JUDGMENT

KC Vohrah J:

Introduction

On 12 May 1995 Lee Quat Leong (the deceased) was found dead whilst in police custody. Two police personnel, the two respondents, were on 22 January 1996 charged in the Sessions Court in Kuala Lumpur for having voluntarily caused hurt to the deceased for the purpose of extorting from the said person information which might have led to the detection of the offence of the housebreaking of Mayban Finance, Taman Cheras, Kuala Lumpur. The offence is one under s. 330 of the Penal Code and it carries a maximum sentence of seven years and a liability to a fine for a person convicted for the offence. The Sessions Judge convicted and sentenced each of the respondents to 18 months imprisonment on the charge.

There was no appeal against the sentences. After the period limited for the appeal had passed the elder brother of the deceased filed a notice of motion under Miscellaneous Criminal Application 44-1-96 for the High Court to, inter alia, revise the sentences that had been passed on the respondents. Two grounds were relied upon. One was that the sentences imposed were "manifestly inadequate having regard to the facts and circumstances" of the case (see para. B of applicant's affidavit). The other ground was recited in para. 9 of his affidavit thus,

In particular, I wish to respectfully state the learned Sessions Judge in imposing the sentence (that) she did, relied on Lai Kim Hon and Ors v. Public Prosecutor a 1980 case decided by the Federal Court despite Suffian LP (as he then was) specifically saying in the judgment that the case was not to be regarded as a precedent in future cases.

Application For Revision

There are many ways in which the attention of the High Court judge may be drawn to cases where decisions made in the Subordinate Courts may have to be revised; through newspaper reports of cases, through letters by members of the public or by aggrieved parties or by their relatives, through requests by magistrates or judges of the Sessions Court for revision of the decisions they had made; and through formal applications like the one filed by the brother of the deceased.

At the hearing of application of the formal application made by the brother of the deceased, the Deputy Public Prosecutor (together with another DPP) who had appeared at the proceedings in the Sessions Court confirmed that the judge of the Sessions Court had mentioned that she was relying on the case of Lai Kim Hon & Ors v. PP [1981] 1 MLJ 84 but he urged the court not to interfere with the sentences. The fact remains that the judge did rely on the said case which dealt with an offence under s. 330 of the Penal Code notwithstanding that Suffian LP in the preliminary judgment of the court (at 92) had indicated that (after the Federal Court did not alter the sentences appealed against) " ... this should not be regarded as a precedent in future cases". Hamid FJ (as he then was) who subsequently (at 93) gave the full judgment of the court clearly indicated that the sentences that had been passed by the trial judge and appealed against were not altered " ... because it would not be right to increase the sentences on the 2nd, 3rd and 4th appellants, without increasing the sentence of three years imposed on their superior, the first accused as to which there was no appeal by the public prosecutor". It has to be noted that the Federal Court has no power of criminal revision and could not have altered the sentence of the first accused in that case.

At the hearing of the application I was satisfied that ex facie a case had been made out for me, under s. 323 of the Criminal Procedure Code, to call for the record of the proceedings before the judge of the Sessions Court to satisfy myself "on the correctness, legality or propriety" of the sentences that had been passed.

The application, through the disclosures in the accompanying affidavit, brought to the knowledge of the High Court, firstly, that the learned judge was influenced by th