Kannan A/L Rama Chenderan (a – 05 (M) – 58 – 01 / 2018)

The Appellant was charged with the offence of trafficking under section 39B (1)(a) of the Dangerous Drugs Act 1952 (‘the Act’). The charge reads as follows: “Bahawa kamu pada 22.4.2016, jam lebih kurang 12.40 tengah hari, bertempat di dalam motokar jenis Proton Saga AJS 567, di hadapan hentian sebelah Taiping Lebuhraya PLUS arah Selatan, Taiping, dalam Daerah Larut Matang dalam negeri Perak telah didapati mengedar dadah berbahaya, iaitu Heroin dan Monoacetylmorphines seberat 213.37 gram (197.07 gram Heroin dan 16.30 gram Monoacetylmorphines) dan dengan ini kamu telah melakukan satu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B (2) Akta yang sama.”

At the conclusion of the trial after the defence was called, the Appellant was convicted and sentenced to death by the High Court at Taiping for the aforesaid offence on 10.1.2018. Aggrieved by the conviction and the sentence, the Appellant filed an appeal to this Court vide Notice of Appeal dated 18.1.2018 3

On 23.8.2018, the counsel for the Appellant made a representation to the Public Prosecutor. The representation sought to reduce the original charge under section 39B(1)(a) of the Act to that of a charge under section 12(2) which is punishable under subsection 39A (2) of the Act.

The Appellant’s representation had been accepted by the Public Prosecutor, and an alternative charge was preferred against the Appellant under section 12 (2) of the Act which reads as follows: “Bahawa kamu pada 22.4.2016, jam lebih kurang 12.40 tengah hari, bertempat di dalam motokar jenis Proton Saga AJS 567, di hadapan surau hentian sebelah Taiping, Lebuhraya PLUS arah Selatan, Taiping, di dalam daerah Larut Matang, dalam Negeri Perak telah didapati dalam milikan kamu dadah berbahaya seberat 213.37 gram (Heroin seberat 197.07 gram dan Monoacetylmorphines seberat 16.30 gram). Oleh yang demikian, kamu telah melakukan satu kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39A (2) Akta yang sama”.

The alternative charge was tendered before us and was read out and explained to the Appellant who understood the nature and consequences of the alternative charge and the Appellant pleaded guilty to the same. The alternative charge was then marked as Exhibit A. 4

The Facts of the Case was tendered before us and was read out to the Appellant who understood the same and agreed to it. The Facts of the Case was marked as Exhibit B.

A list of Exhibits was tendered before us and shown to the Appellant who then agreed to the same. The list of Exhibits was marked as Exhibit

Being satisfied with the guilty plea of the Appellant to the alternative charge, we proceeded to unanimously convict the Appellant of the aforesaid alternative charge. Before we meted out the sentence on the Appellant, we heard the submissions by the learned Defence Counsel on the mitigating factors favouring the Appellant as well as the submissions of the learned DPP on the appropriate sentence to be meted out. We then unanimously sentenced the Appellant to 18 years imprisonment with the minimum 10 strokes of whipping as prescribed by law under subsection 39A(2) of the Act wherefor the imprisonment was to take effect from the date of arrest of the Appellant on 22.4.2016.

Aggrieved with the sentence passed by us, the Appellant now appeals to the Federal Court in respect of the sentence vide Notice of Appeal dated 17.5.2019. 5

2.

The learned counsel for the Appellant submitted that the Appellant was 41 years and 4 months at the time of the commission of the offence and was already 44 years and 10 months old when this appeal was heard. He has two children, a girl and a boy, aged 9 and 10 respectively. He is a divorcee and the children are now under the care of his aging parents. The Appellant’s father is 78 years old and his mother is 75 years old.

The Appellant’s sister, who is married and has three children of her own, is financially helping the grandparents in taking care of the Appellant’s children. She is working as a factory-worker with a meagre salary of RM 1,300.00 a month.

The learned counsel for the Appellant also submitted that the Appellant was a first offender and has no previous conviction. The Appellant regretted committing the offence and has now repented.

