One-day jail sentence is fine if circumstances call for it, says ex-judge

Retired Federal Court judge Gopal Sri Ram says the facts and circumstances of each case differ and judges must be given the latitude to impose a token custodial sentence.

PETALING JAYA: The discretion given to lower court judges to impose the minimum jail term after hearing the mitigating and aggravating factors of a crime should not be questioned, a retired judge said.

Gopal Sri Ram said magistrates and Sessions Court judges should continue to be allowed the discretion to impose the barest custodial jail term as facts and circumstances of each case differed.

“The prosecution can appeal if it is unhappy with such custodial sentences,” he said.

Sri Ram was responding to the case of a foreign currency trader who was jailed a day and fined RM4,000 by a Sessions Court on June 19 after the accused pleaded guilty for posting derogatory remarks about Prime Minister Najib Razak on his Facebook account last year.

Mohd Nasaruddin Sairon committed the offence when he posted an emotionally charged remark about Najib on Facebook on Oct 8.

The posting on Nasaruddin’s Facebook page was read by a member of the public, Khalijah Mohamed, who filed a complaint with the Malaysian Communications and Multimedia Commission (MCMC) the following day.

Those who flout the law for posting hurtful remarks about another person in cyberspace can be fined up to RM50,000 or 12 months imprisonment or both.

Government lawyer Mohd Sophian Zakaria said the offence was serious and that the misuse of social media was a common trend these days.

Nasaruddin, in mitigation, said he was a first offender.

He paid the fine and remained in the courtroom until 4pm to fulfill the one-day jail term.

Sri Ram, who retired as a Federal Court judge, said the token imposition of a jail term originated in the United Kingdom and the offender could return home after the court rose for the day.

He said the one-day jail term was akin to a judge awarding nominal damages to the plaintiff in a civil claim when a tort had occurred but where there was no actual financial loss as a result of that legal wrong.

“The Sessions Court judge in this case may have felt the mitigating factors may have far outweighed the aggravating factors that it did not serve the public interest to send the accused to be jailed for a longer term,” he said.

On Oct 14, 1996, the then chief justice Eusoff Chin had advised magistrates against passing one-day jail sentences which he described as a mockery, useless and meaningless.

A jail sentence, to be an effective deterrent, should run at least a week, Eusoff had said in Ipoh after attending the Perak Bar annual dinner.

Meanwhile, lawyer M Visvanathan said a nominal jail term was a slap on the wrist of the offender.

“In the criminal justice system, the aim of severe punishment is to show the accused must regret his act and serve as deterrent to other would-be-offenders,” he said. -FMT