Broke fishing duo jail term was ‘severely excessive’ - Taiping High Court

CORONAVIRUS | The Taiping High Court had earlier this month revised the sentence ordering the incarceration of two "down on their luck" men wanting to fish for food during the movement control order (MCO) as it was too “harsh and severely excessive”.

As such the court has on April 8 sentenced Chin Chee Wei and Chong Poh Wah from Sungai Siput, Perak, to three months of community service for four hours each day, instead.

In fact, as their first task, two men were made to “clean their homes” as befitting hygiene measures to be taken amid coronavirus fears.

This was stated in the written judgement of judicial commissioner Muniandy Kannyappan’s reduction of the lower court’s sentencing, released yesterday.

In the written judgement Muniandy, however, noted that the sentence levelled by the magistrate against had been in accordance with the law in pursuant to Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020, and the Criminal Procedure Code (CPC).

He also noted that law enforcement officers had been “civil” and acted properly in the case and the two then-accused would not have been arrested if they obeyed police instructions to go home when first encountered.

The two accused were also aware of the MCO and that they should not be out at the time.

Even so, the judicial commissioner said non-custodial options of sentencing was available in the criminal justice system.

“The pivotal issue is, is the sentence meted out proper in the circumstance of the case? The sentence passed may border on harshness or in the language of the CPC, of excessive severity, which plainly befits an appellate intervention,” he said.

“[...]In the premise, it would be appropriate for subordinate court judges to be mindful of all available sentencing options available in our penal system of justice, so as to afford an accused person justice in all sense of its attributes, as otherwise, it would be a right denied under the law.”

According to facts from the case, roof tilers Chin, 45 and Chong, 56, were daily wage earners who have been unable to earn income as a result of the MCO.

They were arrested by police on April 2 after refusing to adhere to advice to return home when encountered travelling with fishing rods as they intended to fish for food for their families.

Upon conviction, they had initially been fined but were “willing to be imprisoned” as they were unable to pay the undisclosed sum.

Under the Prevention and Control of Infectious Diseases Regulations, offenders are liable to a fine of up to RM1,000, imprisonment of up to six months or both.

And while the sentence meted out had to serve as a deterrence and could not be a mere “tap on the wrist”, especially in light of public interest to uphold the MCO due to Covid-19 pandemic, Muniandy said the three-month jail term was “severely excessive”.

“This court in the exercise of its revisionary jurisdiction finds it harsh and severely excessive, after taking into consideration, the nature of the breach, the prevailing plea in mitigation advanced by the accused persons as well as public interest that needs to be protected.

“Within that orbit...this court takes the position to alter the nature of the sentence from that of three months’ imprisonment meted out on both the accused persons to an alternative punishment in the form of a compulsory attendance order under section 5 (1) of Act 461 (Offenders Compulsory Attendance Act 1954), requiring both the accused persons to attend daily at Perak Compulsory Attendance Centre and to undertake compulsory work for a period of three months for four hours each day," read the judgement.

At the time, the two accused had already spent six days in jail and the judicial commissioner stated they should not have to further remain in prison. Instead, they were to be quarantined at home pending compliance with the compulsory attendance order.

He said: “It is also unfathomable, for the accused persons as violators to remain in an overcrowded prison, where social distancing is near to an impossibility.

“The prison doors shall remain closed shut behind for only prisoners who have committed a heinous crime.

“I am informed by the Deputy Registrar of this court that their first task at hand as compulsory work would be to clean their own home, which befits the prevailing period, as cleanliness is (the) order of the day.”

When first reported, the case generated public sympathy over the plight of Chin and Chong.

Even so, Muniandy stated while the courts do not have to reflect public opinion, it “must not disregard it and its main duty is to lead public opinion”.

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- Mkini