WHEN an accused is guilty and convicted by the court, the court will proceed to impose sentence according to law. The sentence must be according to law.

The case of Jafa bin Daud (1981) explains the phrase “sentence according to law” as follows:

“A ‘sentence according to law’ means that the sentence must not only be within the ambit of the punishable section, but it must also be assessed and passed in accordance with established judicial principles.”

Essentially the types of sentences available under the law are – excluding death:

•  Imprisonment;

•  Whipping;

•  Fine;

•  Compensation order and costs;

•  Good behaviour bonds;

•  Police supervision;

•  Rehabilitative counselling;

•  Community service orders;

•  Orders in relation to children under the Child Act 2001.

The above types of sentences can be categorised as:

•  Corporal punishment – whipping [Sections 286, 287, 288, 289, 290, 291, 293 (1) (c) Criminal Procedure Code (CPC)];

•  Incarceration – imprisonment [Sections 282, 283 (1) (b) (iv), 283 (1) (c), 284, 292 CPC]

•  Supervisory – good behaviour bond [Sections 173A, 293 (1) (b), 294, 294A CPC]; community service order [Section 293 (1) (e) CPC]; police supervision [Sections 295, 296, 297 CPC], rehabilitative counselling [Section 295A CPC];

•  Pecuniary – fine [Section 2 (1), 283, 284 CPC]; compensation amount from the convicted person [Section 426, 432 CPC], costs of prosecution to be paid by the convicted person [Section 426, 432 CPC].

Sentences can also be categorised as:

•  Custodial – imprisonment; and

•  Non-custodial – good behaviour bond; community service order; police supervision; rehabilitative counselling.

So, what’s missing from the above?

No prizes for guessing house arrest, which may be defined as court-ordered confinement in one’s own home. The sentence is viewed as an important alternative to standard incarceration at various stages of the criminal justice process. https://www.britannica.com/topic/house-arrest

It is also called home detention or home confinement or in modern times, electronic monitoring (EM).

In the US, house arrest is a sentence in which offenders are ordered by the court to remain confined in their residences, usually allowed to leave only for medical and employment reasons. In at least 20 States, electronic bracelets are used to detect house-arrest violations.

In the UK, there is a scheme called Home Detention Curfew (HDC) which allows some convicted and sentenced persons to be released early from custody if they have a suitable address to go to. It is often called ‘tagging’ because an electronic tag has to be worn, normally around the ankle for EM. If one is on HDC, he or she will have rules to follow about where one can go and what time one must be back at home. This is known as a “curfew”. For example, he or she will normally be expected to be at the home address for 12 hours from 7pm to 7am. In rare cases, this curfew could be changed – for example if paid work falls within these hours.

The statutory requirements of the scheme are set out primarily in Section 246 of the Criminal Justice Act 2003. In other words, the law provides for it. 

In New Zealand, the law makes available home detention as both a punitive and rehabilitation sentence. The sentence requires an offender to remain at a suitable and approved residence at all times and be monitored 24 hours a day, seven days a week. The sentence is also subject to standard and special conditions. EM equipment will be at the approved address and monitored for the length of the sentence. 

There is no such sentence under the law in Malaysia.

A sentence must be according to law and a sentence of house arrest, or home detention or home confinement is not available under the law.

But did you know that a house can be a prison? – April 25, 2024.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.