration on the basis that by pleading guilty, the Accused has saved expense and time of all parties – the Court, the victim, the witnesses, the prosecution and police. Some Courts do not give much weight to a plea of guilt due to the gravity of the offence. This is not always a wise thing to put in writing because eventually lawyers and accused persons catch on and see that pleading guilty offers no benefit. Courts and prosecutors need to remember that if the Accused claims trial, in every trial there is always a risk that the Accused will be acquitted, if not at trial then on appeal. For that reason, Courts would do well to remember their role to balance the interest of the public versus the individual. Importantly, the Courts also balance competing interests within the same public. One Judge may have the satisfaction of imposing a heavy punishment on an offender who pleaded guilty. However, this may result in a larger number of acquittals in his court and in other courts because Accused persons and their lawyers see that taking their chances with trial is more beneficial than pleading guilty that imposes a heavy penalty anyway. We feel anguish and outrage on some heinous crimes perpetrated, but think of how more anguished we would be with those future acquittals in future cases. I have written elsewhere on the pro and cos of plea bargains in the outcome of sentencing.
First Offender – If the Accused has no record of past conviction, this makes a typically acceptable argument in all but the most serious cases. First offenders can use the argument that they “tergelincir” or committed the act out of misjudgment.
Remorsefulness and promise to never reoffend – Not a strong factor, but it tends to support a plea of guilt. On the other hand, lack of remorsefulness and defiance is sometimes used by Courts as a factor against the Accused. This is indeed a quandary for Accused persons who were actually innocent, who have nothing to be remorseful for.
Cooperation with the Police / Turned himself in / Brought the Victim to the Hospital – I’m not sure why an Accused would be rewarded for something that he is expected to do anyway. But I see it as an extension of the argument used in plead guilty cases. By cooperating with the Police, the Accused has saved time and resources of the investigation and helped expedite the cause of justice (even against himself).
Age - Being youthful or old is not used on its own (being so subjective) but to show that a long prison sentence would have an overly negative effect on a young or old offender.
Sole Breadwinner – When I underwent pupillage in 2006, the sole breadwinner argument was routinely used for our dock brief legal aid duties. Over time, I think the sole breadwinner argument has become less and less important because the Courts are ready to rebut (as evidenced by their grounds of judgment) with “He should have thought about it before he committed the crime”. Which makes more sense for premeditated, planned crimes than for crimes of passion or committed on the spur of the moment without much forethought, or for innocent people. The criminal justice system focuses on the act committed by the offender, with our without a victim. It does not look at his dependents, his family and responsibilities. Children raised in homes where their father figure is incarcerated for long periods, compounded with economic consequences on the whole family, and increased psychological and other burdens on the mother figure, are not part of the sentencing equation. No way they are. Show me a court judgment that says otherwise, change my mind please.
Accused and Victim / Complainant need each other – A heavy sentence against the accused may have a worse effect on the victim. This argument needs to be played well with tact and sensitivity. There are multiple layers of issues that I cannot cover them in this writing. This set up is common where the complainant, victim and accused are all family members and there are various sociological and tactical pressures working to frustrate the process. More research needs to be done in this area to better inform policy makers and the Courts.
Neutral Factors – All aggravating factors and mitigating factors above are subjective, but the following are more so. Neither here nor there.
Suka-sama suka – This is for statutory rape cases, called Romeo & Juliet scenario, where lack of consent is not an issue. Suka-sama suka can actually destroy a charge based on deception (cheating) or other offence where volenti non fit injuria come to play.
Accused is poor – A large number of accused I prosecuted and defended were poor and being poor did not help them one bit. There could be sociological and developmental reasons that encouraged the Accused to resort to or find themselves in crime because of poverty. But this is not a strong point. I have heard this argument being used but I do not know how effective it is at procuring a lenient sentence. I think our legal system is generally unsympathetic to the poor and more should be done to permit them access to justice — not necessarily to hand out lenient sentences carte blanche but for legal advice and representation in accordance with the law and not the whims of the police.
Accused is a foreigner – I’ve heard this argument being used. I assume it is to persuade the Court to save the expense and resources of local Prisons to enable them to make way for more local criminals. I have not tried it yet. I have mixed feelings about this argument.
Victim started it / Victim provoked the Accused – Not really a strong mitigating factor but it can be used with the right facts. This may be one of many things that a defence counsel needs to establish to bring a case of murder down to a case of culpable homicide (via the partial defence of grave & sudden provocation). But not a popular mitigating factor on its own.
