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-- THE ARCHIVE --


MALAYSIA
Judicial CP - November 2014



Corpun file 25676 at www.corpun.com

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The Borneo Post, Kuching, 4 November 2014, p.6

Two armed robbers get jail, whipping

KOTA KINABALU: The Sessions Courts here yesterday jailed two men and ordered them to be whipped for committing armed robberies.

In the first case, Sukarman Kadir, 31, was sentenced to nine years' jail and ordered to be given three strokes of the cane for robbing a 38-year-old woman of her belongings at her house in Telipok near here on August 15.

Deputy public prosecutor (DPP) Chow Siang Kong told judge Azreena Aziz that the accused had entered the house of the victim and demanded for her belongings before fleeing the scene.

The prosecution also said based on information provided by the victim and fingerprints of the accused obtained at the crime scene, the accused was later arrested.

Chow said one of the belongings of the victim which was her cellphone, was discovered as the accused had given it to his aunty.

In the proceedings yesterday, Chow explained that the accused had a previous conviction in 2008 for house trespass and is currently serving a five-year jail term at Kajang prison for rape.

The accused, who was a mechanic, faces other charges of committing a similar offence and also sex offences.

In the second case, judge Indra Hj Ayub jailed 21-year-old Mohd Firdaus Jafri for seven years and ordered the latter to be whipped thrice for robbing the security guard of a 24-hour convenience outlet of RM104 cash and five boxes of cigarettes at a commercial centre in Sepanggar on October 14.


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The facts of the case stated that the victim, who was on duty to do a report on CCTV that day, saw the accused on the CCTV system pointing a weapon at a worker of the outlet.

The victim then went there but instead the accused also pointed the same weapon at the victim's throat.

Following a police report made by the victim, the accused was apprehended at Kampung Gentisan in Menggatal.

Both accused were convicted under Section 392 of the Penal Code which is punishable under Section 397 of the same Code, which carries a maximum jail of 20 years and also liable to whipping upon conviction.

The duo were armed with cleavers measuring eight and 29 inches respectively, when committing the offences.

Mohd Firdaus who was a first offender, was unrepresented while his case was prosecuted by Chan Qin Yee.




Corpun file 25716 at www.corpun.com

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The Borneo Post, Kuching, 13 November 2014, p.23

Mandatory caning sentence for agents of illegal foreign workers proposed


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THE Home Ministry proposed a mandatory caning sentence be imposed on agents who are found guilty of bringing in foreign workers to Malaysia illegally.

Its minister Datuk Seri Dr Ahmad Zahid Hamidi said the caning sentence is more effective than simply slapping fines in curbing the overflowing entry of foreign workers.

"The proposal will be brought to the Attorney-General's Chambers and I hope it is accepted after taking into account the uncontrollable influx of foreign workers especially in the various states," he said in reply to a question by Liew Chin Tong (DAP-Kluang) in the Dewan Rakyat, here yesterday.

Ahmad Zahid said the ministry had no plans to replace caning as the sentence has reduced the number of repeat offenders, especially among drug traffickers.

He stressed that the caning sentence had reduced the rate of repeat offences from 32 per cent to 7.6 per cent. "We have no intention to replace caning with a lesser punishment, but if the Attorney-General's Chambers wants to change the policy, then we are willing to accommodate the change," he said.

Earlier, Ahmad Zahid said last year, 8,481 prisoners were sentenced to caning, of whom 2,483 were Malaysians and 5,968 were foreign nationals. -- Bernama




Corpun file 25729 at www.corpun.com

New Straits Times, Kuala Lumpur, 18 November 2014

Youths whipped in Court as part of sentence

By Hidir Reduan


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KUALA LUMPUR: Two youths convicted of two separate gang-robberies were whipped at the Sessions Court today as part of their sentences.

Mohamed Shaznee Jahn Mohamed Yasin, 19, and Redzohaan Abdullah, 20, each received seven and eight rotan strokes administered by Kajang Prison police officers before judge Ahmad Bache today.

