Tuan Mat Tuan Lonik

[2008] 3 MLRA v. PP 387

TUAN MAT TUAN LONIK

v.
PP

Court Of Appeal , Putrajaya

Suriyadi Halim Omar, Wan Adnan Muhamad, Ahmad Maarop JJCA
[Criminal Appeal No: D-09-31-05]
26 November 2008

JUDGMENT

Suriyadi Halim Omar JCA:

[1] The appellant in this case was charged at the Sessions Court for five
offences of rape punishable under s. 376B of the Penal Code in three separate
cases. Three charges were registered in case no. 62-63-2004 and they were as
follows:

1. rape punishable under s. 376B of the Penal Code , committed in

June 2000, at about 2am in an unnumbered house at Kg. Sungai
Mengkuang, Manek Urai in Daerah Kuala Krai, Kelantan on one
XXX (identity card XXX) then aged 12 years 2 months old;

2. rape punishable under s. 376B of the Penal Code , committed in

August 2001 at about 2am at the same place, on the same victim then
aged 12 years 4 months old; and

3. rape punishable under s. 376B of the Penal Code , committed in

March 2002, at about 5am at the same place, on the same victim then
aged 12 years 11 months old.

[2] Another charge was filed in case 62-64-2004, also rape punishable under s.
376B of the Penal Code committed in June 2002, at about 11pm, at the same
place, on the same victim then aged 13 years two months old as in the above
charges. The fifth charge, in case no 62-65-2004 likewise was rape also
punishable under s. 376B of the Penal Code , committed on 1 November 2003,
at about 12 midnight at the same place, on the same victim then aged 14 years
seven months old. All the five charges were heard together.

[3] The appellant pleaded guilty to all the five charges, and on conviction, was
sentenced to 15 years imprisonment and ten strokes of the rotan for each and
every offence. Each sentence was to run consecutively from the date of arrest.
In a nutshell he would have to serve 75 years in jail and also receive a total of
50 strokes of the rotan. At the time when the appeal came before us he was
about 48 years old, and if he were to serve the full 75 years, he would be 123
years of age when released.

[4] Dissatisfied with the orders of the subordinate court, the accused had filed
 Tuan Mat Tuan Lonik
388 v. PP [2008] 3 MLRA

an appeal at the High Court but was dismissed on 5 May 2005, with the
sentences of the Sessions Court accordingly affirmed. The appellant then filed
the appeal against sentence at the Court of Appeal hence the matter before us.
This panel allowed the appeal. We now discuss the background facts of the
case.

Background Facts Of The Case

[5] The appellant is the stepfather of the victim. His acts of raping the victim
came to light only when she delivered a baby boy at a hospital on 22 July
2004. The victim's mother promptly lodged a police report of the rape
incidents and on 28 July 2004 the appellant was arrested. Investigations
revealed that the victim had been raped by the accused since year 2001 when
she was only 12 years old. She was last raped in November 2003 when she was
14 years seven months old. The question of consensual defence did not arise
here as at the time of the rape incidents she never passed the age barrier of 16
years (s. 376B (b) of the Penal Code ).

[6] At the Sessions Court after the plea of guilt, and also before the High Court
judge, the appellant had pleaded for leniency, and ventilated regrets for what
he had done. He pleaded that he had a family comprising seven children of
whom five were his own and two being stepchildren. The eldest child is 17
years old and the youngest nine months old. He ventilated that he supported
his parents by sending RM50 to them every month. At the High Court he also
pleaded that the sentences run concurrently.

[7] The prosecution's stance was simple and straightforward. Offences of incest
on a child below the age of 16 had taken place, and the imprisonment
demanded should not be less than 18 years and 10 strokes for each offence,
with the sentences to run consecutively. This sentence would adequately teach
the appellant a lesson, and simultaneously transmit the message to the public
at large, of the heinousness of the offence. The fact that the victim is the step
daughter of the appellant and had given birth to a child was strenuously
highlighted by the respondent.

[8] The learned High Court judge found that the punishment imposed by the
Sessions Court was not excessive and indeed did commensurate with the
seriousness of the offences. The learned judge opined that in these types of
offences despite the appellant having pleaded guilty, no amount of mitigating
factors could override public interest. The appellant had failed his family,
when instead of protecting his step-daughter, had instead taken advantage of
her frailty. The learned judge too held the view that the Sessions Court judge
had jurisdiction to ascertain when the sentence should start as provided for
under s. 282(d) of the Criminal Procedure Code .

