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 good behaviour instead of imprisonment. The prosecution did not contest this proposition. A bond of good behaviour is essentially a suspended sentence; the convict will not be sent to prison during the bond period. A bond is usually given for two years. If the convicted person stays out of trouble during that time – does not breach the peace – he will be a free person again. But if he breaches the bond, the court will arrest him and sentence him severely for the original offence.

However, I disagreed with the Judge’s decision deciding that the court retained a discretion to impose any other prison sentence, notwithstanding the stated minimum prison term. My view was if the court wanted to impose prison it had no choice but to sentence the offender to a minimum of five years. It has no discretion to impose ‘any sentence’ such as a fine or a one year prison sentence because section 6(1) of the Act did not provide for those; the only sentence that can be passed is imprisonment.

Additionally, the implication of the Judge’s interpretation of section 6(1) of the Act was that it undermined Parliament’s intention to increase the sentence for the offence (rightly or wrongly; I think, wrongly). What was the point of stipulating a minimum sentence if the court was not bound to it? This was the troubling consequence of the Judge’s interpretation.

Having said that, I’d like to think I understood the sentiment driving the Judge’s decision: we (I write this presumptuously, of course) are not happy with the minimum sentence stipulated for that offence; it is thoroughly disproportionate to the ‘harm’ done and fetters the court’s discretion to fashion an appropriate sentence. I’d also like to think we both agree the previous sentence of a maximum of two years was appropriate. A sentence of five to ten years, however, for simply possessing an offensive weapon simpliciter in a public place without lawful reasons is outrageous. This is not an offence for doing something with that offensive weapon; it is for simply bringing it around in public. As I have explained, all of us are potentially vulnerable to being prosecuted under this provision. I live in constant fear because I carry at least four fountain pens with me on an ordinary day and am learned in the ancient art of wounding with a fountain pen.

To add salt to wound, the punishment for voluntarily causing hurt pursuant to section 323 of the Penal Code is a maximum prison term of 1 year or a maximum fine of RM 2,000, or both. Our client will get a far lighter sentence if they punched someone instead of standing around a public place with a pocket knife tucked away deep in their special lining pocket doing nothing.

As I saw it both the Magistrates and the High Court were correct in their sentiments but erred on the law. I explained this to my friend and told him we will not be defending the High Court decision because the interpretation was indefensible. My strategy was to concede the High Court decision being incorrect and argued for a bond of good behaviour because I felt the facts allowed us a shot at it. He agreed and wished all of us luck for the hearing, which was scheduled on 7 April 2017.

As is customary with my appellate clients, the day of the hearing is usually the first time I meet them. It was the same with Hasan Ali. I saw him from afar. I was at the bar table; he in the dock. My friend ran communications between us where required. I usually leave the interview of the appellate criminal clients to my colleagues who will usually bring along a pupil or intern who are are usually keen on the prison visits.

There is usually no real need to interview the client for an appeal because the battle arena is the petition of appeal, record of appeal and submissions. Rarely is a client’s insight about what happened at the trial relevant for the appeal. That’s because the issue on appeal is different from the issue at trial. The primary issue at trial is are we certain he did it or not? The primary issue on appeal is did the trial judge commit any misdirection of law or perversity in fact finding or not? That can only be evident from the record and decided cases, not further testimony, of whatever kind. The primary issue at trial is a secondary issue on appeal. Only when the trial judge is shown to have committed a serious error of law or fact does an appellate court re-evaluate the trial court’s decision. Anything less than that will not suffice. However, if no serious error by the judge is shown, that is the end of the appeal.

It is a ceaseless source of pleasure and amazement when something happens precisely as I planned, imagined or hoped for. That was how the hearing went. The facts Hasan Ali pleaded guilty to were these:

On the afternoon of 14 April 2016, the complainant called the police to inform them he had detained Hasan Ali. The complainant said he identified Hasan Ali from CCTV footage as the person who stole his wife’s slippers and tried to steal some gold chains from a nearby temple the day before. The police visited the complainant and searched Hasan Ali. They found a 30cm knife in the bag he carried. His explanation was that he recently secured a job as a security guard for a water tank in Pandamaran. The knife was for his protection for the job. That was his first offence.

