Roz Mawar Rozain JC:

GROUNDS OF JUDGMENT

[1]This is an appeal by the Public Prosecutor against the sentence of fine RM1,800 (in default 1 month imprisonment) and additional cost of RM2,000 (in default 1 month imprisonment) awarded to the Attorney General’s Chambers (AGC) upon a conviction of s323 Penal Code.

[2]The Respondent was convicted of voluntarily causing hurt to the left cheek of one Madam Tan Peek Guat (IC No: 470502-08-6040) in front of the Respondent’s office at No 37C Jalan Desa Bakti, Taman Desa, 58100 Brickfields Kuala Lumpur on 04.04.2017.

The basis of the Appeal

[3]The Appellant cited that the said sentence of fine RM1,800 and additional cost of RM2,000 awarded to AGC is manifestly inadequate on the basis that the victim is an old woman aged 69 years old at the time of the incident and does not reflect deterrence to society.

[4]The Appellant submitted that the court on behalf of the community must show disapproval of such criminal conduct and a jail sentence is warranted as exemplary sentence. It was submitted that this would deter the Respondent to repeat the offence and others especially so onto elderly members of the society.

[5]The Appellant also contended that there was an error in the finding of facts by the trial judge was there is no evidence that the victim had trespassed upon the Respondent’s property.

[6]In seeking for this Court to enhance the sentence to include a term of imprisonment, the Appellant referred to Sundrarajan a/l Sokalingam v PP

[7]The case of PP v Khairuddin

[8]The Appellant had also submitted that the trial judge had considered the Respondent’s interest over the victim’s and the public, citing Public Prosecutor v Loo Choon Fatt R v Ball Lim Yoon Fah v Public Prosecutor Mohamed Abdullah Ang Swee Kang v Public Prosecutor

[9]The Appellant lastly contended that the trial judge erred in taking judicial notice over the trend of sentencing in courts of Kuala Lumpur, Kota Kinabalu and those stated in the case management system where the punishment ranged from a fine of RM800 to RM1,500 without specifically visiting each facts of the respective cases.

The grounds of the trial court when sentencing

[10]The trial judge cited great authorities supporting court’s discretion in meting out sentences and its option to impose a sentence of fine instead of or in addition to imprisonment and also in deciding the quantum of such fines. In this case the imposition of fine RM1,800 where the maximum fine of RM2,000 as prescribed by law is legal and allowed vis-a-viz s323 Penal Code. The cost of RM2,000 that was ordered to be awarded to AGC from the Respondent is as provided by s426 Criminal Procedure Code (CPC).

[11]The trial court stated the factors it had considered relating to the gravity or severity of the facts constituting the offence and “remains in its opinion that the nature of the offence committed by the accused was perceived by this Court as an offence comparatively within the lower range of the detrimental spectrum. The facts constituting the offence as silhouetted by the elaborated evidence of the prosecution witnesses and exhibits tendered by the prosecution did not reflect an offence of violence that resulted in irreversible damages, grievous hurt or severe physical injuries towards the complainant or any other person except for the complainant’s traumatic experience. The gravity of the offence is equally reflected in the punishment of this offence specified in s323 Penal Code that entitles this Court to merely impose an imprisonment sentence of less than a year or a fine not more than RM2,000.”

[12]Aside from taking into account the facts and circumstances in which the offence was committed, the fact that the Respondent was a first-time offender and had also pleaded guilty before the victim completed her examination in chief were considered by the trial judge. The Respondent, willing to apologize publicly in open court to the victim and also to cough up costs to AGC, was taken as an accused repent