Defence 1
Defence 1
Defence 1
TRI 2, 2017/2018
GROUP ASSIGNMENT
DEFENCE
Date Submitted:
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):
IN THE MAGISTRATES’ COURT AT KLANG
IN THE STATE OF SELANGOR
SUIT NO.: ………………………
BETWEEN
AND
COMPLAINANT’S SUBMISSION
A. Brief Facts
1. The Accused is a male Malaysian, aged 43. He worked as a prawn
noodle seller at a stall in No. 25, Jalan Batai Laut, Taman Intan, 41100
Klang, Selangor. He was married and stayed in his house at No. 5, Jalan
Teluk Pulai 3, Taman Teluk Pulai, 41100 Klang, Selangor with his wife,
two-and-half-year-old son and mother-in-law, Ooi Swan Hong @ Ng
Swan Foong (‘Ooi’) who was the victim aged 70.
2. At around 9pm on 28 October 2017, the Accused’s wife and Ooi were
watching television in the living room while his son was sleeping in his
room. After the Accused came home, he was exhausted and wish to rest
but the volume was very loud. The Accused was provoked by the loud
noise as the Accused’s wife and Ooi failed to turn down the volume, so
he turned off the television set. The Accused and Ooi entered into a
heated argument. Suddenly, the Accused pushed Ooi whose head
knocked on the edge of cabinet. The Accused, went back to rest after
seeing Ooi fell down as he thought the Accused’s wife would help her
up.
3. The Accused’s wife immediately rushed Ooi to Hospital Tengku Ampuan
Rahimah Klang after Ooi became unconscious. However, Ooi died about
a week later on 3 November 2017 at the hospital.
B. Offence charged
7. The Accused abovenamed was charged in the Magistrates’ Court at
Klang for committing an offence of culpable homicide not amounting to
murder of Ooi Swan Hong @ Ng Swan Foong under Section 304(b) of
the Penal Code.
C. Possible Sentence
9. The Accused had voluntarily pleaded guilty to the amended charge
under Section 304(b) of the Penal Code whereby upon conviction shall
be “punished with imprisonment for a term which may extend to ten
years or with fine or with both”.
D. Issue
10. The court should consider the charge, the facts of the case brought
before the court, each evidence, aggravated factors and mitigating
factors to sentencing before imposing the sentence.
12. As such, it is the defence’s submission that it is trite law that the court
should take into account of all the mitigating factors adduced by the
accused in imposing sentence.
13. The defence submits that the Accused pleaded guilty and showed
cooperation. The general rule is that the plea of guilty is held to be a
mitigating factor as seen in Sau Soo Kim v PP (1975) 2 MLJ 134 which
provides that regardless of whether a person is a hardened criminal or
not, a plea of guilty should be treated as a mitigating factor. Meanwhile
in Mohamed Abdullah Ang Swee Kang v PP (1988) 1 MLJ 167 the
court held that in considering the discount pursuant to a guilty plea, it is
generally accepted that the reduction would be between one-quarter or
one-third of the original sentence.
14. On the facts, the Accused had pleaded guilty to the charge under
S.304(b) and have thereby save the time and cost of the court. As such,
the defence submits that a proportional discount should be given when
imposing sentence.
15. In Zaidon Sharif v PP [1996] 4 CLJ 441 the court accepted the position
that a plea of guilty is a mitigating factor as it saves the country’s time
and money. As such the accused’s sentence should be reduced. Also
relevant is Pendakwa Raya lwn Jagetis a/l Murugasoo dan lain-lain
[2017] 10 MLJ 148 where the court took into account the fact that the
accused pleaded guilty at the earliest opportunity and that the accused
cooperated with the police throughout the investigation as mitigating
factor.
16. On the facts, the Accused had pleaded guilty as soon as it was an option
and the Accused cooperated with the police throughout the investigation,
saving time and cost. As such, the defence submits that these amounted
to mitigating factors.
13. The fact show that the Accused was genuinely remorseful as the
Accused sobbed about missing his son and relatives who were present
in court. Also, the accused had made promised not to repeat the offence.
13. The defence submits that the Accused is a first-time offender. As such
consideration for leniency is statutorily recognised in S.173A and S.294
of CPC which provides that the court can take into account any
antecedents of the person charged to inflict any punishment other than a
nominal punishment. Generally, is of good character.
14. Both in Pendakwa Raya lwn Jagetis a/l Murugasoo dan lain-lain
[2017] 10 MLJ 148 In their submission for mitigation, the accused submitted
a mitigation factor of, inter alia, their admission had saved the cost and time of
all parties in this case.
