NOVEMBER 5 — In the case Bhandulanda Jayatilake v Public Prosecutor [1982], the facts were straightforward.
The accused gave false testimony at the murder trial of one S. Karthigesu who was convicted and sentenced to death. That case rested on the accused’s testimony which provided the main link in the largely circumstantial evidence tendered by the prosecution.
The conviction and sentence of Karthigesu were set aside by the Federal Court when the accused confessed on oath that he had told lies at that murder trial. He was duly charged and convicted of “giving false evidence with intent to procure Karthigesu’s conviction of a capital offence” under Section194 of the Penal Code.
That particular offence carried a maximum sentence of 20 years and a fine. The learned trial judge imposed a sentence of 10 years imprisonment.
On appeal to the Federal Court, the accused argued that the sentence was wrong; that it was harsh and manifestly excessive, which warranted the apex court to interfere with the sentence because every wrong sentence was as much a miscarriage of justice as a wrongful conviction or acquittal.
In one of his many celebrated judgments, Raja Azlan Shah (then Acting Lord President) had this to say:
“Is the sentence harsh and manifestly excessive? We would paraphrase it in this way. As this is an appeal against the exercise by the learned judge of a discretion vested in him, is the sentence so far outside the normal discretionary limits as to enable this court to say that its imposition must have involved an error of law of some description?
“I have had occasion to say elsewhere, that the very concept of judicial discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred. That is quite inevitable.
“Human nature being what it is, different judges applying the same principles at the same time in the same country to similar facts may sometimes reach different conclusions (see Jamieson v Jamieson [1952] AC 525, 549). It is for that reason that some very conscientious judges have thought it their duty to visit particular crimes with exemplary sentences; whilst others equally conscientious have thought it their duty to view the same crimes with leniency.
“Therefore sentences do vary in apparently similar circumstances with the habit of mind of the particular judge. It is for that reason also that this court has said it again and again that it will not normally interfere with sentences, and the possibility or even the probability, that another court would have imposed a different sentence is not sufficient, per se, to warrant this court’s interference.
“For a discretionary judgment of this kind to be reversed by this court, it must be shown to our satisfaction that the learned judge was embarking on some unauthorised or extraneous or irrelevant exercise of discretion. We are far from convinced that any criticism of the learned judge is warranted.”
Now, is the sentence of the police escort for a VIP lenient and manifestly inadequate?
Try paraphrasing the question in the way His Royal Highness did above. Then ask: did the learned Magistrate embark on some unauthorised or extraneous or irrelevant exercise of discretion?
If one is convinced that the learned Magistrate did so resulting in a miscarriage of justice, read here on how to go about correcting the miscarriage of justice.
