Jeffrey Tan J:

The appellant had pleaded guilty in the trial court to the following offence:

Bahawa kamu pada 19.9.2001, diantara jam 6.45 petang hingga 8.45 malam di Kawasan Kebun Kelapa Sawit Ladang Felcra, Bt 19, Air Hitam, Muar, di dalam daerah Muar, di dalam Negeri Johor telah merogol seorang kanak-kanak perempuan Melayu bernama Rabaitul Adawiyah bt. Sulaiman, (Tarikh Lahir 29.1.1990). Oleh yang demikian, kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 376 Kanun Keseksaan.

And this is the appellant's appeal against the sentence of 18 years' imprisonment and 12 strokes of the rotan handed down by the trial court on 14 January 2003.

"A Sessions Court may pass any sentence allowed by law other than the sentence of death" (s. 64 of the Subordinate Courts Act 1948). The permissible punishment for rape is imprisonment for a term of not less than five years and not more than 20 years; an offender shall also be liable to whipping. Section 376 does not specify the number of strokes. But in no case shall the whipping exceed 24 strokes in the case of an adult or 10 strokes in the case of a youthful offender (see s. 288 of the Criminal Procedure Code). Hence, the sentence of the trial court was within the permissible range. But an appellate court may interfere with the sentence, even if the sentence is within the permitted range. " ... the appellate court is ready to interfere with the sentence imposed by the trial court upon proof of one or more of the following circumstances: (a) The sentence imposed by the trial court was manifestly excessive or inadequate. (b) There is a manifest error either in law or in considering the facts and circumstances of the case. (c) The sentence passed by the trial court is manifestly wrong in the sense of being illegal or of being unsuitable to the proved facts and circumstances. (d) The trial court has given undue weight to some of the evidence. (e) The trial court, in fixing the sentence, had failed to adequately consider all the relevant factors either for or against the offender. (f) The sentence was wrong in law. (g) The unsatisfactory features of the proceedings in the lower court (h) The charge has been hanging over the accused's head for a considerable period. (i) Justice does not appear to have been done." (Civil and Criminal Appeals in Malaysia by Tan Kee Heng at pp. 191 - 192). Yet it is "a firmly established principle that an appellate court would be slow to disturb the sentence imposed by the lower courts unless the sentence is excessive to such an extent as to satisfy this court that when it was passed there was a failure to apply the right principles then this court will intervene (R v. Kenneth John Ball 35 Cr App R 164). According to Hashim Yeop Sani J (as he then was) inPP v. Loo Choon Fatt ; [1976] 2 MLJ 256 at p. 257G: 'It is a firmly established practice that the court will not alter a sentence merely because it might have passed a different sentence' " (see Ang Chai Seng v. PP [2000] 1 CLJ 213 per Haidar JCA, as he then was). And the Court of Appeal in Ang Chai Seng reiterated what was said by the Federal Court in Bhandulananda Jayatilake v. PP; [1982] 1 MLJ 83, 84:

... this court has said it again and again that it will not normally interfere with sentences, and the probability or even the possibility, that another court would have imposed a different sentence is not sufficient, per se, to warrant this court's interference. For a discretionary judgment of this kind to be reversed by this court, it must be shown to our satisfaction that the learned judge was embarking on some unauthorized or extraneous or irrelevant exercise of discretion.

In Bhandulananda Jayatilake, the Federal Court per Raja Azlan Shah Ag LP (as HRH then was) imparted the following guide:

Is the sentence harsh and manifestly excessive? We would paraphrase it in this way. As this is an appeal against the exercise by the learned judge of a discretion vested in him, is the sentenc