LETTER | I refer to the report “Broke fishing duo who violated MCO escape jail term" where two men, Chin Chee Wei and Chong Poh Wah, who were looking at spending three months in prison because they could not afford to pay the fine for violating the movement control order (MCO), will now do three months of community service instead.

The High Court in Taiping ordered the men to perform the service for four hours daily after the MCO is lifted. 

It appeared that Judicial Commissioner K Muniandy had called for the records of the Sungai Siput Magistrate’s Court, which sentenced the two men to three months’ jail, pursuant to Section 31 of the Courts of Judicature Act 1964 and Section 323 of the Criminal Procedure Code (CPC).

Simultaneously, an application to review the lower court decision was also filed by the National Legal Aid Foundation lawyer who represented the two men, Balakrishna Balaravi Pillai.

The power lies in the High Court to call for and examine the record of any criminal proceeding before a subordinate court. The object of the power, called revisionary power, is to correct or prevent a miscarriage of justice.

The purpose of calling for the record is for the High Court to satisfy itself as to the correctness, legality, propriety (regularity) of any decision of the subordinate court.

The power to call for the record of proceedings of the subordinate court is at the absolute discretion of the High Court. The High Court may do it on its own volition or upon the application of any person including a third party who has no locus standi in the proceedings.

A judge of the High Court may also call for the records should his attention be drawn to a case. It may be through the newspapers, or relatives of convicted offenders may have written to him, or sometimes Sessions Court judges or magistrates may themselves forward the record of proceedings should they feel the need for revision of the decision made.

So, the judicial commissioner (JC) was right to exercise his revisionary powers to call for the records.

Now, in calling for the record to satisfy himself as to the correctness, legality and propriety of the decision, it appeared that the JC had considered whether the Magistrate’s Court had taken into account non-custodial sentences which are available under the law as alternative options to a sentence of imprisonment.

Such sentences are equally, if not more, effective in holding offenders accountable and responsible for the offences committed.

There are several alternatives under the law – at least two under the CPC and the third one under an old law, Offenders Compulsory Attendance Act 1964 (OCA), which tends to be overlooked.

The first alternative is to discharge an offender conditionally or unconditionally. A conditional discharge is commonly known as a good behaviour bond. The power is set out in Section 173A CPC.

For minor infractions of the law or compelling mitigating circumstances, the court does no more than giving an admonition or a caution to the offender.

Otherwise, the court may discharge the offender conditionally on a bond of good behaviour; the conditions imposed are geared towards ensuring the offender practices good behaviour during the period of the bond. No conviction on the charge is recorded under Section 173A and the offender is thereby assured of a "clean slate".

The second alternative offers a variation of the bond of good behaviour under Section 173A. This is provided under Section 294 CPC. However, unlike Section 173A, the offender has to be convicted first before a bond of good behaviour is considered under Section 294. Section 294 is applicable to offences of a more serious category where a record of the conviction is necessary.

Arguably, Section 294A would be more appropriate for violations of the MCO if conviction is a necessary consequence of blatant disregard of the MCO. This is particularly so when one considers Section 294A which empowers the court to include conditions in the bond of good behaviour. Effectively, the offender can be put to an enhanced MCO.

Significantly, in case of any breach of a bond of good behaviour under Section 173A or Section 294 the court may issue a warrant for the arrest of the offender.

The third alternative is found under Section 5(1) OCA. Instead of the offender being sent to prison, he can be ordered to attend daily at a centre to be specified in the order and to undertake compulsory work for a period not exceeding three months and for such hours, not exceeding four hours, as may be specified in the order.

The order is made having regard to the character of the offender, the nature and seriousness of the offence and all the other circumstances of the case. Thus, where it is inexpedient to send him to prison, the court may make a compulsory attendance order (CAO).

Which was what was ordered by the learned JC. One can say that as a sentence, the order is one that strikes a balance between the interest of the offender and that of the community – not forgetting that the interest of the public should be of the uppermost consideration.

One can also agree that the order is a sentence according to time, place and circumstances – which is what public interest is all about. While the public in general cannot fathom the worst act of indiscipline by the MCO violators, it is just as unfathomable that the violators should be sent to overcrowded prisons where social distancing is "impossible".  

So, kudos to the learned JC, counsel for the two men, and the deputy public prosecutor who all acted in the interest of justice.

Presiding judges in the High Court across the country should follow suit as the exercise of revisionary powers is not subject to any particular procedural requirement. As mentioned above, a High Court judge can call for the records of the subordinate courts after reading a newspaper report about the conduct of a criminal case.

If justice is not only to be done but must be seen to be done, this is the time.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

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