526 Current Law Journal [2019] 1 CLJ

PP v. TAMILARASAN MONIRAJAH & ANOR A

HIGH COURT MALAYA, SHAH ALAM

AHMAD FAIRUZ ZAINOL ABIDIN JC
[CRIMINAL APPEAL NO: BA-45C-1-03-2018]
11 OCTOBER 2018
B

CRIMINAL LAW: Offences – Causing grievous hurt and kidnapping with intent
to wrongfully confine – Plea of guilty – Whether accused persons pleaded guilty at
earliest opportunity – Whether entitled to discount – Sentence of eight years
imprisonment with two strokes of whipping and three years’ imprisonment –
Whether sentences to run concurrently or consecutively – Whether fulfilled one C
transaction rule – Whether sentences to run concurrently – Whether sentence
within parameters of acceptable imprisonment terms – Penal Code, ss. 326 & 365
CRIMINAL PROCEDURE: Sentencing – Plea of guilty – Mitigating factors –
Guilty plea at earliest opportunity – Whether accused persons entitled to discount
D
– Whether concurrent or consecutive sentence – Whether fulfilled one transaction
rule – Whether sentences to run concurrently – Whether sentence within parameters
of acceptable imprisonment terms
The victim was kidnapped/wrongfully confined by the two accused persons
and, during the confinement, the accused persons inflicted injuries to the E
victim. The two accused persons contacted the victim’s wife for a ransom of
RM10,000. The victim was released upon the payment of RM7,000, but the
identity card of the victim was retained as collateral to ensure that the wife
paid the balance of the original demand of RM10,000. The victim suffered
serious injuries, inter alia, a closed fracture on the femur and a chip fracture
F
on the finger and a first degree burnt mark on the left cheek and thigh. The
accused persons were originally charged for kidnapping under s. 3 of the
Kidnapping Act 1961. In the exercise of his discretion, the Public Prosecutor
offered two alternative charges: (i) under s. 326 of the Penal Code for causing
grievous hurt; and (ii) under s. 365 of the Penal Code for kidnapping with
intent to wrongfully confine. Both accused persons pleaded guilty to the G
alternative charges. Satisfied that the pleas were unequivocal and
unqualified, the court accepted the plea of guilty and convicted the accused
persons on the two alternative charges.
Held (convicting accused persons on alternative charges):
H
(1) The court took into account the plea in mitigation presented for the
accused persons, who were the first offenders and had no criminal
records. In general, a person should be given credit or discount for
pleading guilty. The plea of guilty by both accused persons saved the
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 [2019] 1 CLJ PP v. Tamilarasan Monirajah & Anor 527

A court’s time and it warranted credit to be given to the accused persons.

They had admitted to the alternative charges immediately upon being
offered the opportunity by the DPP. However, the court need to also
consider the public interest and strike a balance between the interest of
the public and individual interest. (paras 15, 16, 18 & 23)
B
(2) Sections 282 and 292 of the Criminal Procedure Code are the relevant
provisions that provide a discretion to the sentencing court when
considering a concurrent or consecutive sentence. In deciding whether
the terms of imprisonment should be consecutive or commence at
another date, the court will be guided by the one transaction rule and
C the totality principle (Bachik Abdul Rahman v. PP). The test to be applied
in considering the one transaction rule would be to determine if the four
elements of proximity of time, proximity of place, continuity of action
and continuity of purpose or design were present. However, in situations
where it warrants a departure from the one transaction principle, the
D court may do so in the interest of justice. (paras 24, 25 & 30)
(3) The charge sheet pertaining to the grievous hurt charge stated that the
injuries were inflicted during the course of the illegal confinement and
therefore, there was proximity of time between the two offences.
Proximity of place was established as the offences were committed in
E one of the rooms in the house of the second accused. In terms of
continuity of action and continuity of purpose, which was to ensure that
they achieved the objective of being paid, was clearly established. The
injuries were deliberately caused during that said period to further
pressure the victim. The preconditions to the one transaction rule had
F been fulfilled and therefore, the imposition of a concurrent sentence was
the correct sentence to pass. (paras 28, 29 & 33)
(4) The injuries inflicted on the victim were serious, and thus, fell under the
definition of grievous hurt in s. 320 of the Penal Code. Guided by the
precedents, for the offence under s. 326 of the Penal Code, the court
G imposed a sentence of eight years imprisonment with two strokes of
whipping, a sentence within the parameters of an acceptable
imprisonment terms and reflected the current trend of sentencing. As for
the offence of kidnapping with intention to secretly or wrongful
confinement under s. 365 of the Penal Code, a sentence of three years
H imprisonment was appropriate and commensurate with the offence
committed where the confinement was less than 24 hours. Relying on
the one transaction principle, the sentences were ordered to run
concurrently. (paras 35, 37 & 40-42)

