DECEMBER 31 — When an accused is found guilty and convicted by the court, the court will proceed to impose sentence according to law. The sentence must be according to law.
The case of Jafa bin Daud [1981] explains the phrase “sentence according to law” as follows:
“A ‘sentence according to law’ means that the sentence must not only be within the ambit of the punishable section, but it must also be assessed and passed in accordance with established judicial principles.”
The main types of sentences available under the law are:
- Death;
- Imprisonment;
- Whipping; and
- Fine.
Chapter XXVII of the Criminal Procedure Code makes provisions on “Sentences and the Carrying out of it”. The Chapter prescribes the manner in which the sentences of death (Section 281), imprisonment (Section 282), fines (Section 283) and whipping (Sections 286-291) are to be executed or carried out.
As to the execution of sentences of imprisonment, Section 282 provides that the followings shall be followed:
- (a) where the accused is sentenced to imprisonment the Court passing the sentence shall immediately forward a warrant to the prison in which he is to be confined and, unless the accused is already confined in that prison, shall forward him in the custody of the police to that prison with the warrant;
- (b) every warrant for the execution of a sentence of imprisonment shall be directed to the Officer-in-Charge of the prison or other place in which the prisoner is or is to be confined;
- (c) when the prisoner is to be confined in a prison the warrant shall be lodged with the Officer-in-Charge of the prison;
- (d) every sentence of imprisonment shall take effect from the date on which it was passed unless the Court passing the sentence otherwise directs.
The provision must be read together with the Prison Act 1995 (Act 537) and the Prison Regulation 200 [PU(A) 325/2000]. Act 537 makes provisions relating to prisons, prisoners and related matters.
Section 2(1) of Act 537 defines “Officer-in-Charge” as a prison officer not below the rank of Assistant Commissioner of Prison who is in charge of a prison and “sentence of imprisonment” to mean a sentence whether served in confinement in a prison or served on parole, and includes an original sentence passed by a court as well as a sentence awarded by way of commutation.
If a prisoner is to be released or discharged from the custody of the Officer-in-Charge, the manner of his discharge is provided for by law.
Section 42 of Act 537 makes provision for the discharge of the prisoner. A prisoner is a person, whether convicted or not, under confinement in a prison and in relation to a convicted prisoner, includes a prisoner released on parole.
The words “and in relation to a convicted prisoner, includes a prisoner released on parole” were inserted into the definition in 2008 vide the Prison (Amendment) Act 2008 (Act A13322). The 2008 amendments, among others, introduced a new Part IVA which makes provisions on parole.
Without the new Part IVA, there would not have been parole under the law. In other words, parole would not have been available to prisoners to encourage good conduct and industry and to facilitate reformative treatment of them.
Section 46A of Act 537 defines “parole” to mean the release of a prisoner to serve any part of his sentence of imprisonment outside prison pursuant to a Parole Order which is defined to mean a release on parole order made by a Parole Board.
A Parole Board is established under Section 46B to exercise all powers, discharge all duties and perform all functions as may be provided under the Act.
A parolee – that is, a prisoner who is released on a Parole Order – is subject to and dealt with under the new Part IVA.
The point is this: even parole and the manner of carrying it out are provided for by law.
If a prisoner were to be released from prison to serve any part of his sentence of imprisonment outside prison not under parole but under house arrest, how would it be carried out?
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
