CRIMINAL TRIAL ADVOCACY:

WRITTEN SUBMISSION OF THE DEFENCE’S PLEA FOR MITIGATION

Prepared by:

1. Mohamad Imran Tuah bin Abdullah [Senior Partner]

2. Nur Melly Alisha binti KamalFasa
3. Aina Sofiya binti Ahmad Adzuan
4. Nuraqilah Amani binti Mohd Hussainel
5. Nurul Afiqah binti Tuah
6. Nur Qurratu’aini binti Khairulhasni

MESSRS THE CHAMBERS OF TUAH

Suite 7-A, AC746, Level 7, Bangunan Akademik,
Fakulti Undang-Undang, Universiti Teknologi Mara,
40450, Shah Alam, Selangor Darul Ehsan.

PREPARED FOR:
TUAN MOHAMAD MUSTAFFA BIN P KUNYALAM
 IN THE HIGH COURT OF MALAYA OF SHAH ALAM
IN THE STATE OF SELANGOR
DARUL EHSAN

CASE NO.: 45A–222–YEAR 2010

BETWEEN

PUBLIC PROSECUTOR

AGAINST

SARKEEDHAN PULAMIMAGAR
(PASSPORT NO. : 4356297)

**************************************************************************
MITIGATION PLEA OF THE ACCUSED
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 PLEA FOR MITIGATION OF THE ACCUSED

WITH THE PERMISSION OF THE HONOURABLE COURT

INTRODUCTION

1. The Accused was initially charged under Section 302 for murder which is punishable
under the same section.

2. The Accused wishes to reduce the charge to Section 299 of culpable homicide with the
punishment of imprisonment for a term which may extend to thirty years or with a fine or
with both if the act is done with the knowledge that it is likely to cause death, but without
any intention to cause death, or to cause such bodily injury as is likely to cause death
under Section 304(a).

3. The Accused is charged under Section 304(a) of the Penal Code for committing culpable
homicide against Chandra Bahadur Darji where the punishment of such offence is a
maximum of 30 years imprisonment.

4. At the time he committed murder, he was 28 years old which indicates that he is a young
crime offender.

5. We respectfully pray that this Honourable Court can give due consideration to the
mitigation plea submitted by the defence and reduce the Accused's sentence from 30
years to 20 years.

6. The grounds of the mitigation plea are as follows:-

BRIEF FACTS OF THE CASE

7. On 12 June 2010, Harka Bahadur Limbu (PW2) and Umesh Shresta (PW3) witnessed
Sarkeedhan Pulamimagar returning to a house in Port Klang, Selangor, where he was
about to fight with two Vietnamese men outside. Bhakta Bahadur Alemagar (PW1) tried
to calm the accused but the accused refused, leading to PW1 pushing and kicking him.
8. PW1 then advised the Vietnamese men that their purpose was to earn a living and
separate from their families in their home country. The Vietnamese men went to the
ground floor of the apartment, where PW2 (Harka Bahadur) and PW3 tried to calm the
accused down. The deceased (Chandra Bahadur Dharji) forced the accused to sit down
and told him not to leave the house. The accused protested and was stubborn, punching
the accused 2 to 3 times, including a punch to the head, until the accused fell down.

9. The accused then stabbed the deceased once with a knife, which was found with PW2
and PW3. They did not see where the knife was taken but stated that it was indeed with
the accused at the time.

10. PW1 and nominee Kuber Bahadur Dharji rushed into unit 2-8 to find their friend Chandra
Bahadur Dharji (deceased) lying on the floor in a pool of blood. PW1 saw the accused
standing in anger while holding a knife in his left hand. PW1 grabbed the knife from the
accused's left hand and placed it on the table in the unit. The accused confessed to PW1
that he was the one who killed the deceased and told PW1 to call the police.

11. All witnesses identified the knife found in exhibit P4 picture 9 as the one used by the
accused to stab the deceased.