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528 Current Law Journal [2019] 1 CLJ

Case(s) referred to: A

Amrita Lal Hazra v. Emperor (1915) ILR 42 Cal 957 (refd)
Bachik Abdul Rahman v. PP [2004] 2 CLJ 572 CA (refd)
Chin Choy v. PP [1955] 1 LNS 17 HC (refd)
Iwan Bujang Dara & Anor v. PP [2017] 1 LNS 285 CA (refd)
Jayaraman & Ors v. PP [1979] 1 LNS 36 HC (refd)
Mohd Abdullah Ang Swee Kang v. PP [1987] 2 CLJ 405; [1987] CLJ (Rep) 209 SC (refd) B
New Tuck Shen v. PP [1982] CLJ 38B; [1982] CLJ (Rep) 606 HC (refd)
PP v. Jafa Daud [1981] 1 LNS 28 HC (refd)
PP v. Nai Boon Wah [2012] 2 CLJ 222 CA (dist)
PP v. Prabu Veeramuthu & Ors [2010] 8 CLJ 257 CA (refd)
PP v. Ravindran & Ors [1992] 1 LNS 47 HC (refd)
C
PP v. Rozita Mohamad Ali [2018] 9 CLJ 265 HC (refd)
PP v. Sulaiman Ahmad [1992] 4 CLJ 2283; [1992] 3 CLJ (Rep) 447 HC (refd)
R v. Kenneth John Ball [1951] 35 Cr App R 164 (refd)
SA Jamil Md Yusof v. PP [2002] 7 CLJ 132 HC (refd)
Sau Soo Kim v. PP [1975] 1 LNS 158 FC (refd)
Sim Gek Yong v. PP [1995] 1 SLR 537 (refd) D
Tan Lay Chen v. PP [2000] 4 CLJ 492 HC (refd)
Tan Sri Abdul Rahim Mohd Noor v. PP [2001] 4 CLJ 9 CA (refd)
PP v. Teh Ah Cheng v. PP [1976] 1 LNS 116 HC (refd)
Yusmarin Samsudin v. PP [1999] 4 CLJ 391 HC (refd)
Legislation referred to:
Criminal Procedure Code, ss. 282, 292 E
Kidnapping Act 1961, s. 3
Penal Code, ss. 307, 320, 326, 365
For the appellant - Mahmoodah Abdul Latiff; DPP
For the 1st accused - Saladin Mohd Yasin; M/s Saladin & Assocs
For the 2nd accused - Ridha Abdah Subri; M/s Ridha & Rai F

Reported by S Barathi

JUDGMENT
Ahmad Fairuz Zainol Abidin JC: G

Background
[1] The accused persons were originally charged for kidnapping under
s. 3 of the Kidnapping Act 1961. The Public Prosecutor, in exercise of his
discretion, offered two alternative charges to the accused persons with H
condition that they plead guilty to the both alternative charges. The first
alternative charge was for causing grievous hurt under s. 326 of the Penal
Code (“the grievous hurt charge”) and the second alternative charge was for
kidnapping with intent to wrongfully confine under s. 365 of the Penal Code
(“the kidnapping charge”).
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 [2019] 1 CLJ PP v. Tamilarasan Monirajah & Anor 529

