Court Rejects Appeal Against 'Small' Fines
By Rol Ezam

Bandar Seri Begawan - The Court of Appeal yesterday dismissed the appeal made by the prosecution against fines imposed by the Chief Justice in October last year on a 70-yearold former head village for two offences of Criminal Breach of Trust.

The prosecution had found the sentence manifestly inadequate and did not have sufficient deterrent or retributive effect. "It was necessary for the Chief Justice to assess the proper level of fines to impose. For this he had to rely on the information about respondent's lack of means to which we have referred. This was not challenged by the prosecution at trial and was accepted by the judge who sentenced accordingly.

There is no suggestion that the information put forward was inaccurate," said the Court of Appeal Judge. "In passing we note that if matters such as these put forward in mitigation are not accepted by the prosecution it is necessary for counsel to raise the issue before sentence so that the judge may deal with it.

"This court has had no further evidence upon the respondent's means. Counsel asks this court to compare the money embezzled with the level of fines to hold that they were insufficient punishment. Although this comparison is relevant in the absence of evidence of means, when there is reliable evidence, the judge must sentence accordingly. The level of punishment imposed by a fine is dependent upon the wealth or otherwise of the defendant. A small fine upon a poor man may be heavy punishment whereas a substantial fine on a man of means may be trifling.

"Bearing in mind his means and the substantial mitigation advanced, this court cannot hold that the fines imposed in this case were other than appropriate punishment upon the respondent for the offences he committed, even though in the absence of a full knowledge of the circumstances they appear lenient," said the Judge before dismissing the appeal.

The respondent, Hj Anuar bin Hj Mohd. Tahir pleaded guilty to two offences of Criminal Breach of Trust contrary to Section 406 of the Penal Code, Cap 22. The first was committed from January 2001 to December 2001 involving a total of $9,000. The second took place from January 2002 to March 2002 involving $3,400. The total was $12,400.

On the first count, the Chief Justice fined the Wspondent $700 with six month's imprisonment in default, and on the second he fined him $300 with six months in jail in default, and ordered the sentences to be concurrent. Deputy Public Prosecutor Aldila Hj Mohd Salleh appeared for the Public Prosecutor.-- Courtesy of Borneo Bulletin

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