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Friday, 4 December 2009

SISTEM KEADILAN JENAYAH : KES KUASA MAHKAMAH MAGISTRATE DAN HUKUMAN !


Kes : ABDUL WAHAB v PUBLIC PROSECUTOR [1970] 2 MLJ 203.



Fakta Kes : Tertuduh telah didapati bersalah kerana melakukan kes pecah rumah di bawah seksen 457 Kanun Keseksaan dan dihukum dengan 2 tahun penjara , 6 sebatan dan 12 bulan pengawasan polis oleh Magistrate. Tertuduh mempunyai 12 rekod kesalahan lepas.

Diputuskan: Oleh kerana tertuduh mempunyai 12 rekod kesalahan lepas Magistrate seharusnya menggunakan kuasa di bawah seksen 87(2) Akta Mahkamah Rendah untuk mengenakan hukuman yang lebih tinggi atau memindahkah kes berkenaan ke mahkamah yang lebih tinggi seperti peruntukan seksen 177 Kanun Acara Jenayah. Dalam kes ini hukuman penjara telah ditambah kepada 10 tahun penjara.


Cabutan seksen yang berkaitan.

Subordinate court act act.

87. Sentences within competence of First Class Magistrate
(1) A First Class Magistrate may pass any sentence allowed by law not exceeding -
(a) five years' imprisonment;
(b) a fine of ten thousand ringgit;
(c) whipping up to twelve strokes; or
(d) any sentence combining any of the sentences aforesaid:

Provided that where, by any law for the time being in force, jurisdiction is given to the Court of any Magistrate to award punishment for any offence in excess of the power prescribed by this section, a First Class Magistrate may, notwithstanding anything herein contained, award the full punishment authorized by that law.

(2) Notwithstanding subsection (1), where a First Class Magistrate has convicted any person and it appears that, by reason of any previous conviction or of his antecedents, a punishment in excess c that prescribed by subsection (1) should be awarded, then the First Class Magistrate may award the full punishment authorized by law for the offence of which the person has been convicted and shall record his reason for so doing.

Section 177 CPC.

177. Transfer of cases
In any trial before a Magistrate in which it appears at any stage of the proceedings that from any cause the case is one which in the opinion of the Magistrate ought to be tried by some Court of higher jurisdiction than his own, or if before or during the trial application is made by the Public Prosecutor, the Magistrate shall stay proceedings and transfer the case to a higher Court.

Section 152 CPC.

152. Form of charge
(1) Every charge under this Code shall state the offence with which the accused is charged.
(2) If the law which creates the offence gives it any specific name the offence may be described in the charge by that name only.
(3) If the law which creates the offence does not give it any specific name so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged.
(4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge.
(5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.
(6) If the accused has been previously convicted of any offence, and it is intended to prove that previous conviction for the purpose of increasing the punishment which the Court is competent to award, the fact, date and place of the previous conviction shall be stated in the charge. If the statement is omitted the Court may add it at any time before sentence is passed.

ABDUL WAHAB v PUBLIC PROSECUTOR [1970] 2 MLJ 203

Case Details:

Malaysia [MALACCA — CRIMINAL APPEAL NO 10 OF 1970]

Judges [ACRJ (SHARMA) J

Date 29 MAY 1970

Citation [1970] 2 MLJ 203



Criminal Law and Procedure — Trial — Sentence — Power of magistrate to award full punishment for offence of which a person has been convicted — Courts Ordinance, 1948, s 87(2).

Penal Code, s 457 — House-breaking in order to commit theft — Record of previous convictions — Sentence — Full Punishment authorised by law.

Facts:

The appellant had been convicted under s 457 of the Penal Code for having committed house-breaking in order to commit theft. He had twelve previous convictions. The learned magistrate sentenced him to two years’ imprisonment and six strokes of the rattan to the followed by twelve months of police supervision.

Holdings:

Held (1) the learned magistrate should have acted under section 87(2) of the Courts Ordinance which gives power to a first class magistrate to award the full punishment authorized by law for the offence of which a person has been convicted;

(2) in this case the term of imprisonment should be increased to ten years.