A [2] Upon being offered the said alternative charges, both the accused
persons pleaded guilty. The court went on to remind the accused persons of
the consequences of their plea. The court then asked them if they wish to
maintain their guilty plea. They were firm in their decision.
[3] Both accused persons also admitted to the facts presented by the
B
prosecution. This court then accepted the plea of guilty and convicted them
on the two alternative charges that they had each pleaded to. This court was
satisfied that the pleas were unequivocal and unqualified.
[4] This court then sentenced each of the accused persons to eight years
C
imprisonment and two strokes of whipping for the grievous hurt charge under
s. 326 of the Penal Code. For the kidnapping charge under s. 365 of the Penal
Code, this court sentenced both the accused persons to three years
imprisonment. Both sentences were ordered to run concurrently from the
date of arrest.
D [5] By a notice of appeal dated 16 August 2018, the Public Prosecutor
appealed to the Court of Appeal on the inadequacy of sentence imposed by
this court.
[6] This is the grounds of judgment of this court.
The Charge
E
The Alternative Charges
Pertuduhan Pilihan (1)
Bahawa kamu bersama-sama pada 16.9.2017 di antara jam 9.30 malam
sehingga 11 malam bertempat di sebuah rumah di alamat No. 56-1A,
F Tingkat 1, Jalan Bendahara 55, Taman Saujana Jati, Klang di dalam
daerah Klang, dalam Negeri Selangor, dalam mencapai niat bersama, telah
memukul Raja a/l Sudalaindy No. KPT: 690212-05-5275 dengan
menggunakan rotan, paip besi dan pisau panas sehingga menyebabkan
kecederaan parah di kepala, retak tulang peha, retak jari serta melecur di
pipi dan peha. Oleh yang demikian, kamu telah melakukan suatu
G
kesalahan di bawah seksyen 326 Kanun Keseksaan yang boleh dihukum
di bawah akta yang sama dibaca bersama seksyen 34 Kanun Keseksaan.
Hukuman
Hendaklah dihukum dengan pemenjaraan selama tempoh yang boleh
H sampai 20 tahun dan hendaklah juga dikenakan denda atau sebat.
Pertuduhan Pilihan (2)
Bahawa kamu bersama-sama pada 16.9.2017 jam lebih kurang 9 malam
bertempat di Jalan Raja Nong, di dalam daerah Klang, dalam Negeri
Selangor, dalam mencapai niat bersama, telah menculik Raja a/l
I Sudalaindy, No. KPT : 690212-05-5275 dengan niat untuk mengurung
530 Current Law Journal [2019] 1 CLJ

bagi mendapatkan wang tebusan sebanyak RM 7,000. Oleh yang A

demikian, kamu telah melakukan suatu kesalahan di bawah seksyen 365
Kanun Keseksaan yang boleh dihukum di bawah akta yang sama dibaca
bersama seksyen 34 Kanun Keseksaan.
Hukuman
Hendaklah dihukum dengan pemenjaraan selama tempoh yang boleh B
sampai 7 tahun dan hendaklah juga dikenakan denda.
The Facts Of The Case
[7] The learned Deputy Public Prosecutor tendered the following facts
before this court: C
1. Pada tarikh 16 September 2017, jam lebih kurang 9 malam, semasa
mangsa iaitu Raja a/l Sudalaindy berada di Jalan Raja Nong, telah
berjumpa dengan dua (2) lelaki India iaitu kedua-dua tertuduh di dalam
kes ini dan satu (1)(P) bangsa Indonesia untuk tujuan membeli mesin
welding.
D
2. Walau bagaimanapun, mangsa enggan membeli mesin welding tersebut
kerana mensyaki mesin welding tersebut merupakan barang curi.
Akibatnya telah berlaku pertengkaran dan tertuduh pertama telah
memukul mangsa di bahagian kepala dengan menggunakan rotan.
3. Kedua-dua tertuduh turut mengambil wang milik mangsa berjumlah E
RM 260.00 dari poket seluar yang dipakai oleh mangsa.
4. Kedua-dua tertuduh telah mengikat mangsa di bahagian tangan, kaki
dan mulut. Mata mangsa turut ditutup dan dibawa ke rumah tertuduh
pertama.
5. Di rumah tersebut, mangsa telah dipukul oleh kedua-dua tertuduh F
dengan menggunakan rotan dan paip besi sehingga mangsa mengalami
kecederaan di bahagian mulut, kepala dan kedua-dua tangan.
6. Kedua-dua tertuduh juga telah menggunakan pisau panas dan
meletakkan di pipi mangsa sehingga melecur.
7. Mangsa ditahan di suatu bilik dalam rumah tersebut. Tangan dan kaki G
mangsa diikat, manakala mulut mangsa disumbat dengan kain supaya
tidak bergerak atau meminta tolong.
8. Tertuduh pertama juga telah menghubungi isteri mangsa menggunakan
telefon bimbit mangsa dan meminta supaya diserahkan wang sebanyak
RM10,000 sekiranya ingin mangsa dilepaskan. H
9. Isteri mangsa menyatakan tiada wang, dan akhirnya satu persetujuan
telah dicapai supaya bayaran sejumlah RM 7,000 dibuat kepada kedua-
dua tertuduh supaya mangsa dilepaskan.

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 [2019] 1 CLJ PP v. Tamilarasan Monirajah & Anor 531

A 10. Pada tarikh 17.9.2017 jam lebih kurang 9.00 pagi, isteri mangsa telah
pergi berjumpa tertuduh kedua di hadapan Kuil Sri Sentosa yang mana
isteri mangsa telah menyerahkan wang berjumlah RM 7,000. Tertuduh
kedua juga merampas jam tangan jenama Rolex yang dipakai oleh isteri
mangsa.