[9] Despite the strength of the prosecution's case and the reasoning of the
learned judge we allowed the appeal and accordingly varied the sentences. Our
orders are as follows:

1. the appellant is to be imprisoned for 15 years for every offence;

 Tuan Mat Tuan Lonik
[2008] 3 MLRA v. PP 389

2. the imprisonment sentence of the second charge is to run

consecutively to the first charge.

3. the sentences of the third, fourth and fifth charges are to run
concurrently with the sentence of the second charge;

4. the appellant is to receive four strokes of the rotan for the first
offence; and

5. five strokes of the rotan for charges 2, 3, 4 and 5 respectively.

[10] The total effect is that the appellant will now serve a 30 year jail term and
to receive 24 strokes of the rotan altogether.

Why The Crushing Sentence?

[11] Sentence is the last stage of a judicial process in a criminal case, and will
inevitably take place at the end of a full blown trial or after a plea of guilt has
been recorded. In both situations prior to the sentencing process a conviction
must be recorded first. Punishments may vary due to the desire of arriving at
different objectives, and en route to choosing that punishment, the court must
weigh the interest of the public and that of the prisoner. Unfortunately many a
time, the concept of public interest may take a twisted meaning, and be
equated with public opinion. When public opinion takes the front seat then the
demand for retribution takes prominence, resulting sometimes in inappropriate
or even void sentences.

[12] Before applying the principles of sentencing in relation to the facts before
us, let us peruse some of the relevant statutory provisions in the Criminal
Procedure Code. Under s. 173(b) of the Criminal Procedure Code , if the
accused pleads guilty to the charge, the court shall pass sentence according to
law. Also under s. 173(m)(ii) of the Criminal Procedure Code , it is provided
for that if the court finds the accused guilty, after the prosecution has proven
its case beyond reasonable doubt, the court shall pass sentence according to
law (Re Chang Cheng Hoe & Ors [1966] 1 MLRH 183 ; [1966] 2 MLJ 252; PP
v. Jafa bin Daud [1981] 1 MLRH 800 ; [1981] 1 MLJ 315; Philip Lau Chee
Heng v. PP [1988] 1 MLRH 302; [1988] 3 MLJ 107; [1988] 2 CLJ (Rep) 144 ;
PP v. Tia Ah Leng [2000] 2 MLRH 151; [2000] 5 MLJ 401; [2000] 5 CLJ 614 ).

[13] When this panel imposed the above sentences, we had to consider several
factors but due to the factual matrix of the case, the factor of public interest
was uppermost in our mind. Public interest varies with place, time and
circumstances of each case including the age of the offender and the
prevalence of the offence. A certain type of sentence may not satisfy public
interest at another place (New Tuck Shen v. Public Prosecutor [1981] 1 MLRH
227; [1982] CLJ (Rep) 606; [1982] CLJ 38 ;[1982] 1 MLJ 27). The sentence
must be deterrent enough, in that the prisoner will realize crime does not pay,
with the punishment being debilitating to his freedom. Not only will would-be
offenders be deterred from trying but so will it deter repeat offenders (Rex v.
 Tuan Mat Tuan Lonik
390 v. PP [2008] 3 MLRA

Kenneth John Ball [1951] 35 Cr. App. R 164).

[14] The concept of retribution akin to 'tooth for a tooth', normally takes front
stage if the offence is considered an offence against a member of the public,
especially here when a step-daughter has been raped repeatedly since of tender
age. Due to the special relationship here between the victim and the appellant,
let alone the rape incidents were repeatedly carried out until an illegitimate
child was born, the demand to satisfy society's needs to avenge the wrongful
act of the appellant must take centre stage.

[15] For purposes of analogy, when reflecting on the abhorrence of firearms, in

PP v. Chung Kwong Huah [1981] 1 MLRH 667 ; [1981] 1 MLJ 316 Chan J
when referring to Lee Chow Meng v. PP [1975] 1 MLRH 583 ; [1976] 1 MLJ
287 and PP v. Teh Ah Cheng [1976] 1 MLRH 76 ; [1976] 2 MLJ 186 had
occasion to say:

As for retribution, the time has come for the courts to show their
abhorrence of offences involving the possession and use of firearms.
Something has to be done to curb the unlawful possession and use of
such weapons before the situation gets out of hand ... The public is
entitled to be protected and it is not likely to be so protected if lenient
sentences are passed.

[16] Likewise it was also timely that we show our abhorrence of incestuous
rape and impose the appropriate sentence in the circumstances of the case.
Despite the above supplied facts and prognosis, this panel did not go
overboard by ignoring the law or even rationality, and impose impossible
sentences. We had occasion to remark in open court that judges should not be
blinded by emotion and react emotionally as the law is not as evil as the
appellant. In the circumstances of the case, anything less than 30 years in jail
would not suffice to qualify as retributive, hence that span of time ordered
against the appellant.