Cases Referred To:

1 Public Prosecutor v Viran [1947] MLJ 62
2 Sultan bin Rahmansa v R [1955] MLJ 75

Lawyers:

Appellant in person.
Ahmad bin Haji Abdul (DPP) for the respondent.
Judgment:
Sharma J:
Section #1
(delivering oral judgement): The appellant in this case was charged under s 457 of the Penal Code for having committed house-breaking in order to commit theft. The accused pleaded guilty after having fully understood the nature and consequences of his plea. According to the charge, he entered into the house in question by scaling its back wall between the hours of 1.30am and 6.30am. He not only committed house-breaking but, after having gained entry into the house, committed theft of certain articles belonging to the occupant of the house, the total value of which as given by the prosecution was $1,415. The appellant had 12 previous convictions the first of which was while he was a juvenile and the offence committed by him then was one under s 380 of the Penal Code. He continued his record of committing thefts up to the year 1950 when he was put under police supervision. He seems to have ignored even the provisions of law which govern the conduct of a police supervisee. I need not go into the other convictions which disfigure and display the character of the appellant to an extremely ugly and detestable degree but I need only mention that on 8 June 1961 he was convicted in Singapore under s 457 of the Penal Code and sentenced to 5 years’ imprisonment. He got out of the prison and was again convicted in 1966 for house-breaking under s 456 of the Penal Code and sentenced to two years’ imprisonment.

The learned magistrate convicted the appellant and sentenced him to two years’ imprisonment and six strokes of the rattan to be followed by 12 months of police supervision. Under s 87(1) of the Courts Ordinance a magistrate is empowered to pass any sentence not exceeding two years’ imprisonment, a fine of $5,000 and whipping up to six strokes, or any sentence which combines any of the sentences aforesaid. In passing sentence on the appellant with his previous record the learned magistrate seems to have done what he thought he was empowered to do up to the maximum extent under the law. But I think the learned magistrate apparently seems to have made a mistake there. Section 87 of the Courts Ordinance was amended by the Courts (Amendment) Ordinance 1953 (Ordinance No. 49 of 1953) whereby sub-section (2) to s 87 of the Courts Ordinance was added. This sub-section reads as follows:

“Notwithstanding the provisions of sub-section (1), where a First Class Magistrate has convicted any person and it appears that, by reason of any previous conviction or of his antecedents, a punishment in excess of that prescribed by sub-s (1) of this section should be awarded, then such First Class Magistrate may award the full punishment authorised by law for the offence of which such person has been convicted and shall record his reason for so doing.”

Before dealing with s 87(2) of the Courts Ordinance and the omission of the learned magistrate to have regard to the provisions of that sub-section, I think it is my duty to make it known that in cases like this and in the interests of the community, the prosecution ought, having regard to the previous criminal record and history of the accused, to see that he is charged in a proper court where he can be properly and adequately dealt with. The magistrate before whom the charge is brought is not entitled to have a record of the previous convictions of the accused until after the accused has been convicted, but the investigating officer and all those responsible for the prosecution of the accused cannot be said not to possess the right or not to have that knowledge if investigations are carried out properly.

There is provision under s 177 of the FMS. Criminal Procedure Code which corresponds to s 188 of the Straits Settlements Criminal Procedure Code for a magistrate to transfer the case to a court of some higher jurisdiction if it appears at any stage of the proceedings that from any cause the case is one which ought to be tried by a court of higher jurisdiction than that of his own. The same section also entitles the Public Prosecutor to make an application during the trial to stay proceedings and to have the case transferred to a higher court or to have a preliminary enquiry with a view to committal to the High Court. In this connection I may refer to only two cases. In the case of Public Prosecutor v Viran [1968] 1 MLJ 273. Spenser-Wilkinson J. in delivering the judgment said at page 65:

“Finally a point was raised as to whether under s 177 a district judge has power to transmit a case to a magistrate for preliminary inquiry or whether he is under obligation to proceed himself with the preliminary inquiry with a view to committal of the accused. The section lays do n that the magistrate is to transfer the case to a higher court or to proceed himself under Ch XVII. I think this point is covered by s 34(ii) of the Courts Ordinance, 1946, which provides that the practice and procedure shall accord with the provisions of the existing laws but shall be applied with such modifications as are necessary to make them applicable to the courts established under the Ordinance or to any judge, magistrate or officer thereof. The only way in which a district judge can transfer the case to a court of higher jurisdiction than his own is by way of preliminary inquiry. Under s 177, therefore, he can either transfer by sending the case to a magistrate or himself proceed under Ch XVII of the Criminal Procedure Code.”