12. Pathologist Dr Norliza confirmed that a stab wound on the deceased's body was caused
by a pointed and sharp object like a knife, which penetrated the stomach, left diaphragm,
posterior aorta, lower lobe of the right lung, and left tenth rib on the midaxillary side. The
injury was 'fatal in nature'. The autopsy report concluded that the deceased's death was
caused by a chest injury due to a stab wound. The chemical report confirmed that the
bloodstains on the knife found at the crime scene contained DNA blood specimens
belonging to the deceased. Based on the facts, evidence, and witnesses' testimony, the
accused committed an act that caused the death of CHANDRA BAHADUR DARJI with
the intention of causing his death. Therefore, the accused has committed the offence of
culpable homicide, not amounting to the offence of murder, and can be punished under
Section 304(a) of the Penal Code.
A. PLEAD GUILTY

13. The Accused has voluntarily pleaded guilty upon the offence charged against him by the
Prosecution. From here, it can be said that the Accused considers crucial factors
involved in a proceeding, especially time and cost incurred by all parties including the
Court.

14. First of all, concerning the aspect of time, a guilty plea made by the Accused has saved
time of all parties as other parties shall no longer have to be present in Court for this
case in the future.

15. Furthermore, public expenditure and costs incurred by the Court and other parties can
be minimised.

16. We respectfully submit that the plea guilty by the Accused is one of the grounds on why
this Honourable Court shall reduce the sentence against the Accused from 30 years to
20 years.

17. We submit a number of authorities to strengthen our submission on the plea guilty made
by the Accused in which it shall be considered by this Honourable Court upon imposing
punishment against the Accused.

I. We would like to invite this Honourable Court to the case of Shuk Dev 0/i
(Warganegara Nepal) v PP [2014] 1 LNS 103 where the High Court held as follows:-

“[18] Mahkamah tidak menafikan kepentingan awam hendaklah mendahulukan

kepentingan peribadi perayu terutamanya dalam kes melibatkan kesalahan serius di
bawah Seksyen 395 Kanun Keseksaan. Namun begitu pengakuan bersalah Perayu di
peringkat seawal perbicaraan tidak boleh diketepikan begitu sahaja kerana ianya
merupakan salah satu faktor peringanan hukuman yang baik. Kredit serta diskaun boleh
diberikan atas pengakuan sedemikian. Prinsip ini menjadi amalan kepada Mahkamah
dalam mempertimbangkan hukuman yang setimpal bagi menggalakkan Perayu
mengaku bersalah di alas pertuduhan yang dibuat supaya masa, tenaga dan kos semua
pihak yang terlibat dapal dijimatkan. Saksi-saksi juga tidak perlu dipanggil.
[19] Justeru ini jelas sekali menunjukkan bahawa terdapatnya budi bicara Mahkamah
unluk memberikan sebarang kredit atau diskaun terhadap pengakuan bersalah Perayu
kes jenayah itu. Mahkamah sedia maklum pengakuan bersalah tidak secara automatik
membawa kepada diskaun hukuman tetapi demi menegakkan keadilan kepada Perayu
ianya perlu diberi pertimbangan yang sewajarnya.

[48] Sekiranya Mahkamah langsung tidak memberi sebarang pertimbangan terhadap

pengakuan salah PKK, maka perkara ini tidak akan menggalakkan pesalah-pesalah lain
untuk turut menimbang untuk membuat pengakuan salah, kerana pengakuan salah
mereka tidak akan bermanfaat dalam mengurangkan hukuman mereka. Hal ini secara
tidak langsung akan menyebabkan peningkatan kes-kes tertunggak, yang nyata akan
bertentangan dengan kepentingan awam. Perkara ini ada dinyatakan dalam kes PP v
Khairil Anwar Abdul Rahim [2016] 3 MLJ 458; [2016] 1 LNS 403; [2016] MLRAU 201 di
mana Mahkamah Rayuan memutuskan seperti berikut:-

