JUDGMENT

Mohd Noor Abdullah J:

By a letter dated 20 July 1996 a member of Parliament drew my attention to a criminal case where an accused person was convicted of statutory rape of an underaged girl and was bound over for good behaviour by the Sessions Court Judge in Seremban. In the exercise of my revisionary powers I had called for and the Sessions Court had promptly sent up the record of proceedings pertaining to the case. I did so having regard to the recent judgment of K.C. Vohrah J in Public Prosecutor v. Nordin bin Yusmadi [1996] 1 CLJ 1 where he held that it was wrong of a Sessions Court Judge not to have imposed the minimum sentence of five years imprisonment for an offence of rape.

The record of proceedings disclosed that the 22 year old accused person was charged with statutory rape of a young girl of 15 years and 11 months in a house in Tampin Jaya, Tampin on 19 July 1994 at 2.15 a.m.. He was produced and charged before the Sessions Court on 17 December 1994. He claimed trial to the charge and a bail was set at RM7,000 with one surety to secure his attendance at the trial fixed from 14-18 August 1995. On 6 June 1995 the accused was produced before the Sessions Court where he beseeched the Court to reduce the amount of the bail because his mother was old and destitute and his family too poor to provide sufficient security and that he had been remanded for six months. The learned Deputy Public Prosecutor objected because the accused had committed a serious offence the punishment for which is a minimum of five years imprisonment. The Judge refused the accused's application.

On 11 August 1995 three days ahead of the scheduled hearing the accused was produced before the Sessions Court Judge. He pleaded guilty to the charge, understood the nature and consequence of his plea, admitted the facts submitted by the prosecutor and thereupon he was convicted and bound over for good behaviour for three years in the sum of RM7,000 with one surety under s. 294 Criminal Procedure Code.

On these facts as disclosed in the record of proceedings and without more I had to consider the correctness, legality and propriety of the finding, sentence or order of the learned Sessions Court Judge, that is to say, whether the accused was properly convicted on his own plea of guilt and whether he was sentenced according to the law.

Rape is defined under s. 375 of the Penal Code and is punishable under s. 376 thereof as follows:

376.

Whoever commits rape shall be punished with imprisonment for a term of not less than five years and not more than twenty years, and shall also be liable to whipping.

It is observed that the punishment of "imprisonment" is preceded by the expression "shall be punished with" whereas the punishment of "whipping" is preceded by the expression "shall also be liable to". The legislature must have intended the expressions to mean differently and bear different consequences. It is also observed that the legislature, contrary to its practice normally to fix the maximum sentence has instead fixed the minimum sentence.

The legislature has varying modes of indicating in any penal provision the type and extent of punishment to be meted out, whether an imprisonment or a fine or whipping or any combination. It also indicates its intention whether a particular sentence is mandatory or discretionary by the use of such expressions as "shall be punished with" or "shall be liable to" the former being mandatory and the latter discretionary.

The policy of the law as regards most offences is to fix a maximum penalty which is intended only for the worst case and to leave to the discretion of the Judge the determination of the extent to which in a particular case the sentence awarded should approach to, or recede from, the maximum limit. The Judge is given a very wide discretion in choosing the appropriate sentence according to the principles of sentencing.

In Public Prosecutor V. Man Bin Ismail [1938] Lord Aitkin held that the expr