Shaik Daud Ismail JCA:

This was an appeal by the Public Prosecutor against sentence imposed by the High Court against the respondent Ooi Wang San and three others.

The respondent and three others were originally charged before the Taiping High Court on 13 November 1995 for an offence of murder under s. 302 read with s. 34 of the penal Code. When the matter was mentioned on 14 April 1996 the respondent and three others pleaded guilty to an amended charge under s. 304 (1st limb) read with s. 34 of the Penal Code.

After recording the facts of the case, and after hearing pleas of mitigation on behalf of all four, the learned High Court judge sentenced them as follows:

10 years imprisonment on all four (including Ooi Wang San) but in the case of Ooi Wang and another, Rajendran a/l Dramalingam, as they are now undergoing prison sentences for another offence, the sentence is to begin from today and as for the other two, sentence is to take effect from their date of arrest.

After hearing submissions by the learned Deputy Public Prosecutor and learned counsel Mr Awtar Singh, we allowed the appeal and ordered that the ten years imprisonment imposed on all four is to take effect after the expiry of the sentences they all are now serving for various other offences.

The respondent Ooi Wang San, not being satisfied with our decision has now appealed to the Federal Court.

As mentioned above, Ooi Wang San with three others pleaded guilty to an amended charge under s. 304 (1st limb) read with s. 34 of the Penal Code, for causing the death of one Jolianos a/l Joseph on 8 July 1995 at about 2pm in Taiping prison. The facts as given by the prosecution showed that on 8 July 1995 at about 2pm while some 170 prisoners from Block B of Taiping Prison, and 263 prisoners from Block C were enjoying their recreation period, there occurred a commotion involving Ooi Wang San, the three others and the deceased. The four of them were seen to attack the deceased. The deceased was seen to run away covered with blood and being chased by the four assailants who were armed with some kind of sharp instruments. The warders managed to stop the four when the deceased fell to the ground covered in blood. Eventually all four were disarmed. The deceased succumbed to his injuries at 4pm the same day. Investigations revealed that all the four sharp instruments used to attack deceased were all made in the prison workshops. Post mortem examinations revealed that deceased had several stab wounds one of which penetrated his chest and lacerated his right lung. The cause of death was "lung laceration with lung collapse with haemothorax causing hyporolemic shock". Investigations also revealed that the attack on deceased was a result of revenge against the deceased who had on 1 June 1995, stabbed one of the four and another person called Mohan a/l Lingam, a friend of the four.

Learned counsel for Ooi Wang San in mitigation submitted that he was 39 years of age, married with three children and he was then undergoing a term of imprisonment for another offence which term was due to end in the year 2001 and prayed for a light sentence to take effect from the date of his arrest.

The law on the commencement of sentences of imprisonment on prisoners already undergoing imprisonment, as in this case, is provided for in s. 292 of the Criminal Procedure Code. This provision gives a discretion to the court, depending on the facts and circumstances of each particular case, whether to order the commencement of the sentence on such convicted persons, either immediately or at the expiration of the imprisonment to which he has been previously sentenced.

In the case of Ooi Wang San, the court sentenced him to 10 years to take effect from the date of the sentence ie, 4 April 1996. Since he was due to be released in the year 2001, there would be an overlap of several years. This to our mind certainly did not reflect the gravity of the offence. Furthermore, he had some 13 previous co