Y.B. Dato' Seri Mohamad Nazri Bin Abdul Aziz, Minister in the Prime Minister’s Department,
Judges of the Court of Appeal:
YA Dato Azhar Bin Mohamed,
YA Dato' Seri Haji Mohamed Apandi Bin Ali (former OB of the Bar), and
YA Datuk Zaharah Bt Ibrahim,
Professor Arie Frieberg, Chairperson of the Victorian Sentencing Advisory Council and the Tasmanian Sentencing Advisory Council,
Dato’ Razali Basri, of the Royal Malaysia Police Force,
Members of the Attorney General’s Chambers, Bar and public
Today’s dialogue on establishing a sentencing council is topical given the public scrutiny and media comments on recent sentences which are perceived to be inconsistent and disproportionate to the seriousness of the offence. We have experts from within Malaysia, a senior appellate judge and a senior practitioner, and from abroad a chairperson of two sentencing councils, to demystify and clarify the complexities of sentencing whilst seeking to examine and educate the objectives and the process of realisation of these objectives of sentencing in the courtrooms of Malaysia.
Justice Wan Yahya (as he then was) in the case of Hari Ram Seghal v Public Prosecutor1 correctly described the objective of sentencing when he said,
“Our courts have a long time since progressed from the “eye for an eye” and “tooth for a tooth” type of justice. The avowed aims of punishments are retribution, justice, deterrence, reformation and protection, but it is never intended to act as a vehicle of vengeance. This court does not sit here to hand out to victims of aggression their “pound of flesh” but generally to protect society by enforcing justice”.
It is almost universally accepted that the four aims of sentencing are retribution, deterrence, rehabilitation and incapacitation, and finding the right balance between these four aims is never easy. In attempting to achieve these aims, the established judicial principles of sentencing include that the court shall pass a sentence that is proportionate to the offender’s degree of culpability and consistent with other sentences for similar offences. Consistency and proportionality of sentencing are the two most difficult aspects of sentencing and as both history and recent events demonstrate.
One comprehensive approach to resolving this difficulty is the establishment of a sentencing council which would promote consistency by having guidelines for judges to decide on the appropriate sentence to reflect the crime committed and proportionate to the seriousness of the offence.
The sentencing guidelines for individual offences set out sentence ranges reflecting different levels of seriousness and within each range, a starting point for the sentence. The guidelines also provide guidance on factors the court should take into account that may mean a more or less severe sentence should be imposed.
A sentencing council is meant to be an independent body responsible for developing sentencing guidelines in consultation with stakeholders, monitoring the application and use of guidelines, assessing a wide range of decisions relating to sentencing, educating the public about the process of sentencing and undertake research on the more complex questions of law on sentencing and survey of public expectation of sentencing.
Sentencing guidelines are what they say they are, guideline, and they are not meant to be mandatory. If there is any error in sentencing, it is for the appellate courts to correct it and not the sentencing council which plays no role in the court process save to provide these guidelines.
Judges do recognise that sentencing must also be consistent with legitimate community expectation otherwise public confidence in the administration of justice will be eroded. A sentencing council will engage the public and this will reduce misunderstanding amongst the public, increase understanding on the part of the judges of public expectation. Instead of eroding confidence, this process will increase public confidence.
The composition of such a council should include judges, prosecutors, civil societies, defence lawyers and academics.
The Malaysian Bar welcomes the Government’s three proposals of law reform involving sentencing.
Firstly, we are encouraged by Honourable Minister’s announcement that the Government is agreeable in principle to the establishment of a sentencing council.
Secondly, the proposed amendment to the Dangerous Drugs Act 1952 to give judges the discretion of not imposing death sentences on couriers and one of the suggestions is to allow those on death sentence to be resentenced. This means those on death row would be referred back to the courts, with legal representation, to be re-sentenced.
Thirdly, the Honourable Minister is leading a cross-party initiative to end the use of death penalty. An initial step being considered is to scrap the death penalty for drug offences and moving the Malaysian Cabinet to defer the death sentences passed on 675 convicted drug traffickers in the country, while the government reviews the death penalty for drug offences. Such a moratorium puts Malaysia towards the right path of abolition in due course.
I wonder if the Honourable Minister could persuade the Honourable Prime Minister to make abolition of the death penalty as part of the PM’s campaign manifesto. There is precedent for this, when Francois Mitterrand campaigned for Presidency of France in 1981, abolition of the death penalty was part of his campaign and when he became President, France abolished the death penalty.
Mitterrand’s campaign on abolition of the death penalty included this passionate plea,
“As with the other issues, I will not hide my views on the death penalty. And I have no intention of going to the country in this race and pretend to be something that I am not. In my innermost conscience, like the churches, the Catholic church, the Reformed churches, Judaism, and all the important national and international humanitarian associations, in my heart of hearts, I am opposed to the death penalty…I am standing for the presidency of the French Republic, and in asking for a majority of French people’s votes, I do not hide what I think. I say what I think, what I hold to, what I believe in, and what my spiritual beliefs and concern for civilisation are based on: I am not in favour of the death penalty”
The question of sentencing should always ultimately be left in the hands of our judges. We rely on their experience in hearing cases, and in being familiar with the facts and circumstances of each case that comes before them. With the recent amendments to the Criminal Procedure Code that have introduced victim impact statements, namely reports on the effect that a particular crime has had on its victim, our judges are now better placed to dispense justice in a more comprehensive manner, taking into account all the circumstances of the case.
This respect for the discretion of the judge is also one of the reasons why the Malaysian Bar welcomes recent public statements by various parties calling for the abolition of the mandatory death sentence for drug-related offences. Apart from questions relating to the efficacy and effectiveness of mandatory death sentences as a means of deterrence, the resort to mandatory sentences is an unnecessary fetter on the discretion of the judge and an unwarranted impediment to the free flow of justice.
It thus comes as a sad and significant departure from this sensible approach recently taken by the government that this judicial discretion is to be removed in cases of sentencing for statutory rape. The recent controversy surrounding its use in two recent cases cannot, in and of itself, be the reason for the proposed amendments to exclude the applicability of section 294 of the Criminal Procedure Code in cases of statutory rape.
If my ability as an advocate were to be judged by my success rate in persuading the Honourable Minister of the various positions of the Bar, then I admit I am a poor advocate and this issue is one of my failures. However, I take this opportunity to urge the Honourable Minister to reconsider this decision based on my arguments.
I am confident that the outcome of this dialogue will be greater momentum towards establishment of a Sentencing Council in Malaysia and I hope everyone will take the opportunity to enquire whether this is indeed the comprehensive answer the Bar says it is.
The Bar thanks the Honourable Minister for officiating this Dialogue, the Chief Justice for supporting this Dialogue and the Honourable Attorney General and Inspector-General of Police for sending his officers to attend this Dialogue.
Lim Chee Wee
5 March 2013
1  1 MLJ 165.