This is a case where both the 1st and 2nd accused (mother and son) were charged for an offence under Sec 326 of the Penal Code and found guilty and sentenced to four years in prison. Both accused appealed against conviction and

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sentence. After hearing lengthy submissions from both parties I dismissed the appeal against conviction but allowed the appeal against sentence. I sentenced both accused to a day's imprisonment and imposed a fine of RM2,500.00 each in default one month's imprisonment. The Public Prosecutor has appealed against my decision on sentence. FINDINGS OF THE COURT

As the saying goes, justice must be tempered with mercy. It does not mean that once a Court finds a person guilty of the offence charged the Court must extract retribution. The Court must impose such punishment as would make the perpetrator regret his/her action.

In this case there is no doubt in my mind that there had been grave provocation by the complainant (SP2) . It is in evidence that both the accused and the complainant had stalls near

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each other at the Botanical Gardens, Pulau Pinang.

The complainant's version as to how he came to be assaulted, would suggest that he is a victim of a pre-planned assault. He testified that he knew both the accused for about twenty years. On the eventful day he was riding his bicycle on his way home from work at the Botanical Gardens and holding an umbrella with the other hand as it was drizzling. Suddenly the first accused appeared before him and blocked his path and at the same time the 1st accused's mother, the 2nd accused, who also appeared at the scene, started abusing him. The 1st accused used foul language on him. Then both attacked him with iron rods. He had no time even to ask them why he was being assaulted.

On the other hand both the accused put their version to the complainant. It was the case of the accused that the complainant showed a

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masturbating sign to the 2nd accused and used vulgar words on her thus causing the confrontation.

Having heard the submissions of both parties I dismissed the appellant's appeal against conviction but allowed their appeal against sentence.

Having convicted both the appellants the Learned Sessions Judge sentenced both mother and son to four years in prison.

Whilst the assault on the complainant was clearly excessive, I am satisfied that there was grave provocation by the complainant. I do not believe his story that for no rhyme or reason the two accused would stop him in the middle of the road and assault him. This feud between the complainant and the two accused had been brewing and simmering for a long time.

What the complainant did was also improper. He showed a masturbating sign to an old woman and

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in the presence of her son. The wife of the 1st appellant also testified, corroborating the version of both the appellants. However the Learned Sessions Judge said that she did not give much weight to her evidence. When this witness was seen sitting in Court the Learned Sessions Judge had asked Counsel for both the appellants if the wife would be called as a witness. The answer was in the negative. Subsequently Counsel decided to call her as a witness.

I do not see anything wrong in this witness being called to testify although Counsel had earlier indicated they were not calling her. It is possible that evidence led by the parties necessitated calling the wife. What the Learned Sessions Judge ought to have done was to have explained which aspect of the wife's evidence she was not giving due weight to because of the fact that this witness was seated in Court.

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In this case all that the Judge did was to say that because she was seated in Court she was not giving much weight to her evidence. The general rejection of her evidence is unacceptable.

Her evidence corroborates the evidence of the two appellants in so far as to the provocation. Whilst the complainant denied making the lewd sign to the 2nd accused he could give no cogent reason why he w