FACULTY OF LAW

TRI 2, 2017/2018

UCP4622 – CRIMINAL PROCEDURE II

GROUP ASSIGNMENT
DEFENCE COUNSEL

No. ID Name Signature Group

1 1132700372 KUMERASELVAM A/L SANDERAN T8

4 1132700485 MOGANATHASAN A/L GANDITASAN T5

Date Submitted: 5/1/2018

Lecturer: Mr Azizie / Ms Rebecca / Mr Avatar

Declaration:

This is our own work. We have not previously submitted this work, in whole or in part,
for assessment. This work complies with all the governing legal and ethical rules,
including those concerning plagiarism and copyright. We have not plagiarized and
have also acknowledged ALL sources which are not our own and have not merely “cut
and paste”. We have retained a copy of this assignment.
Each of us has contributed roughly equally to this assignment. If there are any
complaints about non-contribution then we will abide by the Lecturer’s decision
regarding the allocation of marks for the assignment.

Comments:

Marks ( /20) :

TABLE OF CONTENT PAGE

1.0 The brief facts of case

2.0 The written submission of the defence counsel

3.0 Bundle of authorities of the defence counsel

 IN THE SESSIONS COURT AT KUANTAN

IN THE STATE OF PAHANG DARUL MAKMUR

Suit No. 30JS-532-01/2018

BETWEEN

PUBLIC PROSECUTOR … PROSECUTION

AND

MOHAMED FIKRI BIN MOHD SHAMSUDDIN …ACCUSED

(650718-05-5040)

______________________________________________________________

FACTS OF CASE

______________________________________________________________
1.0 FACTS OF CASE

The victim ( Siti Norazhar Alia binti Mohamed Fikri) stayed together with her mother (Siti
Zulekha binti Hisham Salleh) and the Accused the father of the victim ( Mohamed Fikri bin
Mohd Shamsuddin) . The Accused was self-employed as a fisherman. On three different
occasions, the accused had been alleged to rape the victim. On 14/09/2017, the around 8.30
pm, the Accused entered the room of the victim in the house which is located in No.71A ,
Sungai Pahang, Kampung Tebat in the District of Kuantan and raped the victim. At the
material time, the mother of the victim was sleeping. On the second occasion, the Accused
had raped the victim again on 22/09/2017 at the same place and about the same time. On the
third occasion, the accused is alleged to have raped the victim on 3/10/2017 at the same place
and about the same time. The Victim ran away from home on 4/10/2017 after she could no
longer stand being raped by the Accused and lodged a police report on 5/10/2017.The victim
kept quiet prior to making the report as the accused threatened to rape her siblings if she
reported the incidents. No action was taken by victim after she confided in the latter because
she was afraid of being assaulted by the accused. The Accused was arrested on 6/10/2017
at Kampung Tebat. The Sessions Court of Kuantan had charged the accused under Section
376(3) of the Penal Code with sentencing of 25 years of imprisonment and 10 strokes for each
charges. But the caning was reduced as Section 288 of the Criminal Procedure Code provided
that offender could only be caned maximum of 24 strokes.
 IN THE SESSIONS COURT AT KUANTAN

IN THE STATE OF PAHANG DARUL MAKMUR

Suit No. 30JS-532-01/2018

BETWEEN

PUBLIC PROSECUTOR … PROSECUTION

AND

MOHAMED FIKRI BIN MOHD SHAMSUDDIN …ACCUSED

(650718-05-5040)

______________________________________________________________

WRITTEN SUBMISSION OF DEFENCE COUNSEL

______________________________________________________________
2.0 WRITTEN SUBMISSION OF THE DEFENCE COUNSEL

2.1 MITIGATION

2.1.1 At the outset, we find it necessary to state that the sentence to be imposed on
an accused in each particular case must have a direct bearing on:

(1) the specific charge preferred against the accused;

(2) the plea of the accused , whether he has pleaded guilty or claimed
trial;

(3) the facts admitted by the accused who has pleaded guilty or proved against
him where the accused had claimed trial;

(4) the mitigating factors raised for an accused in the court of first instance;

(5) the request of the prosecution in urging the sentencing court to consider an
appropriate sentence based on admitted or proved facts;

(6) the maximum sentencing jurisdiction of the court of first instance hearing the
particular case;

(7) the consideration of all relevant facts and circumstances in imposing an

appropriate sentence in each particular case including the balancing of the
interest of the public and that of the accused;

(8) the manifest excessiveness or inadequacy of the specific sentence imposed

by the sentencing court according to law as enacted by Parliament in
considering the illiteracy of the accused and their rural circumstances.

2.1.2 By way of mitigation, the Accused’s learned counsel submitted in the

Magistrate’s Court that:

(1) The Accused has pleaded guilty as a first offender, thereby saving judicial
time and the costs of calling witnesses;

In assessing sentence one of the main factors to be considered is whether the

convicted person is a first offender. It is for this purpose that before passing sentence
a Court is required to call for evidence of information regarding the background,
antecedent and character of the accused according to PP v. Jafa bin Daud [1981] 1
MLJ 315. The facts recorded will form the basis upon which the adequacy or otherwise
of the sentence could be reviewed on appeal PP v. Chean Tin [1939] MLJ 226. The
principles governing the outcome of an appeal against sentence are well-settled.

