Chin Wei Ling (AB-45A-20-12/2023)

The charge against the Appellant was as follows: “Bahawa kamu bersama-sama pada 07.03.2023 jam lebih kurang 11.10 malam, bertempat di alamat No. 55, Jalan Kamunting Bestari, Lorong KB 4/4 Kamunting, 34600 Taiping, dalam daerah Larut Matang & Selama, 30 dalam Negeri Perak Darul Ridzuan, bagi mencapai niat bersama didapati 2 mengedar dadah berbahaya seberat 222.5 gram Methamphetamine dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama dan dibaca bersama seksyen 34 Kanun Keseksaan.” 5

The Appellant was first brought to Court on 13.2.2024 and she pleaded guilty to the charge preferred by the Deputy Public Prosecutor (DPP). The other person who was charged with her was the second accused by the name of Beh Hung Tiong, who pleaded not guilty to the 10 charge. The Appellant was represented by a counsel of her choice and the Court was informed that a representation had been made to the Attorney General’s Chambers in regard to the charge. Therefore, the Court fixed 14.3.2024 for mention. On the stipulated date, the DPP informed the Court that he had not received any instructions yet from 15 headquarters. The Court fixed the next mention date on 1.4.2024 and told the DPP that if the representation has been accepted, the prosecution should be ready with the Facts of the Case and exhibits by that date.

On 1.4.2024, the prosecution informed the Court that the case was 20 ready to proceed. The charge under s.39B(1)(a) of the DDA was re-read to the Appellant in Mandarin and she maintained her unqualified plea of guilt on the original charge. When the facts of the case were read out and explained to the Appellant (P3) in Mandarin, she agreed to the facts presented by the DPP with no amendments, except for the mistake in her 25 identity card number. The DPP then proceeded to identification and marking of the exhibits which, needless to say, were all admitted to by the Appellant. It was a pretty straightforward case of dangerous drugs found in a room in a house and at that time, the Appellant and the second accused were present in the house; hence both were charged in court. 30 FACTS OF THE CASE [5] On 7.3.2023 at 11.10 pm, Insp. Tayalan A/L Muthirulandi Servai together with his team from the Bahagian Siasatan Jenayah Narkotik, IPD Taiping (Raiding Officer) had gone to the house No. 55, Jalan Kamunting Bestari, Lorong KB 4/4 Kamunting, 34600 Taiping. Upon their arrival 5 there, Insp Tayalan found the front door was open whereas the door-grill was closed and locked. He saw a Chinese woman, i.e. the Appellant and a Chinese man (later identified as the second accused) sitting on the sofa in the lounge of the house. Insp. Tayalan identified himself as police and directed the occupants to open the door-grill. But the woman got up and 10 ran towards the back of the house whereas the second accused took the house key from the lounge and opened the lock of the door-grill. Insp. Tayalan detained the second accused and brought him to the back of the house where he saw a room and found the Appellant there. 15 [6] Insp. Tayalan conducted a body search upon the second accused but did not find anything illegal on him. He made a search in the room and found on the floor under a table, a yellow-coloured plastic bag containing a total of 70 blue-coloured plastic packets (7 stacks of 10 plastic bags tied with a rubber band), where each packet contained “Yaba” pills. The 20 raiding officer then arrested the couple and seized the pills in order to bring them to the Taiping police station (IPD Taiping). He completed 2 separate Borang Bongkar at the scene (later marked as P24) and then brought the 2 persons to the IPD Taiping for documentation. A police report was made as per Kamunting Report 1377/23 pertaining to the 25 seizure and arrest. and Insp. Tayalan

Upon reaching the IPD, Insp. Mohd Azree Bin Ahmad took over the conduct of the matter at 3.30 am on 8.3.2023. The Investigating Officer 4 marked the seized drugs and other items with his own markings, and took photographs. The Borang Akuan Serah Barang Kes and 2 Borang Bongkar were received together with the seized drugs and other items. I shall not belabour the Judges of the Court of Appeal with the marking od the exhibits that had been tendered except for 2 documents that were 5 seized from a room at the back of the house in which the Appellant had been arrested. One was a Borang Pemasangan Peranti bearing the name of the Appellant and valid for the period of 13.1.2021 to 12.1.2023 (marked as P22) and a bank statement from Hong Leong Bank dated 13.1.2021 also bearing the Appellant’s name (marked as P24). The purpose of 10 tendering these documents was to show that the Appellant lived in the house, in the room where the seized drugs were found.