Former college student Shaznee was sentenced to one and a half years jail and seven strokes of the rotan on Sept 4 while Redzohaan, who used to work at a snooker parlour, was handed a two-year jail term and eight strokes of the rotan on Aug 21.

Shaznee pleaded guilty to committing gang-robbery, while armed with a piece of wood, on one Teo Len Hoo, 61, at an internet cafe at Plaza Usahawan Genting Klang, Setapak, Sentul here, around 6.24am on Nov 24 last year.

Teo lost RM418 in cash during the robbery where the other robber is still at large.

Redzohaan pleaded guilty to committing gang-robbery, with two others still at large, on one Martin Anak Iyan, 37, at a 24-hour convenience store at Jalan Ipoh, Sentul here, around 3.30am on Jan 31.

The accused, while armed with parang, had robbed Martin of RM300 in cash, a smartphone, and a tablet.

Shaznee and Redzohaan cried out in pain each time they were whipped as they were held bent over a court table by a Kajang Prison police officer.

After the sentences were carried out, Ahmad reminded the two accused that they were lucky the court had considered their young age at the time of the offences before sentencing them to whippings administered at the court.

He said that whippings against convicted persons carried out in prisons are more harsh compared to ones done before a court.

"It is hoped you are repentant after this. Crime does not pay," he said, adding that it is hoped they do not get into trouble with the law again.

Deputy public prosecutor Norazlin Mohamad Yusoff prosecuted while counsel Chong Yin Xin acted for Redzohaan. Shaznee was unrepresented.

None of the two accused's family members were present at court.



Corpun file 25757 at www.corpun.com

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The Malay Mail, Kuala Lumpur, 23 November 2014

Prison counsellor cautions against haphazard caning

By Ida Nadirah

(extracts)


Thavamany believes the judge who meted out the punishment on the duo was doing the right thing in promoting public caning as a strong deterrent. -- Picture by Zuraneeza Zulkifli

PETALING JAYA, Nov 23 -- Prison counsellors rarely get the main role in a cop drama but in the country's criminal justice system, they play a crucial part in deciding whether a punishment is appropriate and effective for a convict.

Like many others, G. Thavamany, who has 35 years of experience counselling convicts as a prison officer, was also shocked by the public caning of two young men in open court on Tuesday for committing armed robbery.

The national counselling board member said he had never witnessed a punishment meted out in such a manner.

"In my experience, the judge would ensure all members of the public leave the courtroom before the offender is caned," he said in an interview on Thursday.


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Thavamany, 62, said in juvenile cases, the decision to cane is not made by the judge alone but it's made after the opinion of court advisers have been weighed.

"The role of the counsellor is to interview the offender and decipher whether there is a need for caning.

"Caning is only meted based on the severity of the case as well as the offender's character and attitude."

[...]

Last Tuesday, Mohamed Shaznee Jahn Mohamed Yasin, 19, and Redzohaan Abdullah, 20, received seven and eight strokes of rotan respectively before an audience of prison officers, a medical doctor, and members of the public.

Mohamed Shaznee and Redzohaan were also sentenced to 18 months and 24 months jail, respectively.

Although the jury is out on whether public caning should be practiced, criminal lawyer S. Selvam told Malay Mail on Friday that it should be encouraged in the public's interest.

"Criminal lawyers see it from a different perspective ... we see the prison as a university of crime, where the masterminding of major crime actually takes place. An inmate who enters prison for stealing chicken may come out wanting to commit ATM robberies."

He believed Judge Ahmad Bache who meted out the punishment on the duo was doing the right thing in promoting public caning as a strong deterrent.

Copyright © 2014 Malay Mail Online



Corpun file 25779 at www.corpun.com

Free Malaysia Today, 24 November 2014

Accused's lawyer defends public caning

However, another lawyer says the judge, the prosecution and the defence counsel have erred.

By Amin Khairuddin


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KUALA LUMPUR: The public whipping conducted in the Kajang Sessions Court on November 18 has caused quite a stir among the general public as well as legal experts. Many have said they were shocked that the punishment was carried out in full view of the public, but some believe that justice was served.

