Abdul Rahman Sebli JC:

[1] The respondent was charged in the Magistrates Court with using criminal force to outrage the modesty of Raineh binti Hadimin, a 23 year old woman. The charge is as follows:

Bahawa kamu, pada 16 September 2006 lebih kurang jam 0700 malam bertempat di tepi jalan raya Kg. Sinisian Kundasang dalam Daerah Ranau, dalam Negeri Sabah, telah didapati menggunakan kekerasan jenayah bagi maksud mencabul kehormatan penama Raineh binti Hadimin perempuan 23 tahun, oleh itu kamu telah melakukan satu kesalahan dibawah s 354 Kanun Keseksaan dan boleh dihukum dibawah seksyen yang sama.

[2] He claimed trial to the charge but after the prosecution had called six witnesses to testify including the complainant he changed his plea to a plea of guilty. In his plea in mitigation he asked that he be sentenced to a fine only. He said he had three children, had no fixed job and was also supporting his parents in law. He also told the Court that his wife had just given birth and was still at the hospital. After entering a conviction against the respondent the learned magistrate ordered the respondent to behave himself for a period of one year pursuant to s 294 of the Criminal Procedure Code ("the Code") and to deposit a sum of RM3,000 (only RM1,500 deposited) in one surety. The Public Prosecutor is dissatisfied with the order, hence this appeal.

[3] The testimony of the complainant is that on 16 September 2006 at about 7pm she was on her way home on foot alone after finishing work at the Sri Pinang restaurant where she worked as a waitress. The distance between the restaurant and her home is about 1 kilometer. She was wearing a jubah, black tudung and white jacket, nothing seductive. As she reached the workshop at her kampong she was pushed into a big drain by the respondent. At that time there was a blackout and the surrounding area was very dark. It is obvious that the respondent had been stalking her and waiting for the right moment to strike. After pushing her into the drain the respondent punched her in the face repeatedly and warned her not to resist or else he would kill her. He strangled her neck and told her that he only wanted her. The respondent then pulled her underwear up to her knee.

[4] However the respondent got more than what he bargained for when the complainant fought back. She kicked the respondent, aiming at his private part but could not reach it. She shouted for help but her voice could hardly come out as the respondent was choking her. She continued to struggle to break free of the respondent. Sensing that the tables would be turned against him the respondent let go of the complainant and fled the scene on foot. The complainant was sure it was the respondent who attacked her that night judging from the voice and physical features of the assailant. Apparently he was not a total stranger to her as she even knew his name. Medical evidence confirmed that the injuries on the complainant's face were consistent with having been punched repeatedly.

[5]Section 173(b) of the Code provides that if the accused pleads guilty to the charge he may be convicted thereon and the Court shall pass sentence according to law. The phrase "sentence according to law" has been judicially considered in PP v. Jafa bin Daud, [1981] 1 MLJ 315 where Mohamed Azmi J said:

A "sentence according to law" means that the sentence must not only be within the ambit of the punishable section but it must also be assessed and passed in accordance with established judicial principles.

[6]Section 294 of the Code provides the exception to s 173(b) in that it allows the Court to bind over the accused for good behaviour instead of sentencing him at once to any punishment. The provision reads as follows:

When any person has been convicted of any offence before any Court if it appears that regard being had to the character, antecedents, age, health or mental condition of the offender or to the trivial nature of the offence or to any extenuating circumstan