The Investigating Officer kept all the exhibits in his locked cabinet in the room and had also been to the house to take photographs. The seized 15 drugs were sent to the Chemistry Department in Ipoh and handed over to the Chemist, Ramlee Bin Ibrahim on 10.3.2023 for analysis. The registration number of the drugs was 23-FR-A-01669 (P17). The result of the analysis was obtained by the Investigating Officer on 2.10.2023 and it was confirmed that the contents of the 70 blue plastic packets (marked as 20 P18B (1-70)) was a total of 222.5 grammes of Methamphetamine, a dangerous drug listed in the First Schedule of the DDA. Overall, the Court was satisfied from the facts of the case that the Appellant had custody and control of the dangerous drugs seized from the back room where she was arrested by the police and that the chain of custody of the dangerous 25 drugs was not broken. The Investigating Officer also seized some personal items from the house on 14.3.2023 and sent them to the Chemistry Department. The result was obtained on 20.11.2023 (P18). SENTENCE [9] As the Appellant had admitted all the exhibits, the Court found her guilty and convicted her for an offence under s. 39B(1)(a) of the DDA. The mitigation plea was made by Counsel for the Appellant. The Court was told that the Appellant was 36 years old, a single mother with 2 children 5 aged 14 and 12 years. Her children were being cared for in a charity home in Simpang, Taiping. She had a business selling drinks from her house. The Appellant had tendered her s.112 CPC statement wherein she admitted that she was a drug addict and she lived in that house (rented). 10 [10] The Court was urged to impose a lenient sentence as her plea of guilt had saved the Court’s time and costs. She asked to be given a second chance as her children were still young and she had regretted her actions and was filled with remorse. The Appellant also apologised to the second accused and his family for the hardship caused to them due to his 15 arrest. He was an “innocent bystander” as he had gone to her house to discuss some business with the Appellant on that fateful day. Therefore, the Appellant was ready to be punished for her crime. The Court was told that their statements to the police were consistent with one another. The Appellant said the drugs were given to her by one Poh Hong Boon (Ah 20 Bee) to be kept and after her arrest, she had helped the police to arrest him. As it was a non-violent crime, the Court was urged to impose a short sentence and to be backdated from the date of arrest.

The DPP in his reply urged the Court to pass a sentence 25 commensurate with the offence as it concerned the issue of public interest. Moreover, the weight of the drugs was quite substantive and therefore, the Court should balance the public interest against the interest of the Appellant in imposing a suitable sentence.

For the record, the second accused’s representation was accepted by the prosecution and the charge against him was withdrawn on 2.7.2024. Hence, the Court acquitted and discharged him on that day.

This appeal is only against sentence because the Appellant has 5 pleaded guilty unconditionally and emphasised that the drugs was kept by her and had nothing to do with the second accused. She even apologised to him and his family for the hardship it had caused him due to his arrest on 7.3.2023 when he happened to be at the Appellant’s house. The Appellant in the s.112 statement also unequivocally admitted that she was 10 given the drugs by Ah Bee and therefore she knew of its nature and approximate amount. She cannot turn back now and claim that she was innocent of the charge. In fact, the Appellant pleaded guilty to a charge of drugs trafficking and not drugs possession. Therefore, there shall be no appeal except as to the extent or legality of the sentence when an accused 15 person has pleaded guilty and been convicted by a Magistrate on that plea: s.305 of the CPC.

