ALJ v. KPSNS [2023] SLRAU 13

Selangor Syariah Court of Appeal (Shah Alam)

An Appeal for Mitigation Factor

1.    On 27 March 2019, the Appellant was charged under section 124 of the Islamic Family Law (State of Selangor) Enactment 2003 for the offence of polygamy without court approval, which, if convicted, may result in a fine not exceeding one thousand ringgit, imprisonment for a term not exceeding six months, or both.

2.    The Appellant pleaded guilty and the Syariah Subordinate Court Judge of Hulu Selangor (Trial Judge) convicted the Appellant for the offence and imposed a fine of RM1,000.00 and a fourteen (14) day imprisonment sentence.

3.    However, upon the Appellant’s appeal, the Court allowed the suspension of the sentence following the filing of a Notice of Appeal by the Appellant to the Syariah High Court and ordered the Appellant to be released on bail of RM500.00 with one surety.

4.    On 14 April 2021, the Syariah High Court (Appeal Judge) made the following decision:

(a)  The Appellant’s appeal is dismissed.

(b) The Court upheld the decision dated 27 March 2019.

(c)  The Court also ordered a one-month imprisonment sentence if the fine is not paid on the same day.

5.    Dissatisfied with the decision, the Appellant filed an Application for Leave to Appeal, which was granted on 28 July 2022. Following the grant of leave, the Appellant filed a Notice of Appeal to the Syariah Court of Appeal on 4 August 2022.

6.    During the proceedings in the Syariah Subordinate Court, the Appellant made a guilty plea. Therefore, the only appeal that can be made is regarding the severity of the sentence imposed by the Court of First Instance. This is clearly stipulated under section 136 of the Syariah Criminal Procedure (State of Selangor) Enactment 2003 as follows:

“When plea of guilty limits right of appeal

136. When an accused person has pleaded guilty and been convicted by a Judge on such plea, there shall be no appeal except as to the extent or legality of the sentence.”

2.    Whether the sentence imposed on the Appellant is reasonable and proportionate, or excessively harsh?

1.    Whether the Judge of the Court of First Instance failed to consider mitigating or aggravating factors in sentencing?

(a) The Appellant has requested the Court to take into account the factors mentioned above to impose a reasonable sentence. To support this argument, the Appellant referred to various cases, including MSA v. KPSS [2009] SLRHU 32; [2011] ICLJ Sya 178, MIHM v. KPSS [2010] SLRAU 10, MR v. KPS [2010] SLRHU 30; [2011] 1 CLJ Sya 577, MP v. KPSKL [1990] SLRAU 6, andARBO v. KPSNM [2007] SLRAU 9; [2007] 1 CLJ (SYA) 160. In these cases, the sentences of imprisonment imposed by the Court of First Instance were overturned by the Court of Appeal.

(b) In response, the Respondent argued that factors such as a voluntary guilty plea, first-time offence, and the Appellant’s remorse are not necessarily required for the Court to consider when mitigating a sentence. The Respondent referred to several cases, including SRH v. KPSWP [2012] SLRAU 22; [2013] 1 CLJ Sya 226; JH JLD36 BHG2 1434, and ZMB v. KPSPP [2005] 1 MSLR 222.  In these cases, the Court of Appeal upheld the imprisonment sentences, even though the offenders had pleaded guilty, were first-time offenders, and expressed remorse for their actions.

(c)  In the Court’s view, mitigating and aggravating factors must be thoroughly considered, reviewed, and discussed by a judge before imposing a sentence in the Syariah Court. Dr. Abdul Qadir Audah, in his book Kitab al-Tasyri’ al-Jinaie al-Islami, Volume 1, page 615, stated:

“If the judge believes that the circumstances of the crime and the circumstances of the offender do not warrant leniency, the judge should impose a penalty commensurate with the crime committed. However, if the judge believes that the circumstances of the offender justify a more lenient sentence, then the judge should impose a penalty that is suitable to the offender’s character, situation, life circumstances, and morals.”

“Furthermore, if the circumstances of the crime require a harsher punishment, but the circumstances of the offender suggest leniency, the judge should impose a balanced sentence. The judge should neither increase the penalty nor reduce it excessively.”

(d) The Court held that based on the Judgment Grounds of the Learned Trial Judge, as found on pages 159-183 of the Appeal Record, the factors had been duly considered as the basis for the sentence and were agreed upon by the Learned High Court Judge (Appeal). In light of this finding, the Court is satisfied that the Learned Trial Judge was not in error in terms of considering these factors when imposing the sentence. Therefore, on this matter, the Court is of the view that the Appellant failed to demonstrate to the Court that there was any error made by the Learned Trial Judge.

2.    Whether the sentence imposed on the Appellant is reasonable and proportionate, or excessively harsh?

(e)  In this case, the Appellant pleaded guilty to the charge brought against him. This action saved time and costs for all parties and the Court itself. Furthermore, this is the Appellant’s first offence. The Court held that the issue of the guilty plea, remorse, and being a first-time offender should be considered when determining the appropriate sentence for the Appellant.

(f)   Based on the facts of the case and the mitigating factors presented, the Court acknowledges that a prison sentence could be imposed upon the Appellant, provided there is a substantial legal justification. However, upon examining the Grounds of Judgment from both the Subordinate Court Judge and the High Court Judge (Appeal), the Court found no substantial justification for the imposition of a 14-day prison sentence in terms of its rehabilitative effect or its deterrent value for the Appellant.

(g)  The Court held that the imposition of the prison sentence was influenced by the Appellant’s actions, specifically the commencement of the court process when seeking permission for polygamy, followed by the subsequent disregard of the procedure. The Court concurs that the Appellant’s actions appeared to demonstrate a lack of regard for the established legal processes. Furthermore, the Court acknowledges the intention of both levels of the Court in previously imposing and maintaining the prison sentence as a form of rehabilitation and deterrence for the Appellant. However, this must be considered and assessed comprehensively, taking into account the broader implications and potential harm to the Appellant.

(h)  The Court held that the Learned Judge of the Syariah High Court erred in upholding the decision of the Subordinate Court. In the Court’s view, the imposition of a prison sentence was inappropriate in the context of this case and was excessive, thereby justifying the Court’s intervention.

2.    The sentence imposed by the Syariah High Court of Shah Alam on 14 April 2021 in Criminal Case No. 1XXXX-XXX-XXXX-XXXX, which was a 14-day prison sentence, is set aside.

3.    The bail amount of RM500.00 is to be refunded.