Use of AI in sentencing breaches constitution? Lawyers entitled to opinion – CJ


Wong (right) and Tengku Maimun at a press conference yesterday.

KOTA KINABALU: Chief Judge of Sabah and Sarawak Tan Sri David Wong Dak Wah said lawyers are entitled to make whatever objection to the use of artificial intelligence (AI) for the first time in the Malaysian judicial system.

AI is a technology on a computer that gives recommendation on sentencing based on estimated probability percentage after analyzing the accused’s details that are keyed into the system.

“This is new too for the court and unless it is tested in the court, who would know? We would not know whether it is constitutional or not,” Wong said at a press conference after AI was used to aid sentencing for the first time by the courts here yesterday.

He said that since there has been a challenge, he did not think it is now proper for him or the Chief Justice Tan Sri Tengku Maimun Tuan Mat to say whether it’s constitutional or not because that would mean giving their views while in office.

“But when we launched it we expect this sort of challenge because anything new which may infringe the rule of law, constitution, we have to take the challenge as it comes,” he added.

Wong was commenting on an objection raised by probono counsel Hamid Ismail, who represented a man sentenced to 12 months’ jail by the Magistrate’s Court here after the accused admitted to possessing 0.01 gram of syabu at an unnumbered house at Kampung Kobusak in Penampang on December 16, 2019.

Hamid asserted that referring to AI in sentencing Dennis P. Modili breached Articles 5 (1) and 8 (1) of the Federal Constitution.

“The court should confine its mind to materials available in court, if we refer to statistics, those statistics must be available to the defence and the prosecution,” he submitted.

The lawyer pointed out that under the Criminal Procedure Code, there was no provision about AI, however, these two Articles 5 (1) require deprivation of life must be in accordance with the law while 8 (1) is about equality before the law, if the court were to impose sentence guided by AI machine it was not in accordance with law.

“I submit AI is a breach of two Articles, I pray the court to ignore AI machine, if the court minds to impose sentence, I hope court will follow decision of supreme court which is a case of Mohamed Abdullah Ang Swee Kang VS PP.

“Based on the said given case, court must look at overall picture in perspective by considering, firstly, the gravity of the type of the offence committed, secondly, the facts in the commission of the offence, thirdly, the presence or absence of mitigating factors, and fourthly the sentences that have been imposed in the past for similar offences to determine the trend of the sentencing policy if any,” explained Hamid.

Hamid argued that he was afraid that AI would suggest higher jail sentence so it would influence the court, he prayed to proceed sentence without looking at AI.

Magistrate Jessica Ombou Kakayun, who heard the case, ruled that the proceedings to proceed with AI since they were all there and to let the court decide on the sentence accordingly.

The magistrate also said that the suggestions put inside the AI ranged from the 2014 to 2019 database of Sabah and Sarawak High Court.

For this drug case, after parties submitted their mitigation and reply, whereby the prosecution informed the court that the accused had one previous conviction of consuming syabu and sentenced to RM2,000 fine, in default, eight months’ jail.

The magistrate then keyed in the accused’s details such as he was employed, aged 43, weight of the drug including the accused’s previous conviction.

“Given the parameters, the AI recommends imprisonment of 10 months, this is based on a higher estimated probability of 54.3 percent,” said the magistrate.

The accused was explained once again and he maintained his plea of guilty.

The magistrate added: “After hearing both parties and considering of recommendation of AI and based on decided case law, I sentence the accused to 12 months’ imprisonment from the date of his arrest on December 16, 2019, to run concurrently with his previous sentence”.

Meanwhile, Wong said yesterday was a momentous occasion for the Malaysian judicial system as it was the first to use AI technology to assist the courts in passing sentences.

“I think Malaysia judiciary is the first judicial body using AI for sentencing, that is why the Chief Justice is here. She has to witness what had happened today in court,” he said during a press conference after the court proceedings yesterday.

“We are happy that the accused was given a chance to maintain his plea of guilty after being told by the court that what was the likely sentence. In other words the accused was able to make an informed decision and he knew what was going to happen,” explained Wong.

He also said that compared to before, an accused only had an idea what was going to happen, so in their view this was an improvement to the judicial system.

“Because at the end of the day we just have to make sure that justice is delivered to the public,” he said.

Wong explained that Sarawak is part of Sabah and Sarawak High Court, so they are ready to start AI as well.

“What we doing here is all the sentencing given out are put into the machine, and the machine just analyses it and gives us the answers.

“If we don’t use the machine, the magistrate will take quite some time to go through the books and all that and if you do it manually, you may miss out but with the machine it would not miss out. The machine doesn’t get tired, whatever you put in, the machine will absorb and give us the recommendation,” said Wong.

“Emphasize only recommendation by the machine and the ultimate decision maker is still the person on the bench. It just makes it easier for the person sitting as the magistrate or sessions court judge and I can assure you this would lead to consistency of sentencing which the public had been complaining about,” he further said.

He also said that there is always disparity of sentencing between one court and the other court, so they would enhance the consistency of sentencing in this country.

Wong added that they are in the process of doing it for the civil side, that is for car accidents where the court awards damages for injuries to the victims.