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Case Law Bank: Community service as an alternative sentencing.

Daniel Annamalai
Legal practitioner

  1. So, you may have heard of a case where a mother of 4 children was sentenced to 14 months in jail for stealing 2 packets of Milo. https://www.utusan.com.my/terkini/2022/07/suri-rumah-curi-milo-dipenjara-14-bulan/
  2. This decision was later overturned by the High Court and ordered for a retrial. https://www.freemalaysiatoday.com/category/nation/2022/07/19/woman-claims-trial-to-stealing-2-packets-of-milo/
  3. But, is imprisonment the only sentencing tool? 
  4. Certainly not.
  5. Today, we will be looking at community service as an alternative sentence.
  6. First, we’ll look at community service under Offenders Compulsory Attendance Act 1954 (Act 461).
  7. Then, we’ll take a look at the Criminal Procedure Code (CPC).

Community Service under Offenders Compulsory Attendance Act 1954 (Act 461)

  1. This statute provides an alternative to a sentence of imprisonment where the court makes a Compulsory Attendance Order.
  2. With this order, the offender has to attend daily at a Centre to be specified in the order and to undertake compulsory work for a period not exceeding 3 months and for such hours, not exceeding 4 hours, as may be specified in the order.
  3. It is important to take note of section 5 of the Act. 
  4. It renders that where a person has been convicted of an offence for which he is liable to be sentenced to imprisonment or is liable to be committed to prison for failure to pay a fine or debt, and the court is of the opinion that such person would have been adequately punished by a sentence of imprisonment for a period not exceeding 3 months, and having regard to the character of such person, the nature and seriousness of the offence or the circumstances of such person’s failure to pay (as the case may be) and all the other circumstances of the case, it is inexpedient to commit him (meaning to imprisonment), the court may in lieu of such sentence or committal, make a Compulsory Attendance Order (CAO).
  5. The obligations of the offender under the CAO is set out in section 6 of the Act which states: 6 (1) subject to the provisions of any Rules made under this Act and to the terms of the CAO, an offender shall, during the continuance in force of such Order report daily at such time and place as, having regard to the offender’s circumstances, the CAO may specify.(2) An offender shall each day undertake such compulsory work as may be ordered by the CAO officer, which shall be such work as can, in the opinion of that Officer, be completed by the offender having regard to his physical capacity during the number of hours specified in the CAO.(3) If an offender is gainfully occupied in employment, the time at which he is ordered to report daily under subsection (1) shall be such as not to interfere with such employment. (Gainfully employed here means that the offender who is subject to the CAO continues to be gainfully employed) 
  6. So, to put this into perspective, you may have heard of a case where two labourers sentenced to three-month jail by Sungai Siput Magistrate’s Court after they were caught fishing during the movement control order (MCO) to feed their families.
  7. The duo was sentenced and sent to Tapah Prison after pleading guilty to the offence before Magistrate when they were charged at the Sungai Siput Magistrate’s Court.
  8. According to the charge sheet, the duo, who were on a motorcycle, had gone to a pond in Rimba Panjang in Sungai Siput on April 2 at 5pm and were stopped by policemen, who were patrolling.
  9. The duo were charged under Rule 3(1) the Prevention and Control of Infectious Diseases Act 1988, which carries a RM1,000 or imprisonment not more than six months or both.
  10. This decision, however, was overturned at the High Court upon a revision application. The duo were ordered to perform community service.
  11. High Court Justice Muniandy Kannyappan meted out the alternative punishment in accordance with the provisions of the Offenders Compulsory Attendance Act 1954 and the duo were required to report to the Parole Department in Kuala Kangsar which will determine the type of community service to be performed for four hours a day over a three-month period.
  12. In accordance with the provisions of the Offenders Compulsory Attendance Act 1954, both Chin Chee Wei, 45, and Chong Poh Wah, 56, were required to report to the Parole Department in Kuala Kangsar which will determine the type of community service to be performed for four hours a day over a three-month period. (See: CHIN CHEE WEI & ANOR v PUBLIC PROSECUTOR [2020] MLJU 402)
  13. More examples are: Rapper Namewee got himself three months of CAO for trying to shame a TNB worker under Sec 509 of the Penal Code. And a wedding planner called Kiki got CAO as well, for damaging a man’s car with a steering lock.

Community Service Order under s. 293 CPC

  1. This is provided for under section 293 (1) (e) CPC. 
  2. As the section suggests, it is only applicable to youthful offenders, meaning those who are convicted of an offence punishable by fine or imprisonment who is of or above the age of 18 and below the age of 21. (see s. 2(1) CPC). 
  3. Community service means any work, service or course of instruction for the betterment of the public at large and includes, any work performed which involves payment to the prison or local authority. At times, the prison authorities engage in rendering services to its clients like supply of handicraft items, carpentry, painting etc.
  4. The community service shall be under the purview of the Minister responsible for community.
  5. The Community Service Order (CSO) requires the youthful offender to perform community service, not exceeding 240 hours in aggregate.
  6. The CSO will relate to such service which is of a specified nature and at such time and place subject to such conditions as may be specified by the court which makes the CSO.
  7. The CSO also syncs with the ultimate aim of the criminal justice system which is the reintegration of the offender into the society. This is again part and parcel of ‘restorative justice’.
  8. Tukiran Bin Taib v. Public Prosecutor [1955] 1 LNS 166 states: “It has been stressed by this Court that it is very desirable that young offenders, that is, offenders between the ages of 17 and 21 years, who are also first offenders, should be kept out of prison, if possible.”
  9. Baljit Singh Sindhu, ‘Amendments To The Criminal Procedure Code: Radical Or Piecemeal Legislation?’ [2007] 7 MLJ liii, at page lxviii states: “The section empowers the court to attach such conditions as it may specify when imposing an order for community service. The powers are very wide in nature and there is a fear that the powers would not be exercised properly by the judicial officers. There is suggestion that a proper guideline is formatted for the success of the program. The fact that the Community Service Order is something new in Malaysia, it is suggested that a proper outline is provided to the Magistrate to exercise such power.

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