The appellant in this case was charged for theft of a motor-car in the Magistrate's Court, Petaling Jaya. He pleaded guilty to the said offence and was sentenced to 2½ years imprisonment and a fine of $3,000/- or, in default six months' imprisonment, to be followed by one year's police supervision.

Mr. Chandra, who appeared for the appellant, contended that the sentence was manifestly excessive as the maximum sentence for theft was three years. He pointed out that although the appellant was a security guard, he has been dismissed from his job and was unable to pay the fine. Counsel referred to Tan Kah Eng v Public Prosecutor [1965] 2 MLJ 272 in which case a seamstress was convicted of carrying on a public lottery contrary to section 4(1) (c) of the Common Gaming Houses Ordinance, 1961, and was sentenced to a fine of $3,000/- or, in default six months' imprisonment. She appealed against sentence and Ambrose J. (as he then was) held that the fine of $3,000/- was manifestly excessive and that a fine should always be related to the means of the accused. The learned Judge also held in that case that the imposition of a fine beyond the appellant's means or six months' imprisonment in default of payment was tantamount to sentencing the appellant to six months' imprisonment without the option of a fine. Mr. Chandra therefore contended that in the circumstances of the present case the imposition of a fine of $3,000/- or, in default six months' imprisonment, was virtually tantamount to a peremptory sentence of six months imprisonment and was together with the 2½ years' imprisonment manifestly excessive ( Re Fong Ah Hee) [1958] MLJ 96, 97. Counsel also contended that the learned magistrate had failed to consider mitigating factors including the fact that the appellant had pleaded guilty and that the stolen car had been recovered. I agreed with learned counsel that if it was really necessary to impose a fine in addition to the custodial sentence, then the trial magistrate should have taken into consideration, inter alia, the financial circumstances of the appellant, the profit arising from the offence, the value of the subject matter and the amount of injury, if any, inflicted. (See Rex v Teo Woo Tin) [1932] MLJ 124. In all the circumstances of the case I considered the sentence imposed was manifestly excessive and therefore altered it by setting aside the order of a fine of $3,000/- or, in default six months' imprisonment. The appellant therefore need only serve 2½ years' imprisonment to be followed by one year's police supervision.