B 11. Kira-kira sejam selepas wang diserahkan kepada tertuduh kedua,

mangsa dilepaskan. Walau bagaimanapun, telefon bimbit dan kad
pengenalan mangsa dirampas dan dimaklumkan akan dipulangkan
sekiranya baki sejumlah RM3,000 diselesaikan.
12. Pada tarikh 17.9.2017 jam lebih kurang 1 tengahari, kedua-dua
tertuduh telah ditangkap.
C
13. Kawad cam telah dijalankan pada 19.9.2017 dan mangsa mengecam
kedua-dua tertuduh sebagai orang yang menculik dan memukulnya
sehingga cedera.
14. Mangsa telah membuat laporan polis pada tarikh 17.9.2017 seperti
D mana Klang Report : 30492/17.
15. Mangsa telah mendapatkan rawatan di Hospital Tengku Ampuan
Rahimah Klang pada tarikh 17.9.2017 dan disahkan mengalami:
(i) Laceration wound over scalp;
(ii) 1st degree burn over left cheek & thigh;
E
(iii) Superficial laceration wound over left thigh;
(iv) Closed fracture over left femur;
(v) Closed chip fracture over right middle finger; and

F (vi) Soft tissue injury.

16. Oleh yang demikian, kedua-dua tertuduh telah melakukan satu
kesalahan seperti mana di dalam pertuduhan pilihan dan kedua-dua
tertuduh mengaku salah.
Submission By Parties
G
[8] Both counsels on record Encik Saladin bin Mohd Yasin and Encik
Ridha Abdah Subri were appointed by the court.
[9] Encik Saladin bin Mohd Yasin submitted that the first accused was
36 years old, married and has two children. He is an odd job worker with
H an income of less than RM3,000 per month. He is remorseful and promises
not to get involved in any crime in future.
[10] Encik Ridha Abdah Subri submitted that the second accused
cooperated with the police which led to the recovery of the monies involved.
He is remorseful and prior to his arrest, he was taking care of his aged
I mother. He is also the leader in the family taking care of his sisters as his
father had passed away. His willingness to plead guilty at the earliest possible
opportunity showed remorse on his part and had saved the court’s time.
532 Current Law Journal [2019] 1 CLJ

[11] The learned DPP Puan Mahmoodah binti Abdul Latiff on the other A
hand, contended that the offence committed by both the accused persons
were serious in nature. Serious injury had been caused to the victim that
warranted a heavy punishment. The DPP also submitted that the accused
persons should not have taken the law into their own hands irrespective of
the disagreement between the parties. She submitted that public interest B
demands a deterrent sentence.
Analysis And Decision Of This Court
[12] This court is guided by the rule that a sentence passed must one that
is in accordance with law. This means that the sentence imposed must not C
only be within the ambit of the punishable section but must also be assessed
and passed in accordance with established judicial principles (Tan Lay Chen
v. PP [2000] 4 CLJ 492).
[13] It is also a recognised principle that the discretion in passing sentence
is solely with the sentencing court. In New Tuck Shen v. PP [1982] CLJ 38B; D
[1982] CLJ (Rep) 606, Wan Yahya J held as follows:
.. The right to impose punishment on a guilty party is absolutely the
discretion of the court. It will exercise that power judicially but will not
tolerate any encroachment or even semblance of encroachment either by
the prosecution or the defence in respect of such right. E
[14] The principles on sentencing were also succinctly spelt out in the case
of Yusmarin Samsudin v. PP [1999] 4 CLJ 391 by Siti Norma Yaacob J
(as she then was) where she held:
The principles of sentencing have long been entrenched and well settled
in our criminal law jurisprudence and a court seized with such jurisdiction F
is empowered to take into account the following considerations:
(1) the extent and seriousness of the offence committed;
(2) the guilty person’s antecedents; and
(3) the public interest G

[15] The court took into account the plea in mitigation presented by both
counsels. It was submitted by both counsels and agreed by the prosecution
that the two accused persons were first offenders and had no previous
criminal records. In PP v. Jafa Daud [1981] 1 LNS 28; [1981] 1 MLJ 315,
apart from expanding the principles in relation to sentencing, Mohamed H
Azmi J held as follows:

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 [2019] 1 CLJ PP v. Tamilarasan Monirajah & Anor 533

