A three-member bench chaired by Kamardin Hashim substituted Virendra Kumar’s charge to staying in the country beyond the approved period.
The amended charge under Section 15 (1)(c) of the Immigration Act allows the court to impose a fine of up to RM10,000, a maximum jail term of five years, or both.
“We agree with the submission by the counsel that the appellant had a visa that had expired,” Kamardin said.
However, he said the bench would set aside the caning but maintain the jail term for the amended charge.
Virendra, 24, came to Malaysia in January. He pleaded guilty in the Magistrate’s Court in July to staying in the country without a valid pass.
He was charged under Section 6(3) of the Immigration Act which provides a fine of up to RM10,000, jail of up to five years, or both plus a maximum six strokes of the cane.
The magistrate in Shah Alam sentenced him to four months’ jail and three strokes of the cane. He will now be allowed to return to his home country as he has finished serving his four-month jail term.
Lawyer A Srimurugan, who was assisted by K Ramu, had filed a criminal revision for a High Court judge to review the sentence of whipping.
He said whipping was not mandatory and should not be imposed as there was no element of violence in the offence committed.
However, the High Court dismissed the revision application, leading to an appeal filed in the Court of Appeal on a certificate of urgency.
Srimurugan said the matter must be heard quickly as Virendra’s jail term would end today.
“Prison officials want to execute the whipping by today, before sending him back home,” he said.
He urged the court to substitute the charge of staying in Malaysia beyond the approved period which has no provision for caning.
Deputy public prosecutor Nik Habri Muhamad did not object.
Srimurugan later told reporters that Virendra’s agent in Sibu had revealed that he entered the country with a visa to work on a merchant ship.
“He landed in Kuala Lumpur on transit before returning home, but lost his travel documents,” the lawyer said.