Why are Punishments imposed on Offenders?
Punishment, called sentences, are imposed by the Court on persons found guilty of crime, because the law requires the Court to do so. The Court cannot punish persons who are not yet found guilty. They must be found guilty after a trial process where the Court sees and hears and considers all the evidence against him. The Court cannot choose to not punish someone found guilty of crime. I have explained the general criminal procedure in another article, “Basics of a Criminal Trial” and will refer you straight away to 2 provisions of law (there are actually more):
Section 173(b) of the Criminal Procedure Code: If the accused pleads guilty to the charge, whether as originally framed or amended, the pleas shall be recorded and he may be convicted on it and the Court shall pass sentence according to law.
Section 173(m)(ii) of the Criminal Procedure Code: If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court shall find the accused guilty and he may be convicted on it and the Court shall pass sentence according to law.
The first provision above applies when the Accused person pleads guilty to the charge. The second provision applies when the Accused does not plead guilty but fights the case (“claims trial”) but is still found guilty at the end of the entire trial.
You will note that in both provisions, the word “shall” is used, which means that it is mandatory for the Court to impose a punishment after a conviction is recorded. The Court cannot opt out of it out of pity to the Accused person.
You will also note that at the end of both provisions, the phrase “according to law” is used, which emphasises my point earlier that the punishment imposed is one that is provided by law. If you are unhappy with the type, or range of sentencing provided by law, then you need to change the law. And if you cannot change the law, then you should change the lawmakers. That is all part of our democratic system.
In this writing, I am not inviting you to consider whether a law is right or wrong, but to discuss why punishments are imposed. For every offence there is a punishment provided by law. For most types of offences, the punishment may be one or more of the following categories:
a. Jail
b. Fine (denda)
c. Whipping
Other possible orders resembling punishments in form or in name are discussed below.
For jail sentence, the law will provide a maximum. That means that it is illegal for the Court to impose a jail term that is longer than the maximum. Sometimes, the maximum jail sentence provided by law is curtailed because the case was decided by a court that has a lower sentencing jurisdiction. For example, the Magistrate’s Court has a trial jurisdiction for cases that are punishable up to 10 years’ imprisonment. That means that the Magistrate Court has the power to decide on cases based on crimes that are punishable to that maximum of 10 years. It cannot decide on cases that are punishable with anything heavier than 10 years’ imprisonment, for example if it is 15 years (Sexual Offences Against Children Act 2017), life sentence (culpable homicide under Section 304(a) of the Penal Code) or death sentence (drug trafficking, murder). I have faced this situation twice.
This was a case I handled at the defence stage of trial. A Court interpreter was found guilty by the Magistrate Court for criminal trespass with a view to commit theft. The Magistrate imposed 12 months’ imprisonment. On appeal, the High Court imposed 8 years’ imprisonment, which is unlawful because the maximum sentence that a Magistrate could have imposed is 5 years. A learned colleague working in the judiciary informed me that it should be possible but I am not sure how or why. In my view, the appellate jurisdiction of the High Court is against an order which the court of first instance had the competence and jurisdiction to order, limited not only by type (fine, jail, whipping, death or no death) but quality (number of years’ imprisonment).
The law may also provide for other types of “punishments”. In the language of law, these are called “sentences”. In Bahasa Melayu it is said that the offender when convicted “hendaklah diseksa dengan hukuman …”. I think hukuman means both punishment and sentence — functionally they are the same. Unlike conviction because the finding of guilt (didapati bersalah) is distinct from recording a conviction (merekodkan sabitan).
Whipping
Whipping may not be administrated on women (of all ages) and for men above 55 years old. This does not apply for certain sexual offences. I have not attempted this argument (and as a defence counsel, I would not fathom why I would), but if there were 2 co-accused, a man and a woman, if the man received X number of years jail plus whipping, should the woman receive a longer imprisonment to “compensate” for there being no whipping against her? There could be constitutional law considerations here.
At the date of this writing, the Prisons Regulation 2000 still prohibits the execution of whipping upon men aged above 55 years. I was assigned by YBGK (National Legal Aid Foundation) to appeal against the decision of the High Court Judge, who enhanced the sentence of jail for a man aged above 55 years and added the number of strokes of whipping. Though the High Court Judge was permitted in law to do so because it was a sexual offence following the amendment of 2016 to the CPC, I argued that the Court would be making an unenforceable order because the Prison Department was prevented from whipping the senior offender.