For the sake of argument, the Court refers to the case of PP v Ali bin Ahmad [2019] 11 MLJ 485, where the principles to be considered 20 and applied when an accused person pleads guilty and its implications has been discussed thoroughly time and time again: “[16] In Tan Lay Chen v Public Prosecutor [2001] 1 MLJ 135; [2000] 4 CLJ 492, Augustine Paul J (as His Lordship then was) made the following 25 observation: The phrase ‘pass sentence according to law’ in the subsection means that the sentence imposed 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 (see Re Chang 30 Cheng Hoe & Ors [1966] 2 MLJ 252; Public Prosecutor v Jafa bin Daud [1981] 1 MLJ 315; Philip Lau Chee Heng v Public Prosecutor [1988] 3 MLJ 107). The assessment of a sentence in accordance with judicial principles clearly contemplates, inter alia, a consideration of the mitigating circumstances in favour of the person to be sentenced. It is generally accepted that an 5 accused person should be given credit or discount for pleading guilty (see Sau Soo Kim v Public Prosecutor [1975] 2 MLJ 134; Public Prosecutor v Sulaiman bin Ahmad [1993] 1 MLJ 74; Public Prosecutor v Ravindran & Ors [1993] 1 MLJ 45). However, this is not a strict rule as the court may, in the exercise of 10 its discretion, refuse to grant any discount in an appropriate case (see Zaidon bin Shariff v Public Prosecutor [1996] MLJU 159; [1996] 4 CLJ 441; Lee Say & Ors v Public Prosecutor [1985] 2 CLJ 155). The severity of the offence committed may outweigh the mitigating affect of a guilty plea (see Loh Hock Seng v Public 15 Prosecutor [1980] 2 MLJ 13, Public Prosecutor v Oo Leng Swee & Ors [1981] 1 MLJ 247). Where public interest demands a deterrent sentence in the circumstances of a particular case, then the effect of a guilty plea must also give way (see Sim Gek Yong v Public Prosecutor [1995] 1 SLR 537; R v Costen (1989) 11 Cr App R (S) 20 182). Thus, there can be no automatic rule that a guilty plea on its own entitles an accused to a lesser punishment (see Public Prosecutor v Govindnan a/l Chinden Nair [1998] 2 MLJ 181). Be that as it may, as I said earlier it must not be overlooked that the general rule is that an accused should be given a lesser 25 punishment for pleading guilty. There can, as I have said, be a departure from this general rule. However, there must be good reasons for doing so. In that event the reasons for such departure must be kept in mind. If, therefore, a sentence is imposed without taking into consideration a guilty plea then the reasons for doing so 30 must be explained by the sentencer. This is because an accused person expects the general rule to operate in his favour when he pleads guilty. The grounds of judgment must therefore show why the guilty plea cannot, on the facts of the case, be considered as a mitigating factor. Failure to do so will lead to 35 the criticism, as in this case, that the plea has not been taken into account in imposing sentence. In this case the learned sessions court judge had not explained why he had disregarded the guilty plea, and, by the same process of reasoning, the clean record of the accused. This is a misdirection in law.” 40 [Emphasis added]

After the DDA was amended in 2017, Courts have been given the discretion on whether to impose the death penalty upon conviction when the sentence under s. 39B(2) was amended to read as follows:

“Amendment of section 39B The Dangerous Drugs Act 1952 [Act 234], which is referred to as the 5 “principal Act” in this Act, is amended in section 39b—

by substituting for subsection (2) the following subsection: “(2) Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence against this Act and shall be punished on conviction with 10 death or imprisonment for life and shall, if he is not sentenced to death, be punished with whipping of not less than fifteen strokes.”; and

by inserting after subsection (2) the following subsections: “(2A) In exercising the power conferred by subsection (2), 15 the Court in imposing the sentence of imprisonment for life and whipping of not less than fifteen strokes, may have regard only to the following circumstances:

there was no evidence of buying and selling of a dangerous drug at the time when the person 20 convicted was arrested;

there was no involvement of agent provocateur; or

the involvement of the person convicted is restricted to transporting, carrying, sending or delivering a dangerous drug; and 25

the Public Prosecutor certifies in writing to the Court that in his determination, the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia.