A A ‘sentence according to law’ means that the sentence must not only be
within the ambit of the punishable section, but it must also be assessed
and passed in accordance with established judicial principles. 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 Magistrate is
required to call for evidence or information regarding the background, antecedent and
B character of the accused. Where the convicted person has previous records
and admits them as correct, the court must consider whether the offence
or offences committed previously were of similar nature as the one with
which he is presently charged. The court must then consider the sentences
imposed in the previous convictions for similar offences to determine
whether they have had any deterrent effect on him. Where he is found
C
to be a persistent offender for a similar type of offences, then it is in the
interest of justice that a deterrent sentence should be passed and, in such
a case, unless there are exceptional circumstances, the quantity, nature of
value of the subject-matter of the offence with which he is currently
charged can very rarely constitute a mitigating factor. (emphasis added)
D [16] It is a generally accepted rule that a person should be given credit or
discount for pleading guilty (PP v. Ravindran & Ors [1992] 1 LNS 47; [1993]
1 MLJ 45; PP v. Sulaiman Ahmad [1992] 4 CLJ 2283; [1992] 3 CLJ (Rep)
447; [1993] 1 MLJ 74). The plea of guilty by both accused persons saved
court time. This court’s therefore, found this as a factor that would work in
E favour of the accused persons. Whether a person is a hardened criminal or
otherwise, a plea of guilt is a mitigating factor (Sau Soo Kim v. PP [1975]
1 LNS 158; [1975] 2 MLJ 134).
[17] As to what amount of credit is attached to the plea of guilty depends
on the facts and circumstances of the case. It is not automatic. If the offence
F committed by the accused outweigh the mitigating effect of a guilty plea or
where the public interest demands a deterrent sentence (Sim Gek Yong v. PP
[1995] 1 SLR 537). However, when the plea of guilt is considered by the
court, the question therefore, what is the value of such a plea. In Mohd
Abdullah Ang Swee Kang v. PP [1987] 2 CLJ 405; [1987] CLJ (Rep) 209, the
G guidance given was a discount of one third of the sentence that would
otherwise have been imposed by the court can be considered by the
sentencing court.
[18] This court was of the considered view that the plea of guilty warranted
credit to be given to the accused persons. They had admitted to the
H alternative charges immediately upon being offered the opportunity by the
DPP.
[19] However, it would be remiss on this court if it did not consider public
interest apart for the interest of the accused persons. In fact, it should be the
foremost consideration as the object of punishment is not only with the
I
objective of punishing crime but also preventing it. (R v. Kenneth John Ball
[1951] 35 Cr App R 164).
534 Current Law Journal [2019] 1 CLJ

[20] The Court of Appeal in the case of Iwan Bujang Dara & Anor v. PP A
[2017] 1 LNS 285; [2017] MLJU 283 as follows:
But the court is not only concerned with the plea in mitigation in passing
sentence. No matter how strong the plea in mitigation is in favour of a
lenient sentence, the court’s overriding consideration has always been and
will always be the public interest. B

[21] Against public interest is the personal interest of the two accused
persons (see Tan Sri Abdul Rahim Mohd Noor v. PP [2001] 4 CLJ 9). The
mitigation of both the accused persons touched on the family factor. That
they were the sole breadwinners and were taking care of their families. Such
reasons are not uncommon. C

[22] In Teh Ah Cheng v. PP [1976] 1 LNS 116; [1976] 2 MLJ 186, Eusoffe
Abdool Cader J (as he then was) opined at p. 187 (MLJ):
The respondent also puts forward in his plea in mitigation the fact that
he is employed and supports an aged mother and step-brothers. He D
should of course have thought of this before committing the offence and
not after, he is in fact pleading hardship arising from the consequences
of his own acts and I would reiterate what I had occasion previously to
observe in another case that an offender should not expect to excite or
harness any sympathy on an ipse dixit by taking the stance of the
impetuous youth who killed his parents with an axe and then pleaded in E
mitigation that he was an orphan.
[23] As such, a balance needs to be struck between the interest of the public
and the individual interest.
Concurrent Or Consecutive Sentence
F
[24] Sections 282 and 292 are the relevant provisions in the Criminal
Procedure Code that provide a discretion to the sentencing court when
considering a concurrent or consecutive sentence. The position in law was
lucidly explained in Bachik Abdul Rahman v. PP [2004] 2 CLJ 572 at pp. 579
of the report. The court held as follows: G
The combined effect of s. 282 and s. 292 is that unless the Court imposing
a sentence says anything to the contrary, the sentence runs from the date
on which it was passed (see Ooi Sim Yim v. PP [1990] 1 CLJ 435; [1990]
1 CLJ (Rep) 223). The exercise of the discretion to determine the date
of commencement of the sentence of imprisonment is dependent on the
H
facts and circumstances of each case. In deciding whether the terms of
imprisonment should be consecutive or commence at another date the
court will be guided by the one transaction rule and the totality principle.
Pursuant to the one transaction rule where two or more offences are
committed in the course of a single transaction all sentences in respect of
these offences should be concurrent rather than consecutive (see R v.
I
Saleem [1964] Crim LR 482; R v. Walsh [1965] Crim LR 248) …
(emphasis added).
 [2019] 1 CLJ PP v. Tamilarasan Monirajah & Anor 535

