KUCHING, April 21 ― The thought of appearing in court and being imposed a penalty for an offence is already a nerve-wracking experience for many people, but imagine how even more dreadful it would be to have the sentencing meted out with the aid of a faceless and soulless apparatus that feeds on electricity.

It is reported that courts in Sarawak and Sabah should, by this month, conclude the testing of the use of Artificial Intelligence (AI) in providing the judges with guidelines and analysis for sentencing.

Many quarters have questioned this pilot project, asking ‘if a robot should indeed have a hand in deciding a person’s fate soon’.

A number of lawyers here, while open to the use of AI in court, also believe that the justice system cannot completely do away with the human factor, and that judges should still exercise discretion by taking into consideration mitigating circumstances when it comes to deciding on a ruling.

Lim Lian Kee, who has been a lawyer for some four decades, said it might not be relevant to or suitable for Sarawak.

"I am concerned about the absence of the human factor, which may lead to unfair sentencing. "After all, a computer is a computer ― it has no human feeling or compassion,” he told The Borneo Post when asked to comment about the AI application.

Lim agreed that such a tool could help dispose of more cases expeditiously as it would help magistrates or judges decide sentencing based on data or precedents stored in the system.

"But we do have plea bargaining, which is just as good ― if not better ― because both parties have agreed to a sentence.

"The AI system would not be able to replace humans when it comes to sentencing, considering (that there are) the mitigating factors as well as aggravating factors,” he said.

Chief Justice of Sabah and Sarawak Tan Sri Datuk Seri Panglima David Wong Dak Wah had announced the system on Jan 17, 2020, after a ceremony here to mark the beginning of the Sarawak and Sabah Legal Year.

He said the application was timely because in the past, there were complaints about the disparity and inconsistency of penalties being passed by magistrates or judges.

"The way or how it works will be made known to the accused persons and they will know in advance the likely outcome of their cases. Then it will be up to them to plead guilty or to plead not guilty,” Wong had stated.

The AI system is being developed by the state government-owned Sarawak Information Systems (Sains).

The Borneo Post has contacted Sains and is awaiting response on how the system was developed and how it would function.

According to another lawyer Simon Siah, when an accused had been found or had pleaded guilty after mitigation, the magistrate or judge would then refer to the AI tool.

"The AI tool would give the suggestion on the probability of a certain sentence for the particular offence. It would show the percentage of whether the previous case law was more inclined to imprisonment or fine, or how long such imprisonment or the amount of fine should be.

"In the end, however, the magistrate or judge would still have the discretion to not follow the AI’s result,” said Siah.

Still, he was concerned that the AI might not be accurate as its database could be outdated, or it might not contain the necessary information about the cases to arrive at a sentence.

"I feel that the AI recommendation is, in fact, similar to how lawyers would refer to the case law to form the trend of the sentencing.

"Still, there is a need to constantly update the database for the recommendation from the AI to be more effective,” he said, believing that AI is not going to replace the magistrate or judge altogether in that it would only serve as a guide for them to make decisions.

"In fact, if the database is up to date and the case laws are listed in the AI recommendation, I personally think that it is a good way forward so that there may be more uniformity in sentencing.

"I would not agree for the implementation of the AI to completely remove the discretion from the judges because no matter how perfect the system is, you cannot build feelings into a machine,” Siah pointed out.

A Reuters report on April 12, about the AI sentencing tool’s test in Sarawak and Sabah, cited a lawyer in Sabah, Hamid Ismail, claiming that there was no proper consultation on the technology’s use, and it was not contemplated in the country’s penal code.

"Our Criminal Procedure Code does not provide for the use of AI in the courts. I think it’s unconstitutional,” Hamid was quoted in the report.

However, Hani Iryani Bonni told The Borneo Post that the lawyers had been given the assurance that the AI-generated sentence would only function as a recommendation or a guideline.

"The AI sentencing tool is only a recommendation on the appropriate sentence that should be given and how they calculate the sentence if there was imprisonment, whipping or fine.

"The judges or magistrates are not bound to follow the recommendations, but the worrying part is actually if the judges would fully follow the AI sentencing,” she opined, describing this would definitely be an injustice due to the lack of human compassion and rationale.

"I only support the AI sentencing because the lawyers are still given the opportunity to mitigate and to speak on behalf of their clients in court,” said Hani Iryani.

During the opening of the Sarawak and Sabah Legal Year in 2020, Chief Justice of Malaysia Tan Sri Tengku Maimun Tuan Mat, when asked to comment about the AI tool, said the courts had to embrace technological advancement meant to contribute towards improving efficiency.

"Such technological advancements are here to stay and we need to move along with it. If this, the system (AI), is coming to us, I don’t see the reason why we should not embark on it.

"But as we go along with it, we also cannot 100 per cent rely on it and so, there must be some human elements as well,” she was quoted as saying. ― Borneo Post