IN THE HIGH COURT OF SHAH ALAM
CRIMINAL CASE NO: 45-75-2008
BETWEEN
PUBLIC PROSECUTOR
AND
PHAM ANH DUNG
GROUNDS OF JUDGMENT
On 8th of March 2010, the accused had admitted guilty to the alternative charge
under Section 304(a) of the Penal Code and the second charge under Section 392
of the Penal Code read with Section 397 of the same. The accused was sentenced
to 16 years imprisonment from the date of arrest for the alternative charge and 5
years imprisonment from the date of arrest for the second charge and both
sentences are to run concurrently. The public prosecutor had filed the notice of
appeal on 18th of March 2010 against the sentences imposed by this court.
The alternative first charge under Section 304 (a) of the Penal Code against the
accused reads as follows – “Bahawa kamu pada 18 Januari 2008 jam di antara
1.00 pagi hingga 1.30 pagi di No. 53A, Jalan Dendang 9, Taman Telok, Telok
Penglima Garang, di dalam daerah Kuala Langat, di dalam negeri Selangor Darul
Ehsan telah menyebabkan kematian TAIB BIN KASSIM (No. K/P: 540510-081
6025) dengan niat menyebabkan kecederaan tubuh badan yang mungkin
menyebabkan kematiannya, dan oleh yang demikian kamu telah melakukan
homisid salah yang tidak terjumlah kepada kesalahan membunuh yang boleh
dihukum di bawah Seksyen 304 (a) Kanun Keseksaan.”
The second charge for robbery against the accused reads as follows – “Bahawa
kamu Pham Anh Dung p/port: B0253103 pada 18.1.2008 jam di antara 1.00 pagi
hingga 2.15 pagi bertempat di No. 53 A dan 55 A, Jalan Dendang 9, Taman Telok,
Telok Panglima Garang, di dalam daerah Kuala Langat, di dalam Negeri
Selangor, melakukan rompak ke atas harta iaitu beberapa buah telepon bimbit dan
sejumlah wang tunai daripada pemiliknya yang sah iaitu Doan Thanh Thuy p/port
no: A17087358 dan beberapa perempuan Vietnam yang lain yang berumur di
antara 21 tahun hingga 35 tahun dan ketika melakukan rompak tersebut
bersenjatakan sebatang besi warna merah dan juga 2 bilah pisau. Maka dengan
ini, telah melakukan suatu kesalahan yang boleh dihukum di bawah Seksyen 392
dengan dibaca bersama Seksyen 397 Kanun Keseksaan.”
Mitigation
In mitigation, the defence counsel argued as follows. The facts of the case show
that the cause of death of the victim was due to drowning through inhaling mud.
The cause of death is not related to the weapon of either a knife or a piece of metal
rod. The facts of the case show that the knife was not brought by the accused but
was taken from the kitchen at the scene of crime to threaten a Vietnamese woman.
The facts of the case show that when the victim had fainted, the accused had
dragged the victim into a mud filled drain. There is no evidence to prove that the
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victim knew that the drain was filled with mud. The accused is a young offender.
The accused had admitted his guilt immediately upon being offered with the
alternative reduced charge. The defence counsel had urged the court to differentiate
between public interest and public opinion in meting out a reasonable sentence on
the accused. The defence counsel in closing had therefore sought a light and
commensurate sentence to be imposed.
Arguments of the prosecution
In reply, the deputy public prosecutor urged this court to impose a heavier or
maximum sentence on the accused. The accused is charged with a grave and
serious offence that is punishable with a maximum sentence of 30 years
imprisonment and fine. The amendment to Section 304(a) of the Penal Code by an
increase of the maximum prison term evidences the seriousness and gravity of the
offence. The act of the accused has caused the victim’s life and infringed on the
latter’s right to life. The victim at the time of his death was 56 years old. The act of
the accused has caused loss to the victim’s family. Referring to the picture of the
scene of crime, it is a fact that the victim was thrown into a huge mud filled drain.
