KOTA KINABALU: The High Court here yesterday upheld the five months’ jail sentence imposed on a policeman for failing to attend duty.
Justice Datuk David Wong Dak Wah dismissed Constable Abg Abd Rahman Abg Zainal Abidin’s appeal against his conviction and the custodial sentence imposed by the Magistrate’s Court in Kudat on him two years ago.
The 31 year-old appellant, who was represented by counsel Hamid Ismail, was ordered to serve the jail term from yesterday after the court rejected his application for a stay of the execution pending leave to appeal against the decision to the Court of Appeal.
On Jan 9, 2009, the Magistrate’s Court sentenced Abg Abd Rahman to five months in jail after finding him guilty of failing to attend duty at Kerakit police station in Kudat for 21 consecutive days, from May 25 to June 14, 2006.
He was tried under Section 86 (1) of the Police Act which carries a jail term of up to 12 months upon conviction.
In his submissions, Hamid told the court that the Magistrate’s Court, among others, did not subject the prosecution evidence to maximum evaluation test at the end of the prosecution’s case.
“The prosecution evidence did not prove the essential element of the charge about the 21 days. Hence, there was no prima facie case established against the accused,” Hamid said.
He added that the lower court had also dealt with the appellant’s defence wrongly.
“If she (the magistrate) had considered it properly, she would have found that the accused had explained his absence and accordingly, his absense was with reasonable cause,” he said, adding that the sentence imposed on the appellant was manifestly excessive.
“The appellant prays that his conviction and sentence be set aside. In the alternative, in the event the conviction is upheld, the appellant prays that his sentence be amended to bond of good behaviour or the imprisonment sentence term be reduced,” Hamid added.
In rebuting Hamid’s submissions, deputy public prosecutor Zairi Zainal Abidin submitted that the oral and documentary evidence tendered by the prosecution were sufficient to establish the fact that the appellant had been absent for a continuous period of 21 days.
“It is humbly submitted that the learned magistrate had duly considered carefully the evidence laid down before her by the defence before coming to her decision in convicting the appellant of the offence committed,” Zairi said.
As to the issue of sentence, Zairi submitted that the magistrate had imposed a proper and appropriate sentence against the appellant.
“The learned magistrate was correct in fact and in law and had considered all the circumstances and the nature of the offence,” said Zairi who urged the court not to disturb the conviction and the sentence imposed by the lower court on the appellant.
In dismissing Abg Abd Rahman’s appeal, David said that the appellant had not shown that the decision by the magistrate was a decision which no reasonable tribunal would have reached.
“The evidence in my view is such that it has reached a level that the prosecution has proved its case beyond reasonable doubt.
“The evidence of the appellant has been dealt with by the magistrate, again, I see no reason to disturb it though she may have used language which may imply that the appellant had a burden to prove his innocence,” he said.
As for the sentence, David said he also found no reason to disturb it as a message must be sent to the society and the police force that the court viewed such offence seriously.
“It is serious as strict discipline is required in the police force who are the guardian of public safety in this country.
“The fact that the appellant did not bother to send a message to his superior (which was an easy thing to do) shows that he lacks the discipline and also disrespect to the regulations which he is bound by,” he added.