Hasan Ali and Me | Part Two
Lude Hasan Ali was my friend’s legal aid client. Hasan Ali was convicted after pleading guilty to an offence under section 6(1) of The Corrosive and Explosive Substances and Offensive Weapons Act 1958 in the Sessions Court in 2016. I reproduce that provision because it is relevant to this story. I also think it is should be of general interest because of its potential implications. I also reference two other provisions for a fuller appreciation of this offence: (1) Any person who in any public road or place carries or has in his possession or under his control any offensive weapon otherwise than with lawful authority or for a lawful purpose shall be guilty of an offence and on conviction be liable to imprisonment for a term of not less than five years and not more than ten years. [Emphasis mine] Section 6(1) of The Corrosive and Explosive Substances and Offensive Weapons Act 1958 What is an “offensive weapon”? “Offensive weapon” includes any instrument which if used as a weapon of offence is likely to cause hurt; Section 2 of The Corrosive and Explosive Substances and Offensive Weapons Act 1958 If it reads as wide as it sounds then you are reading it right. And yes, if I took a pen and stabbed someone with it, that pen may possibly fall under the statutory definition of an “offensive weapon”. Even if we read the provision restrictively because it is a penal provision, the effect is the same. Actually, an offensive weapon as defined could include anything that causes pain. The object does not have to be a weapon to meet the condition in section 6(1) of the Act. What kind of hurt are we talking about? Whoever causes bodily pain, disease, or infirmity to any person is said to cause hurt. Section 319 Penal Code So if it causes someone physical pain then it fulfils the legal definition of causing hurt. My pen example fulfils all these definitions. If I stab someone in the neck with my uncapped fountain pen (with a very fine nib, of course), I would have caused him bodily pain. Pressing the sharp point of an object against flesh is very likely to cause hurt. Now my fountain pen is a writing “instrument which if used as a weapon of offence is likely to cause hurt”. Substitute my pen with my guitar, now it becomes a musical instrument which if used as a weapon of offence is likely to cause hurt. The possibilities are endless. Now that we are acquainted with the outrageousness of this offence, let us return to Hasan Ali’s sentence by the Sessions Court. He pleaded guilty and received a fine of RM 5,000, in default of the fine two months imprisonment. The prosecution was not satisfied with the sentence and appealed the decision to the High Court. He was not represented at either stage. At the High Court, the prosecution argued the court was not bound by the minimum imprisonment term of five years. The Judge queried the attending deputy public prosecutor about the effect of the 2014 amendment to section 6(1) of the Act. What that amendment did was increase the original sentence of the offence from “not exceeding two years” to a minimum of five years and a maximum of ten years of imprisonment. That is a severe increase to the statutory sentence for what is really a minor offence, if at all one. This passage from the judgment is interesting: The Learned Deputy Public Prosecutor handling this matter indicated that she wanted to do some research on the issue of whether the minimum 5 years imprisonment sentence is mandatory. When this Court resumed the hearing, the learned Deputy Public Prosecutor did not render much assistance to this Court, for example, to make comparison with some other laws, such as offence of rape in the Penal Code and offence under the Dangerous Drugs Act 1952 which also provide the words “not less than” in the section of the law. Instead, the learned Deputy Public Prosecutor submitted that because of the word “be liable” is used in the amendment, the sentence of not less than 5 years imprisonment is not mandatory. Paragraph 11, Public Prosecutor v Hasan Ali Abdul Razak [2016] 9 CLJ 584, HC I find it curious that despite chiding the deputy public prosecutor for not making comparisons with other provisions, the Judge adopted the prosecution’s argument as recited above. His Lordship eventually decided it was “still open for the court to impose an order for a bond of good behaviour or to impose any sentence based on the sentencing principles.” The reason for that was because section 6(1) of the Act uses the phrase shall be liable to, which gives the court sentencing discretion. It did not use the phrase shall be punished with, which makes a particular sentence mandatory and so confines the discretion of the Judge. That was essentially his reasoning. With that, the Judge allowed the appeal and imposed a term of imprisonment of 1 year in addition to the fine by the Sessions Court. Hasan Ali could not pay the fine and served his two months in prison. Now, he had another year to go. Despite that, the prosecution was still not satisfied. They appealed the decision to the Court of Appeal. They seemed to feel duty bound to obtain the minimum five years as stated in the provision. My friend took up the case from the National Legal Aid Foundation. However, upon considering the case, he felt it best to be led. Although he was happy with the High Court decision, he harboured concerns about its correctness. His instincts were right. After reading the record of appeal, I told him I felt both the Magistrates and High Court erred in their respective decisions. I agreed with the High Court Judge to the extent that section 6(1) of the Act did not exclude the court from passing a sentence for a bond of
