Muniandy Kannyappan J:

[1] The preferred charge against the accused is the following:

"Bahawa kamu bersama-sama dengan seorang lagi yang masih bebas pada 22 August 2024 jam lebih kurang 04.50am di pasar mini KK Super Mart, Jalan Sungai Besi di dalam Daerah Dang Wangi, Wilayah Persekutuan Kuala Lumpur, telah melakukan rompakan berkumpulan ke atas seorang nama Khan Imran, no PP: EJ0399081 dengan mengambil wang tunai berjumlah RM407.00.00. Oleh yang demikian kamu telah melakukan kesalahan yang boleh dihukum di bawah s 395 Kanun Keseksaan"

[2] Appeal by the accused challenges the five-year prison sentence and whipping up to two (2) strokes imposed by the Sessions Court Judge (SCJ). He had pleaded guilty to the offence of gang robbery under s 395 of the Penal Code (PC/Act 574).

[3] After having heard submissions advanced to this Court by both counsel for the accused and DPP appearing for the prosecution, this Court had decided to reduce the term of imprisonment imposed from a period of five (5) years to three (3) years but for the sentence of whipping meted out to stay. The term of imprisonment is to take effect from the date of arrest on 23 August 2024.

[4] The reduction is for the following reasons:

Nature Of Offence

[5] The accused who is appellant to this appeal, though charged with gang robbery, is the only individual charged for the said offence. Another individual, who was waiting outside the KK shop is at large. In the premise, the offence committed by the accused is only robbery pursuant to s 392 of the PC, entailing lesser punishment of only ten (10) years imprisonment and fine, and without whipping. Although the framed charge is for gang robbery, the SCJ ought to have considered this salient distinction in terms of culpability of the accused in the case against him.

Mitigating Factors Ignored

[6] It is this Court 's view too that the SCJ did not consider several key mitigating factors:

• Plea of Guilty: The accused pleaded guilty at the earliest opportunity, showing he is remorseful of the crime he had committed. By doing so, obviously he had saved much judicial time and resources. It is a fact that when he pleaded guilty, he was unrepresented, but pursued with the plea of guilty so as not to waste any more time but to incur wrath of the law. That only shows his state of mind, who wishes to admit to the commission of crime, regardless of the fact that he is only charged singly but still for an offence of gang robbery.

• First Offender Status: It was his first offence on record.

• Lack of Premeditation: The crime was not planned nor premeditated by him but an impulsive act and happened at the spur of moment, to rob the victim off monies worth RM407.00 whilst he was at the cash register machine.

• Irrelevant Consideration: Reasoning by the SCJ to have imposed a fairly heavy sentence is flawed. He had inadvertently concluded that act of the accused wearing helmet with an open visor indicates a deliberate attempt to have his identity concealed. Further, commission of the crime at dawn was found to be a calculated effort to avoid witnesses. Such assumptions were unsubstantiated, as the accused was easily identified and monitored by the CCTV, depicted by the footage available. It is recorded, the SCJ had considered rampancy of such offences without benefit of reference given to him of statistical data, as proof. However, he may take judicial notice of such rampancy, but he had missed the prevailing factor in the case of the accused, whereby it was an impulsive act by him to rob the victim of the monies, and it is an incident one-off, as apparent from the facts of case produced to support the charge.

Principle Of Proportionality

[7] I find the sentence meted out on the accused to be disproportionate. The SCJ had imposed a lengthy period of incarceration and whipping. It has to be borne in mind that sentence of whipping per se is deterrent, and it denotes the act of violence by the accused on to the victi