“[16] Nevertheless, it is an accepted policy of the courts that a plea of guilty should in
most cases be treated as a mitigating factor. The reasons for this are obvious. A guilty
plea avoids the expense and inconvenience of a trial. A discount for a guilty plea serves
as a strong incentive and encourages such pleas. On the other hand, if there is no such
incentive, accused persons may then all insist on a trial as they have nothing to lose
since the sentence will be the same. (Sau Soon Kim v. PP [1975] 2 MLJ 134; Mohamed
Abdullah Ang Swee Kang v. PP [1987] CLJ Rep 209;; [1988] 1 MLJ 167; R v. Boyd
[1989] 2 Cr App(S) 234).”

II. In the case of PP v Faizul Abdullah [2018] 1 LNS 889, the High Court held that:-

“[31] In considering the appropriate sentence, I take into consideration that the accused
pleaded guilty to the charge before the trial commenced. The plea of guilty should not be
taken lightly and the Federal Court in Sau Soo Kim v. Public Prosecutor [1975] 1 LNS
158 FC; [1975] 2 MLJ 134; [1975] MLRA 176 has held that a plea of guilty is a mitigating
factor which must be given consideration in passing sentence because not only it saves
public expenditure, it also saves judicial time and inconvenience of witnesses..”
 III. In the case of Pendakwa Raya v Fernando Esteban Candia Olcay & Anor [2019]
MLJU 268, the Court held as follows:

“[50] A guilty plea is a factor that should always be taken into account in assessing the
appropriate sentence. This is well-settled. In the majority decision of the Federal Court in
Sau Soo Kim v Public Prosecutor [1975] 2 MLJ 134 Lee Hun Hoe CJ (Borneo) held as
follows:-

“Whether a person is a hardened criminal or not, I feel that a plea of guilty should be
treated as a mitigating factor. It not only serves the country a great expense of a lengthy
trial but also saves time and inconvenience of many, particularly the witnesses…..”

[53] The fact that a guilty plea is a mitigating factor which saves much judicial time as
expressed in Sau Soo Kim v Public Prosecutor and that credit ought to be given to those
who choose to plead guilty is thus well-settled. A plea of guilty is invariably always to be
taken into account in the sentencing process. And in the instant case, the maximum
punishment is 10 years imprisonment.”

Iv. In the case of Public Prosecutor v Murugesan a/l Muniyandi [2012] 6 MLJ 805,
the court held that:-

The offence is of serious nature. The accused pleaded guilty to an alternative charge
under s 304(a) of the Penal Code for culpable homicide. After considering the plea in
mitigation, the trial judge sentenced the accused 11 years imprisonment from the date of
his arrest. In giving credit or discount for the accused's pleading guilty the learned trial
judge relied on the accepted rule of practice that an accused should be given credit or
discount for pleading guilty. The public prosecutor brought this appeal against the
inadequacy of the sentence. COA allowed the appeal and enhanced the sentence to 18
years imprisonment from the date of arrest.

18. By comparing the instant case and above mentioned authorities, we respectfully submit
that the plea guilty by the Accused shall be taken into consideration as a factor to reduce
the Accused’s sentence on the charge imposed against him under Section 304(a) of the
 Penal Code which is culpable homicide, from 30 years imprisonment term to 20years.

19. The Accused had pleaded guilty at the earliest opportunity when an alternative charge
under Section 304(a) of the Penal Code was offered to him which subsequently saved
public expenditure and time of all parties especially this Honourable Court followed by
the Prosecution and Prosecution witness.

B. FIRST TIME OFFENDER

20. The Accused is a first-time offender and does not have any record of past convictions.
He did not commit any offences which are in contravention of the law before the charge
made against him in the instant case. Hence, this subsequently indicates that this is the
first offence committed by the Accused throughout his entire life.

