TUTORIAL 6

6 JUNE 2016

Question (d)
After Marxs ruling on the matter,
Kofe decided to plead guilty and was
sentenced to six years imprisonment.
As a defence counsel, advise Kofe
whether he should appeal against
the sentence imposed by Marx.

Issue
Whether Kofe can appeal against the
sentence imposed by Marx for the six
years imprisonment.

LAW
Punishment for using criminal force
under Section 352 of PC, whoever
assaults or uses criminal force to any
person on grave and sudden
provocation by that person, shall be
punished with
imprisonment for a term not exceeding
to 3 months or
fine which may extend to one thousand
ringgit or
with both.

LAW
Section 89(1) of the Subordinate
Court Act (SCA), the sentencing
competency of the Second Class
Magistrate Court is limited to
Sentences
of
imprisonment
not
exceeding 6 months or
Fine not exceeding RM 1,000
Combination of both of any sentence

LAW
Public Prosecutor v Roxas Tan Haji &
Anor [1995] 1 CLJ 107, the two accused
person pleaded guilty to an offence under
Custom Act 1967, which the punishable
section under section 135(1)(ii) states:
In the case of prohibited goods be liable to a
fine of not less than ten times the value of the
goods or ten thousands ringgit whichever is the
lesser amount and not more than ten times the
value of the goods or ten thousand ringgit
whichever is the greater amount.

LAW
The magistrate however had sentenced them to
6 months imprisonment each and fined them RM
10,000 ringgit each.
On revision, High Court held there was no
provision on imposing sentence of imprisonment.
Therefore, the magistrate had exceeded his
jurisdiction in imposing such sentence of
imprisonment.

LAW
Section 76 (1) of SCA provides the local limit
of the Magistrate Court assigned by YDPA and if
there is no such limits assigned, the court shall
have jurisdiction over matters arising in any
part of the local jurisdiction of the High Court
as describe in subsection (2) of the same act.
Section 2 of CPC further defines local limit of
the Magistrate Court, where the ordinary
administrative district in which the court house
is situated.

LAW
In the case of Wong Pang Fing v
Public Prosecutor (1997) 2 MLJ
151, the appellant was convicted of an
offence in Magistrate Court in Kuching.
On appeal, it was submitted that the
Magistrate Court has no jurisdiction to
hear the case as the offence was
committed in the district of Bau which
has its own court house.

LAW
The High Court held, as the offence
took place within the administrative
area of Bau, the trial court in Kuching
had no jurisdiction.
The appeal was allowed, sentence
and conviction was squashed and the
case was ordered to be tried at the
Bau court.

Application
In applying, it could be said that Marx as the
magistrate had ordered for the sentence not in
accordance with the power conferred by him
because he ordered for Kofe to be sentenced for
6 years of imprisonment.
By virtue of Section 89(1) of the Subordinate
Court Act (SCA), it provides the power for him
to make sentencing only up to 6 month, but the
the Penal Code provides that such an offence
may be only be sentence for imprisonment for a
term not exceeding 3 months.

 Further, Marx is a magistrate at Rawang,

while the offence committed by Kofe was
at Shah Alam, during the rally.
So it could be said that he had no
jurisdiction to hear the matter because
there is a magistrate court in Shah Alam
that could hear the matter. Therefore, the
case should have been tried in Shah Alam
and not Rawang, as per the case of Wong
Pang Fing v Public Prosecutor.

 It could be said he had acting out of

his jurisdiction in deciding the matter
against Kofe because he had
exceeded his power in ordering the
sentence and also he has no
territorial jurisdiction to hear the
matter.

Conclusion
In conclusion, the order for
sentencing made by Marx was
definitely not in accordance with the
law and Kofe could possibly appeal
against the sentence imposed upon
him.