Tuesday, July 22, 2008

Persuasive Decision Revised

Well, it has been a while since I last wrote. I have been dead busy. Within one month, there is a possibility that a couple of my decisions (nine actually) may be revised by the High Court and I have three appeals already. This is how it came about.

The nine possible revisions were for Rempit offences. You see, in June 2008, I was made a Traffic Magistrate in KL. I then asked for some samples of my predecessor's decision, sentence and minutes for me to follow. It's normal that a new Magistrate will ask for their predecessor's records so that they don't pass some ridicilous and out of the norm sentence. My interpreter gave me a sample each for the many common traffic offences.

There was one sample for community service. In that case, the Magistrate granted the accused a bond of good behaviour for two years AND ordered the accused to undergo community service. The powers to do so are stated in S. 293 (1) (e) and s. 294 of the Criminal Procedure Code accordingly. That was just what I followed. I remembered asking some lawyers, my prosecuting officer and the welfare officer if I am allowed to apply these two orders concurrently for the same offence. They answered in the affirmative.

After a month of doing so, I was asked by my supervising judge on those decisions. She was of the opinion that it amounted to double jeaopardy (two punishments for one offence). So she wants to send my decisions to the High Court for a revision and whatever the decision may be, will be binding upon the lower courts.

I reserve my comments on my own legal reasoning. Suffice for me to say for now that I was just following a persuasive decision of my predecessor.

Then again, I partially revoke my reservation above. Here's the general overview of what I think. Looking at the two sections, I may be wrong in applying both sections at one go but there seems to be some loopholes to it. Now it depends on whether the nine decisions will be sent for revision. I hope it will... The High Court's reasoning would be an interesting read since the order for community service in Malaysia is very very very vague and ambiguous.

Then I have my 3 appeals. This was the main reason why there was no update. I have four weeks to complete my reasonings for the sentences that I have imposed on three seperate cases. All of the three accused pleaded guilty. I gave one a RM2500 fine and 21 days imprisonment for driving with his alcohol level beyond the prescribed limit. The second chap got RM5000 (minimum fine) and 21 days imprisonment for riding a motorcycle dangerously and recklessly. The third guy got a minimum RM5000 fine and 1 day imprisonment for driving his car dangerously and recklessly.

Actually, I have already prepared all three draft reasonings within 3 days. Just a little bit of touching up here and there. I plan to post it once I am satisfied with it and after I endorsed them as my official legal reasonings. Then it'll be a public document. I don't think i'd be in trouble for publishing it... hmmm... I'll have to double check first... :)

Blog adjourned...

0 obiter dictum: