Broke fishing duo jail term 'severely excessive' - Taiping High Court
CORONAVIRUS | The High Court in Taiping said it revised the sentence against the fishing duo for violating the movement control order (MCO) because the three months' jail was too “harsh and severely excessive”.
In a written judgment released yesterday, Judicial Commissioner Muniandy Kannyappan gave this as one of the grounds for reducing the sentence on Chin Chee Wei and Chong Poh Wah from Sungai Siput, Perak, to community service...
CORONAVIRUS | The High Court in Taiping said it revised the sentence against the fishing duo for violating the movement control order (MCO) because the three months' jail was too “harsh and severely excessive”.
In a written judgment released yesterday, Judicial Commissioner Muniandy Kannyappan gave this as one of the grounds for reducing the sentence on Chin Chee Wei and Chong Poh Wah from Sungai Siput, Perak, to community service.
On April 8, the court ordered the men to perform the service for four hours daily after the MCO is lifted.
In fact, as their first task, they were made to “clean their homes” as befitting the hygiene measures to be taken amid the coronavirus fears.
Muniandy, however, noted that the sentence levelled by the magistrate against the duo had been in accordance with the law in pursuant to Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020, and the Criminal Procedure Code (CPC).
He added that the law enforcement officers had been “civil” and acted properly in the case and the two would not have been arrested if they had obeyed police instructions to go home when first encountered.
Muniandy said the two accused were also aware of the MCO and that they should not be out at the time.
Even so, the judicial commissioner said non-custodial options of sentencing was available in the criminal justice system.
“The pivotal issue is, is the sentence meted out proper in the circumstance of the case? The sentence passed may border on harshness or in the language of the CPC, of excessive severity, which plainly befits an appellate intervention,” he said.
“[...] In the premise, it would be appropriate for subordinate court judges to be mindful of all available sentencing options available in our penal system of justice, so as to afford an accused person justice in all sense of its attributes, as otherwise, it would be a right denied under the law.”
According to facts of the case, roof tilers Chin, 45, and Chong, 56, were daily wage earners who had been unable to earn income as a result of the MCO.
They were arrested by police on April 2 after refusing to adhere to advice to return home when encountered travelling with fishing rods as they intended to fish for food for their families.
Upon conviction, they were fined but “willing to be imprisoned” as they were unable to pay the undisclosed sum.
Under the Prevention and Control of Infectious Diseases Regulations, offenders are liable to a fine of up to RM1,000, imprisonment of up to six months or both.
And while the sentence meted out had to serve as a deterrent and could not be a mere “tap on the wrist”, especially in light of public interest to uphold the MCO due to Covid-19 pandemic, Muniandy said the three-month jail term was “severely excessive”.
“This court in the exercise of its revisionary jurisdiction finds it harsh and severely excessive, after taking into consideration, the nature of the breach, the prevailing plea in mitigation advanced by the accused persons as well as public interest that needs to be protected," he said.
At the time, the two accused had already spent six days in jail and the judicial commissioner stated they should not have to further remain in prison. Instead, they were to be quarantined at home pending compliance with the compulsory attendance order.
“It is also unfathomable, for the accused persons as violators to remain in an overcrowded prison, where social distancing is near to an impossibility.
“The prison doors shall remain closed shut behind for only prisoners who have committed a heinous crime.
“I am informed by the deputy registrar of this court that their first task at hand as compulsory work would be to clean their own home, which befits the prevailing period, as cleanliness is (the) order of the day,” Muniandy reasoned.
When first reported, the case generated public sympathy over the plight of Chin and Chong.
Even so, Muniandy stated that while the courts do not have to reflect public opinion, it “must not disregard it and its main duty is to lead public opinion”.
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