CRIMINAL APPEAL NO.

: KCH-41S-1/1-2014
PP v SIM JOO LIONG

5 MALAYSIA

IN THE HIGH COURT IN SABAH AND SARAWAK AT KUCHING

CRIMINAL APPEAL NO.: KCH – 41S – 1/1 – 2014

BETWEEN

PUBLIC PROSECUTOR …APPELLANT

10
AND

SIM JOO LIONG … RESPONDENT

15

BEFORE THE HONOURABLE JUDICIAL COMMISSIONER

Y.A. MAIRIN BIN IDANG @ MARTIN

20 JUDGMENT

Introduction

[1] This is an appeal by the DPP on the sentence passed by the

learned Magistrate on 9.1.2014 on the respondent after a full trial
wherein the court found the respondent guilty for the offence under
25 section 457 of the Penal Code. The learned magistrate had then
sentenced the respondent to an imprisonment of 2 years from
9.1.2014.

The amended charge reads as follow:

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30 [2] Bahawa kamu pada 17.7.2013 diantara jam lebih kurang 12.00
tengah hari hingga 5.00 petang telah melakukan pecah rumah dengan
niat mencuri di alamat No. 18, lorong 1B, Taman how Ching, Jalan
datuk Stephen Yong di dalam daearah Kuching di dalam Neheri
Sarawak milik Edward Peter anak Julai (L) KPT: 590812—13-5035
35 yang digunakan sebagai tempat kediamamn dan dengan itu kamu
telah melakukan suatu kesalahan yang boleh dihukum di bawah
Seksyen 457 kanaun Keseksaan.

The Grounds Of Appeal

40 (a) The sentence was in the circumstances of the case manifestly

inadequate;

(b) The learned magistrate in passing the sentence failed to reflect

the gravity and seriousness of the offence.

(c) The learned magistrate failed to strike a balance between the

45 interest of the public and interest of the respondent.

The DPP prays that the sentence imposed ought to be varied and
substituted with another sentence as justice deems fit.

The facts

50 [3] On the 17.7.2013 between 2.00 to 3.30 p.m. the respondent with
two other persons still at large had broken into a house at No. 18,

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Lorong 1 B, Taman How Ching, Jalan Datuk Stephen Yong Kuching

Sarawak. At that time nobody was at the house. The respondent had
then stolen several items belonging to one Edward Peter anak Julai
55 the owner of the said house. The owner of the house could not
estimate the loss as a result of the break-in. After the completion of
the trial the learned magistrate made a finding that the respondent had
failed to create a reasonable doubt in the prosecution’s case on the
amended charge and found him guilty and accordingly convicted him.
60 The respondent mitigation was that he was at the time of the offence
26 years married with 3 children age 5, 7 & 2 years old respectively.
That his wife is not working. He is remorseful. His parents are very old
and living with him. Respondent prayed for leniency because he has to
take care of his family. It is also on records that respondent had
65 previous conviction under s 448 and also under s 4(1) Ordinan
Darurat.

Principle of sentencing

[4] "In deciding the appropriate sentence a Court should always be

70 guided by certain considerations. The first and foremost is the public
interest. The criminal law is public enforced, not only with the object of
punishing crime, but also in the hope of preventing it. A proper
sentence, serves the public interest in two ways. It may deters others
who might be tempted to try crime and seeming to offer easy money
75 on the supposition that, if the offender is caught and brought to justice,
the punishment will be negligible. Such a sentence may also deter the
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particular criminal from committing a crime again, or induce him to turn

from a criminal to an honest life. The public interest is indeed served,
and best served, if the offender is induced to turn from criminal ways to
80 honest living. Our law does not therefore, fix the sentence for a
particular crime, but fixes a maximum sentence and leave it to the
court to decide what is, within that maximum, the appropriate sentence
for each criminal in the particular circumstances of each case. Not only
in regard to each crime, but in regard to each criminal, the court has
85 the right and the duty to decide whether to be lenient or severe".

[5] In passing the said sentence the learned Magistrate also erred
when she did not appreciate the rampancy of such offences in our
country. It is indeed sad but true that it is common knowledge that
robberies and break-in in residential and commercial buildings are
90 rampant in this country. The court has to take judicial notice of the
increasing number of robberies and involving break-ins into occupied
buildings and premises as news of such happenings are constantly
being reported in the newspapers and also on television.

[6] I cannot find in the NOP whether the learned Magistrate had
95 considered the respondent’s previous conviction before sentencing the
respondent for the present offence. The respondent previous
conviction were in respect of s. 448 penal Code wherein on the 20.9
2013 he was fined RM1,500.00 in default of 2 months. The other
conviction was under s. 4(1) Ordinan Darurat where he was detained
100 at Pemulihan Akhlak Simpang Rengam Johor for a period of 2 years
commencing from 13.1. 2011. Did the learned Magistrate consider this
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2 conviction. Did she consider that despite the conviction the

respondent it showed the punishment had not deterred the respondent
from committing another offence i.e. the offence of house breaking.
105 What is clear is that he has not only not learnt his lesson but has
instead progressed to committing a more serious type of crime which
has caused him to be a danger to others.

[7] I find support for the views which I have expressed above in the
decided cases cited below.

110 [8] In the case of Radin Ibrahim bin Gusti Yassar v. PP [1988] 1
LNS 73, Chong Siew Fai, J, in dismissing an appeal against sentence
for the offence of housebreaking by night said as follows:

“Housebreaking by night of other persons' dwelling houses in

order to the commission of theft is considered a serious matter
115 not only because of the intrinsic value of whatever is stolen but
because of the intrusion into the houses which causes insecurity
and fear to householders even in their own homes. The gravity of
the offence is reflected by the provision of the imprisonment term
which may extend to 14 years in the Penal Code. The offence
120 deserves fairly severe punishment and offenders must expect
custodial sentences.”

[9] Now I am minded that the break in was during day time and no
one was hurt but the offence under s 457 does not make any
difference to day and night. What it says is that if it was break-in the
125 imprisonment is maximum of 5 years, if the break-in is with the
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intention to commit theft then the imprisonment could go up to the

maximum 14 years. For the second similar offence the court could also
mete out a fine or canning.

[10] Now I have read the respondent submission why the sentence
130 of 2 years should be maintained. I have considered all that matters
raised therein. I noticed that the respondent had also been convicted
for 3 other offences for which he is now serving. I did not see this these
additional convictions in the notes of proceeding. I have no doubt the
learned Magistrate would have considered and took the same into
135 account in sentencing respondent for the offence under s 457. I would
advice the prosecution to make sure the antecedents of all accused
are properly before the court so that a proper sentencing could be
passed.

[11] I agree with the learned DPP submission that the sentence
140 passed by the learned magistrate was manifestly inadequate. In the
premises, the court set aside the sentence passed by the learned
Magistrate on 9.1.2014 and sentenced the respondent to five (5) years
imprisonment to reflect the gravity of the offence and the abhorrence of
the public to the type of offence which was committed by the
145 respondent.

Mairin Bin Idang @Martin

Judicial Commissioner
150
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Date of Grounds of Judgement: 25.04.2014

Date of Delivery of Decision: 16.04.2014

155 For the Appelant: DPP Steven Beti standing in for DPP Musli

For the Respondent: Present / Unrepresented

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