The murder weapon i.e. the knife was not brought by the accused but it was taken
from the dormitory kitchen where the victim was a security guard. The accused has
the knowledge that a knife could kill a person. The accused had even attempted to
escape and prior to the said attempt, the accused had opened a gas tank and burned
the dormitory building. Therefore, the facts of the case justify a heavier sentence as
a lesson or deterrence to other offenders.
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Findings of this court
The facts of the case show that on the 18th of January 2008, the accused had
trespassed into a women’s dormitory for foreign workers in Taman Telok, Telok
Panglima Garang in Kuala Langat. Apart from committing murder of the victim
who was a security guard at the said dormitory, the accused had committed theft of
several mobile telephones and cash money belonging to the Vietnamese workers at
the dormitory. The post mortem report (exhibit P6) states that the victim’s cause of
death was aspiration of foreign body (sludge). The internal examination of the
victim showed that his lungs were filled with a large amount of the sludge. The
post mortem report also states that the victim had sustained lacerations over the
back of his head, a small abrasion on his face and both feet. These medical findings
are commensurate with the fact that the accused had hit the victim until the latter
fainted before dragging and throwing the prone body into the mud filled drain. The
accused had understood and admitted the facts of the case (exhibit P4) which were
read and explained to him. The victim had died because he had drowned in the
mud or sludge filled drain. The court finds that it is an irrelevant consideration
whether or not the accused had knowledge that the drain was filled with mud. The
fact of the matter is that the accused was the person who had hit the victim, causing
the latter to faint and dragged the victim and thrown the latter into the mud filled
drain thus leading to his death. These facts are the facts which the court has to
appreciate1 and consider in balancing the demands of public interest with the
private interest of the accused in light of the latter’s guilty plea.
1
PP v. Kandasamy Sankaran & Anor. [2010] 1 CLJ 596 at 606 (Court of Appeal)
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The court is however assisted with the principles enunciated in a recent decision of
the Court of Appeal. In Tuan Mat Tuan Lonik v. PP [2009] 4 CLJ 638 at 647 it was
held by His Lordship Suriyadi Halim Omar that –
“Public interest varies with place, time and circumstances of each case
including the age of the offender and the prevalence of the offence. A certain
type of sentence may not satisfy public interest at another place. The
sentence must be deterrent enough, in that the prisoner will realize crime
does not pay, with the punishment being debilitating to his freedom. Not only
will would-be offenders be deterred from trying but so will it deter repeat
offenders.”
His Lordship continued at page 648 that –
“Apart from being convinced of the need of retribution, the factor of
deterrence cannot lag very far behind, its purpose ostensibly to ensure that
an offender does not repeat that offence. Indirectly a message is transmitted
to potential offenders of what will be in store for them if they cross the line.
Even though a plea of guilt is a mitigating factor, and some credit or
discount is normally given, not all pleas of guilt may be accorded that
privilege. A court has the discretion not to entertain such discounts.”
The court is cognizant of the fact that the accused has admitted guilty to the
offences proffered against him immediately upon receiving the reduced charge
under Section 304 (a) of the Penal Code. There was no delay in considering the
reduced charge offered by the prosecution in this case such as what had transpired
in the case of PP v. Kandasamy Sankaran & Anor [2010] 1 CLJ 596. In that prior
case, the accused took 1 ½ years to plead guilty to the reduced charge. However,
this factor apart from the youthful age of the accused does not tilt the balance in
favour of a lenient sentence. The age of the accused does not preclude him from
any liability in an offence such as culpable homicide that entails taking and
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destroying the life of another human being. The accused had achieved the age of
discernment and able to differentiate between right and wrong. The paramount
consideration remains the interests of the public to have the right to peaceful life.
In applying the principles enunciated in the above binding authority to the facts of
this case, the court finds that the sentences imposed for both charges are reasonable
to balance public interest with that of the accused.
