W v. PSS [2019] SLRHU 11

Syariah High Court of Selangor (Shah Alam)

An Appeal Against Detention Sentence

Facts of the case

1.    The action in this case is an appeal against the decision of Puan MJAS, Judge of the Subordinate Syariah Court of Ampang District (hereinafter referred to as the Trial Judge) in Criminal Case No: 1XXXX-XXXX-XXXX-XXXX, delivered on 21 March 2017. The Trial Judge imposed a sentence based on the Appellant’s guilty plea, sentencing the Appellant to six months of detention at the Baitul Iman Aqidah Rehabilitation Centre.

2.    Based on section 54 of the Syariah Criminal Offences (Selangor) Enactment 1995 [“Enactment No.9 of 1995”], read together with paragraph 97(2)(b) of the Syariah Criminal Procedure (State of Selangor) Enactment 2003 [“Enactment No.3 of 2003”], in substitution for the one-month prison sentence, the Trial Judge ordered that the Appellant be detained for a period of six months at a welfare home provided by the Selangor Islamic Religious Council, namely the Baitul Iman Aqidah Rehabilitation Centre.

1.     Whether the Trial Judge erred in law and Hukum Syarak by failing to consider that this is the Accused first offense?

2.    Whether the Trial Judge erred in Islamic Law when stating that the implementation of detention in a welfare home had fulfilled both general deterrence and specific deterrence?

(a) The Court held that it was the Accused’s first offense, as there was no indication in the Appeal Record that the Accused had been charged with the same or any other offense by the Syariah Prosecutor. The Court held that when prior offenses were not raised by the Syariah Prosecutor, the Court should have considered that the offense committed by the Accused was a first-time offense. This aligned with the view expressed by YAA Dato’ Hussin Bin Haji Harun in the case of NR v. KPJAINS [2001] SLRHU 5; JH JLD15 BHG2 165, which stated:

“The first offense committed by the Accused should also have been taken into account as a factor indicating that the Accused sought to return to the right path and not repeat the offense. Therefore, the issue of the Accused’s first offense should have been considered by this Court in hearing the Accused’s appeal. The Accused had never been convicted or charged under any laws governing Islam prior to this and after the sentence was imposed.”

(b) The Court acknowledged and affirmed that the offender’s clean record could influence the Court’s decision, serving as a mitigating factor in determining the sentence.

(c)  However, an offender’s clean record as a mitigating factor can be disregarded if the criminal offense is severe and serious, as decided in the case of Public Prosecutor v. Ng Ah Tak [1958] 1 MLRH 73; [1959] 1 MLJ 19, where the offense of throwing acid led to a fine of $400.00 being replaced with a 3-year prison sentence and 6 strokes of the cane, as the Court of Appeal took a serious view of such an offense. The Judge stated:

“It is cruel and unbecoming to grant mercy, as they showed no compassion towards the person they attacked.”

(d) In this case, the Trial Judge did not raise the issue of the Accused’s first offense nor considered whether it should be accepted as a mitigating factor. After reviewing the Trial Judge’s reasoning in the Judgment Grounds, this Court agrees and is satisfied that the Trial Judge carefully considered and took into account the facts concerning the guilty plea made by the Accused.

(e)  Therefore, this Court did not doubt the manner in which the Trial Judge had considered the guilty plea of the Accused in this case. However, in this case, the Trial Judge had not taken into account the factors of the guilty plea and the first offense as mitigating factors for the Accused’s sentence, instead, the opposite occurred. The Court agreed with the argument of the Accused that the Trial Judge had not addressed the issue of the first offense in the Judgment Grounds, except for two factors that the Trial Judge had considered:

(a) the severity of the offense; and

(b) the Accused’s mitigation/appeal.

(c)  The Court held that the factors of the guilty plea and the first offense should rightfully be considered as mitigating factors in the sentencing, along with other relevant factors that need to be taken into account in this appeal case. Based on the Court’s observations, the Second Petition in the Accused’s Appeal was accepted by the Court and will be considered along with the other factors.

2.    Whether the Trial Judge erred in Islamic Law when stating that the implementation of detention in a welfare home had fulfilled both general deterrence and specific deterrence?

(d) The Court held and stated that the sentence of detention in a welfare home was in no way contrary to Islamic law. The Court referred back to the words of Allah SWT in Surah al-Isra’ (17:32), which stated:

“And do not approach unlawful sexual intercourse. Indeed, it is ever an immorality and is evil as a way.”

(e)  The actions of the Accused being in a massage room of ST Massage without a lawful marriage constitutes approaching unlawful sexual intercourse. This act of the Accused has violated the prohibition of Allah SWT. Such circumstances may lead to unhealthy behaviours such as adultery and premarital pregnancies. Therefore, the offense of khalwat (close proximity) is a serious and grave offense as it clearly contravenes the prohibition set by Allah SWT.

(f)   A The punishment provided under paragraph 29(1)(a) of Enactment No.9 of 1995 is in the form of ta’zir, using the fiqh principle known as sadd al-dhara’i (closing the doors to corruption), which is employed by the authorities to prevent immoral acts. The authority to determine the punishment for ta’zir offenses is entrusted to the legislative and judicial bodies. It is thus the responsibility of all to follow and comply with these provisions, as stated in the Quranic verse from Surah an-Nisa’ (4:59), which reads:

“O you who have believed, obey Allah and obey the Messenger and those in authority among you…”

(Emphasis added)

(g)  Since the scope of the punishment prescribed is ta’zir (discretionary punishment), the appropriateness of the form of punishment imposed on the Accused must fall within the framework of such punishment. Based on paragraph 29(1)(a) of Enactment No.9 of 1995, the form of punishment allowed by law is a fine of up to RM3,000.00, imprisonment for a term not exceeding two years, or both. Therefore, the Trial Judge may only impose a sentence on the Accused based on these prescribed forms of punishment.

(h)  The Court further held that although this offense is a ta’zir offense, the Trial Judge has the discretion to determine the punishment for the Accused. The Court referenced several previous cases that demonstrate the wide discretion afforded to the Court in making a choice of sentence.

(i)    Referring to the Grounds of Judgment of the Trial Judge or the Notes of Proceeding in the Appeal Record, the Court found that the Trial Judge failed to provide any justification for why he imposed an alternative punishment other than imprisonment and a fine, as prescribed under paragraph 29(1)(a) of the Enactment No.9 of 1995.

(j)    In light of the situation, the Court held that the order for the alternative punishment could not be upheld. Therefore, the Appellant should be granted relief in relation to the appeal filed.

1.    The Appellant’s appeal is allowed;

2.    The Court amended the order of the Syariah Subordinate Court Judge in Case No: 10012-143-0023-2017, convicting the accused and imposing a fine of RM3,000.00 on the Appellant or 2 months imprisonment in default of payment.

3.    The Court held that the sentence of six months’ detention at the Baitul Iman Aqidah Rehabilitation Centre for the Appellant is set aside.

1.    The Trial Judge has broad discretion in determining the punishment for ta’zir offenses, but it must fall within the framework prescribed by law. The Court found that the Trial Judge did not justify the alternative punishment imposed, which was not in line with the prescribed forms of punishment under the law.