The Court of Appeal panel thankfully shared my sentiment (and my imagined sentiment of the High Court Judge) about the unreasonableness and harshness of the amended sentence. They refused to impose the minimum sentence given those facts. I recall during one exchange between the panel and the deputy public prosecutor, the chairing judge remarked: You want us to sentence him to five years for simply possessing a knife? Five years for just that is unreasonable. Very harsh. He hasn’t done anything.

The Court of Appeal allowed the appeal but substituted the sentence with a bond of good behaviour for 2 years with a sum of RM 2,000 in one surety, without security. That meant all the surety had to do was sign off on the bond, and Hasan Ali would be freed. I was pleased with the decision and began thinking about lunch.

My friend suggested we leave after sorting out Hasan Ali’s bond. He left to discuss that with the interpreter. While waiting, I went up to Hasan Ali to congratulate him and get to know him a little. He was a 35 year old Indian Muslim with education up to secondary school. He did many odd jobs because he could not find regular work. He was scrawny and unkempt. He looked sullen, pathetic, sickly and had scabs on his hands. He was not a talker. He spoke only when spoken to.

The bond took a while because they could not reach Hasan Ali’s mother or friends. His mobile phone was not returned to him. He could not remember their phone numbers. His attempts to remember proved futile. My friend’s attempt to get more information from the legal aid centre were not fruitful. He grew annoyed because if we could not resolve his surety by 1 pm, the prison officers were going to take him back to Sungai Buloh. He would remain there until someone stood as surety. So unless there was a surety, all our good work would have been for naught. We were running out of time.

We sat around the court around 12’ish thinking of Hasan Ali’s options when the second chance initiative floated into awareness. In truth, it was always lurking in the back of my mind but I suppose I had gotten so used to looking I almost forgot I was doing that not just for the sake of it but to find someone. It was about ten, eleven years since that incident by the time of Hasan Ali’s case. By then, I had my own firm, acquired an apartment near the office, saved a small sum to be deployed, and was on the lookout for someone who I felt deserved that chance. This time, if it came, I was ready.

When the hour drew close to 1 pm, I thought perhaps this was it and followed through. I requested the registrar’s permission to interview Hasan Ali to consider stepping in as his surety. It was allowed. The court police officer, a grandfatherly Malay chap with a contented look, escorted us into the holding cells in the basement of the Istana Kehakiman. It was my first time down there. It was a day of a many firsts.

My chat this time with Hasan Ali was a quick one because the transport for Sungai Buloh was about to go soon. He had no work. He was not happy staying with his mother because of his stepfather. He was not part of a gang. He was looking for steady work but no one would hire him because he had no qualifications. Guarding the water tank was his first decent job in months of looking for one. He pleaded guilty because the knife was his and he kept it for protection. It was his first conviction.

My terms were: he would work as a dispatch or driver for me for two years for minimum wage and stay in accommodation I provided; he could get in touch with his friends or acquaintances but only with my permission – I wanted to gauge whom he hung around; and he should take up a course – vocational or otherwise to acquire a skill.

He agreed to all my terms. We shook on it. His hand was coarse and scabbed in parts. A smile broke on his face. He thanked me with glassy eyes. The police officer, who was with us, urged Hasan Ali to be grateful for his good fortune. The police officer told me he never heard a lawyer stand surety for a convict before.

It felt good to hear that. It felt like suddenly feeling the presence of an object in a pitch dark room I was lost in. It was a bearing. It also so happened the apartment I acquired for the initiative was available at the time; that fortified me that perhaps I was on the right track. It was as if I came across another object in that pitch dark room. It all had a sense of, what I like to call, ‘a planet-aligned moment’; things lined up as I hoped for though I am powerless to affect anything about it. It is not I that make the planets align, I merely have a witness’ privilege.

By the time we settled the bond, it was well past lunch. I wanted to skip it altogether because I wanted to get Hasan Ali medically examined; he was scratching his head, body and hands too often. Hasan Ali followed me back to the office where I quickly introduced him to my retinue of initially stunned lawyers (I had no staff then) who then welcomed him warmly. After the introductions, I had my pupil take him to the clinic. It turned out the itching was due to scabies he picked up from prison. He was given medication to treat it. By night, we managed to pick up enough things to provide the basics for him to settle in the main room of the apartment, which was a five minute walk from our office.

We met again the next day to buy the rest of the things to provide a little bit more comfort for him in the apartment. I told him to settle down and rest up on Sunday. He was to report for work on Monday. Finally, after more than a decade, the second chance initiative was up and running.