Su Geok Yiam J:

[1] This is an appeal by the appellant against the sentence of nine months imprisonment from the date of arrest and one (1) whipping which was imposed by the Klang Magistrate's court on both the respondents on 26 September 2007.

[2] On 12 August 2007 the respondents were charged in the Klang Magistrate's court as follows:

Bahawa kamu, bersama-sama dengan seorang lagi yang masih bebas, pada 12 August 07 jam lebih kurang 12.25 pagi, di rumah alamat no: 548 Jalan Jambu, Pandamaran, di dalam daerah Klang, di dalam Negeri Selangor, dengan niat bersama, seperti yang ditakrifkan di bawah s 34 Kanun Keseksaan, telah merompak, Noorhafizul bin Abllah (KPT: 850708-13-5463) iaitu 2 telefon bimbit jenis Nokia dan wang tunai RM524.00 dan semasa melakukan rompakan itu, kamu bersenjatakan dengan kayu dan dengan itu, kamu telah melakukan suatu kesalahan yang boleh dihukum dibawah s 392 dan 397 Kanun Keseksaan.

Facts Of The Case

[3] The facts of the case are, briefly, as follows:

[4] On 12 August 207 at 12.25am while the complainant and his friend, Mohd Firdaus bin Jamlus ("Firdaus") were in a room in a house rented by their employer for his employees at the address stated in the charge, they were confronted by the two (2) respondents and another unknown Indian man who had gone to their house to enquire about the whereabouts of a Bangladeshi man named Ali. All of the three men were armed with sticks. The two respondents entered the complainant's room. When the complainant replied that he did not know, the 2nd respondent left the room whilst the 1st respondent locked the room door and searched the room. He then took two hand phones and RM517 belonging to the complainant and RM7 belonging to Firdaus. In addition to that, he hit Firdaus on his left shoulder with the stick causing Firdaus to suffer injury to his left ear and shoulder He then left the room but before he and the 2nd respondent could escape Firdaus rushed to the front of the house and closed the grill door.

[5] Coincidentally at that point in time the complainant's employer, one Lim Chong Huat, who was approaching the house in a car with three of his friends saw the third unknown Indian man who was armed with a stick speeding off on his motorcycle from the compound of the house.

[6] On reaching the front door of the house Lim Chong Huat saw Firdaus who told him that he and the complainant had been robbed by the two respondents who were still in the house. Upon seeing the two respondents Lim Chong Huat contacted the police who happened to be doing their crime prevention rounds around that area. The police rushed to the house and succeeded in arresting both the respondents who were still in the house.

[7] Upon searching the 1st respondent the police found on him the two handphones and also the cash of RM524.

[8] On the same day both the respondents were charged in the Klang Magistrate's court.

The Learned Magistrate's Decision

[9] On 26 September 2007 both the respondents pleaded guilty to the charge. After considering the facts which were tendered by the prosecuting officer and admitted to by both the respondents and their plea in mitigation, the learned Magistrate convicted and sentenced the 1st and 2nd respondents who were aged twenty seven (27) and thirty (30) years, respectively, to nine (9) months imprisonment from the date of arrest and one (1) whipping.

[10] Being dissatisfied with the sentence imposed by the learned Magistrate the Public Prosecutor filed a notice of appeal to the High court.

Grounds For Appeal

[11] In para 3 of the petition of appeal the Public Prosecutor has relied on five grounds of appeal. They are as follows:

i. Majistret telah terkhilaf dari segi fakta dan undang-undang apabila gagal mengambil kira keseriusan kesalahan di bawah s 392 Kanun Keseksaan yang memperuntukkan hukuman penjara yang boleh sampai sepuluh (10) tahun dan juga boleh dikenakan denda dan jika kesalahan tersebut dilakukan di antara matahari terbenam sehingga matahari terbit, hukuma