Two points of trivia on the type of whips:
I have heard but have not seen, that there exists a smaller type of rotan used for white-collar crime offenders. Perhaps they had thick skin when defrauding their victims, but the thick skin did not extend all the way down.
The Criminal Justice Act 1953 abolished the use of cat-o’-nine tails in the execution of whipping.
Cat O’ Nine Tails. Credit : Wikipedia Commons
Other types of Consequences or Orders that resemble punishments
Other categories of sentencing may be available depending on the applicable law that governs the criminal act as well as the offender. I think we lawyers, prosecutors, judges, policymakers and regulators should all work together to make these alternative methods work. We should make these alternative methods mainstream because our prisons are too crowded and are having a disproportionately negative impact on certain categories of offenders. I don’t have the numbers but I would like to suggest young offenders (18-21 years old), offenders who are not career criminals but merely “tergelincir” in the heat of the moment, white collar criminals who committed a more regulatory type offence as opposed to a moral offence (though admittedly many of them deserve every pound of outrage), offenders from vulnerable social groups with many dependents, and others. For example:
a. If the offender is a first time offender or is young or has suitable antecedents, they may be eligible for an order of binding over (dilepaskan dengan bon berkelakuan baik) (Section 173A of the CPC). This is why I state “sentence” with quotation marks because sometimes it does not seem like a punishment at all.
b. Young offenders covered by the Child Act 2001 do not go to jail but instead other forms of “sentencing” is available. In fact they are not even allowed to be called accused persons (tertuduh) but instead are referred as “young offenders” (pesalah muda) even though the offence has not been proved yet. Teenagers do not go to jail but are subject to a different “sentencing” regime involving special education which I could write about on another occasion. My lecturer Dr Farah Nini Dusuki from the Law Faculty of the University of Malaya is the most knowledgable person I know on this subject.
c. Community Service Order (perintah khidmat masyarakat) is applicable for youthful offenders under Section 293(1)(e) of the CPC.
d. Orders of police supervision under Section 295 and rehabilitative counselling under Section 295A of the Criminal Procedure Code. Myself I have not yet been instructed to appeal or defend such orders before.
e. Compulsory Attendance Order under the Offenders Compulsory Attendance Act 1954 are one of those gems of the law that we seldom see administered in the day-to-day affairs of the Court. It is basically an order for the offender to perform work at a designated centre. I do not know what kind of work this entails because none of my clients have benefitted from this so far. This useful law is aimed at persons who committed minor offences or failure to pay fines, facing up to 3 months’ imprisonment. To reduce the risk of Coronavirus spreading in crowded prisons, the government had in April 2021 issued the Emergency (Offenders Compulsory Attendance)(Amendment) Ordinance 2021, which extended the eligibility of such offenders for the Compulsory Attendance Order from 3 months imprisonment to 3 years imprisonment. We do not really see this being implemented in a visible manner day-to-day. Just visit any Magistrate Court and count how many Compulsory Attendance Orders are actually issued.
f. Sometimes there are other legal consequences that arise apart from proper sentences. For example,
a. in road traffic offences, the Court has to power to suspend the offender’s driver’s license for a particular period
b. immigration offences may entail departmental action (tindakan jabatan) such as deportation
c. for offences against children (under the Child Act, Sexual Offences Against Children Act and the like), the offender would be blacklisted by JKM and will not be permitted to work in the childcare industry ever again (the enforcement mechanism is through licensing, but that has weaknesses too).
d. Offences relating to dishonesty may make it difficult or impossible for the accused to keep their job or join certain professions such as the legal and banking sectors.
e. Offences connected to organized crime, secret societies and persons linked ot terrorists can result in other actions by the Home Ministry, such as action under the Prevention of Crime Act, Security Offences (Special Measures) Act, LLPK.
f. Almost any type of offence can trigger anti money laundering action (freezing order etc) especially those cases that created proceeds of crime.
How to obtain a lenient sentence if you or your loved ones have been found guilty for an offence?
Trial : If you intend to plead guilty to a charge, you should be ready to submit points in mitigation. Consider whether your personal situation and the circumstances of the case fits in the categories generalized at the beginning of this writing.
If you have undergone the trial process and a date is fixed for decision, you should be prepared to submit in mitigation.
In both scenarios above, the Court will announce that it finds you guilty as charged (“Mahkamah mendapati kamu bersalah seperti pertuduhan” or similar phrasing). Usually the Court will say one word, “Rayuan.” And this is a signal for you to begin your submission for mitigation. Sometimes the Court will explain what it means, especially if you are unrepresented. You need to be very alert because this process goes by quickly and it is easy to miss what the Magistrate said.
