KAMARUDDIN BIN BAPPU v PENDAKWA SYARIE [2018] 1 SHLR 53

Syariah High Court (Shah Alam)

Mitigation for Gambling

2.    The Appellant pleaded guilty and was convicted for the offence.

3.    In his mitigation, the Appellant requested a reduction in the punishment and to avoid imprisonment, due to his responsibilities as a husband and father.

4.  The trial judge sentenced him to ten (10) days imprisonment and a penalty of RM2,000.00 or if he fails to pay the penalty, he could face three (3) months imprisonment.

5.   However, the Appellant was dissatisfied with the trial judge’s decision and filed the current appeal.

2.   Whether the trial judge had made error in fact by focusing solely on public interest rather than the Appellant’s personal situation as a husband and father with family liabilities?

3.   Whether the sentence should be amended or the Appellant’s appeal be allowed?

Ratios

First Time Offender

(a)   In considering the mitigating circumstances for the offender, the factor of first offenders must be taken into consideration as has been provided in Section 129 of Syariah Criminal Procedure (Selangor) Enactment 2003 (SCPE) as follows:

“Section 129. First offenders.

(1) When any person not being a youthful offender has been convicted of any offence punishable with imprisonment before any Court, if it appears to such Court that regard being had to the character, antecedents, age, health or mental condition of the offender or to the trivial nature of the offence or to any extenuating circumstances under which the offence was committed it is expedient that the offender be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond with sureties and during such period as the Court may direct to appear and receive judgment if and when called upon and in the meantime be of good behaviour.

(2) If a Court having power to deal with the offender in respect of his original offence is satisfied that the offender has failed to observe any of the conditions of his bond, it may issue a warrant for his apprehension.

(3) Any offender when apprehended on any such warrant shall, if not forthwith brought before the Court having power to sentence him, be brought before a Judge, and such Judge may either remand him by warrant until the time at which he is required by his bond to appear for judgment or until the sitting of a Court having power to deal with his original offence, or may admit him to bail with a sufficient surety conditioned on his appearing for judgment.

(4) The offender, when so remanded, may be committed to prison and the warrant of remand shall order that he be brought before the Court before which he was bound to appear for judgment or to answer as to his conduct since his release.”

(b)  By considering the mitigating factor of the first offender in the provision above, the Court also referred to the Fiqh maxim as stated in the book of Al-Asybah Wa al-Nadhair Fi Qawaid Wa Furu’ie al-Syafie, Juz 1, page 5.     It provides that-

“The original rule of a thing remains in the state in which it was.”

(c)  Thus, by referring to the provision of Section 129 of SCPE, the Court held that the judge should consider the first-time offence as an element for mitigation of sentence. As such, the mitigation factor of first-time offence must be considered by including other circumstances such as age, background, health and others.

(d)  The provision aforementioned has provided the principle of sentencing by a judge in determining the form and extent of punishment the first-time offender in which he must consider factors that may lead to aggravation and mitigation or a moderate punishment.

(e)   In the present appeal, the Court found that there were no facts showing that the Appellant’s offence was a repeated offence.

(f)    Hence, the Court was of the view that the learned trial judge should appropriately consider the factor of the first-time offence as mitigating circumstances in the sentencing process when there is no evidence indicating that the Appellant’s offence was a repeated offence.  However, the trial judge did not address the mitigating circumstances for sentencing.

The Appellant’s Plea of Guilty

(a)  In the case of Muhammad Faris Bin Ismail Shahidah bt Abd Wahab v Ketua Pendakwa Syarie Negeri Melaka (2010) JH 32 1 62, the Court was of the view that the Accused’s guilty plea is a factor commonly taken into account by the Court when imposing a sentence. It has become an established legal principle that a guilty plea is a mitigating factor in favor of the Accused. The Accused should be given a discount because their admission of guilt has saved time and costs.

(b)  Nevertheless, the Court in Muhammad Faris elaborated that the discount for a guilty plea is merely a general rule and not an absolute requirement for all cases.    The guilty plea can only favour the Accused when other factors and circumstances surrounding the commission of the offence allow for such consideration to be extended to the Accused.   It is because in certain cases, the public interest factor outweighs all mitigating factors derived from the Accused’s admission of guilt.