A [25] The test to be applied in considering the one transaction rule would
be to determine if the four elements of proximity of time, proximity of place,
continuity of action and continuity of purpose or design were present
(see Jayaraman & Ors v. PP [1979] 1 LNS 36; [1979] 2 MLJ 88; Amrita Lal
Hazra v. Emperor (1915) ILR 42 Cal 957; Chin Choy v. PP [1955] 1 LNS 17;
B [1955] MLJ 236).
[26] This principle was affirmed in the Court of Appeal in PP v. Prabu
Veeramuthu & Ors [2010] 8 CLJ 257 which provided the following guidance:
… the court should be guided by the one transaction rule and the totality
principle. Pursuant to the one transaction rule where two or more offences
C were committed in the course of one transaction, all sentences in respect
of those offences should be concurrent rather than consecutive. For there
to be one transaction, there must be four elements present, ie, proximity
of time, proximity of place, continuity of action and continuity of purpose
or design.
D [27] Similarly, in the case of SA Jamil Md Yusof v. PP [2002] 7 CLJ 132,
it was held as follows:
What amounts to “distinct” offences was established by the Indian case
of Amrita Lal Hazra & Others v. Emperor ILR 42 Cal 957 where it was held
that there are four main tests which help in the legal determination as to
E what amounts to “the same transaction”. They are proximity of time,
unity or proximity of place, continuity of action and community of
purpose or design.
[28] In carrying out an examination of the facts, what is patently clear to
this court was the fact that the said kidnapping/illegal confinement was
F carried out at 9pm on the night of 16 September 2017. It lasted until the time
the victim was released the following morning on 17 September 2017. It was
during the said period of confinement that the injuries were caused. The
charge sheet pertaining to the grievous hurt charge as found in P3(a), stated
that the injuries were inflicted during the course of the illegal confinement
G (between 9.30pm to 11pm). This allows this court to rule that there was
proximity of time between the two offences. On the issue of proximity of
place, this court will not venture at length to rule that the offences were
committed in one of the rooms in the second accused’s house.
[29] Similarly, in terms of continuity of action and, community of purpose
H which at that point, was to ensure that they achieve the objective of being
paid, was clearly established. The injuries were deliberately caused during
that said period to further pressure the victim.

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536 Current Law Journal [2019] 1 CLJ

[30] However, the one transaction and totality principle is not cast in stone A
and in situations where it warrants a departure from the one transaction
principle, the court may do so in the interest of justice. Also, if the facts so
warrant or if the intended outcome of sending the message of abhorrence to
the action of the offender needs to be highlighted by the court to the public,
the court is at full liberty to decide accordingly. B

[31] Even if the imprisonment had a crushing effect on the accused by

virtue of it being lengthy in total, in PP v. Nai Boon Wah [2012] 2 CLJ 222;
[2011] MLJU 1132 the Court of Appeal, speaking through Hasan bin Lah J
(as he then was), justified the departure from the one transaction rule as
follows: C

As decided in Sau Soo Kim the question whether the sentences should run
consecutively or concurrently must depend upon the particular
circumstances of the case. On the facts and circumstances of this case and
in line with the decisions of this court in Bachik Abdul Rahman, Yit Kean
Hong and Prabu Veeramuthu we are of the view that this is a proper case D
for the court to apply the exception to the one transaction rule and the
totality principle in deciding to order the two terms of imprisonment to
run consecutively. In addition, the two offences committed by the
respondent were very serious and each punishable with imprisonment of
up to 20 years. This case also involved two separate and distinct offences
and two different victims. In this case too a matter which attracted the E
application of the exception to the one transaction principle was the fact
that the second killing resulted from merciless anger. The facts show that
the respondent came back to finish off the second deceased after having
dealt with the first deceased at the entrance of the bistro. The second
deceased was still at the table where he had originally sat offering no
resistance when the respondent stabbed him to death. We are further of F
the view that consecutive sentences are necessary in order to discourage
violent crime affecting the human body resulting in death as public
interest is paramount. Had the learned judge given adequate
consideration to the circumstances and facts of this case and the
authorities referred to earlier he would have, in our view, ordered that the
G
two sentences to run consecutively. It is our judgment that the learned
judge had erred in not applying the exception to the one transaction rule
and the totality principle to this case.
[32] In Nai Boon Wah (supra) the Court of Appeal had every reason to
disagree with the one transaction rule. The acts carried out were senseless
H
and nefarious. Any decision other than the one taken in that case would be
manifestly contrary to public interest (see also Prabu Veeramuthu (supra),
Bachik Abdul Rahman (supra)).