The latter group includes Samantha Chong, the lawyer who represented one of the accused, Redzohaan Abdullah.

As a response to an article and readers' comments on the issue, Chong has written to FMT to defend the public caning.

She said the caning was part of the deal in her plea bargain with the prosecution and that she was the one who applied for the punishment to be carried out in court to ensure that a light cane would be used.

"Whipping of youthful offenders in court is quite common in Malaysia," she said, adding that she had witnessed six cases in her five years of legal practice.

"As Redzohaan was a youthful offender, I had applied to the court that caning should be done according to sections 288 and 293 of the Criminal Procedure Code (CPC), i.e . inflicted in the way of school discipline with a light rattan."

She pointed out that Section 293 (1) (c) says, "When any youthful offender is convicted before any criminal court of any offence punishable by fine or imprisonment, the court may, instead of awarding any term of imprisonment in default of payment of the fine or passing a sentence of imprisonment order the offender, if a male, to be whipped with not more than ten strokes of a light cane or rattan within the court premises and in the presence, if he (the judge) desires to be present, of the parent or guardian of that offender."

Chong said the purpose of having the caning administered in court was not to shame the accused, but to ensure that it was conducted according to the provisions of the law, that a light rattan was indeed used, and that a medical officer would be present.

"Had the whipping been too much for the accused physically, the court would have terminated it on the medical officer's advice," she said. "Both the accused were whipped with their clothes on, unlike the whipping in the prison."

Explicit errors

However, criminal lawyer S N Nair notes that, amongst other things, there are two explicit errors in the way the sentences were ordered and executed.

Nair pointed out that there's no mention of whipping in the main body of Section 293 of the CPC.

"It is evident and explicit that this section envisages punishment for youthful offenders for offences that are not of a serious nature, such as theft of a motor vehicle (covered under Section 379A), where the sentence is not less than one year's jail and not more than seven years' jail and a fine," he said.

"Whipping is made an additional and mandatory punishment in offences that are serious and aggravated, such as gang robbery and armed robbery (Sections 395 and 397 Penal Code). Armed robbery was the very offence the two offenders were charged with.

"By this very fact, the learned lawyer, the learned prosecutor and the learned judge have all erred in law in invoking Sections 293 and 288 (4) for imposing the punishment of whipping with a 'light cane'.

"To make matters worse, the sentence of caning in Section 293 (1) (c) is an alternate sentence, that is, caning instead of a fine or imprisonment. Yet, the two offenders, in addition to being imprisoned, were caned as well.

"This is gross injustice.

"In any event, in allowing the public to witness the caning, all parties have again erred as Section 293 (1) (c) states that witnesses who are allowed to be present are the judge (optional) and the parents or guardians only."

Nair also noted that Section 293 (1) (c) nowhere states that the whipping to be carried out is "public" whipping.

"I am made to understand from the FMT news report that the whipping was indeed publicly carried out in open court in the presence of members of the public sitting in the gallery." he said.

"I wish to reiterate that public whipping is a big 'no no' in our laws."

He pointed out that the accused were not charged under the Child Act, but were charged as adults and ought to be punished as adults.

"However, as they were youthful offenders and perhaps first offenders, a lower term of imprisonment and fewer strokes, to be executed in the recesses of prison, would have been proper and mitigating in law," he said.

"Even if there was plea bargaining, I am of the opinion that the learned judge is bound by the law (CPC) and given the seriousness of the offences, which is of an aggravated nature where whipping is mandatory, the sentencing under Section 293 CPC is clearly untenable in law and is hence erroneous," he said.

"It is not that I am being cruel nor that I advocate whipping as a mode of punishment. In fact, I am against whipping but am merely highlighting the precepts of the law as it stands. Unless Parliament amends the law, judges must strictly abide by the law as it stands. Victims have rights too.

"Again, I believe that all parties here, such as the learned judge, the learned prosecutor and the learned lawyer, may have innocently misapplied the Section 293 of the CPC in this plea bargaining."

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