KUALA LUMPUR - The High Court ruled yesterday that a judge cannot play the role of executioner and set aside the caning sentence imposed on an armed robber.

In making the ruling, High Court judge Datuk Mohamad Zabidin Mohd Diah said Sessions Court judge Zainal Abidin Kamarudin had erred when he sentenced sales promoter Muhammad Syafiq Ab Wahab to 200 hours of community service together with 10 strokes of a light cane.

In his decision on June 26, Zainal Abidin had also said that he would personally execute the caning within the court premises on July 15.

In his ruling yesterday, Zabidin said: "If it was the only sentence imposed, there would be nothing illegal about it, as long as the judge does not carry out the caning himself.

"This is for the obvious reason that the judge is not supposed to be an executioner at the same time," he said, adding that unless there were rules in place, it was hard to envisage how this order of caning could be carried out.

Instead, he ordered that Syafiq be only sentenced to 200 hours of community service.

Zabidin also said the High Court must be careful in invoking its discretionary powers to interfere in any sentence legally imposed, particularly when the parties involved had shown that they had accepted the sentence by not filing an appeal.

He also said that the judge had erred when he made the order of caning together with community service and said that he was only empowered to impose one of the five options stated under Section 293 of the Criminal Procedure Code. He said that combining the sentence of caning and community service made the sentence illegal.

After setting aside the caning order, Zabidin remitted the case back to the lower court to address the issue of community service.

He ordered that the case be mentioned today at Sessions Court 6 for the judge to seek advice from welfare officers on the various community service programmes available.

Earlier, deputy public prosecutor Yaacub Chik, Syafiq's lawyer Nik Mohamed Ikhwan Nik Mahamud, Datuk N.

Sivananthan, who held a watching brief for the Kuala Lumpur Bar Committee's criminal practice committee, and Edmund Bon, who was the watching brief counsel for the KL Bar, took the common ground by submitting that the sentence of community service was appropriate.

Syafiq had pleaded guilty to robbing a student, Muhammad Fitri Muhammad Zamzuri, 16, of his identification card and handphone using a knife behind the Cheras football stadium at 1.30am on Nov 16 last year.

--NST