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2025 MarsdenLR 2412
HIGH COURT SABAH & SARAWAK KUCHING
ALEXANDER ANAK KIMPIN & ORS – Appellant
Versus
PP – Respondent
[Criminal Appeal No: KCH-42H-15-8/2023]
Public interest and deterrence are paramount in sentencing for serious crimes, and a guilty plea does not guarantee a reduced sentence if circumstances justify a severe penalty.
Headnote:(A) Penal Code - Section 436 - Mischief by fire intending to destroy a house - The Appellants pleaded guilty to setting fire to a house, resulting in damages of approximately RM1,260,000.00 and a complainant's estimated loss of RM80,000.00. A custodial sentence of twelve years was imposed by the Sessions Court. (Paras 47, 48, 49)
(B) Sentencing principles - The public interest and deterrence are paramount in sentencing for serious crimes; guilty pleas should be given credit unless circumstances warrant otherwise. (Paras 15, 33)
(C) Escalating offenses - The nature of the offense, including premeditation and consequences, substantially influences sentencing, affirming the severity of the actions taken. (Paras 36, 51)
Facts of the case:
The Appellants conspired to set fire to a complainant's house with intent to claim payment from the complainant's son for an outstanding debt. They executed the act after purchasing fuel and filming it, which led to extensive property damage. (Paras 4-8)
Findings of Court:
The custodial sentence imposed reflects the severity of the offense, with consideration given to aggravating factors, societal impact, and the accused's mitigation claims. (Paras 30, 51)
Issues: The appeal primarily contested the severity of the sentence in light of the circumstances, the influence of personal factors, and the procedural fairness regarding legal representation. (Paras 20, 48)
Ratio Decidendi: The court reaffirmed that public interest greatly influences sentencing decisions and highlighted that early guilty pleas may afford discounts, but significant offenses merit substantial penalties. (Paras 30, 49)
Result: Appeal dismissed and sentence affirmed.
| Table of Content |
|---|
| 1. appeal dismissed after guilty pleas. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8) |
| 2. mitigation factors considered in sentencing. (Para 9 , 10 , 11) |
| 3. public interest prioritized in sentencing. (Para 12 , 15 , 35) |
| 4. arguments for sentence reduction presented. (Para 14 , 20 , 21 , 22 , 23 , 24) |
| 5. prosecution defends sentence against appeal. (Para 25 , 26 , 27 , 28 , 29) |
| 6. court finds no error in sentencing. (Para 30 , 31 , 32 , 33 , 46 , 50) |
Introduction
[1] On the 21 January 2025, I have dismissed the appeal by the three appellants against the sentence imposed by the learned Sessions Court Judge [the learned SCJ] after the Appellants pleaded guilty to an offence of committing mischief by fire with intent to destroy a house, an offence under s 436 of the Penal Code [Act 574] read together with s 34 of the same Act.
[2] The Appellants, Then Shaw Nam had filed a Notice of Appeal to the Court of Appeal through the Officer in Charge, Penjara Puncak Borneo, Kuching, Sarawak against my decision dated 27 January 2025 whereas Nelson Anak Ajau had only filed his Notice of Appeal dated 3 February 2025.
[3] In this Grounds of Decision, I will refer to the Appellants as the 1st, 2nd and/or 3rd Accused respectively.
Brief Background
[4] The charge against all the 1st, 2nd and 3rd Accused in the Sessions Court is as follow:
The charge
"That you together, on the 7 July 2023, at about 02.05 am, at house Number No 42 Taman Hill View, in the district of Kota Samarahan, in the State of Sarawak, in furtherance of common intention, committed mischief by fire intending to cause destruction of a building ordinarily used for human dwelling owned by Liu Siew Mui (NRIC No. 741203-13-5254), hence you hereby committed an offence under s 436 of the Penal Code read together with s 34 of the same Code.
Punishment:
Shall be punished with imprisonment for a term which may extend to twenty years and shall also be liable to fine."
[5] For ease of reference, the provision of s 436 of the Penal Code is reproduced below:
"Mischief by fire or explosive substance with intent to destroy a house, etc.
436. Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship, or for the administration of justice, or for the transaction of public affairs, or for education, or art, or for public use or ornament, or as a human dwelling, or as a place for the custody of property or any government facility, shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to fine."
[6] Under s 436 of the Penal Code , whoever commits mischief by fire or any explosive substance, intending to cause, the destruction of any building which is ordinarily used as a human dwelling, shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to fine.
[7] The brief facts tendered in the Sessions Court and marked as exhibit P1 can be summarised as follows:
(a) On 7 July 2023, the complainant received a WhatsApp message from an unknown individual claiming responsibility for burning down the complainant's house and demanding payment from the complainant's son, Voon Jun Kheong, for an outstanding debt.
(b) The complainant's estimated loss is approximately RM80,000.00.
(c) The 1st and 2nd Accused were arrested on 16 July 2023, followed by the arrest of the 3rd Accused on 17 July 2023.
(d) Investigations revealed that on 7 July 2023, at around 1:30 AM, the Accused visited a Petronas gas station in the 3rd Accused's mother's car, purchasing RM40.00 worth of petrol. The 1st Accused filled a gallon barrel brought by the 2nd Accused.
(e) All the Accused then went to the house at No 2, Taman Hill View, Kota Samarahan, intending to set it on fire. The 3rd Accused poured petrol on the house, the 1st Accused ignited the fire using a lighter from the 3rd A