(1)
There was no denying that the quarrel was initiated by the first
accused who uttered the derogatory words but the action of the
deceased who placed the knife on the neck of the first accused was
extreme. The agreement of the three accused persons to go to the
deceased’s house and beat him with blunt objects such as a helmet
was a dangerous plan. However, such act was balanced with the blunt
weapon used by accused were more consistent with the intention to
only cause injury rather than death. The offences committed by the
three accused persons were heavy and this justified the deterrent
penalty. However, they should also be credited or granted discount for
their admission. In addition, this was the first offense of the three
accused persons. Based on the above findings, the court sentenced
the accused persons to five years imprisonment from the date of
arrest
15. Based on these authorities, the court should reduce the sentence as the
Accused is a first-time offender.
14. The court agreed that long custodial sentence will have effect of
punishing the family members of the accused, especially so when the
accused is the sole breadwinner of the respective family as seen PP v
Thiyagrajan Munaindy[2016] 1 LNS 1436. In this case, the court
reduce the sentence of 13 years imprisonment to 10 years
imprisonment. (drug)
15. On the facts, the Accused is the sole bread winner for the family and has
an infant son, a wife and a mother who is sick. As such, ever since the
Accused’s arrest, the family have been facing numerous financial
difficulties. It is also notable that the Accused’s son will not be able to
start schooling because the Accused stop working. Also, the accused
has to continue paying medical expenses of the accused’s hospitalised
mother. As such, a long custodial sentence would drastically jeopardise
welfare of the Accused’s family. Hence, the defence urge the court to
take into account of the hardships of the Accused into account.
15. The Accused committed the crime under great personal stress as he
was exhausted after work. In Pendakwa Raya lwn Jagetis a/l
Murugasoo dan lain-lain [2017] 10 MLJ 148 the court consider the fact
that the deceased started the argument and the fact that the Accused
lacked the intention for his action to caused death as mitigating factors.
16. The defence submits that the facts showed Ooi started the argument by
refusing to turn down the volume. Also, the Accused only have the
intention of causing hurt when he pushed Ooi. As such, the court should
take these factors into account.
18. On the facts, the Accused was provoked by the refusal of Ooi to turn
down the volume. The facts showed that the Accused was tired after
work and was prone to provocation by Ooi. Hence, the defence submit
that the court shall consider such provocation as a mitigating factor.
PP v Selvi a/p Sundrum [2006] 6 MLJ 488The accused was provoked and her
reaction is understandable, but nevertheless, she has committed a serious
offence, quite unintentionally, for which she totally regrets. She has shown
her remorse by pleading guilty immediately and without hesitation to the
alternative charge. In such circumstances, a sentence of four years
imprisonment is appropriate to ensure a speedy return to her native land.
(murder)
19OKT telah insaf atas kejadian in yang tidak diingini. Dari tarikh OKT menyerah diri hingga
sekarang, OKT telah menerima hukumannya di mana OKT telah berada dalam keadaan emosi yang
tertekan kerana terpaksa berhadapan dengan kemungkinan dikenakan hukuman gantung. Malah,
kejadian ini adalah merupakan satu sejarah hitam kepada OKT untuk selama-lamanya. Kami sekali
lagi ingin merujuk kepada kes Public Prosecutor v Jessica Lim Lu Ping yang mana YA Hakim telah
menyatakan seperti berikut:
… A further point I considered in the sentence I meted out to the accused in this case was the fact
that till the day of sentencing from the date of his arrest i.e from 5 June 2002 to 26 February 2004
the accused had to endure the emotional punishment of being in a state of mind as if the hangman's
nose was already around his neck except that the trap door was not sprang open yet. This mental
state is enough emotional punishment to crush the mental and
F. Conclusion
11. In Zaidon Shariff v PP [1996] 4 CLJ 441 the court held that a mitigation
plea should not be treated as a ritualistic step by an accused following a
conviction only to be rejected the moment it is uttered. Such plea merits
due consideration.
12. The defence submits that all the mitigating factors put forward should be
given due consideration in determining the sentence of the Accused.
13. PP v Mohd Saiful Bahri Abdul Shukor [2016] 1 LNS 1639 it was held
that there is nothing in law that suggest that each facts submitted in
mitigation must be proven. Also, in a plea of mitigation by an accused
person, there is no requirement to call any witness.
14. By virtue of these authorities, the defence submit that the facts adduced
does not have to be proven by calling witness. Thus, the court should
give due consideration to each of the mitigating factors adduced.
15. As in Pendakwa Raya v Roslee bin Tamrin [2007] MLJU 645 it was
held that the discount accorded is on the sentence that would have been
imposed on the accused if he had pleaded not guilty and gone to trial,
rather than on the maximum sentence available to be imposed in law.
The same position is observed in PP v Ravindran & Ors [1993] 1 MLJ
45.
16. In conclusion, the defence submits that based on the mitigating factors
adduced, the discount accorded should be based on the sentence that
would have been imposed on the accused if he had gone to trial.