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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
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