In R v. Leo De Cruz [1935] MLJ 1 Huggard CJ said at the same page:

In regard to appeals against sentence it has been laid down that the Court will
not interfere with the sentence, unless the Judge has proceeded on wrong
principles or given undue weight to some of the evidence.

Gordon-Smith J said in R v. Teo Cheng Lian [1949] MLJ 170 at p. 171,

There must be a manifest error either in law or in considering the facts and
circumstances of the case or an omission to consider such facts and
circumstances, before the higher Court interferes with the discretion
undoubtedly vested in the lower Court

If a sentence is excessive or inadequate to such an extent as to satisfy an appellate

Court that when it was passed there was a failure to apply the right principles then
intervention by the Court is justified in the held of Abu Bakar bin Alif v. R [1953].

(2) The Accused has repented and is remorseful;

A plea of guilt is a mitigating factor as it not only saves the country a great expense of
a lengthy trial but also saves time and inconvenience of many, particularly the
witnesses has been laid down in Sau Soo Kin v. PP [1975] 2 MLJ 134. It is an accepted
rule of practice that an accused person should be given credit or discount for pleading
guilty in accordance of PP v. Ravindran & Ors. [1993] 1 MLJ 45 case . It is important
to remember that the credit or discount to be given in favour of the accused person is
not on the maximum imposed by law, which is five years’ imprisonment in the appeal
before me, but rather on a sentence which would have been imposed on the accused
if he had claimed trial and had been found guilty.

In this regard Mohamed Azmi SCJ said in Mohamad Abdullah Ang Swee Keng v. PP
[1988] 1 MLJ 167 at p. 171,

It is generally accepted that the extent of the reduction on account of a plea of

guilty would be between one-quarter and one-third of what otherwise would
have been the sentence.
Considering the plea in mitigation of the appellant which the learned Magistrate failed
to consider. A mitigation plea should not be treated as a ritualistic step to be summarily
rejected the moment it is made. It is a constituent element of the sentencing process.
It merits due consideration in the light of the facts of each case, and more so when it
is not contradicted by the prosecution as in this case. In this regard useful reference
may be made to Raja Izzuddin Shah v. PP [1979] 1 MLJ 70 where Hashim Yeop Sani
J (as he then was) said at the same page:

No plea in mitigation should be thrown aside lightly but must be examined and
considered equally with the facts presented by the prosecution. Both aspects
of the case must be considered in their true perspective so as to strike if
possible, a true balance in the scale of justice.

(3) The consideration of all relevant facts and circumstances in imposing an

appropriate sentence in each particular case including the balancing of the
interest of the public and that of the accused.

It is settled law that a court should, when sentencing an accused, take into account all
considerations relevant to the case, including the gravity of the offence, the
circumstances surrounding the commission of the offence, the antecedents of the
accused, the deterrent effect that punishment is to have, any factor that warrants
special attention either in favour or against the accused and above all the public
interest . The accused who is a veteran should not be sentence for the 115 years .
The ultimate purpose of sentencing might be defeated if the veteran dies before
fulfilment of the 115 years of imprisonment. This will cause unnecessary spending on
the accused’s welfare at the prison .

Mohamed Azmi J in Jumari B. Mohamed v. PP [1981] 1 LNS 163; [1982] 1 MLJ 282
at page 284 pointed out that :

"For the purpose of doing substantial justice, the Court must bear in mind that
justice must be done not only to the convicted person but also to society at
large whose behalf the PP acts."

(3) The Accused has apologised and promised not to repeat the offence in
future;
(4) There are no aggravating factors to merit a heavy sentence.

2.1.3 CONCLUSION

May it please your Honour , The defence counsel submits that the court should take
consideration of mitigating factors of this case in accordance with the pleaded
elements .With that , we rest our submissions , unless we can be of any further
assistance to your lordships.

Much Obliged .
 IN THE SESSIONS COURT AT KUANTAN

IN THE STATE OF PAHANG DARUL MAKMUR

Suit No. 30JS-532-01/2018

BETWEEN

PUBLIC PROSECUTOR … PROSECUTION

AND

MOHAMED FIKRI BIN MOHD SHAMSUDDIN …ACCUSED

(650718-05-5040)

______________________________________________________________

BUNDLE OF AUTHORITIES OF DEFENCE COUNSEL

______________________________________________________________
3.0 LIST OF BUNDLE OF AUTHORITIES OF THE DEFENCE COUNSEL

1. PP v. Jafa bin Daud [1981] 1 MLJ 315.

2. PP v. Chean Tin [1939] MLJ 226
3. R v. Leo De Cruz [1935] MLJ 1
4. R v. Teo Cheng Lian [1949] MLJ 170
5. Abu Bakar bin Alif v. R [1953].
6. Sau Soo Kin v. PP [1975] 2 MLJ 134
7. PP v. Ravindran & Ors. [1993] 1 MLJ 45
8. Mohamad Abdullah Ang Swee Keng v. PP [1988] 1 MLJ 167 at p. 171,
9. Raja Izzuddin Shah v. PP [1979] 1 MLJ 70
10. Jumari B. Mohamed v. PP [1981] 1 LNS 163; [1982] 1 MLJ 282