High Court judge Zulkefli Ahmad Makinudin today set Dec 15 to deliver his judgment on an appeal hearing involving former Inspector General of Police Rahim Noor.

Rahim, is appealing against the sentence of a two-month jail term for assaulting former deputy prime minister Anwar Ibrahim on Sept 20, 1998, while the latter was in a cell at the national police headquarters. Rahim was also fined RM2,000 for the offence.

He had pleaded guilty to a reduced charge of assault and was convicted of an offence under Section 323 of the Penal Code, which carries a maximum jail term of one year, or fine of RM2,000 or both.

At yesterday's hearing, Rahim's counsel K Kumaraendran submitted to the court that the former IGP delayed admitting guilt because he did not want to add to the tense situation in the country at that time, among other reasons ([#1]Rahim delayed guilty plea for various reasons[/#], Nov 10).

When the hearing resumed this morning, Kumaraendran said there is no reported case in Malaysia where the accused has been sentenced to imprisonment for an offence under Section 323.

""We respectfully submit that the appellant (Rahim) should not leave the court with a burning sense of grievance, feeling that he has been treated differently, because of the standing of the complainant as former deputy prime minister and his own standing as the former IGP. All citizens are equal before the law," he said.

Comparisons

Citing the cases of PP versus Raja Izzuddin Shah (supra) and PP versus Tengku Mahmood Iskandar and Anor (1973) MLJ 128, Kumaraendran submitted that the Sessions Court judge had wrongly distinguished both cases on the ground that in those cases the accused only harmed an individual, whereas in the instant case, the accused had caused injury to the whole nation.

The accused in Tengku Mahmood's case had committed an offence by causing hurt under Section 323 to two people while the accused in Raja Izzuddin's case had committed an offence under the same section for assaulting a public servant in the execution of his duty. The court had imposed the maximum fine allowable by law on both accused.

"In the circumstances of the instant case which involves a less serious offence, we submit that a fine is adequate and appropriate punishment.

"Comparing the facts in Tengku Mahmood's and Raja Izzuddin's cases and the instant case, the sentence of imprisonment imposed on the appellant far exceeds the limits to permissible variations in sentencing," Kumaraendran submitted.

Pension considerations

In addition, he also submitted that Sessions Court judge Akhtar Tahir had erred in understating the effect of Section 21 of the Pensions Act 1980 where the judge took notice of the fact that the appellant may lose his pension apart from receiving the punishment meted out.

Section 21 of the Act states that any person to whom a pension or other benefit has been granted under this Act is sentenced to death or to any term of imprisonment by a court, shall have such pension or other benefit due to him ceased forthwith.

"The appellant was entitled to a pension of about RM5,000 per month before he was sentenced in this case.

"The sentence of imprisonment is tantamount to the appellant paying a fine of about RM5,000 monthly for the rest of his life. His wife will also be deprived of any derivative pension in case she survives him," Kumaraendran submitted.

In concluding his submission, Kumaraendran said that the Sessions Court judge had wrongly taken into account irrelevant factors and failed to take into account relevant factors in sentencing the appellant.

"We respectfully submit that had the learned judge not so erred and had he considered all the mitigating factors, he may well have sentenced the appellant to a fine only, in line with the sentencing trend, and not proceeded to impose a custodial sentence.

"The appellant has suffered enough and throws himself at the mercy of the court. We appeal to this honourable court to reduce the sentence by not imposing any term of imprisonment, as public interest would be amply served by a conviction and fine," he said.

Balance

In reply, prosecutor Salehuddin Saidin told the court that the court has to strike a balance between the interest of the appellant and that of the public.

"Publicity should not be the criterion but the impact of it should be considered. The court must mete out a harsh sentence to show that it is not compromising with the offence committed by the accused.

"The offence committed by the appellant is a very serious one and has tarnished the image of the police force," Salehuddin said.

On the issue of disparity of sentencing, he added that the Sessions Court had not erred in saying that the cases involving Tengku Mahmood and Raja Izzuddin were different.

Salehuddin added that the Sessions Court judge had also considered the appellant's loss of pension in meting out the sentence.

"The court did not err because Sec 21(3) of the Pensions Act states that the Yang di-Pertuan Agong may grant elementary allowance equivalent to the whole or any part of such money of which the pensioner had been entitled," he said.

Therefore he urged the High Court not to dismiss the imprisonment sentence meted out against the appellant.

"Only a jail term can prove the seriousness of the offence committed by the appellant. If our submission (for a longer jail term sentence) is not accepted, we at least hope that the court would stick to the present sentence meted out," Salehuddin said.

'Friend of the court'

Meanwhile, judge Zulkifli also allowed lawyer Karpal Singh, who is holding a watching brief for Anwar, to address the court as a 'friend of the court'.

Karpal told the judge that there cannot be a case where a sentence of imprisonment cannot be imposed for a case under Section 323.

"For everything, there is always a first time. If there had been a momentary lapse of judgment by the appellant (while committing the offence), then it would be appropriate to consider not imposing a custodial sentence. The facts however, do not reveal a momentary lapse," Karpal said.