SENTENCING JURISDICTION AND TYPES OF SENTENCING IN COURT OF MALAYSIA

(i)Magistrate court

The first magistrate court has the power to sentence to a term of imprisonment not exceeding five years or a fine not exceeding RM10, 000 or whipping up to 12 strokes, or any combination of the three. There are also exceptions to the limitation on the First class Magistrate’s power may exceed the sentencing jurisdiction.

The proviso to section 87(1) Subordinates court Act 1948 for example, states that the Magistrate may award punishment in excess of the power proscribed where any law gives him the authority, and some examples include section 118 of the Customs Act 1967 provided that a magistrate can impose fine up to RM25000.

According to the section 41 of the Dangerous Drugs Act 1952, A Magistrate can try any offence under the act except under section 39B Dangerous Drug Act 1952. For an offence under section 12 Dangerous Drug Act 1952, a first class magistrate can pass sentence up to 5 years imprisonment and fine not exceeding RM100, 000 or both and section 6(3) of the Betting Act 1953 (formerly the Betting Ordinance, 1953 or Ordinance No. 47 of 1953). Where the Magistrate has power to impose a fine of not less than RM 20,000 and not more than RM200, 000 and up to two years imprisonment or both.

The exercise of this power was seen in the case of Cheong Ah Cheow v PP[1985] 2 MLJ 257 and the case of PP v Yap Sin Peng [1986] 2 CLJ 222 wherein the Magistrate had awarded the maximum RM20,000 fine in both cases respectively, and these decisions were upheld.

For the second exception, under Section 87(2) gives the First Magistrate further authority to increase the punishments prescribed in section 87(1) Subordinates court Act 1948 provided that where the accused has previous convictions and provided that the Magistrate records his reasons for doing so. However, cases such as Abdul Wahab v PP [1970] 2 MLJ 203 and PP v Govindnan a/l Chinden Nair (1998) 2 MLJ 181 given the said provision an unnecessarily restrictive construction by stating that the Prosecution has a duty to choose with care as to which, court possesses the requisite sentencing jurisdiction sought by the Public Prosecutor before going on to prosecute his case. That section 87(2) can only be invoked when the case takes an unexpected turn and that the Magistrate’s basic sentencing powers are found wanting. Furthermore, knowledge of previous convictions can only be adduced after trial

(ii) Session court

A Sessions Court has the jurisdiction to hear both criminal and civil cases. The sentencing jurisdiction under section 64 of subordinates court act 1948 provide that session court may pass any sentence allowed by the law except sentence of death. Session court may also impose  the sentence of whipping but in no case the whipping should exceed more than 24 strokes in the case of an adult offender.

The some of case is Bachik Bin Abdul Rahman v pp (2004) 5 MLJ 89

(iii) High court

Sentencing jurisdiction in the high court , under section 22 of court judicature Act 1964 provide that , A high court may pass any sentence allowed by law The High Court may pass any sentence allowed by law. Normally, only criminal cases of a serious nature are tried in the High Court. Example, drug trafficking under Section 39B of the Dangerous Drugs Act 1952 [Act 234], murder under Section 302 of the Penal Code [Act 574], kidnapping or abduction under Section 364 of the Penal Code [Act 574] and offenses under the Firearms (Increased Penalty) Act 1971 [Act 37] where it involves capital punishment (death sentence) if the accused is found guilty. Cases involving capital punishment (e.g. death penalty) are tried in the High Court.

(iv)Federal court

In federal criminal cases, if the jury (or judge, if there is no jury) decides that the defendant is guilty, the judge sets a date for a sentencing hearing. In federal criminal cases, the jury does not decide whether the defendant will go to prison or for how long; the judge does. In federal death penalty cases, however, the jury does decide whether the defendant will receive a death sentence. Sentencing statutes passed by Congress control the judge’s sentencing decision.