1. 申请人/被告(A)在刑事法庭,以刑事法典326条文被提控。事发当天,被告是把热的物质放置在被告妻子的身上。刑事法典326条文于326A条文并读·。
  2. A认罪后,A被定罪,判处8年徒刑和2次鞭打。 A当时没有代表律师。
  3. A上诉。高庭允许上诉,改为3年6个月徒刑。
  4. 主控官上诉到上诉庭。双方同意在上诉庭只是辩论刑罚这一个课题而已。
  5. 辩护律师认为,被告没有对A的神秘疾病进行任何治疗,而且他还患有肠胃并发症,因此必须进行手术。由于他持续的腹泻而推迟了两次手术。
  6. 由于被告没有任何证明来确认他精神不健全,主控官说,监狱当局很难将他送入精神病医院,所以他必须在完成监禁刑罚,才能寻求治疗。
  7. 在这种情况下,法院认为,被告的个人利益不应该被忽视。在某些情况下,出于公共利益的考量,被告不应被监禁太久,因为这样做,弊大于利,这样可能对被告造成镇压作用,并可能使他变成顽固的罪犯,而且A现在还面对健康问题。
  8. 因此,公正必须平衡A和受害人/公众。为此,本法院考虑到A已经忏悔,A当初认罪的时候是没有代表律师,他的健康和精神状况,这些因素提出,导致地庭的判决没有考量这些因素。
  9. 因此,地庭判处的刑期过高。如果A不提早获释,他在监狱中目前的身心健康状况将进一步恶化。这样,他可以自己得到适当的医疗护理。因此,该法院撤销了地庭判处的刑期,并以3年6个月的徒刑,没有鞭笞,代替了之前的徒刑。

 

  1. The Applicant/Accused (A) was charged in Sessions Court for causing grievous hurt under Section 326 of the Penal Code, allegedly by applying heated substance on his wife. The charge has to be read with the new amendment under 326A of the Penal Code.
  2. Upon pleading guilty, A was convicted and sentenced to 8 years imprisonment and 2 whippings. A was not represented by a counsel.
  3. A, through his counsel, filed a motion in high court, to move this court to revise the decision of the Sessions court, on the ground that the Accused allegedly suffered from a psychiatric illness and was of unsound mind at the time of the commission of the offence, and that the matter of this fact was not brought to the attention of the Sessions court which meted out the punishment, simply because he was not represented.
  4. High Court allowed A’s application for revision, set aside the sentence imposed by the trial court, and instead substituted it by reducing the sentence of the Sessions court to 3 years and 6 months imprisonment.
  5. Dissatisfied, the Public Prosecutor (PP) filed an appeal to the Court of Appeal.
  6. The learned counsel submitted that (1) A was suffering from some mysterious disease akin to mental disease and was still persisting. (2) A was not represented at the Sessions Court. A did not know the actual charge he was facing and so the consequences of his guilty plea. (3) After A was convicted and sentenced, A did not even know of his rights to appeal until the wife/victim approached and filed this suit, by which time A had already in prison for more than 2 years and the appeal period had long lapsed.
  7. As this case had come before this court as a revision, no appeal Records were available, and hence this court had to rely on affidavit evidence.
  8. PP did not reply to the affidavits. She did not object to the hearing of the revision either. However, she submitted that (1) this were new issues which should not be brought before this court in the first place (2) this issue should have been brought before the trial court where the trial court may order an investigation to be held (3) the application was made too late in the day (4) DPP suggested that as A had already served more than 2 years of the imprisonment term, the learned defence counsel might wish to advance arguments on the alternative submission i.e. on the excess of the sentence imposed to which the learned defence counsel had agreed.
  9. Both parties to hear this application for revision on sentence only.
  10. Hence, the requirement for this court having to make a ruling as to whether the accused was of unsound mind at the time the plea was taken, or to investigate him on his mental capabilities and to send him for observation in a recognized psychiatric hospital (Section 342) did not arise at all.
  11. The learned defence counsel submitted the accused was not getting any treatment for the mysterious disease and that he is also suffering from bowel complication which necessitates an operation to be performed which was deferred twice because of his persistent diarrhoea.
  12. As A did not have any certificate or any order to confirm that he is of unsound mind, the DPP laboured that, it was difficult for the prison authority to admit him into a psychiatric hospital and that he could seek treatment after having completed the term of imprisonment.
  13. That being the case, this court was of the considered opinion that the personal interest of A should not be disregarded at all. There are circumstances in which public interest itself warrants that an accused should not be put behind bars for far too long as that will do more harm than good as it might cause a crushing effect on him and could turn him into a hardened criminal instead, more so as in this case when A was facing health problems.
  14. Hence, this court had to strike a balance in order to do justice to A and to the victim/public. Towards that end, this court had taken into account of the fact that the A had repented and was remorseful, and regretted what he had done and also of the fact that he was not represented at the court below when the plea was taken, as well as the fact surrounding his health and mental conditions, all of which were not brought to the attention, and for the consideration of the judge.
  15. Thus,the sentence imposed by Sessions Court was excessive. A’s current state of health, both physical and mental, whilst in prison, will be further exacerbated if he were not released early. By doing so, he could get a proper medical attention on his own. This court, thus, set aside the sentence imposed by the learned Sessions judge and substituted it with a term of imprisonment of 3 years and 6 months, without any order of whipping.

 

Penal Code

326.Voluntarily causing grievous hurt by dangerous weapons or means

Whoever, except in the case provided by Section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or any scheduled weapon as specified under the Corrosive and Explosive Substances and Offensive Weapons Act 1958, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to fine or to whipping.

 

326A.Punishment for causing hurt to spouse, former spouse, etc.

(1)Whoever causes hurt to his spouse or former spouse, a child, an incapacitated adult or other member of the family and commits an offence under section 323, 324, 325, 326, 334 or 335 shall be punished with imprisonment for a term which may extend to twice of the maximum term for which he would have been liable on conviction for that offence under the relevant section notwithstanding any other punishment provided for that offence.

(2)For the purpose of this section, “spouse”, “child”, “incapacitated adult” and “other member of the family” have the meanings assigned to them in section 2 of the Domestic Violence Act 1994 [Act 521].

 

Source:  Mohammad Johari Saravanan bin Abdullah v Pendakwa Raya [2017] MLJU 1659 CA

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被告患有疾病是减短刑罚的其一理由