JUDGMENT

Yeoh Wee Siam JC:

[1] On 20 March 2009 this court received a letter dated 17 March 2009 from Messrs T. Balasubramaniam, the advocates and solicitors for Tun Naing Oo, a Myannmar national ("the applicant"), informing the court that the applicant was sentenced by the Sessions court, Semenyih, Selangor ("the Sessions court") on 13 March 2009 for an offence under s. 6(1)(c) of the Immigration Act 1959/1963 to 100 days' imprisonment with effect from the date of arrest and two strokes of whipping.

[2] In the same letter, the applicant applied for a revision of the sentence for the following reasons:

1. the punishment of whipping is based on the discretion of the court;

2. the Applicant is a refugee from Myanmar and has just been registered with the United Nations High Commissioner For Refugees ("UNHCR");

3. the Applicant is facing pressure and persecution in his own country which resulted in him running away. The sentence of whipping would only add to his sufferings.

[3] The applicant is applying to this court for the sentence of whipping to be set aside.

[4] Based on the initial merits of the case as disclosed above, the court allowed the applicant's application to be registered as a criminal application for revision case. This case is also the second application for revision that is registered with this court since the opening of the court in Petaling Jaya on 4 March 2009.

[5] The powers of the High court for revision in respect of criminal proceedings and matters in the Subordinate Courts are provided in ss. 31 , 35 and 36 of the Courts of Judicature Act 1964 . Similar powers of revision are also provided in ss. 323 to 327 of Chapter XXXI of the Criminal Procedure Code (Act 593) as follows:

323. Powers to call for records of subordinate Courts

(1) A Judge may call for and examine the record of any proceeding before any subordinate Criminal court for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of that subordinate court.

...

324. Power to order further inquiry

(1) On examining any record under section 323 or other wise, a Judge may direct the Magistrate to make, and the Magistrate shall make, further inquiry into any complaint which has been dismissed under section 135, or into the case of any accused person who has been discharged.

...

325. Powers of Judge on revision

(1) A Judge may, in any case the record of the proceedings of which has been called for by himself or which otherwise comes to his knowledge, in his discretion, exercise any of the powers conferred by sections 311, 315, 316 and 317 of this Code.

(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard, either personally or by advocate, in his own defence.

(3) Nothing in this section shall be deemed to authorise a Judge to convert a finding of acquittal into one of conviction.

326. Permission for parties to appear

No party has any right to be heard, either personally or by advocate, before a Judge when exercising his powers of revision:

Provided that the Judge may, if he thinks fit, when exercising such powers hear any party, either personally or by advocate, and that nothing in this section shall be deemed to affect subsection 325(2) .

327. Orders on revision

When a case is revised under this Chaper by a Judge he shall certify his decision or order to the court by which the finding, sentence or order revised was recorded or passed stating, where the finding, sentence or order has been varied, the grounds for such variation; and the court to which the decision or order is so certified shall then make such orders as are conformable to the decision so certified and, if necessary, the record shall be amended in accordance therewith.

[6] On 24 March 2009 I received the record of proceedings which I had earlier called for, for the purpose of satisfying myself as to the correctness, leg