In passing the sentence, we had taken into account the Appellant’s mitigating factors. However, in doing so, we must balance the interest of the Appellant with the seriousness of the offence committed, the rampancy of drug related offences and the grave and serious impact the drug menace has on society. 6

Augustine Paul FCJ (as he then was) in Public Prosecutor v Ooi Teng Chian [2006] 1 MLJ 213, in observing the adequacy of the sentence imposed in that case, held that: “[25] It is well established that sentencing in drug offences must reflect the public interest to be served as it is an on-going national problem. The weight of the drugs involved is another factor to be considered. In this case, the amount of dangerous drugs involved is very substantial. In such circumstances, neither the guilty plea of the accused nor the fact that he is a first offender can be considered too favourably in favour of the accused. Thus, we were of the view that the sentence imposed by the learned trial judge was inadequate. Accordingly, we increased the term of the imprisonment to 15 years. The imposition of the 10 strokes of the rattan was retained.” [emphasis added]

Guided by the aforesaid Federal Court decision, we were of the considered view that irrespective of the fact that the Appellant was a first offender and had pleaded guilty to the alternative charge, it did not as of right made him eligible to a very lenient sentence.

The Court must balance the public interest with that of the Appellant’s. In balancing these two factors, we were of the view that the public interest should bear more weight. The rampancy of drug related offences must be acknowledged and the punishment meted out by the Courts must reflect the seriousness of such offences.

The next consideration for us to take into account was the weight of the drugs. The Appellant pleaded guilty to be in possession of 197.07 7 grammes of heroin and 16.30 grammes of monoacetylmorphines. The total weight of the drugs that were in the Appellant’s possession was 213.37 grammes. This is approximately 42 times more than the minimum weight for conviction under subsection 39A(2) of the Act. The amounts are substantial and must not be overlooked.

The sentence passed by us reflected the intention of Parliament when it amended the period of “imprisonment for life” in section 3 of the Criminal Justice Act 1953 (Act 345) which was increased from twenty to thirty years vide section 2 of the Criminal Justice (Amendment) Act 2007 (Act A1302). This amendment has been in force since 7.9.2007. Hence, the sentence passed by us was with due consideration of the maximum sentence provided under subsection 39A(2) of the Act read together with the amended section 3 of the Criminal Justice Act 1953 which is 30 years.

We were also of the considered view that the duration of the imprisonment reflects the current sentencing trend for such offences as referred to by the learned DPP involving guilty plea cases which ranged from 15 years imprisonment, 10 strokes whipping to 18 years imprisonment, 10 strokes whipping. The cases referred to by the learned DPP are as follows: 8 No. Case Facts of the Case / Date of Decision Weight / Types of Drugs Sentence 1. Mohd Nazri bin Mansor v PP J-05-19- 02/2014  PG to alternative charge at HC  Drugs found in the Appellant’s room  Appellant appeals against sentence

18.9.2014

25.7g Heroin + Monoacetylmorp-hines

0.11g Nimetazipam

8.7g Methamphetamine

COA 15 years imprisonment + 10 strokes

6 months imprisonment

3 years imprisonment

6.3.2013 2. PP v Ooi Teng Chian [2006] 1 MLJ 213  PG, 1st offender  HC amended the charge to s.39A(2) and sentence to 9 years.

149.6g of heroin and 35.77g of monoacetylmorp-hines

>37 times minimum weight COA 15 years + 10 strokes.

Ang Chai Seng v PP [2000] 2 MLJ 35  Accused PG.  Accused person’s appeal against sentence dismissed by COA

81.4g of monoacetylmorphines (or > 16 times the minimum weight) 18 years imprisonment + 10 strokes

Teoh Chin Hwa v PP [2000] 1 MLJ 687  Accused PG  Accused person’s appeal against sentence dismissed by COA

156.3g of monoacetylmorphines (or > 31 times the minimum weight) 18 years imprisonment + 10 strokes

PP v Zainal Tahir [2006] 7 CLJ 426

13.3.2001  Accused PG on alternative charge 30.96g of heroin 15 years imprisonment + 10 strokes

PP v Arif Saidin K-05(S)-261- 10/2012  PG to alternative charge.  Drugs found in a special compartment in R’s car.

14.8.2013 17.09g of heroin monoacetylmorphines HC: 8 years imprisonment COA: enhanced to 18 years + strokes

5.4.2011 9

Based on the aforesaid reasons, we sentenced the Appellant to 18 years of imprisonment from the date of the arrest on 22.4.2016 and 10 strokes of whipping. We wish to add that the sentence imposed commensurate with the offence committed and it was intended to deter would be offenders from committing similar crimes. The facts and the circumstances of this case did not convince us to take a lenient approach in meting out the sentence. sgd (UMI KALTHUM BINTI ABDUL MAJID) Judge Court of Appeal Malaysia Putrajaya Dated: 31.12.2019 Counsels/Solicitors: For the Appellant - Manjeet Kaur Singh A/P Kehar Singh from Messrs. Manjeet Kaur & Co. For the Respondent - Deputy Public Prosecutor Dato’ Patricia Tan Ghee Phaik from the Attorney General’s Chambers, Putrajaya.