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DALAM MAHKAMAH RAYUAN MALAYSIARAYUAN JENAYAH NO: W-05-220-2010

ANTARA5

PENDAKWA RAYA PERAYU

DAN

1. CHEONG KERH CHI10

2. OOI KERH CHI RESPONDEN(DALAM PERKARA MENGENAI MAHKAMAH TINGGI KUALA

LUMPUR PERBICARAAN JENAYAH NO: 45- 3 & 4 2009)15

CORUM:NIHRUMALA SEGARA A/L M K PILLAY, JCA

SULAIMAN DAUD, JCAMOHD HISHAMUDIN MOHD YUNUS, JCA20

JUDGMENT25

This appeal by the Public Prosecutor is against the inadequacy of

sentence imposed by the High Court on the respondents for the

offence of gang robbery under s.395 of the Penal Code which

carries a maximum sentence of 20 years imprisonment and

whipping. Both the respondents were sentenced by the High Court30

to 12 years imprisonment from the date of arrest and 3 strokes of

whipping.

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We are unanimous that the sentence was manifestly inadequate

and have no hesitation in setting aside the sentence of the High

Court and substituting same with a sentence of 18 years

imprisonment from date of arrest and 6 strokes of whipping on5

both the respondents. The learned High Court judge failed to

consider sufficiently that the prime consideration for sentencing in

offences such as this is the public interest. Deterrence and

prevention must be in the forefront of the Court when assessing

sentence for this category of offence and any sentence passed10

must unequivocally reflect this. The Courts must instill confidence

in the public that such offenders will be incarcerated for as long as

possible to ensure they can be rehabilitated and deterred from

committing premeditated crimes before being allowed to return to

society as honest and law abiding persons, posing no threat to15

society. Sentences must not be illusive to the public in the light of

the fact that all offenders serving terms of imprisonment are

invariably eligible to1/3 remission of their term for good behavior.

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The 1st and 2nd respondents were charged in the High Court with a

principal charge under s.3 of the Firearms (Increased Penalties)

Act 1971 for a scheduled offence carrying the mandatory death

sentence and an alternative charge for gang robbery punishable

under s.395 of the Penal Code which only provided for a maximum5

term of 20 years imprisonment and whipping. Both the accused

claimed trial to the principal charge. However, in the midst of the

trial both the accused elected to plead guilty to the alternative

charge and saved themselves of any possibility of being sent to

the gallows on the principal charge.10

Briefly, on 20/7/2008 at about 8.15 p.m. both the accused,

together with one other person still at large, rushed into Kedai

Emas Tomei, Carefour Shopping Centre, Wangsa Maju, Kuala

Lumpur and fired a few shots off a firearm one of which hit a sales15

person who succumbed to the injury. The accused instructed the

staff to empty the glass cabinets in the shop of the jewellery

therein into several bags and escaped therewith from the shop.

The gold jewellery was valued at about RM500,000/-. Neither the

jewellery stolen by the accused nor the firearm used at the time of20

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the commission of the robbery has been recovered to date by the

police.

Both the accused are brothers. The 3rd person involved in the

gang robbery seems to have mysteriously vanished from the radar5

screen of the police either by the non co-operation of the accused

to apprehend him or for other reasons best known to the police.

The robbery was obviously a planned and premeditated offence. It

calls for punishment that would send a message of deterrence to10

others, who are like-minded, to be restrained from becoming a

menace and threat to the security of society. There must be no

travesty of justice in the sentence imposed when the facts, as in

this case, so clearly warrant a severe sentence because at the

time of the commission of the gang robbery not only was a firearm15

used but it also occasioned the death of an innocent and harmless

sales person who posed no threat to the accused at the scene of

the robbery in the jewellery outlet.

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Appeal allowed. Sentence of High Court set aside. Both

respondents sentenced to 18 years imprisonment from date of

arrest (19/8/2008) and six strokes of whipping.

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(DATO NIHRUMALA SEGARA A/L M.K. PILLAY)Judge

Court of AppealPUTRAJAYA10

Peguam Perayu:

Aslinda Binti Hj AhadTimbalan Pendakwa Raya15Jabatan Peguam Negara Malaysia

Peguam Respondent:

Tetuan Norma Goh & Co

Tetuan Gooi & Azura20

12 MAY 2011