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 [2019] 1 CLJ PP v. Tamilarasan Monirajah & Anor 537

A [33] In the current case before this court, it is the finding of this court that
the preconditions to the one transaction rule laid down in Amrita Lal (supra)
have been fulfilled. That being the case, upon considering the facts, this court
is of the view that the imposition of a concurrent sentence is the correct
sentence to pass. Clearly, the facts and circumstances did not fall near those
B shown in Nai Boon Wah (supra).
[34] From the facts presented by the prosecution, the kidnapping/wrongful
confinement of the victim was amateurishly carried out. The two accused
persons had actually contacted the wife of the victim directly and even went
on to pick up the said ransom personally. They also retained the identity card
C of the victim as collateral to ensure that the wife pays the balance of their
original demand of RM10,000.
[35] The injuries inflicted on the victim were however, serious. The
fracture suffered by the victim as stated in the medical report P9, showed that
there was a closed fracture on the femur and a chip fracture on the finger.
D
This fell under the definition of grievous hurt in s. 320 of the Penal Code.
There was also a first degree burnt mark on the left cheek and thigh of the
victim.
[36] From the facts of the case, the accused persons used a piece of rotan
and an iron rod to hit the victim. However, no such exhibits were produced
E
in court to enable this court to examine the weapons used. The pictures
tendered into court as P8 also showed a variety of weapons such as an axe
and other paraphernalia that could cause the injuries suffered by the victim.
However, the prosecution did not allude to any of the items shown in the
photographs to link with the injuries inflicted on the victim.
F
Length Of Sentence
[37] On the grievous hurt charge, this court looked at precedents to
determine as a guide, the appropriate sentence to impose on the accused
persons. No two facts would be similar and the circumstances of how the
G offences were committed can never be the same. However, this court is
allowed to be guided by precedent.
[38] In the recent case of PP v. Rozita Mohamad Ali [2018] 9 CLJ 265, the
High Court embarked on a comparison of the trend of sentencing imposed
by courts in recent years. The precedents are reproduced below:
H
[43] Keeping in the forefront of my mind all the authorities aforesaid, I
shall now examine some cases of similar offence with regard to
sentencing:

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538 Current Law Journal [2019] 1 CLJ

43.1 Rosli bin Supardi [2002] 3 CLJ 544, the Court of Appeal A
substituted the sentence of six years’ imprisonment and three
strokes with 12 years imprisonment and five strokes. The appellant
claimed trial and convicted. He was a first offender. The victim’s
throat was cut several times.
43.2 Annanthan Subramaniam v. PP [2007] 8 CLJ 1 the High Court B
maintained the sentence of eight years and eight strokes. The
appellant aged 20, pleaded guilty and a first offender. The weapon
used was a Rambo knife. The victim was stabbed in her abdomen
and her throat was cut after the appellant raped her. All in all the
appellant suffered twenty years imprisonment as the sentence for
section 326 was made to run concurrently with the twenty years’ C
imprisonment for rape.
43.3 Abdul Kassim Idris v. PP [2007] 4 MLJ 738 the High Court
affirmed the sentence of fifteen years’ imprisonment and three
strokes. The appellant 39, claimed trial and convicted. The weapon
used was a pair of scissors. The victim suffered stab wounds and D
cut wound at the neck region and the abdominal region and death
was caused to the child in her womb.
43.4 PP v. Kow Ngo [2010] 5 CLJ 208 the High Court enhanced the
sentence of one-day imprisonment and fine RM1,500.00 to five
years’ imprisonment. The respondent aged 62, pleaded guilty and
a first offender. Acid was used to hurt the victim. E

43.5 Anbalagan a/l Murugesu v. Pendakwa Raya [2013] 9 MLJ 88 the

High Court affirmed the sentence of eight years’ imprisonment.
The appellant pleaded guilty after the first witness testified. The
weapons used was an iron rod, iron, bottle and bowl. The victim
suffered various internal injuries and was in coma for twelve days. F

