JUDGMENT

Chong Siew Fai J:

In this case the appellant appeals against sentence. Initially, he was unrepresented. On his own plea of guilty of the offence of exhibiting a firearm i.e., a shotgun in a manner likely to put any person in fear of death at the time of committing a robbery on 26 September 1986, he, on 16 May 1987, was sentenced to 3 years' imprisonment and 6 strokes of whipping.

Briefly, the facts of the case were that on 26 September 1986 at about 12.00 noon the appellant together with 3 other persons arrived at the Hock Huo Lung Shell Station (petrol station) at Jakar, Sarikei, by a car intending to rob the petrol station. Upon arrival, one of them requested that the petrol-tank of their car be filled with petrol, which was done. As they had insufficient money, only part of the price was paid. The 3 of them then left to find a friend to get more money leaving the appellant at the petrol station. They did not find the friend. Upon their return and upon being demanded by the petrol station owner for the balance of the price, the appellant replied that he had no money. The appellant then took out from the car a shotgun. Whilst shouting that the gun was real, he loaded it with cartridge. At that stage, the petrol station owner was scared and walked away. The appellant then fired the weapon hitting the glass wall of the office of the petrol station. In so doing, the appellant pointed the gun in the direction of a petrol station attendant who sat on a chair in front of the petrol station. The attendant then locked the drawer of a table in which money was kept and fled. After shouting for the key to which the owner replied that there was none, one of the members of the gang slashed the drawer of the table with a `samurai sword'; and the appellant forced open the drawer and took away RM515 cash. They then left. The same afternoon they were arrested. The shotgun was stolen by one of them the previous day.

In the appellant's own Notice of Appeal against the sentence, the ground put forward is that the imposition of 6 strokes of whipping is manifestly excessive. In addition, he has also put forward, in his letter dated 9 July 1987, a number of factors which are personal in nature and which I do not propose to repeat here save saying that I have fully considered them.

Arising from the appeal, the learned Public Prosecutor wrote seeking revision of the case submitting that the sentence of 3 years' imprisonment was unauthorised by law and illegal in view of the mandatory sentence imposed by s. 4 of the Firearms (Increased Penalties) Act 1971.

So far as is relevant, s. 4 of the said Act provides:

Any person who at the time of his committing ... robbery exhibits a firearm in a manner likely to put any person in fear of death or hurt shall be punished with imprisonment for life and with whipping with not less than six strokes.

In view of the seriousness of the matter, I, on 2 November 1987, adjourned the hearing to enable the appellant to have the benefit of legal representation. As a result, the appellant was represented by Encik Wan Mohamed Wan Ibrahim from the Legal Aid Bureau and a Petition of Appeal containing grounds of appeal was admitted and argued without objection from the Deputy Public Prosecutor Encik Abdul Rahman bin Sebli.

For the appellant it was contended that the learned trial President had failed to appreciate the legal meaning of the word "and" in s. 4 of the Firearms (Increased Penalties) Act 1971 and had erred in law in holding that the sentence of life imprisonment and whipping of not less than 6 strokes were mandatory.

A number of authorities were cited on behalf of the appellant: Public Prosecutor V. Man Bin Ismail [1938]; Public Prosecutor v. Lee Ah Sam [1949] 15 MLJ 236; Ng Chwee Puan v. Reg. [1953] 19 MLJ 86; Khor Seek Pok V. Public Prosecutor [1957]; Public Prosecutor V. Wahab [1964]; Jayanathan v. Public Prosecutor [1973] 2 MLJ 68 and Nili Anak Gumbang & Ors. v. Public Prosecutor [1985] CLJ (Rep) 885.