The determination of whether or not any person has 30 assisted an enforcement agency in disrupting drug trafficking activities shall be at the sole discretion of the Public Prosecutor and no action or proceeding shall lie against the Public Prosecutor in relation to any such determination done by him in good faith, in such capacity. 35 ….”. [16] Then on 4.7.2023, the Abolition of Mandatory Death Penalty Act 2023 [Act 846] (the Act) came into force. The Long Title of the Act stated “An act to amend the Penal Code, the Firearms (Increased Penalties) Act 1971, the Arms Act 1960, the Kidnapping Act 1961, the DDA 1952, the Strategic Trade Act 2010 and the Criminal Procedure Code in order to abolish the mandatory death penalty, to vary the sentence relating to imprisonment for natural life and whipping, and to provide for matters 5 connected therewith.”. In particular, Part VI of the Act provides:

“Amendment of section 39B The Dangerous Drugs Act 1952, which is referred to as the “principal Act” in this Part, is amended in section 39B— 10

in subsection (2), by substituting for the words “be punished with whipping of not less than fifteen strokes” the words “be punished with whipping of not less than twelve strokes”; and 15

by deleting subsections (2A) and (2B).

Transitional Upon the coming into operation of this Act, if a person is convicted by any court for the commission of an offence under section 39B of the 20 principal Act, the person, whether at a trial or on an appeal, shall be sentenced in accordance with the provisions of the principal Act as amended by this Act even though the offence was committed before the date of coming into operation of this Act.”. 25 [17] The Hansard reported on 3.4.2023 during the tabling of the Abolition of Mandatory Death Penalty Bill at the Dewan Rakyat, the Deputy Minister in the Prime Minister’s Department (Law and Institutional Reforms) stated: “… Sehubungan itu, pada 17 Mac 2023, Mesyuarat Jemaah Menteri telah 30 bersetuju dengan cadangan hukuman gantian terhadap hukuman mati mandatori iaitu hukuman mati atas budi bicara mahkamah atau hukuman pemenjaraan bagi suatu tempoh yang tidak kurang daripada 30 tahun tetapi tidak melebihi 40 tahun dan juga hukuman sebatan tidak kurang 12 kali. Dengan pemberian budi bicara kepada mahkamah dalam menjatuhkan hukuman mati, 35 mahkamah boleh mengambil kira prinsip undang-undang yang terpakai dalam memutuskan sama ada hukuman mati perlu dikenakan iaitu antara lain terdapat anggapan yang memihak kepada hak seseorang untuk hidup yang tidak terbatas, dengan izin, unqualified right to life.”. [18] Under the amendments, only in murder cases do the Courts have a discretion to impose a sentence of between 30 to 40 years upon 5 conviction. There is no such discretion in regard to drugs trafficking offences. The Court refers to the case of PP v Abdul Halim Ishak & satu Lagi [2013] 9 CLJ 559, where the Court of Appeal emphasised in regard to drugs offences as follows: 10 [21] Tidak dapat dipertikaikan bahawa kesalahan yanq berkaitan denqan dadah adalah merupakan satu kesalahan yanq serius yang boleh mengancam keselamatan dan ketenteraman negara serta kesihatan umum. Dadah telah diisytiharkan sebagai musuh nombor satu negara oleh Kerajaan pada tahun

