PENDAKWARAYA Hasan bin Yusof

PENDAKWARAYA Hasan bin Yusof

Whipping ordered by the Sessions Court was illegal under section 289(c) CPC because the accused was over 50 and section 376B is not among the listed exceptions; accordingly the whipping order was set aside and, to give effect to legislative intent and proportionality (guided by section 291 CPC analogy), the term of imprisonment was increased from 12 to 13 years.

Citation
AB - 42 - JSKH - 1 - 01/2020 (Mahkamah Tinggi)
Parties
Prosecution/appellant: Pendakwa Raya; Accused/appellant: Hasan bin Yusof
Court
High Court
Jurisdiction
Malaysia
Judgment Date
17 September 2020
Case Number
AB - 42 - JSKH - 1 - 01/2020 (Mahkamah Tinggi)
Procedural Posture
Criminal Appeal / High Court Judgment on Sentencing Appeal
Outcome
Prosecution appeal allowed partially; accused's appeal to set aside whipping allowed; whipping set aside and imprisonment increased to 13 years.
Legal Topics
Incest, Section 376 B, Whipping, Mandatory Minimum Sentence, Appellate Review, Substitution of Corporal Punishment
Source Language
Malay/English
Criminal Law Sentencing Penal Code Criminal Procedure Code Incest Section 376 B Whipping Mandatory Minimum Sentence +2 more

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Parties

Pendakwa Raya

Prosecution/appellant

Hasan bin Yusof

Accused/appellant

Procedural Posture

Criminal Appeal / High Court Judgment on Sentencing Appeal

Legal Issues

  1. 1 Whether whipping can be lawfully imposed on an accused over 50 years under section 289(c) CPC
  2. 2 Whether the sentence of imprisonment was inadequate or required enhancement on appeal
  3. 3 Whether whipping displaced by illegality may be converted to additional imprisonment and by what principle or statute

Ratio Decidendi

Whipping ordered by the Sessions Court was illegal under section 289(c) CPC because the accused was over 50 and section 376B is not among the listed exceptions; accordingly the whipping order was set aside and, to give effect to legislative intent and proportionality (guided by section 291 CPC analogy), the term of imprisonment was increased from 12 to 13 years.

Court Disposition

Prosecution appeal allowed partially; accused's appeal to set aside whipping allowed; whipping set aside and imprisonment increased to 13 years.

Orders

  • Set aside order of whipping of 6 strokes as illegal under section 289(c) CPC
  • Increase imprisonment term from 12 years to 13 years in lieu of whipping