Wrong place for whipping

A criminal lawyer says Judge Ahmad of the Kajang court erred in ordering caning in open court.

KUALA LUMPUR: The Kajang Sessions Court gave the country quite a surprise last week when Judge Ahmad Bache ordered the caning of two young men in his court in the presence of members of the public.

The two were guilty of robbery. Mohamed Shaznee Jahn Mohamed Yasin, a 19-year-old student, received seven lashes, while Redzohaan Abdullah, 20, an entertainment centre caretaker, got eight. According to news reports, a light cane was used in the whipping, administered by a Kajang Prison officer.

Criminal lawyer S N Nair believes the judge had erred in interpreting the law with regard to whipping.

“In fairness to the learned judge, I believe he did not do what he did with any ill intent, but had misinterpreted the law, and the judiciary must reprimand him accordingly in order to maintain its current momentum in securing public confidence,” he said.

Nair, a former lawyer for Opposition Leader Anwar Ibrahim, explained that the execution of the sentence of whipping in open court in public view is an explicit breach of the provisions of Section 286 of the Criminal Procedure Code (CPC).

Section 286 states that “when the accused is sentenced to whipping only, the sentence shall be executed at such place and time as the court may direct.”

Nair noted the emphasis on “whipping only” and said “that is not the case here, as the two were sentenced to whipping and imprisonment.”

According to him, the judge misread the law and wrongly ordered the caning in open court as the place to execute the sentence.

“To make matters worse, he misunderstood ‘whipping’ as ‘public whipping’. The law does not specify public whipping,” he said.

“It is imperative and clearly mandatory in law that the execution of such sentences as caning and hanging be carried out in the inner sanctums of the prisons only.”

He explained that by the dictates of modern law practice and procedures, the execution of sentences such as caning or hanging must be carried out in prison under lawfully sanctioned procedures in a prescribed environment.

“The judge has seriously erred in law as he has indeed ordered a public whipping in an open court and in the public view when he was not empowered to do so,” Nair said. “It is indeed most unfortunate that the learned Judge has inadvertently erred in his interpretation of the law.”

Nair emphasised his belief that the judiciary has lately transformed for the better. “I wish to reiterate that, on the whole, the judiciary has certainly transformed in recent years and has shown great courage and judicial independence,” he said.

He mentioned decisions such as the High Court acquittal of Anwar in Sodomy 2, the recent Court of Appeal’s “bold and far reaching decision” on transgender rights and opposition politician Tian Chua’s acquittal from a sedition charge.

He singled out Judge Lee Swee Seng of the Ipoh High Court for praise, saying he performed “perhaps the bravest act by a judge in recent times” when, last September, he granted kindergarten teacher M Indira Gandhi a mandamus order to compel the Inspector-General of Police to arrest her Muslim convert ex-husband and to find her youngest child.

In reference to last week’s caning, he said, “It is most unfortunate that such an isolated incident has taken place and it must be condemned.

“Unfortunately, the two convicted persons have no legal recourse, as one cannot sue judges, protected as they are by the veil of immunity.”

Mohamed Shaznee was found guilty of robbing Teo Len Hoo, 51, of RM418 while armed with a stick at an Internet cafe at Plaza Usahawan, Jalan Genting Klang, Setapak, on November 24 last year.

He was sentenced to 18 months’ jail and seven lashes of the cane last September 4.

Redzohaan was found guilty of robbing Martin Iyan, 37, of RM300, a tablet computer, a smartphone and an identity card. He was armed with a machete. The crime was committed at a 24-hour convenience store located in Jalan Ipoh, Kuala Lumpur, last January 31. He was sentenced last August 21 to two years’ jail and eight lashes of the cane.

Mohamed Shaznee is due for release next Monday while Redzohaan is scheduled to be released on June 6 next year.