[17] Apart from being convinced of the need of retribution, the factor of
deterrence cannot lag very far behind, its purpose ostensibly to ensure that an
offender does not repeat that offence. Indirectly a message is transmitted to
potential offenders of what will be in store for them if they cross the line. In R
v. Ball [1951] 35 Cr. App. R. 164, Hilbery J had remarked:

A proper sentence passed ... serves the public interest in two ways. It
may deter others who might be tempted to try crime as seeming to
offer easy money on the supposition, that if the offender is caught and
brought to justice, the punishment will be negligible. Such a sentence
may also deter the particular criminal from committing a crime again
or induce him to turn from a criminal to honest life ...

[18] In Tan Bok Yeng v. PP [1972] 1 MLRH 207 ; [1972] 1 MLJ 214, Sharma J
had occasion to state:
 Tuan Mat Tuan Lonik
[2008] 3 MLRA v. PP 391

It is not merely the correction of the offender which is the prime object
of punishment. The considerations of public interest have also to be
borne in mind. In certain types of offences a sentence has got to be
deterrent so that others who are like-minded may be restrained from
becoming a menace to society (emphasis added)

[19] In the circumstances of the case, a lenient sentence, or reformative

sentences may not be suitable.

[20] The appellant here had pleaded guilty to all the despicable offences
committed during those years, when the stepdaughter was his ward. Even
though a plea of guilt is a mitigating factor, and some credit or discount is
normally given, not all pleas of guilt may be accorded that privilege. A court
has the discretion not to entertain such discounts (Sau Soo Kim v. PP [1975] 1
MLRA 176 ; [1975] 2 MLJ 134; Melvani v. PP [1971] 1 MLRH 486 ; [1971] 1
MLJ 137; PP v. Sulaiman Ahmad [1992] 2 MLRH 420; [1993] 1 MLJ 74;
[1992] 3 CLJ (Rep) 447 ; PP v. Ravindran & Ors [1992] 4 MLRH 303 ; [1993] 1
MLJ 45). It is widely known that incest statistically appears to be on the rise,
with the victim getting younger by the day, as reported daily by the local
media. And no amount of consensual defence will be accepted, be it on
ground of religion, morality, or law. With the facts as they were, let alone
public interest demands a retributive and deterrent sentence, discounts are not
appropriate here ( PP v. Govindnan a/l Chinden Nair [1998] 2 MLRH 48;
[1998] 2 MLJ 181; [1998] 2 CLJ 370 ; PP v. Dato' Nallakaruppan Solaimalai
[1999] 1 MLRH 319; [1999] 2 CLJ 596 ).

[21] The appellant is the authority in the household, and every member of the
family would inevitably look up to him, not only for guidance, but also
protection. Unfortunately the trust was betrayed when he took advantage of
his power of strength by regularly forcing himself on the victim. In Datuk Haji
Harun bin Hj. Idris & Ors v. PP ; [1976] 1 MLRA 364; [1978] 1 MLJ 240 the
status of the prisoner was taken into account when the former Menteri Besar
of Selangor, who had been convicted of the offences of forgery and conspiracy
to commit criminal breach of trust, was treated to a more severe sentence.
When imposing a higher sentence against the former Menteri Besar as
compared to the co-accused, Wan Suleiman FJ had stated:

We are of the opinion that he was the principal actor in this drama.
But for him and his support for the big fight, these crimes might not
have been committed and his co-accused who look up to him and
were loyal to him might not have got into trouble ... in view of ... the
need for people in public life to show a good example to those below
them and of the serious breach of trust placed in him by the members
of the bank who were poor people from rural areas who have a right to
expect their leaders not to touch a penny of money entrusted to his
care, we are of the opinion that this appellant should serve a longer
period in prison than the second ...

Why Must The Sentence Of The 2nd Charge Run Consecutively With The
First Charge ?
 Tuan Mat Tuan Lonik
392 v. PP [2008] 3 MLRA

