Is the expression of remorse sincere and genuine after challenging a ‘prima facie’ case? — Hafiz Hassan

OCT 27 — In a recent case of Public Prosecutor v Trisnawati bt Maksa [2024], the accused was charged under Section 12(2) of the Dangerous Drugs Act 1952 (possession of dangerous drugs) read together with Section 39A(2) of the same Act.

The accused pleaded not guilty to the charge and claimed trial.

At the end of the defence case, the accused was found guilty by the learned Sessions Court judge (SCJ) and convicted accordingly.

Upon conviction, the accused was sentenced to eight years imprisonment with effect from the date of arrest.

The Public Prosecutor appealed against the sentence as being grossly inadequate for the offence after a full trial.

At the hearing of the appeal, the learned deputy public prosecutor (DPP) submitted that the sentence was not in line with the sentencing trend. Due to the rampancy of drug abuse in Sabah, the sentencing trend for the offence was 12 years imprisonment.

The learned DPP further submitted that the accused did not express remorse. Nor did the accused promise to never repeat the offence again.

In his judgment, High Court Judge Duncan Sikodol said:

“When exercising appellate jurisdiction, it is my bounden duty by virtue of Section 316(b)(ii) of the Criminal Procedure Code (CPC) read together with Section 26 of the Courts of Judicature Act 1964 (CJA), to inquire if the sentence meted out on the accused befits the facts and circumstances of the case involving him, as well as it is passed according to law.

“A sentence according to law has been discussed in the case of PP v Jafa Bin Daud [1981] 1 MLJ 315, which dictates that the sentence, has to be in accord with the penal provision, which in this case is Section 12(2) of Dangerous Drugs Act 1952 and punishable under Section 39A(1) of the same which provides that upon conviction shall be punished with imprisonment for life or for a term which shall not be less than five years, and he shall also be punished with whipping of not less than ten strokes.

“In the present appeal before me, although the SCJ acknowledged the gravity of the offence and considered public interest, it seems that the severity of the offence was not adequately reflected in the imposed sentence.

“It is crucial to recognise that court sentences serve not only to penalise offenders but also to deter future criminal conduct and safeguard societal interests, especially in cases like drug possession where the impact on society can be significant.

“Furthermore, the decision of the [accused] to opt for trial rather than admitting guilt is indicative of her lack of remorse for the committed offence. This absence of remorse is a crucial aspect to consider during sentencing as it suggests a disregard for the consequences of her actions and undermines the sincerity of any expressed regret.

“Although the [accused] expressed remorse during the appeal proceedings, [the accused] earlier choice to contest the charges contradicts this sentiment. Therefore, this lack of remorse should have been duly taken into account when determining the appropriate sentence.”

The learned High Court judge was of the view that there were cogent reasons to interfere with the sentence of 8 years imprisonment imposed by the SCJ as he had failed to adequately strike a balance between the interests of the public and the interest of the accused.

The appeal was accordingly allowed, and the sentence of 8 years imprisonment was substituted with 10 years imprisonment with effect from the date of arrest.

What is interesting from the above is the matter of remorse or the lack of it. It is well accepted that remorse is a mitigating factor to reduce a sentence to be imposed against a convicted accused.

The learned High Court judge considered the accused being remorseful during the appeal proceedings was contradictory to the accused pleading not guilty and contesting the charge.

It was indicative of lack of remorse for the offence committed.

Now, consider the followings:

The charge was read and explained to the accused. The accused understood the charge. The accused pleaded not guilty, and claimed trial to the charge.

The accused, through his counsel, cross-examined each and every prosecution witness, poking holes and raising doubts in the prosecution case.

At the end of the prosecution case, the prosecution submitted that it had established a prima facie case against the accused, requiring the court to call for the accused to enter his defence.

The accused submitted in reply that there was no prima facie case against him, requiring the court to acquit him.

The next moment, out of court, the accused said in a statement that he was remorseful while not admitting to the act constituting the offence in the charge.

Is the expression of remorse sincere and genuine?

What say you?