Abandonment of a newborn baby is a serious offence under Section 317 of the Penal Code, warranting a deterrent sentence that reflects the gravity and societal implications of the act.

Mohd Radzi Abdul Hamid JC:

Matter Before This Court

[1] This an appeal by the Prosecution against sentence. The First and Second Respondents were convicted for an offence under s 317 of the Penal Code resulting from a plea of guilty before the Magistrate Court of Butterworth, Pulau Pinang.

[2] The charge ("Charge") read as follows:

"Bahawa kamu bersama-sama pada 23 April 2019 antara 12.30 tengah hari hingga 1.30 petang di kawasan perkarangan Masjid Lama Ara Kuda, Tasek Gelugor, di dalam Daerah Seberang Perai Utara, di dalam Negeri Pulau Pinang, telah meninggalkan seorang bayi yang baru dilahirkan dengan niat hendak membuang bayi tersebut di mana kamu merupakan ibu dan nenek bayi tersebut, oleh yang demikian kamu telah melakukan satu kesalahan di bawah s 317 Kanun Keseksaan dan boleh dihukum di bawah peruntukan yang sama serta dibaca bersama s 34 Kanun Keseksaan".

Proceedings Before The Magistrate

[3] Both Respondents were represented by Counsel appointed by National Legal Aid Foundation (YBGK). Both Respondents admitted to the Facts of the Case (Exhibit P1), the photographs of scene of the crime (Exhibit P6A-B) and photographs of the infant (Exhibit P7A-B). Apart from those exhibits, the Prosecution tendered the First Information Report (Exhibit P2), Police Report by the attending Medical Officer (Exhibit P3), Police Reports regarding the arrest of the First and Second Respondent (Exhibit P4 & P5) and the Chemist Report on the DNA of the infant and the natural parents (Exhibit P8). Having satisfied herself that both the Respondents understood the Charge and the consequences of their plea of guilt the Magistrate accepted and recorded the Respondents' plea of guilt.

[4] After considering the mitigation by both the Respondents and submission by the Public Prosecutor, the Magistrate sentenced both Respondents to 1 month imprisonment and fine of RM3,500 in default 7 months imprisonment from the date of sentence that is 2 December 2019.

The Appeal

[5] The Prosecution being dissatisfied with the sentence now appeals to this Court.

[6] There is no cross appeal by the Respondents.

The Law Relating To Appeals Against Sentence

[7] It is trite law that as set out by the Supreme Court in the case of Public Prosecutor v. Mohamed Nor & Ors, [1985] 2 MLJ 200b that the appellate Court should be slow to interfere with a sentence passed by the Court below unless it is manifestly wrong. Later in the case of Dato' Seri Anwar bin Ibrahim v. Public Prosecutor ; [2002] 3 MLJ 193; [2002] 3 CLJ 457; [2002] 3 AMR 3101, the Federal Court had clearly stated that the appellate Court will not normally alter the sentence unless it is satisfied that the sentence passed by the lower Court is manifestly inadequate or excessive or illegal or the Court erred in applying the correct principles in the assessment of sentence.

The Appeal

Grounds Of Appeal

[8] The Appellant's Petition of Appeal essentially rests on the issue of inadequacy of sentence given the serious nature of the offence and the age of the victim who was a newborn.

Grounds Of Decision Of Magistrate

[9] In passing sentence the Magistrate took into account the following factors: (i) the Respondents' plea of guilty, (ii) that the baby was adopted and therefore was in a safe environment, (iii) that both Respondents are single mothers with limited financial resources, (iv) the effect on the Second Respondent's child of 6 years old and (v) that both Respondents are first offenders before passing sentence (Grounds of Judgment at p 14 to 20 of Volume 1 of the Record of Appeal). She held that the imprisonment of 1 month and a fine of RM3,500 in default 7 months imprisonment against both the Respondents was adequate under the circumstances of the case.

Hearing Of The Appeal

[10] At the core of the Appellant's submission is that the sentence against the Respondents is inadequate taking into account the seriousness of the offence and that the offence of abandoning a newborn baby deserves a deterrent sentence. Learned D