You may submit orally or you may present a written submission.
You should inform the Court that you request a lenient sentence and provide good reasons.
Plea Bargain : I have discussed this in another writing on this webpage. If you can secure a favourable plea bargain, it could be a better deal for you than if you mitigated directly to the court.
Appeal
If you are dissatisfied with the outcome of your case at trial stage, you may appeal against conviction, sentence or both. You need to file your Notice of Appeal within 14 days and state clearly the order that you are appealing against and what part of that order.
After reading the grounds of judgment, you will know the reason that the Court imposed a particular sentence upon you. You should file a Petition of Appeal which summarises your complaint against the decision of the Judge, with the benefit of having read the grounds. Sometimes, if your appeal was against sentence only, the Court will proceed to hearing even if the grounds are not ready – this has happened to me a few times at the Court of Appeal.
What are the criteria for appealing against a Sentence?
1. Extent of sentence – This goes to the term of imprisonment, amount of fine or number of strokes of whipping. The basis for appeal by the defence is that the sentence was manifestly excessive. For the prosecution, the basis is that the sentence was manifestly inadequate. If you cannot show that the sentence was manifestly something, then the appellate Court would not have a good reason to interfere with the decision by the trial judge.
2. Legality of sentence – In those rare cases where the sentence itself was unlawful, for example the Court of Appeal matter I shared earlier where the High Court imposed a punishment that exceeded the sentencing jurisdiction of a Magistrate, from which the case originated.
How to ensure criminals who hurt you or your loved ones do not escape with lenient punishment
If you are a victim or related to one, you may be interested to make sure the offender who hurt you gets his just desserts. You also want to prevent him from getting away with a lenient sentence.
This is how you do it:
a. Keep an eye on the progress of the case at case management (pre-trial stage). If you see that there have been letters of representation or attempts at plea bargaining initiated with the offender (or his lawyer) with the prosecution, try to intervene.
Do not do this on your own.
Do not leave / entrust everything to the DPP or the police or the court.
b. Appoint a lawyer who can officially liase with the DPP. If the DPP would not dismiss your own letter outright. You do not have the right to view the Accused’s representation nor do you have the right to sit in and join the plea bargain deliberations. However, I handled 2 cases (one was under Section 323/326A of the Penal Code and the other was under Section 31 of the Child Act 2001) where the victim was invited to sit in the (plea bargain) proceedings and was even consulted by the Prosecution and the Court.
c. During trial when you are called to testify, tell the court how the crime has affected you, your life, your earnings, any trauma or fear you experienced, prospects of employment and marriage, and other things deprived. Do this even if the DPP did not ask you to. Make sure the Court writes it down.
d. At the end of trial, pay attention whether the result is conviction. If it is acquittal, inform the court that you wish to give a Victim Impact Statement (“VIS”). In my view, the Court must receive it. Your VIS should be written and delivered orally by you. This is your only chance to express your anguish to the Court. Bring your family members to Court and populate the public gallery. Identify them, let them stand up and be counted. Let the Judge see why sentence matters so much and who is affected.
e. If the Accused pleads guilty at whichever stage, follow the same course as d. above.
f. After the entire case, if you are dissatisfied with the sentence, you may write to the DPP’s superior (often the Pengarah Pendakwaan Negeri) and request for an appeal against sentence to be filed. As a courtesy to them, you should provide good reasons. This will also assist them when they formulate the Petition of Appeal. You do not have a right to draft or view the Notice of Appeal and the Petition of Appeal, and you cannot file these documents on behalf of the DPP.
g. The timeline is 14 days. If the DPP does not file a Notice of Appeal, or after receiving the grounds, does not file a Petition of Appeal (also within 14 days), the law says that the appeal is deemed withdrawn. So, you need to keep tabs with the DPP and the Court (just to be sure) on the status of the appeal.
h. If the appeal is withdrawn or does not proceed for whatever reason, write a letter to the High Court and request for the sentence to be reviewed. In exercising their power of revision, the High Court seldom entertains applications from victims because victims are not parties to the criminal proceedings. But the real reason I think is because most victims do not know they can do this. So now you know.
i. If the case proceeds to appeal, attend and follow it just like a trial.
j. If the case does not, but is one which you had to write in for revision, then you may not even be contacted by the Court. The High Court can decide on your application without a full hearing (it is optional).
