FYI according to the NST, Dr Basmullah Yusom has earned the dubious distinction of being the first person in the country to be convicted under the Private Healthcare Facilities and Services Act 1998. [Dr. Basmullah Yusom is a USM graduate, attained MMC registration in 1990 and as of 2008 still holds a valid APC].

“Dr Basmullah, 44, had been operating the Al-Hilal Medical Centre Sdn Bhd at No 55, Jalan 5/76B, Desa Pandan, off Jalan Kampung Pandan, since 1998. The father of eight, who was charged on Dec 13 last year, had pleaded guilty to committing the offence at the premises at 10pm on July 11 last year.
Sentencing was fixed for yesterday. Under the act, he was liable to a maximum fine of RM500,000.
In mitigation, Dr Basmullah, who was unrepresented, pleaded for leniency, saying he did not register his clinic as he wanted to sell it and that he was not the only person running the clinic.
“I have financial problems and I still have to pay RM7,000 for the clinic and RM10,000 in personal loan,” he said.
Under the act, he was liable to a maximum fine of RM500,000.
Dr Basmullah said he had since moved to Putrajaya claiming it was cheaper to live there and that he had sold his car and was using a motorcycle”.

DPP Norfiza Mohamed Noordin from the Health Ministry pressed for a deterrent sentence.“Unlicensed clinics make it hard for the ministry to monitor them to ensure that they do not illegally sell drugs or conduct illegal abortions. This is to ensure public safety.
“Being busy and having financial problems are not excuses for not registering the clinic,” she said.

Judge S.M. Komathy Suppiah fined Dr Basmullah RM120,000 or three months’ jail.

I’ve got nothing to say about the conviction because good or bad there is a Private Healthcare Facilities and Services Act 1998 (“PHFSA”) and, whatever the merits or demerits of PHFSA and no matter that there are loopholes in it that the Ministry of Health, Medical Council & Profession have to iron out, it is still law, and an offence under it for Dr. Basmullah not to register the private clinic.

I also cannot understand why an educated doctor like him cannot just walk to the banks and raise a collateral free loan to pay for the license which I dont think cost a big amount. Nowadays the banks even push all kinds of credit cards to uninterested consumers and it is something baffling that a professional man, no matter how poor or unsucessful, could not raise or borrow the amount equivalent to the cost of licensing his private clinic.

But all these aside, I have to admit that I can neither understand nor agree with the sentencing principles applied here in the name of deterrence.

If maximum fine is RM500,000 why was a fine RM120,000 imposed and not (say) RM12,000-00? Where was the figure RM120,000 plucked from? It cannot be from some precedents because this is first conviction under the PHFSA. Yet sentencing is guided by established principles and guidelines. It cannot be arbitrary. Itr must take into account relevant factors where punishment bears proportion to the gravity of the offence.

Has the appropriate weight being attached to relevant mitigating or exacerbating factors?

Lets look at the policy considerations and public interest considerations raised by the DPP – she said “Unlicensed clinics make it hard for the ministry to monitor them to ensure that they do not illegally sell drugs or conduct illegal abortions. This is to ensure public safety”.

Yeah but was the offence of Dr. Basmullah who ran unlicensed clinic exacerbated by any evidence showing that he illegally sold drugs or conducted illegal abortions? He already said that he wanted to sell the clinic and that he was not the only person running the clinic.

Has there been any attempt to verify or prove his claims which could be mitigating? No doubt it is not the job of judge or DPP to help him prove it but this doctor had no legal representation (ostensibly he could not afford one) but has he been referred to Legal Aid or given advice to seek legal help?

Also if the legislative intent of regulation under PHFSA is to flush out bogus doctors and charlatans why wasn’t it an important mitigating factor for this offender that he was, at the time of offence, a qualified licensed medical practitioner with APC and not fly by night bogus charlatan?

Sure the DPP said, “being busy and having financial problems are not excuses for not registering the clinic” but universally being “first offender” – I assume he is one – is certainly a crucial mitigating factor.

One does not sentence a first offender with such alacrity to jail – even for 3 months – and expose an otherwise law abiding citizen, and a doctor at that, serving the community, to criminal elements in Kajang Prison who may brutalise or sodomise him, pass him HIV, teach him the ways of making a better living via crime than an unlucrative medical practice etc

Lets look at the policy considerations and public interest considerations raised by the DPP – “Unlicensed clinics make it hard for the ministry to monitor them to ensure that they do not illegally sell drugs or conduct illegal abortions. This is to ensure public safety”.

Asking him to appeal does not help. Has he got money to hire a lawyer to appeal on his behalf within prescribed time as regards sentencing? For an appeal the judge must write a judgment on why he sentenced such, and what happens if such a written judgment is available only after 3 months longer than the time it takes for him to serve the sentence?

There could in my opinion be a grave injustice in this case regarding sentencing and punishment and Dr Basmullah appears to have been severely prejudiced by the lack of legal representation due to his alleged lack of money to appoint counsel. Something is wrong with a system where lack of money leads to no access to legal representation and loss of liberty.

I am not too clear about our Attorney general’s powers and discretion but in an exceptional case like this highlighted by media that he may have overlooked, does he not have a function and role to intercede even at this juncture if public interest requires him to intervene on the side of justice?

Politicians on both side of divide lament on crime surge : they should highlight this case. It does not serve justice or make sense to compound overcrowding of prison by sending an otherwise law abiding professional to jail to mix with criminals and learn the trade in this university of crime so that he could come out, unable then to ply his professional trade due to this custodial sentence & conviction and to have to eke a living to support his family by joining the ranks of the ever expanding group of criminals, snatch theievs, robbers and burglars threatening the community.

Conjugal visits ? Maybe for VIP multimillionaire prisoners who help redistribute wealth for favours…. A cell of l0ft by 8 ft cell, which is 10 ft. high, although don’t know the exact no. of inmates in one cell in Kajang prison.

Although there are standard prison rules regulating admin of prison but are they are enforced? Malaysian prisons generally well known to be overcrowded with no separate toilet facilities for privacy. Toilet is not a flush toilet but the pour-water type, and when the pipes are choked, which is not an unusual occurrence, the sewers will flood the cell! According to hearsay, lucky to be able to lie down on wooden plank to sleep with cockroaches crawling over your naked body ; otherwise have to couch or sleep standing up if 4 – 6 crowd in one small cell, sweaty in this climate smelly little ventilation, both local and foreigners share cell. Food maybe a bit of rice, curry little meat, often stale.toilet is not a flush toilet but the pour-water type, and when the pipes are choked, which is not an unusual occurrence, the sewers will flood the cell! Youi lose more than 10 Kg in 2 week stay! Infectious diseases spread. (Medical attention is given in manifested serious cases). Re sub-culture within prison, one has to survive by ingratiating gang leaders or certain prison warden and guards. I am sure rape is not infrequent though details/information not made known.

Or Dr. Basmullah may get some preferential treatment if prison warders find use in his physician’s skills to help some of the sick in prisons?