PUTRAJAYA: Criminal lawyers have called on judges to use the law sparingly when they interfere with the punishments in the cases before them, especially when there are no appeals from the public prosecutor.

However, retired judge and former head of prosecution in the Attorney-General's Chambers Datuk Shaikh Daud Shaikh Mohd Ismail said the law allowed appellate courts to vary sentences.

Lawyers were commenting on recent Court of Appeal rulings which enhanced the jail terms and rotan for those convicted in the trial court, but whoa had appealed the sentence.

The appellate court said it invoked section 60 (2) of the Courts of Judicature Act (CJA) to mete out a deterrent sentence in the interest of justice.

Over the past two weeks, appellants in serious crimes such as rape, culpable homicide and causing grievous hurt got more than what they had bargained for.
In some cases, there were no cross appeals by the public prosecutors and the appellants were unrepresented.

Bar Council Criminal Practice Committee chairman Hisyam Teh Poh Teik said the provision under the CJA was an "extraordinary power" and the court should go slow, especially when there was no appeal from the public prosecutor.

"The exercise (to interfere in a sentence) should be conducted sparingly. No doubt the court has the power, but it should be used in extreme circumstances," he said.

Lawyer Gurbachan Singh said unrepresented appellants were at the mercy of the court and public prosecutors because they were ignorant of the law.

"They should not do the duty of the public prosecutor who had thought it fit not to appeal against sentence."

He said there could be reasons why the public prosecutor did not appeal.

Gurbachan said Article 145 of the Federal Constitution and section 376 of the Criminal Procedure Code (CPC) stated that the public prosecutor had the discretion to institute, conduct or discontinue any proceeding for an offence

"The court cannot question why an appeal was not lodged or why a specific charge was framed or reduced," he said.

Lawyer Datuk V. Sithambaram said a counsel would now advise his client to claim trial with the hope of securing an acquittal if the trend in the Court of Appeal was used as a yardstick.

He said, although plea bargaining had not been legalised, the defence and prosecution would often compare their evidence.

"The accused would agree to plead guilty on the understanding that the prosecution will not press for a deterrent sentence."

Sithambaram said no appeal would have been made since the prosecution had obtained a conviction.

He said a convicted person only appealed if the sentence exceeded expectations and as such an appellate court should not enhance the sentence.

Shaikh Daud, a former Court of Appeal judge, said normally an appellate court would only interfere if there was a cross appeal by the public prosecutor.

"However, depending on the circumstances and facts of the case, the court has the power under the CPC and the CJA to interfere to serve the interest of justice," he said.