For the second charge of robbery, the court did not impose a sentence of whipping
or fine. The wordings of Section 392 of the Penal Code are –
“Whoever commits robbery shall be punished with imprisonment for a term
which may extend to fourteen years, and he shall also be liable to fine or
whipping.”
The differentiation in the interpretation of the phrases ‘shall be punished’ and
‘shall be liable’ could be discerned from the Federal Court decision of Jayanathan
v. Public Prosecutor [1973] 2 MLJ 68 where His Lordship Ong Hock Sim FJ (as
he then was) held that –
“This section was construed by the learned judge in PP v. Hew Yew where
he reviewed certain authorities on the words “shall be liable” therein. They
show that where provisions of law provide for a term of imprisonment or an
amount by way of fine, the courts have a discretion to impose a term of
imprisonment or fine not exceeding the maximum prescribed. This is in
accord with section 60 of the Interpretation Act … He further said: In the
context of section 15(4) of the Prevention of Crime Ordinance the words are
‘shall be liable to imprisonment for a term not exceeding five years and not
less than two years. From that it seems to me that the court has an absolute
discretion to impose the maximum sentence of 5 years or any lesser sentence
the minimum of which must not be less than two years. These words were
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construed by Aitken J. in PP v. Man bin Ismail where he held that “shall be
liable to imprisonment” in section 3(a) of the Vagrants and Decrepit
Persons Enactment (FMS Cap. 191) did not render a sentence of
imprisonment mandatory. He went on to say: To my mind, they give the
court an absolute discretion as to whether it shall award a sentence of
imprisonment or deal with the accused under and in accordance with the
provisions of section 294 of the CPC.”
This authority of the Federal Court has been the guiding and binding precedent in
the judicial interpretation of the phrases ‘shall be punished’ and ‘shall be liable’ as
could be seen from the cases of Goh Kheng Seong v. PP [1992] 2 CLJ (Rep) 408;
Philip Lau Chee Heng v. PP [1988] 3 MLJ 107; Mahrus v. PP [1991] 1 LNS 45
and Tun Naing Oo v. PP [2009] 5 MLJ 680.
The mandatory punishment for robbery is therefore the term of imprisonment
whereas the sentences of whipping and fine are left to the discretion of the court.
The court’s discretion is exercisable having due consideration to the facts of the
case and the guilty plea of the accused. In the present case, as with the reduced
charge under Section 304(a) of the Penal Code, the accused had pleaded guilty to
the charge under Section 392 of the Penal Code expeditiously. In exercising the
discretion in not imposing either the sentence of whipping or fine for the second
charge, the court has considered and appreciated the same set of facts as that for
the alternative charge. Therefore, the court finds that the sentence of 5 years
imprisonment itself for the second charge is sufficient and reasonable to punish the
accused and deter other would be offenders. The court has ordered that both
sentences are to run concurrently from the date of arrest. It is trite law that the
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court has the discretion regarding the commencement of the prison sentence.2 Both
charges under Section 304(a) of the Penal Code and Section 392 of the Penal Code
emanate from the same transaction. Having considered the above stated facts and
balanced with this factor, the court finds that it is reasonable for both sentences to
run concurrently from the date of arrest.
This judgment is dated the 20th of May 2010.
t.t.
YA Mohd Yazid Mustafa
Judge, Shah Alam High Court
Criminal Court 4
Deputy Public Prosecutor
The Selangor Deputy Public Prosecutor’s Office
Level 4, North Podium, SSAAS Building, 40512 Shah Alam
(Att: Puan Erwani Ismail)
Messrs. Noor Jihan Ghazali & Co.
Advocates & Solicitors
No. 61-1, Jalan 46A/26, Taman Sri Rampai
Setapak, 53300, Kuala Lumpur.
2
Section 282(d) of the Criminal Procedure Code – “Every sentence of imprisonment shall take effect from the date
on which the same was passed unless the court passing such sentence otherwise directs.”
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