What if you are a member of the public, how can you ensure the punishment imposed is fair?
a. You can write in to the High Court for it to call up the record and decide on the propriety of the sentence based on its powers of revision.
b. You can write to the DPP and request them to appeal. But the window is tight at 14 days. I wonder if anyone wrote to the Attorney General’s Chambers after Razak Baginda was acquitted by the High Court? There was no appeal against him but there were appeals filed in respect of Azilah and Sirul.
c. During the trial and appeal, create some public interest in a lawful manner. Lawyers can attend the proceedings and if permitted, can go on record as watching brief counsel.
Credit : Malaysiakini
Is the Law Unfair or is it just Bad Enforcement?
The law is different from the enforcement of the law.
Law is the rule that tells us what is lawful and what is not. Law is created by bodies and agencies that have lawmaking power. We will not be discussing the philosophical basis of law. Ultimately all lawmaking powers trace their origin to the Federal Constitution. The Court has the power to strike out a law because the law or the process of making the law, were in breach of the Federal Constitution.
Enforcement is the administration of the law. It is the police, the army, the bailiff, the Securities Commission, it is Dewan Bandaraya Kuala Lumpur. It is “[t]he act or process of compelling compliance with a law, mandate, command, decree or agreement.” The enforcement agencies can only force you to comply with the law by relying on powers granted by the law. If the law does not grant them such powers, then they cannot enforce the law. Lack of proper legal mechanisms is one of the major reasons why certain laws do not fulfil their policy objectives. Overcomplex legal mechanisms also create its own set of problems.
Sometimes a law is fine, but the enforcement is bad because it discriminates against people unfairly due to the decisions of the people who hold the reins of enforcement. On the other hand, sometimes the enforcement is fair but it still causes injustice because the law itself is discriminatory. As citizens, we should be concerned less about good intentions behind a policy but look at the results instead. This is because we are not born into this world to serve a policy or some good intentions. Evaluate our relationship with the State in terms of results.
For much of Malaysia’s legal history, a law validly and competently passed by Parliament (the words “validly” and “competently” here are loaded terms that have rich meaning in our law) were considered lawful and constitutional. Therefore, the Courts did not interfere with them. However, beginning with developments in administrative law and spreading into other spheres of law, the Courts developed doctrines and criterias for considering whether a law was constitutional or not constitutional based on things that were sometimes not even written in the law nor the Constitution.
Moral and Legal Aspects
The number one basis for punishment is the law. The Court and the public cannot simply impose whatever punishment that we feel the criminal deserves. The maximum and minimum terms of imprisonment, whipping and fine, and the categorization of offences are not based by our personal morals or our religious beliefs, or even what we personally think is right and wrong. This is because it is the law that fixes the type and range for punishment (called a sentence). Laws were passed by Parliament through a legislative process where the crimes and punishments were debated by our elected representatives. In the course of this lawmaking process, it is hoped that our public morality, religious values, national interest and other aspects were taken into consideration. That is at the national level of lawmaking. The process of lawmaking is long and tedious with several layers of consultation and drafting, often depending on political will and the political strength of the political figures driving it forward (I have intentionally used the word political 3 times). Political is not only internal, but may be affected by external factors as well. On can do a study of what kind of foreign pressures affected Malaysia when we pushed through the main money laundering law (which has undergone so many name changes that it is not so long and unrecognizable except for the first part of the acronym AMLA), the Strategic Trade Act and the Anti Human Trafficking in Persons Act (which has also been renamed).
Domestic political will also helps a lot. Noteworthy is the Sexual Offences Against Children Act 2017 which (I heard) was pushed through in only one year. On the other hand, there is even Amendment Bill thas been held out as a political watering hole for some three decades without being passed.
From my personal observation, anything to do with criminalizing something or amending a law to increase punishment tends to receive a lot of political support. It is a fix. This is because amending a law to increase punishment is a lot easier to do than making the law fulfil its purpose. It is also a measurable and broadcast-able way that a politician can say that they have discharged their duties. The administration and implementation of a law takes years, taking its observable lifespan long after the expiry of the said lawmaker. The passage of new laws and amendments are also newsworthy material that culminates the work of a campaign or other publicity effort. But we will only know how the (penal) law worked out after seeing the result. The results of laws are harder and seldom used to hold the politicians to account. It is like a court case where all the publicity is focused on the date of charge or sending a letter of demand, but the media forgets about the case thereafter, especially when it is quietly settled with no chest-beating.
