Raja Azlan Shah J:

The subject, a registered person defined by s. 2 of the Prevention of Crime Ordinance, 1959 and being subject to police supervision for a term of three years with effect from 8 April 1969, failed to comply with the restriction to remain within doors under s. 15(2)(f) and punishable under s. 15(4) of the said Ordinance. In the lower Court he pleaded guilty and was fined $100 in default one month's imprisonment.

I have been asked to revise the order of the lower Court on the ground that the learned president had erred in law in imposing a fine instead of prison sentence. Section 15(4) of the Ordinance states that a registered person who contravenes or fails to comply with any order or restriction imposed on him under this section shall be guilty of an offence and "shall be liable to imprisonment for a term not exceeding five years and not less than two years".

There have been a few judicial pronouncements on the words "shall be liable". In Public Prosecutor v. Lee Ah Sam [1949] MLJ 236 regulation 5(1) of the Emergency Regulations, 1949 provided that the person guilty of the offence "shall be liable to be punished with death or penal servitude for life and whipping". The Court of Appeal held that the sentence of penal servitude for life is a maximum sentence and any lesser sentence of penal servitude may be imposed. In Khor Seek Pok v. PP [1958] MLJ 170 s. 6 of the Dangerous Drugs Ordinance, 1952 states that a convicted person:

shall be guilty of an offence against this Ordinance and liable on conviction to a fine of $10,000 or to imprisonment for a term not exceeding five years or to both such fine and imprisonment.

It was held that the fine of $10,000 provided under the section is not mandatory. It is in fact the maximum penalty provided and the Court has a discretion to impose a fine of any sum within the maximum amount of $10,000. In PP v. Wahab [1964] MLJ 265 s. 6(1) of the Corrosive and Explosive Substances and Offensive Weapons Ordinance, 1958, provides that on conviction an accused:

shall be liable to imprisonment for a term not exceeding two years and to whipping.

Is not mandatory and a fine may be imposed in lieu of imprisonment. In Darus v. PP [1964] MLJ 322 it was held that the term of imprisonment of one year under s. 297 of the Criminal Procedure Code is a maximum sentence and that any lesser term may be imposed as is considered appropriate to the circumstances of the particular case. It may be seen that in all then cases the words are

shall be liable to imprisonment for a term of ... years or fine etc.

In the context of s. 15(4) of the Prevention of Crime Ordinance the words are

shall be liable to imprisonment for a term not exceeding five years and not less than two years.

From that it seems to me that the Court has an absolute discretion to impose the maximum sentence of five years or any lesser sentence the minimum of which must not be less than two years.

I would therefore set aside the sentence of fine imposed by the lower Court and substitute a sentence of two years' imprisonment. The said fine is to be refunded to the offender. Order accordingly.