43.6 Chew Eng Aik v. Pendakwa Raya [2014] 1 LNS 1303 the High
Court affirmed the sentence of seven years’ imprisonment. The
appellant was a first offender, claimed trial and convicted. The
weapon used was a parang. The victim suffered multiple wounds
and received treatment for wound exploration haemostasis and G
primary suture of multiple deep lacerations wounds over
extremities, under general anaesthesia.
43.7 Abd Halim Abd Samat (supra) the Court of Appeal substituted
a binding over order under subsection 294(1) with a sentence of
ten years’ imprisonment. The respondent aged 45 and pleaded
H
guilty and a first offender. The weapon used in the commission of
the offence was a parang. The injuries sustained were multiple
lacerations on the victim’s head, right ear, right forearm and hand.
The most proximal wound at the right forearm was deep cutting
the muscles and the ulna bone causing an open fracture.
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 [2019] 1 CLJ PP v. Tamilarasan Monirajah & Anor 539

A 43.8 Magenthiran Allagari v. Pendakwa Raya [2015] 1 LNS 33 the

High Court affirmed the sentence of twelve years’ imprisonment.
The appellant was a first offender, claimed trial and convicted. The
weapon used was a parang. The victim’s left arm was almost
severed and fractured his left arm and leg.

B 43.9 Lee Kian Yap v. Pendakwa Raya [2015] 1 LNS 152 the High
Court affirmed the sentence of six years’ imprisonment and three
strokes. He was a first offender, claimed trial and convicted. The
weapon used was a knife. He suffered stab wounds on the
abdomen left side of the chest and at his back.
43.10 Hafiz Fathullah v. PP [2016] 1 LNS 989 the High Court
C
affirmed the sentence of fifteen years’ imprisonment and eight
strokes. The appellant pleaded guilty and a first offender. The
weapon used was a pen knife. The victim suffered multiple injuries
and had 100 stitches all over her body. She also underwent a
surgical operation on her left arm in order to repair the damaged
D and cut muscles.
43.11 Mazlan Ahmad v. Pendakwa Raya [2016] 1 LNS 205 the High
Court affirmed the sentence of seven years’ imprisonment and five
strokes. The appellant pleaded guilty and a first offender. The
weapon used was a parang. The victim suffered injuries at the back
of his neck, broke his spine and brain haemorrhage.
E
43.12 Sellvam a/l Sangaralingam & Anor v. Pendakwa Raya & Another
Appeal [2016] MLJU 1298 the High Court enhanced the sentence
of eight years’ imprisonment to eleven years and strokes. The
appellants claimed trial and were convicted. The weapons used
were parang. The victim suffered multiple injuries and fractures.
F
43.13 Budiman Che Mamat v. PP [2017] 1 LNS 1936 the High Court
affirmed the eight years’ imprisonment and one stroke. The
appellant aged 30, pleaded guilty and a first offender. The weapon
used was “besi kuku kambing”. The victim’s both arms were
fractured and his ear was almost ripped off.
G [44] The sentences meted out differed from one case to another
depending on various factors discussed in the judgments. But they were
all for deterrent sentence in view of the seriousness of the offence with
the element of public interest being the foremost consideration. Factors
like first offender and pleading guilty apparently did not really find favour
with the courts in cases of this nature.
H
(emphasis added)

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540 Current Law Journal [2019] 1 CLJ

[39] In Rozita Mohamad Ali (supra), the High Court sentenced the accused A
person to eight years imprisonment for an offence under s. 326 of the Penal
Code. The charge had originally been an offence of attempted murder under
s. 307 of the Penal Code. The injuries suffered by the victim were almost
fatal to the victim.
B
Conclusion
[40] This court is of the opinion that for the offence under s. 326 of the
Penal Code, the sentence of eight years imprisonment with two strokes of
whipping is a sentence that is within the parameters of an acceptable
imprisonment terms as demonstrated in previous cases. This court is also of C
the considered view that it reflects the current trend of sentencing.
[41] For the offence of kidnapping with intention to secretly or wrongful
confine under s. 365 of the Penal Code, a sentence of three years is
appropriate and it does commensurate with the offence committed where the
confinement was less than 24 hours. D
[42] On the issue of concurrent or consecutive sentences, this court, in
exercising the allowable discretion bestowed on it and relying on the one
transaction principle, finds that justice is served if both the punishments were
to run concurrently.
E