The accused was charged under Section 304(b) of the Penal Code as follows:

"That you, on or about the 15th day of September, 1997, at about 5.00 p.m. at No. 357, Lot 131, Lorong 11 B, Taman Malihah, Kuching, in the State of Sarawak, committed culpable homidice not amounting to murder by causing the death of CHONG TZE KHIN (m), NRIC No: K 492680, by causing such bodily injury with the knowledge that your act was likely to cause death and that you have thereby committed an offence punishable under section 304(b) of the Penal Code (Act 574).

At the end of the trial the learned Sessions Court Judge amended the charge to Section 323 of the Penal Code

2. The accused was convicted under the amended charge and sentenced to one year imprisonment.

3. There are two appeals this morning, one by the Deputy Public Prosecutor (encl. 6) and the other by the appellant against the sentence (encl. 5). [2]

4. The Deputy Public Prosecutor's appeal (encl. 6) against the decision of the reduction of charge from Section 304(b) to Section 323 of the Penal Code on the ground that the Sessions Court Judge erred in law and fact, in failing to consider adequately:-

a) ;the evidence of PW2 which clearly showed that the deceased was severely assaulted by the accused; and

b) ;the medical evidence of PW12 vis a vis the evidence of PW2 in respect of causation.

5. I will deal with the appeal by the Deputy Public Prosecutor.

6. It is clear from the record that at the end of the trial, the learned Sessions Court Judge held that there was insufficient evidence to support the original charge under Section 304(b) of the Penal Code. However, the prosecution's evidence, in this case, supports the finding on a lesser offence, that of voluntarily causing hurt under Section 323 of the Penal Code, and she had rightly exercised her power given under the Criminal Procedure Code to amend the charge to Section 323 of the Penal Code. In MAQBOOL SINGH DILLON v PUBLIC PROSECUTOR (1956) MLJ 218 Buhagiar J. held that where, in a subordinate court, the President or Magistrate comes to the conclusion that the facts proved do not constitute the offence charged but constitute another offence, the court is not precluded by Section 173(h) of the Criminal Procedure Code (Cap 6) from convicting of another offence under Sections 167 or 169. Having perused the Appeal Record I tend to agree with the finding of facts by the Sessions Court Judge, based on the correct appraisal of the evidence of the prosecution as a whole and in accordance with the correct principles of law. There is no reason for this Court to interfere with the Sessions Court Judge's findings, and the Court supports and affirms her decision as correct in law.

7. I would, in the circumstances, dismiss the appeal by the Deputy Public Prosecutor. [3]

8. In the second appeal (encl. 6), the appellant submitted 3 grounds in the appeal against sentence.

a) ;Under Section 183 of the Criminal Procedure Code the sentence must be according to the law, and he cited, in support, the case of PUBLIC PROSECUTOR v JAFA BIN DAUD (1981) 1 MLJ 315 . He submitted that the learned Sessions Court Judge had failed to consider that the accused was a first offender, the antecedents, the circumstances, and that it was not deliberate and she had standardized the punishment and imposed a maximum punishment. Maximum imprisonment might be imposed for the worst possible case.

b) ;She had erred in law in taking into consideration the death of the victim. In her judgment on page 31 Appeal Record, she had at the back of her mind the death, thus she was influenced by the extremes and irrelevant matter.

c) ;She had erred in law for failure to apply the correct principles, and thus she had misdirected herself, which occasioned a miscarriage of justice.

9. The Deputy Public Prosecutor in reply submitted that the maximum imprisonment sentence was justified because a death was caused. The offence committed was a serious offence, and it was in the public