Buhagiar J:

This is an appeal by the Public Prosecutor against the sentence imposed by the President Sessions Court at Klang on the respondent on conviction for an offence punishable under s. 408 of the Penal Code; on conviction the respondent was bound over under s. 294 of the Criminal Procedure Code to be of good behaviour for three years in his own recognizance of $5,000 and two sureties for $2,500 to come up for judgment if called upon. The ground of the appeal is that the sentence is inadequate.

At the hearing the learned Deputy Public Prosecutor referred to the facts of the case; he pointed out that the amount involved was $86,000 and the breach of trust had been going on since 1947; under the circumstances, he submitted that this was not a case where the provisions of s. 294 of the Criminal Procedure Code should be applied.

It is an established principle that the sentence of the Court of first instance should not be altered unless it is manifestly wrong, wrong in the sense of being illegal or of being unsuitable to the proved facts and circumstances (see Liow Chow v. PP [1939] MLJ 170. It is clear as Thomson J pointed out in PP v. Lim Guan Hock [1949] MLJ 231 that the provisions of s. 294 of the Criminal Procedure Code do not allow any Court to go to the length of saying that in every case of first offender the antecedents of the convicted person are necessarily such as to make it expedient to bind him over; each individual case must be considered on its own merits.

The offence is by no means of a trivial nature but the points mentioned in the above section are intended by the legislature to indicate the lines on which the discretion of the Court should be exercised. In applying the provisions of s. 294 in the present case the learned President took into consideration the fact that the respondent was a first offender, the circumstances under which the offence was committed and that it was quite clear that the parties themselves would welcome a settlement. The last mentioned point would not in most cases be any reason why a convicted person should not suffer the punishment provided by law but in the particular circumstances of this case where the manager's son (who was the person with whom the respondent had to deal mostly and who for all practical purposes was the manager in Port Swettenham) had almost instructed him to commit irregularities is very relevant in considering whether this was a proper case for the application of s. 294.

Under the circumstances I do not consider that there is good reason for interfering with the discretion exercised by the learned President and the appeal must be dismissed.

Appeal dismissed.