Augustine Paul JC:

[1] The charge preferred against the accused in the Magistrates' Court at Melaka is as follows:

Bahawa kamu pada 13 Januari 1997 antara jam 2:30 petang hingga jam 4:00 petang di Kampong Arongan, Pulau Sebang di dalam Daerah Alor Gajah, di dalam Negeri Melaka, dengan niat curang telah mengambil harta yang boleh dipindahkan iaitu wang tunai sebanyak RM3,800 kepunyaan Encik Cha How Lek KP 510724-05-5091 tanpa kebenarannya, oleh yang demikian kamu telah melakukan kesalahan dan boleh dihukum dibawah s 379 Kanun Keseksaan.

[2] When the charge was read and explained to the accused he pleaded guilty. The learned magistrate was satisfied that the accused understood the nature and consequences of his plea. The prosecution then tendered a statement of facts which disclosed that on 13 January 1997 the complainant who was doing renovation work at certain premises stopped work as it was raining. He placed his purse on a pillar and took a rest. He soon fell asleep. When he woke up he found that cash amounting to RM3800 was missing from his purse. The accused who was one of his workers was also missing. The complainant then made a police report. The accused was arrested on 8 April 1997. He admitted to the police that he had taken the money and had used it to buy items like drugs, clothes and shoes. The accused admitted the facts as read and explained to him and the learned magistrate accepted his plea. In his plea of mitigation the accused prayed for leniency and said that he will not commit any further offences. The prosecution then tendered a list of previous convictions of the accused. He had a total of 11 previous convictions. The first was on 14 March 1980 and the last on 16 February 1994. Most of them were convictions under ss 379, 380 and 454 of the Penal Code. For six of his previous offences he was sentenced to a term of less than one year imprisonment; three years or less for three offences and five years for two offences including the last one. In sentencing the accused the learned magistrate took various factors into consideration.He considered the fact that the accused had pleaded guilty and was of the view that cases such as Sau Soo Kim v. PP, [1975] 2 MLJ 134 and PP v. Sulaiman Ahmad; [1993] 1 MLJ 74; [1992] 3 CLJ 447 show that a lenient sentence must be imposed following a guilty plea. He felt that credit must be given for a guilty plea as it saves time and costs and that a long prison term will not necessarily reform the accused. He found support for this in the previous five-year term imposed on the accused which did not appear to have had any effect on the accused. Having then considered the plea in mitigation of the accused he sentenced him to a term of three years imprisonment. He also ordered that the accused be given two strokes of the rottan and that he be subjected to police supervision for a period of one year after his release from prison. The Public Prosecutor appealed against the sentence imposed.

[3] Before me the learned Deputy Public Prosecutor contended that the learned magistrate had placed undue emphasis on the guilty plea of the accused and had not considered the element of public interest in imposing sentence. She added that the learned magistrate had failed to give adequate consideration to the previous convictions of the accused and contended that s 75 of the Penal Code ('the section') ought to have been invoked to justify the imprisonment of a term of seven years' imprisonment. In his reply the accused prayed for leniency and asked that he be given another chance.

[4] Before I proceed any further I shall deal with the submission of the learned Deputy Public Prosecutor on the applicability of the section which reads as follows:

Whoever, having been convicted of an offence punishable under Chapter XII or Chapter XVII of this Code with imprisonment for a term of three years or upwards, or having been convicted in any other part of Malaysia, in the Republic of Singapore or in the State