21. The following authorities clearly explain first time offender may be one of the mitigating
factors that shall be considered by the Court:

I. In the case of Pendakwa Raya v Fernando Esteban Candia Olcay & Anor [2019]
MLJU 268, the High Court speaking through Mohd Nazlan Bin Mohd Ghazali J held the
following:

“[67] But the accused persons have in their favour strong mitigating factors. As
mentioned, firstly, both the accused have pleaded guilty at the first opportunity when
offered with the alternative charge. This has saved much judicial time and costs
associated with a long murder trial. Secondly, both accused whom I believe are genuine
tourists to this country, have no criminal records in this country or in theirs. Their
convictions made them first offenders.”

II. In the case of Public Prosecutor v Kammoon Wannga & Anor [2009] 8 MLJ 430,
Zamani A Rahim J held that:

“[34] ...I do take into consideration that both OKT 1 and OKT 2 were first offenders with
no previous convictions. Their clean record tilt in their favour.”
 III. In the case of Public Prosecutor v Dulamit bin Sulaiman & Anor [2009] 9 MLJ
249, the High Court speaking through Nallini Pathmanathan JC held that:

“[70] Dulamit had no previous convictions and is a first-time offender. It is an established

practice to give some consideration to the fact that the accused is a first-time offender,
although the extent to which this can be done in a serious offence is limited.
Notwithstanding the gravity of this offence, this was a mitigating factor in the instant
case.”

22. Similarly, in the case of Public Prosecutor v Kammoon Wannga & Anor [2009] 8 MLJ
430, the Court allowed for the punishment against the Accused to be reduced from 10
years to 8 years imprisonment due to one of the factors that the Accused is a first time
offender.

23. Therefore, as the Accused is a first-time offender as a 28-year-old man at the time he
committed the offence of culpable homicide, we respectfully pray that this Honourable
Court shall take this factor into consideration upon reducing the punishment of the
Accused from 30 years to 20 years imprisonment.

C. FAMILY BACKGROUND

24. The Accused is a Nepal citizen aged 28 years old who comes to Malaysia to work in
order to sustain the life of himself and his family back in his hometown. Besides that, the
accused is the breadmaker of his family. The accused has a wife and children that need
to be taken care of. Therefore, may we direct the court's attention to the fact that the
Accused had to survive in another foreign land alone just for the sake of survival. He is
only 28 years old and he still has a long journey and a bright future.

25. Furthermore, the deceased has recently lost his mother due to illness and was not given
the chance to visit her at her last moment. Prior to his arrest, he was working with the
Deceased in a harsh environment and had not been paid since May 2012 until the day of
the incident.
 26. If the punishment of imprisonment of 30 years imposed against the Accused is
sustained, this subsequently will affect the quality of life of his mother as the mother has
lost the one and only dependent.

27. The following authorities highlight the status of the Accused as a sole breadwinner may
be taken into consideration by the Court as a mitigating factor:

In the case of Public Prosecutor v Mohd Faizal bin Ramli [2022] MLJU 1866, the
High Court held that:

“[16] Before the sentence was imposed for the charge that the accused pleaded guilty to,
his counsel was allowed to mitigate for which the mitigation was of his age being 34 and
married to a housewife with the marriage bearing them with 2 young children aged 5 and
7. The accused is the sole breadwinner and also taking care of his elderly mother. The
accused was a Muay Thai athlete participating in regional tournaments and was a winner
in Australia, with him still active in sports whilst in detention. The guilty plea is hoped to
have saved the court’s time and there is no clear active participation of the accused in
the activities of the group as reflected in the Facts of the Case.”

II. In the case of Muhamad Zamani bin Abd Ghani v Public Prosecutor [2017] MLJU
1040, the High Court speaking through Ahmad Bache JC held the following:

“ [17] The learned judge should have embarked on a balancing exercise, and balance it
with the fact that the Accused/Appellant is still young a sole breadwinner, has a small
child and still takes care of the aged and ailing mother, and has good antecedent as he
has no previous conviction. The learned judge had failed to do so and hence warranted
this court’s intervention. After embarking on a balancing exercise, this court ruled that in
so far as this case is concerned, the public interest will be best served by reducing the
Accused/Appellant’s jail term.”

