Mandatory sentencing provisions must be clearly understood and applied in cases involving spousal violence.

[1] The Accused was convicted upon his plea of guilty to a charge under s 323 read with s 326A of the Penal Code for voluntarily causing hurt to his own wife. The Magistrates' Court had sentenced the Accused to 12 months imprisonment.

[2] It was against the said sentence that the Accused had appealed before this Court.

[3] It is relevant to fully set out the provisions under which the Charge was framed in the present case.

[4] Section 323 of the Penal Code reads as follows:

"Whoever, except in the case provided for by s 334, voluntarily causes hurt, shall be punished with imprisonment for a term, which may extend to one year or with fine which may extend to two thousand ringgit or both."

[5] Section 326A of the Penal Code provides that:

"Whoever, during the subsistence of a valid marriage, causes hurt to his spouse and commits an offence under ss 323, 324, 325, 326, 334 or 335 shall be punished with imprisonment for a term of twice as long as the maximum term for which he would have been liable on conviction for that offence under the relevant section."

[6] Section 326A is a fairly new provision in the Penal Code as the insertion was made pursuant to the (Amendment) Act 2014 and was published in the Gazette on 30 December 2014.

[7] In my research, I came across only 2 cases, which had dealt with this new provision, Zulkifli Borhan v. PP and Mani Maran Athigharee v. PP , 2017 MarsdenLR 908 . However, only Mani Maran discussed about the application of s 326A.

[8] In Mani Maran, the accused was charged with an offence under s 323 read with s 326A of the Penal Code . He pleaded guilty and was sentenced to 12 months imprisonment. The accused appealed against the sentence.

[9] Having considered the authorities including the Hansard relevant to the Penal Code (Amendment) Act 2014, the learned Judicial Commissioner in Mani Maran came to the conclusion that: (1) the words "shall be punished with imprisonment" in s 326A meant that imprisonment sentence was mandatory and (2) reading s 323 with s 326A, the mandatory term of imprisonment for an offence committed thereunder was 2 years.

[10] Without the benefit of any other reported cases on s 326A, I have further read the relevant parts of the Hansard [DR.22.10.2013 at pp 110 - 115] on the amendment to include s 326A to satisfy myself as to the intention of the Parliament with regards to the amendment. These are reproduced below:

"Tuan Gobind Singh Deo [Puchong]: ...

Kenapa disebut di situ perkataan maximum? Shall be punished with imprisonment for a term of twice as long, not as just the term. What is stated there punishment imprisonment for a term of twice as long as the maximum term for which he would have been liable on conviction. Bukankah ini dengan cukup jelas mengikat tangan mahkamah? Because there is no choice. It is not imprisonment twice as long as the term for which he would have been liable. Kalau sedemikian, then yes.

Whatever it is the Court, the original Court would has been given, then yes it has twice because it is the term that he would have been liable. Akan tetapi perkataan yang digunakan di situ maximum. Jadi maximum itu adalah maximum yang wujud di bawah seksyen-seksyen tersebut and then of course take this two three different level. Jadi saya hendak minta penjelasan daripada Timbalan Menteri berkenaan dengan isu ini. Terima kasih Timbalan Menteri.

Puan Hajah Nancy binti Shukri:

Terima kasih Yang Berhormat Puchong. Berbalik lagi kepada perkara yang sama. Sebenarnya ini adalah tujuan denga