(c)  In the present appeal, the Court found that the trial judge in his reasoning of judgment, has decided that the Appellant did not utilise the opportunity to convince the Court and did not elaborate on specific justifications related to the Appellant’s guilty plea.

(d)  Consequently, the Court held the trial judge should have considered the Appellant’s first-time offence as a mitigation factor in sentencing although the Appellant did not raise such facts during his oral mitigation.

(e)   In fact, the Appellant also pleaded guilty three times without coercion.  However, the trial judge neglected this factor.

2.   Whether the trial judge had made error in fact by focusing solely on public interest rather than the Appellant’s personal situation as a husband and father with family liabilities?

(a)  By referring to the judgment excerpts in the appeal record, the Court found that the trial judge was found to have erred by not addressing and discussing these facts in their judgment.  Meanwhile, the Appellant raised this matter during their oral mitigation.

(b)  The Appellant’s personal situation as a husband and father should be taken into account and considered by the trial judge in determining the imposition of punishment.  As such, imposing a prison sentence would have a greater impact on the Appellant’s life compared to a fine.

(c)  In the present appeal, the Court was of the view that the prison sentence could result in the Appellant, who has responsibilities towards their family, losing a source of income and causing hardship to those dependent on them during imprisonment.

3. Whether the sentence should be amended, or the Appellant’s appeal be allowed?

(a)  The offence of the gambling has been provided in the Syariah Criminal Offences (Selangor) Enactment 1995 (SCOE­), as follows:

“Section 17. Gambling.

(1) Any person who gambles, or is found in a gaming house, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding three thousand ringgit or to imprisonment for a term not exceeding two years or to both.

 (2) No person shall be convicted of an offence under this section for being found in a place which is a gaming house if he satisfies the Court that he did not know and could not have known that the place was a gaming house.

(3) In this section, “gaming house” means any premises, including a room, an office or a stall, whether open or enclosed, used or kept for the purpose of carrying on any game of chance or a combination of skill and chance, whether permitted by any other law or otherwise, for money or money’s worth.”

(b)  The validity of the sentence of the offence had been discussed by the Court in the case of in Mohd Ibrahim bin Mohd Sharif v Pendakwa Syarie Pulau Pinang [1998] 13 (2) JH 185.   In this case, the Accused was 47 years old at the time of the offence.  He was married and had six children. He pleaded guilty, and it was his first-time offence.  The trial judge provided reasonable reasons for imposing the sentence of the offence.

(c)  In Mohd Ibrahim’s case, the offence carries a maximum penalty of a fine not exceeding RM3,000.00 or imprisonment for a term not exceeding two (2) years, or both. The sentence imposed was three (3) months imprisonment and a fine of RM2,000.00, with an alternative of six (6) months imprisonment in case of non-payment of the fine.

(d)  As such, the issue arose was whether the trial judge had erred in principle or if the sentence is unduly harsh to the Accused as a first-time offender.   The trial judge did not consider such a factor in the Accused’s plead guilty, although it was a mitigating circumstance that should be taken into account, as recognised by the Civil Court in determining sentences, and the Syariah Court also follows this principle.

(e)  Nevertheless, the Court in Mohd Ibrahim decided that such sentence was legally valid.  Taking into account the comprehensive details of the case, the maximum penalty allowed by law, the given sentence, and the rationale presented by the presiding judge, the imposed verdict was found as not unreasonably severe and does not necessitate for the Court’s intervention, disturbance, or modification.

(f)    In the present appeal, the Court ruled that the punishment against the individual appealing was overly harsh. Moreover, it was highlighted that the offence of being present at a gambling premise differed from the act of gambling itself.

(g)   Section 17(1) of the SCOE distinctly stipulates that the penalty for such offence could result in a fine not exceeding RM3,000.00 or a maximum imprisonment term of two years.

(h)  The Court then held that the trial judge should have provided justification for issuing an imprisonment sentence against the Appellant.  It was also held that the fine of RM2,000.00 was adjusted to RM3,000.00, or alternatively, a three-month imprisonment term if the fine remains unpaid.

Key Take Away

2.     Therefore, the mitigating factors allow the Court to consider various factors such as the background, age, health and another reasonable circumstances when determining the appropriate sentence to the offender.