Abdul Hamid J (delivering oral judgment):

The appellant was convicted under s. 409 of the Penal Code for committing criminal breach of trust in respect of a sum of $25,000 entrusted to him in his capacity as advocate and solicitor by the Magistrate Kuala Lumpur, on 28 July 1972 and was sentenced to three years of imprisonment.

The appeal is against the extent of the sentence. Mr. Khoo Eng Chin Counsel for the appellant has intimated to me that he is abandoning the appeal against the legality of the sentence.

Mr. Khoo Eng Chin submitted that the sentence imposed was manifestly excessive and certain material facts were not brought to the attention of the Magistrate.

It was also submitted that the appellant had practised as advocate and solicitor for 15 years before the conviction and consequent upon the conviction, disciplinary action was taken and proceedings are now at a stage where notice to show cause has already been issued to the appellant.

Mr. Khoo referred to two factors that were taken into account by the Magistrate; (a) that the complainant stands to lose $25,000. It is submitted that civil remedy is available to the complainant for the refund. (b) that the appellant was an advocate and solicitor and had misused his position. Mr. Khoo submitted that disciplinary action has been taken against him under the Advocates and Solicitors Ordinance.

Mr. Khoo further submitted that the appellant has already served imprisonment for one month and two days and in the circumstances no purpose would be served by putting him away in prison.

Mr. Gunn Chit Tuan for the Public Prosecutor on the other hand, submitted that sentence should be commensurate with the facts of the case and it is for the Court to consider the appropriate sentence.

Before I proceed any further, let me refer to some of the principles of law which guide the appellate Court in regard to appeals against sentence.

It is an established principle of law that the Court will not interfere with the decision of the Court below on the question of sentence unless the trial Court has proceeded on wrong principle or given undue weight to some of the evidence. (See R v. De Cruz [1935] MLJ 1.

Further, "An appellate Court should not alter a sentence because the members of the Court might have passed a different sentence. (Abu Bakar v. R [1953] MLJ 19." "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. (PP v. Fam Kim Hock [1957] MLJ 20."

However, "in suitable cases, the Court of Appeal will reduce or enhance sentences when, having before them all the material which the trial Judge had before him, they consider, having regard to all the circumstances of the case, that the sentence imposed was manifestly excessive or inadequate. (Abdul Rahman v. PP [1950] MLJ 219 CA." (See also DPP v. Isaac Elion [1949] MLJ 160.

In the light of these authorities, it is therefore necessary to consider all the facts and circumstances of the case and say whether the sentence imposed was manifestly excessive.

The appellant was an advocate and solicitor at the time he was convicted of the offence. I do not for a moment suggest that this serious offence for which he was convicted should be viewed less seriously just because he was an advocate and solicitor. However, the Court cannot ignore the fact that he will face disciplinary proceedings and the high probability that he will be struck off the roll of advocates and solicitors.

As for the loss suffered by the complainant, he is at liberty to institute civil proceedings to recover the sum in respect of which the appellant dishonestly misappropriated.

The Magistrate also observed that the appellant knew the consequences of his misappropriating someone else's money. That is true. The appellant himself had admitted his foolishness, nonetheless the Court should also consider other penalties he