[22] Under s. 282(d) of the Criminal Procedure Code it is provided that 'every
sentence of imprisonment shall take effect from the date on which the same
was passed unless the court passing such sentence otherwise directs'. The
Criminal Procedure Code thus empowers the judge with the necessary
discretion when a sentence should begin. Apart from the statutory provision, a
rule has evolved whereby when the offences piled against an accused person
are distinct offences, let alone that they do not emanate from the same
transaction, the imprisonment sentences will invariably run consecutively. The
purpose of it to run consecutively here is to discourage the type of criminal
conduct, reflect the overall seriousness of the behavior, and the need to protect
females (R v. Faulkner [1972] 56 Cr App R 594; Emmins on Sentencing , 2nd
edn, p. 151; R v. Vaitos [1981] 4 A. Crim. R 301). In PP v. Yap Huat Heng
[1985] 1 MLRH 576; [1985] 2 MLJ 414; [1986] CLJ (Rep) 645 the respondent
was charged in the Sessions Court with two offences punishable under 376 of
the Penal Code and another two offences punishable under s. 392 read with s.
397 of the Penal Code . He pleaded guilty to all four charges and was
sentenced to three years' imprisonment on each charge but the sentences were
ordered to run concurrently. The Public Prosecutor successfully appealed
against this sentence and order. The court when allowing the appeal and when
discussing the issue of when a sentence ought to begin stated:

Where two or more distinct offences had been committed, sentences of

imprisonment should not be made to run concurrently. It should only
be made concurrent when an offender had been convicted of a
principal and a subsidiary offence. In all other cases sentences should
be made to run consecutively.

[23] Here, where there is a need for each and every rape to be punished, let
alone if the sentence of the second charge were not ordered to run
consecutively with the first charge, the appellant in no time would be back on
the street, not only free to terrorise his family members but also exact revenge
on the wife who lodged the police report against him.

Why Are The Sentences Of Charges Three, Four And Five To Run
Concurrently With Charge 2 When They Are Distinct Offences?

[24] An appellate court will not be overly ready to interfere with any sentence
imposed by the trial court unless there are very good reasons to do so. For
purposes of this case, suffice if we merely peruse the sentences meted down,
subsequently to be affirmed by the High Court, from the point of view of logic.
It is statistically accepted that the average life span of a Malaysian man is 70
years whilst that of a Malaysian woman 75 years. In time the average life span
will increase. That being so, with the appellant now 48 years old, on average
he has 22 years of good life left. To impose a sentence that will take him until
the age of 123 years old, and knowing fully well that he never will serve the
full term, not only is bizarre but strains the intelligence of the court. Any
illogical sentence may attract unnecessary scrutiny and negative comments
from the public on how we awkwardly conduct ourselves.
 Tuan Mat Tuan Lonik
[2008] 3 MLRA v. PP 393

[25] With the sentences of the first and second charges to run consecutively,
thus factually reducing the length of time of incarceration to 30 years, and with
deductions thrown in for good behavior, by the time he is released he will be
about 70 years of age ie, the average life of a Malaysian man. Even if he lives
to smell freedom at that age the likelihood of him besetting and causing
trauma to anyone is slim. Our orders not only has taken public interest into
account but also made the sentence sensible and fair.

Why Reduce The Number Of Strokes

[26] The learned judge had affirmed the 50 strokes of rotan for the five charges
handed down by the trial court. Despite having correctly alluded to all the
correct principles regarding the imposition of the rotan, a major error was
detected when he had contravened s. 288(5) of the Criminal Procedure Code .
This provision provides:

When a person is convicted at one trial of any two or more distinct

offences any two or more of which are legally punishable by whipping,
the combined sentences of whipping awarded by the Court for any
such offences shall not, anything in any written law to the contrary
notwithstanding, exceed a total number of twenty four strokes in the
case of adults ...

[27] In a gist after a conviction of any two or more distinct offences, any two
or more of which are legally punishable by whipping, the combined sentences
of whipping shall not exceed a total number of twenty four strokes in the case
of adults. That would be the maximum number of strokes of the rotan on a
convicted person to be imposed by a judge as empowered by the Criminal
Procedure Code. With the law so clear this panel had no compunction in
reducing the total number of strokes from 50 to 24 for the five charges.

[28] Despite the imposition of the above order by this panel, the probability of
the 24 strokes of rotan being executed to completion is next to impossible.
With the appellant's age being 48, and the first charge taking 15 years to
exhaust, the maximum strokes that he will endure will only be four strokes.
This is so as in two years time he will attain the age of 50. Under s. 289 of the
Criminal Procedure Code no sentence of whipping shall be executed on any
male that the court considers to be more than 50 years of age. Despite being
aware of the futility of the imposition of the 24 strokes, and regardless of it,
our orders were primarily to ensure that the right message was transmitted, to
all the interested parties especially to younger offenders who may not be saved
by age.

[29] Based on all the above reasons we allowed the appeal. We varied the
High Court order as we refused to submit to public opinion; public opinion is
like the sword of Damocles that hover over the head of any trial judge,
constantly intimidating the court to surrender to the unreasonable demands of
the public.