Sentences said and given

The 28th of July will be a day all Malaysians, and perhaps friends of other nationalities will remember. It is the end of a daunting trial where former (emphasis duly added) Prime Minister of Malaysia, Najib Razak, has been convicted of crimes related to misuse of public funds and government corruption, namely:

a) one count of abuse of power under s23 of the Malaysian Anti-Corruption Commission Act 2009, b) three counts of criminal breach of trust (CBT) under s409 of the Penal Code, and c) three counts of money laundering under s4 of the Anti Money Laundering, Anti Terrorism Financing and Proceeds from Unlawful Activity Act 2001. It is relieving that the law has finally caught up to Najib, especially in light of the acquittal of former Sabah Chief Minister Musa Aman and a ‘discharge not amounting to an acquittal’ of Najib’s Stepson Riza Aziz (the latter being slightly more palatable but intuitively may not commensurate with one’s sense of justice). Malaysian’s can take a breath of relief seeing that one of the ‘big sharks’ has been brought to justice.

For clarification, sentencing is the stage after which a conviction has been set out. In Malaysia, sentencing may take three forms, namely: a) imprisonment, b) fine or c) whipping or a combination of them. It is a) and b) that are prescribed by the law for the crimes Najib has been involved in. As Najib was charged with seven counts, it would make sense that he is sentenced with 7 different types of sentences. Let me set them out in detail:

Surely these sentences took a few sentences to write! (Haha). However, some may raise an eyebrow at what Justice Mohd Nazlan Mohd Ghazali said with respect to Najib’s sentence. "The sentences are to run concurrently," he said. What does sentencing “concurrently” mean and should the Malaysian people be concerned that it does not accord with justice? The purpose of this post is to illuminate the rakyat with the rules on sentencing, a much debated area with a clear answer far out of reach, and let you decide.

Concurrent and consecutive Sentences

Concurrent sentences are those where the terms of imprisonment run at the same time. This is opposed to consecutive sentences where the terms of imprisonment run one after the other. The table below shows the result that would be produced depending on which sentencing practice is followed.

The (!) serves to mimic the likely initial response when one realizes the implications of this for Najib’s sentence. It means he will be sentenced only for 12 years, the highest imprisonment term corresponding to the most serious crime he committed, i.e. abuse of power. Some may be appalled as to why Najib was not sentenced with the cumulative 72 years. How great is a discount of 60 years! As Julian Roberts, a Professor of Criminology at Oxford Centre for Criminology has noted, consecutive sentencing is often favoured for its “intuitive appeal and simplicity”. However, he goes on to state that many jurisdictions do not adopt this for the simple reason of the totality principle.

The totality principle

The totality principle is one which takes into account multiple factors when deciding the length of a sentence such as i) whether the sentence is proportionate, ii) behaviour of the convicted, and/or iii) prospects of reoffending among other things. It is the nature of sentencing and justice that requires judges in most jurisdictions to evaluate multiple factors to ‘tailor’ a sentence for each particular person, so as not to be too harsh or too lenient. It is self-evident that it is not an exact science. One point to take away though, is that a cumulative sentence may be too harsh for someone. Perhaps not Najib according to the popular sentiment, one I agree with in light of all the racial division he caused as well as his unrepentant state (even though I rarely find myself agreeing with the populist rhetoric). Yet, surely Najib cannot live out the whole 72 years - he is already in his sixties - and in the unlikely scenario that he becomes once again infamous for being the one of the oldest men in the world, a 72 year sentence is illogical if we want his sentence to be proportionate. Personally, I favour a higher fine as I think it better commensurates to his act of ‘robbing the people’, but I refrain from going further less I go beyond the scope of this article.

Malaysian jurisdiction

The High Court in Malaysia (the tier at which Najib was tried and convicted) may apply both a consecutive or concurrent approach to sentencing. For a brief period of time, Malaysian criminal law could have taken only a consecutive approach to sentencing. S8 of the Criminal Procedure Code (Amendment) Act 2013 states:

The amendment came as a public outcry with respect to the rape of minors being too lenient, as crimes of the same “nature” would be sentenced in a single “transaction” as the Star put it. Back to our case, Najib’s offences are criminal in nature and a concurrent approach to sentencing would have been ousted if the amendment had gotten through. But as I accessed the Criminal Procedure Code today on the 28th of July 2020 (remember this momentous date), I find a lacking of s282(e).

The arguments for and against, and a possible middle ground

Towards the end of this article, allow me to rehearse the theoretical arguments for and against consecutive and concurrent sentences once more, largely borrowing from the aforementioned Julian Roberts’ account.

Consecutive sentences risks violating the totality principle, if the sum fails to be proportionate in the sense that it is too harsh than the individual sentence. Concurrent sentences prevent this outcome but risk depreciating the individual sentences and allow the convict to be ‘paid back’ with all the crimes committed ‘at one point of time’. The result would have been different if the crime was committed over a span of time, for example when offenders reoffend and are given new sentence for the new crime they have committed.

Perhaps a middle point would be to follow the sentencing practice in the Singaporean appeal case of

[Public Prosecutor v Raveen Balakrishnan [2018] SGHC 148](https://www.supremecourt.gov.sg/docs/default-source/default-document-library/ma-9330-2017---raveen-balakrishnan-v-pp---smu-case-brief-(final).pdf) where the Singaporean Supreme Court applied a consecutive approach but reduced the length of the second sentence from 2 years to 1 year (which reduced a total of 5.5 years imprisonment to 4.5 years). The sentencing factors in that case defer from Najib’s, for example the criminals youth and prospect for reform was considered. Najib is neither young and nor showing any prospect for reform (he is adamant to state his innocence and even turns to religion to do so). Regardless, the point I want to make is that there is a middle point, perhaps about 30 years or so, which the judge could have considered instead of a concurrent approach. This would ensure effective life imprisonment for Najib (coupled with a reasonable value of fine). Since there is no minimum term of imprisonment, and a rather high maximum terms of imprisonment - 20 years under s24 of the Malaysian Anti-Corruption Commission Act 2009 as well as under s409 of the Penal Code, and a slightly less flexible 5 years under s4 of the Anti Terrorism Financing and Proceeds from Unlawful Activity Act 2001 - the Malaysian courts have room to apply the “middle ground” approach as the Singaporean Supreme Court did.

That said, the rakyat should be grateful that justice is finally served to Najib. The division, despondence, and disillusionment Najib has caused will be well remembered by all, but him receiving just retribution may be a springboard to reparation of our racial, communal and political ties.

P.S. If Najib were to appeal

Some have expressed concern that Najib may appeal the decision of his conviction to the Court of Appeal. Of course, an appeal could go either way and the outcome, like the future, is uncertain. For now, readers may want to keep informed by understanding s50 of the Courts of Judicature Act 1964, which governs the criminal jurisdiction of the Court of Appeal and contains the process and grounds that Najib’s counsel may raise in their appeal case. Do take advantage of the transparency of the law that pertains to court procedure and access to justice by clicking the hyperlink above.

_For those who are keen to know more about sentencing in Malaysia, AskLegal.MY has a really useful article which sets out the law and the theoretical reasoning on criminal sentencing in Malaysia in general.*