DARSHN RAJ A/L RAJAGOPAL v Pendakwa Raya

Case Significance

Illustrates appellate intervention on sentence for gang robbery under section 395 of the Penal Code where the first-instance court did not adequately apply proportionality: the High Court reduced the imprisonment term while preserving the whipping.

This High Court decision in the Criminal Division at Kuala Lumpur is an appeal against sentence following a plea of guilty to gang robbery. The accused had pleaded guilty in the Sessions Court to an offence under seksyen 395 Kanun Keseksaan (section 395 of the Penal Code), the charge alleging that on 22 August 2024, together with another person still at large, he committed gang robbery at a KK Super Mart convenience store on Jalan Sungai Besi, taking cash amounting to RM407 from a named victim. The Sessions Court had sentenced him to five years' imprisonment and whipping of up to two strokes. On appeal the accused challenged that sentence as excessive, contending that the Sessions Court judge had not properly applied the principle of proportionality in fixing the custodial term. Hearing submissions from counsel for the accused and the Deputy Public Prosecutor, the High Court accepted that the sentence required moderation. Referring to PP v Salwani Thaleh and PP v Karthiselvam a/l Vengatan and emphasising that the measure of any reduction turns purely on the facts and circumstances of the particular case, the court decided to reduce the term of imprisonment from five years to three years, while leaving the sentence of whipping to stand. The reduced imprisonment term was to take effect from the date of arrest. Accordingly the appeal against sentence was allowed and the sentence reduced. The judgment is a useful illustration of appellate intervention on sentence where a first-instance court has not adequately reflected the principle of proportionality, calibrating the custodial term to the gravity of the offence and the sum involved while preserving the corporal punishment element. The court also observed that an appellate court will not lightly disturb a sentence imposed by a trial court, but that intervention is justified where the sentence is shown to be manifestly excessive or the sentencing court has erred in principle, both of which were engaged by the failure to reflect proportionality on the facts of this robbery.