Justeru, jika Mahkamah menjatuhkan hukuman yang ringan kepada 15 satu kesalahan yang ditetapkan melalui Parlimen sebagai serius, sudah tentu perlindungan sewajarnya tidak dapat diberikan kepada orang ramai. Dalam kes Yusmarin Samsudin v. PP (supra) mahkamah menegaskan: The severity of sentence can only be to reflect Parliament’s 20 intention that conviction for being in possession of a large amount of any form of prohibited drugs must commensurate with the sentence to be passed on the peculiar facts of each case. [Emphasis added] 25 [19] In the case of PP v. Sihabduin Hj Salleh & Anor [1980] 2 MLJ 273; [1981] 1 CLJ 39, this Court understands that judges are supposed to interpret a provision of the law by its plain and obvious meaning: 30 “Thirdly, if the law-maker so amends the law, to paraphrase the words of Lord Diplock at p. 541 in Duport Steels Ltd. v. Sirs [1980] 1 All ER 529, the role of the judiciary is confined to ascertaining from the words that the law-maker has approved as expressing its intention what that intention was, and to giving effect 35 to it. Where the meaning of the words is plain and unambiguous it is not for Judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral; or to paraphrase the words of Lord Scarman at p. 551 in the same case, in the field of statute law the Judge must be obedient to the will of the law-maker as expressed in its enactments, the Judge has power of choice where differing constructions are possible, but he must choose 5 the construction which in his judgment best meets the legislative purpose of the enactment.”. [Emphasis added] 10 [20] If the purpose of this appeal is to ask for a reduction of the sentence to below the minimum of life imprisonment, then the Appellant has not been honest with her intention when she pleaded guilty to a capital offence. I had questioned her whether she understood the consequences of her plea of guilt from the first day that she was brought to Court and 15 she had indicated that she wanted to plead guilty to the original charge of trafficking. She even showed that her was remorseful when it came to the arrest of the second accused. Now, Parliament amended the DDA to enable the law enforcement agencies to tackle this problem of drugs abuse as it was rampant and a menace to society. The plain language of 20 the law means that a conviction under s. 39B(2) of the DDA entails a death sentence or life imprisonment sentence and whipping of at least 12 strokes of the rotan, regardless of the weight of the drugs. The only discretion for the Court, if the death sentence is not given, is in the number of whipping to be imposed for male prisoners under the age of 50. 25 [21] This is a capital offence and a very serious one, which the Appellant does not qualify for a “lenient” sentence. The fact that she was not given the death sentence on her own plea of guilt showed that the Court had been lenient to her given the weight of the drugs was about 4 times the 30 prescribed weight in s.37(da) of the DDA. In the case of PP v Lee Lam

(F) [1952] 1 MLJ 86, Wilson J. held: “… So far as this case is concerned the Legislative authority has laid it down that an accused person charged with an offence such as that alleged in the first charge shall be sent to prison for a period of not less than one year. If the Legislative authority had wished to say that such a person should not be sent to prison for this minimum period if he or she 5 had no previous conviction, the Legislative authority would have so stated. Whilst I have every sympathy with the domestic circumstances of the accused person, I find it impossible to allow myself to be influenced by them. During the period of this Emergency the Executive and the Legislature alone can be fully aware of the reasons which make extraordinary legislation 10 necessary. Judges and Magistrates are not in a position and are not entitled to query such legislation unless it can be found to be ultra vires.”. [Emphasis added] 15 CONCLUSION [22] There is only one option under s.39B(2) of the DDA if the death sentence is not passed by the Court upon convicting an accused on a trafficking charge, and that is to sentence him to life imprisonment and a minimum of 12 strokes of the rotan. After hearing the plea in mitigation, 20 the Court imposed the life imprisonment sentence as provided by law but no whipping as the Appellant, being a woman, cannot be whipped. Order accordingly. 25 Dated 11 November 2024 Sgd. 30 NOOR RUWENA BINTI MD. NURDIN Judicial Commissioner High Court of Malaya, Taiping 35 Counsels: For the Public Prosecutor: DPP Mohd Waffy Bin Ismail 5 Pejabat Timbalan Pendakwa Raya Negeri Perak, Taiping. For the Accused: Mr. Mak Kak Keong 10 Messrs. Nazri Aziz Masura Mak & Tan, Kuala Lumpur.