However, for the individual person or individual family that is facing the process of crime upon yourself or your loved one, the thinking behind a law or the punishment may be different from what the lawmakers thought, or it may be irrelevant. A person who did not deserve a heavy punishment may face such heavy punishment because the lawmakers decided to impose a minimum sentence together with their announcement to be tough on crime – with thunderous applause of course. Lawmakers may also have political or populist consideration for prosing a particular form of punishment.
HOW COME RICH PEOPLE GET OFF WITH A LENIENT SENTENCE AND POOR HUNGRY PEOPLE RECEIVE A HEAVY SENTENCE?
The proprietary of a punishment imposed is like a paradox – it must be imposed fairly and equally but at the same time, it is relative and apportioned on a case by case basis in accordance with the facts and circumstances of the particular case.
Even with the exact facts, two or three Magistrates may impose different sentences.
This phenomenon may be better elaborated in another field of study.
Here we are talking about comparable cases with similar facts. May I propose the following explanations / observations (which are not at all justifications):
a. Differing personal of sensitivities, preferences, experience, motivations and competence of Magistrates and Judges
b. Tolerance of Magistrates and Judges against public sentiment (i.e. standing up to the public to impose a sentence which the public may consider lenient or heavy)
c. Influence of “amateur sociology” in sentencing principles. Rampancy of a particular type of case affecting a particular demographic. I know some examples but they are not appropriate to publish them.
d. The nature of media to highlight such disparities – in reality most sentencing whether for rich or poor are just ho-hum. But I would like to see the numbers.
e. Great lawyers and bad lawyers
f. Great prosecutors and indifferent prosecutors
g. Drafting of fakta kes and availability of supporting exhibits – usually it is the IO who prepares these with or without input from the trial prosecutor (for “plead guilty” cases)
h. State Directors of Prosecution who keep their men in line and who have meetings with the relevant senior judges to discuss sentencing policy – merely as an expression of perspective and in no way interfering of course.
i. Likewise State Bar Committees who engage with their counterparts in the State Prosecution Unit and the Courts.
Louis-Henri de Rudder (1844) “Notre Dame de Paris”, wood engraving, Perrotin.
A SHORT WORD ON THE USE OF ARTIFICIAL INTELLIGENCE IN SENTENCING
I am no expert on the topic of artificial intelligence (AI) in sentencing and I have not seen it at work at the date of this writing. Without the benefit of such information, I am only able to imagine that the use of such progressive aids to sentencing are just that – aids. If they can eliminate or minimize bizarre outliers (manifestly excessive or manifestly inadequate sentences for undeserving offenders) then I am for it. If it is merely a prop so that certain judicial officers can say, “I didn’t say it, the AI did”, then that is not acceptable to me. The value of judicial discretion is accountability and the duty to take responsibility and own up to one’s decisions, especially when a sentence is fitting for a particular case which may be seen as manifestly excessive or manifestly inadequate in certain quarters.
I am assuming that the AI is only as good as the
n Resources from which the AI draws its analysis – data, input, laws, trends and fact patterns.
n The creativity and wisdom of those engineers who receive input from judges and legal officers and hopefully lawyers too and other stakeholders, and engineer it into the system or do whatever they are supposed to do.
n The ability to properly treat bizarre outliers with suitable sentences.
Judges and Magistrates should never be absolved from the actual decision making process. There has to be a human being who is held accountable and who is not allowed to blame a robot for a bad decision. If the Judge or Magistrate declines to follow the recommendation of the AI system, the appeal court should not automatically brand it as an appealable error.
With my little knowledge, my expectation for this AI is as an aid only. All resources from which the AI draws its analysis should be transparent and reviewable by any member of the public even if such resources comprise tens of thousands of sentencing records. But I wonder how beneficial would such an AI system be for the cause of justice if it draws from data and decisions which are themselves broken?
CONCLUSION
The public expect that laws are enforced fairly so that we can feel safety and fully confident in the legal system. This is so that offenders do not get special treatment and are punished appropriately to deter crime. The public is also a moral public and require the laws to manifest their outrage at reprehensible crime and other antisocial behavior of wayward offenders. At the same time, though we sometimes forget, the public comprises individuals who, individually, may also get in trouble with the law once in a while. Therefore punishments should be strictly within the rules of law so that if we do get punished, we are not punished more than what is fitting, a punishment which DPPs in lower courts always say, “hukuman setimpal”.