Thursday, January 22, 2009

Speaking Judgment

Hah! I have wanted to post this but I just didn’t have the time and “mood” to do so.

The first few judgments that I wrote as a Magistrate was to justify the sentences that I gave in open court. I tried to develop my own style in writing judgments. Each one differed slightly from the other. Sometimes I state the facts in the beginning. At other times I reason out stuff first.

Appeal against sentence would see me write on why I gave such sentence. I will get some case law to support my sentences. Some people complaint that it was harsh and would say that I was lenient. It doesn't matter what people say as long as I am within my discretion and I exercise it judiciously.

HRH Azlan Shah LP (as he then was) wrote an excellent judgment about judicial discretion in Bhandulananda Jayatilake v. Public Prosecutor [1982] 1 MLJ 83. The facts of the case were summarized as follow:

The appellant gave false testimony at the murder trial of Karthigesu who was convicted and sentenced to death. That case rested on the appellant's testimony which provided the main link in the largely circumstantial evidence tendered by the prosecution. The conviction and sentence were set aside by this court when the appellant confessed on oath that he had told lies at that murder trial. He was duly charged and convicted of 'giving false evidence with intent to procure Karthigesu's conviction of a capital offence' under section 194 of the Penal Code. That particular offence carries a maximum sentence of 20 years and a fine. The learned judge imposed a sentence of 10 years imprisonment.”

In deciding that the sentence was not harsh, this is what the Federal Court said:

“It is now said before us that that sentence was wrong; that it was harsh and manifestly excessive. Therefore this court should interfere because every wrong sentence is as much a miscarriage of justice as a wrongful conviction or acquittal.

It cannot be gainsaid that the appellant had shown a wanton disregard for truth. The sanctity of an oath meant nothing to him. We therefore conclude that he had acted with malice and with the direct object of bringing the administration of justice into disrepute.

Is the sentence harsh and manifestly excessive? We would paraphrase it in this way. As this is an appeal against the exercise by the learned judge of a discretion vested in him, is the sentence so far outside the normal discretionary limits as to enable this court to say that its imposition must have involved an error of law of some description?

I have had occasion to say elsewhere, that the very concept of judicial discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred. That is quite inevitable. Human nature being what it is, different judges applying the same principles at the same time in the same country to similar facts may sometimes reach different conclusions (see Jamieson v Jamieson [1952] AC 525, 549).

It is for that reason that some very conscientious judges have thought it their duty to visit particular crimes with exemplary sentences; whilst others equally conscientious have thought it their duty to view the same crimes with leniency. Therefore sentences do vary in apparently similar circumstances with the habit of mind of the particular judge.

It is for that reason also that this court has said it again and again that it will not normally interfere with sentences, and the possibility or even the probability, that another court would have imposed a different sentence is not sufficient, per se, to warrant this court's interference.
For a discretionary judgment of this kind to be reversed by this court, it must be shown to our satisfaction that the learned judge was embarking on some unauthorised or extraneous or irrelevant exercise of discretion.

We are far from convinced that any criticism of the learned judge is warranted. He took the course he did, in outweighing the plea of mitigation in favour of the public interest with a desire to uphold the dignity and authority of the law as administered in this country.

We agree.

That must receive the greatest weight. It is a serious offence to give false testimony, for it is in the public interest that the search for truth should, in general and always, be unfettered. The courts are the guardians of the public interest (see the Exclusive Brethren case [1980] 3 All ER 161, 172).”

The appeal was dismissed.

See how well it was written? It is like a living judgment, speaking to you as you read it.

Bila lah nak sampai tahap power macam ni…
Blog adjourned.

1 obiter dictum:

Malicious Mind said...

ayat power.. It would take me like forever to write those kind of judgments.