Section #2
In a subsequent case, Sultan bin Rahmansa v Regina [1957] MLJ 51. Spenser-Wilkinson J. said:

“It is well established that a magistrate’s court has no power to transfer a case to a higher court for sentence and this is in substance what the learned magistrate purported to do. Having heard the case to its conclusion it was in my opinion his duty himself to deal with the appellant according to law. The power given to a magistrate’s court by the proviso to s 85 of the Courts Ordinance, 1948 must be exercised, if it is exercised at all, before the magistrate has come to a conclusion upon the guilt or otherwise of the accused. It must be remembered that in a summary trial the court has to come to a conclusion at the close of the case for the prosecution as to whether or not the case has been made out which would warrant a conviction. In my opinion, therefore, it is improper for a magistrate to exercise the power of transfer once he has called upon the accused for his defence. It has been held that a magistrate must have before him some material upon which to come to a conclusion that the case is one proper to be transferred to a sessions court (see Public Prosecutor v Viran [1968] 1 MLJ 273); but in the great majority of cases it should be apparent to a magistrate whether or not the case is one which he could adequately deal with if a conviction resulted by the time he has heard the main story of the prosecution which will usually be contained in the complainant’s evidence.”

Section 177 of the FMS criminal Procedure Code reads as follows:

“In any trial before a magistrate in which it appears at any stage of the proceedings that from any cause the case is one which in the opinion of such magistrate ought to be tried by some court of higher jurisdiction than his own... the magistrate shall stay proceedings and transfer the case to such higher court or proceed under Ch XVII with a view to the committal of the accused for trial by the court of a judge, and shall record such order upon the proceedings.” (The emphasis is mine.)

I do not think it is necessary for me at all for the purposes of this appeal to go into the question whether the passing of a sentence is a stage in the proceedings and at what stage in the trial the magistrate is empowered under s 177 of the FMS Criminal Procedure Code to form the opinion that the case ought to be tried by some court of higher jurisdiction.

In view of the provisions of s 87(2) of the Courts Ordinance I am of the view that the magistrate was empowered to pass the maximum sentence provided under s 457 of the Penal Code. I have already asked the appellant why the sentence should not be enhanced. He has only told me that his complaint against the sentence passed by the learned magistrate relates only to that part of the order which says that he should receive six strokes of the rattan. I do not think in the circumstances of this case that the learned magistrate exercised his powers or erred in the exercise of his discretion when he imposed a sentence of six strokes of the rattan. This he was clearly entitled to do under s 87(1) of the Courts Ordinance. The appellant has given me no satisfactory explanation or put forward any reasonable plea why the sentence of imprisonment should not be enhanced in this case. I am of the view, looking at the previous history of the appellant and his whole criminal record right from his childhood days, that he has proved himself incorrigible. A great part of his adulthood has been spent in prison and it may perhaps do the society some good if he is kept away from the public. I therefore set aside the order of the learned magistrate and substitute therefor a sentence of ten years’ imprisonment and six strokes of the rattan followed by 12 months’ police supervision. I would have preferred to put him under a longer police supervision but as this is an appeal which is by way of a retrial I am of the view that I should not impose upon him a punishment higher than what the learned magistrate could have imposed, or subject him to such period of police supervision which the learned magistrate could not have lawfully subjected him to. I vary that part of the order of the learned magistrate which relates to two years’ imprisonment and substitute therefor a term of imprisonment for ten years and this I do in view of the provisions of s 87(2) of the Courts Ordinance, which I think the learned magistrate failed to take into account. The rest of the order of the learned magistrate will remain effective and unaltered.
The legislature enacted s 87(2) of the Courts Ordinance to meet the situation where an offence is committed by an accused with a very bad record. It was a most proper case in which the learned magistrate should have exercised his powers under that subsection.
Section #3
Order accordingly.
Penghuni Gua : Semuga semua pembaca dan pelajar mendapat menafaat dari paparan ini. Tq

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