D. FEELINGS OF REGRET & GOOD CHARACTER

28. My Lord, directly after the act was committed by the Accused, the Accused felt an
enormous guilt within himself thus performing an act of slashing his own wrist as a flight
 response to his action towards the Deceased. This shows that the accused realizes the
weight of his action and has deep accountability for what he has caused towards an
innocent life. This incident occurred because the Accused lost his self-control and had a
relapse of sound judgment. This incident shall not be a benchmark to decide his
character and the value that he could bring to society. It is a trite law that public interest
must be taken into account.

The court in Lim Yoon Fah v PP (1971) 1 MLJ 37 held that:

“the public interest would be best served by helping the offender to turn from criminal
ways to honest living and as there was a probability that the appellant would turn over a
new leaf if given a chance…

29. The Accused also has an excellent contribution towards his workplace. He is very good
at adapting and compromising. Even if the conditions are very unfavourable, he would
likely find ways to stay sane and be optimistic. His work ethic is exemplary. He
consistently goes above and beyond, demonstrating dedication and commitment to
every task. Known for his compassion, the Accused is always ready to listen and provide
support to his colleagues. He understands the pressures of construction work and
promotes a supportive work environment, addressing any concerns promptly and
thoughtfully.

In the case of PP v Jafa bin Daud [1981] 1 MLJ 315, it is for this purpose that before
passing a sentence, a Magistrate is required to call for evidence or information regarding
the background, antecedent and character of the accused.

CONCLUSION

30. We respectfully believe that the Accused is entitled for his punishment to be reduced
from 10 years to 8 years.

31. Therefore, we respectfully pray for this Honourable Court to consider this mitigation plea
based on several factors as follows:
 i. The Accused has pleaded guilty to the commission of the offence
ii. The Accused is a first-time offender
iii. The Accused is the sole breadwinner in his family

32. Your Honour, we would like to invite this Honourable Court to a case where a Mitigation
plea by the Accused must be considered and cannot be set aside without due
consideration by the Court. In Raja Izzuddin Shah v Public Prosecutor [1979] 1 MLJ
270, the Court held the following:

“In his grounds of judgment, the learned Magistrate seemed to be unduly influenced by
the submission of Counsel for the prosecution that the plea in mitigation did not amount
to a mitigation at all and therefore rejected all of them. I disagree. 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.”

33. Lastly, we seek the court’s discretion to consider our plea of mitigation. My Lord, we also
urge this court to give the appropriate punishment considering the circumstances of the
accused. We respectfully request for 25 years imprisonment.

34. Much obliged.

 Dated 23rd of MAY, 2024

MOHAMAD IMRAN TUAH BIN ABDULLAH

Peguamcara bagi pihak OKT

RINGKASAN HUJAHAN MITIGASI ini difailkan oleh Tetuan Chambers of Tuah, Peguambela
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Undang-Undang, UiTM Shah Alam, 40450 Shah Alam, Selangor Darul Ehsan.
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21/01/2012

Appreciation Letter for Good Work

Dear SARKEEDHAN PULAMIMAGAR,

I am writing to express my sincere appreciation for your hard work and dedication to NetDev.
Your contributions have been invaluable to our team, and I am grateful for all that you do.

Specifically, I want to recognise your outstanding services to our work environment. Your
attention to detail has been instrumental in achieving your goals and exceeding our customers’
expectations. Your contributions have not gone unnoticed, and I want to publicly acknowledge
your efforts.

I encourage you to keep up the excellent work, and we will continue to support your growth and
development within the company.

Once again, thank you for all that you do. You are a valued member of our team, and we
appreciate your hard work and dedication.

Best regards,

TAN CHEE HAU

General Manager
NetDev, Malaysia.