Public Prosecutor v Mehrdad Rahmati Yadollah (Iran) (B-05(H)-378-07/2018 dan B-05(SH)-567-12/2019 dan B-05(SH)-568-12/2019 (Minority Judgment of the Court))

MEHRDAD RAHMATI YADOLLAH (IRAN)

AMIN FEREYDOUNISL MIRZA (IRAN) … RESPONDENTS (PASPORT NO.: L27974143) HEARD TOGETHER WITH CRIMINAL APPEAL NO.: B-05(SH)-567-12/2019 2 of 44 MEHRDAD RAHMATI YADOLLAH (IRAN) (PASPORT NO.: B27199114) … RESPONDENT HEARD TOGETHER WITH CRIMINAL APPEAL NO.: B-05(SH)-568-12/2019 AMIN FEREYDOUNISL MIRZA (IRAN) (PASPORT NO.: L27974143) … RESPONDENT 3 of 44 [In The Matter Of High Court of Malaya At Shah Alam, Selangor Criminal Trial No.: 45A-50-05/2015 And 45A-51-05/05/2015] Between Public Prosecutor And Mehrdad Rahmati Yadollah (Pasport No.: B27199114) Amin Fereydounisl Mirza (Pasport No.: L27974143)] CORAM: KAMALUDIN BIN MD SAID, JCA LEE SWEE SENG, JCA NORDIN BIN HASSAN, JCA MINORITY JUDGMENT OF THE COURT [1] This is the minority judgment of the Court on the death sentence imposed by the majority in this Court in setting aside the sentence of life 4 of 44 imprisonment imposed by the Shah Alam High Court as well as 15 strokes of whipping pursuant to section 39B(2) of the Dangerous Drugs Act 1952 (“DDA”). Both the 1st accused Mehrdad Rahmati Yadollah and the 2nd accused Amin Fereydounisl Mirza, of Iranian nationality, were convicted by the High Court for the offences of trafficking in dangerous drugs under s. 39B(1)(a) of the DDA. [2] The minority had affirmed the sentence imposed by the High Court and accordingly dismissed the appeal by the Public Prosecutor against sentence. [3] Both the accused persons in the High Court had also filed separate Notices of Appeal against conviction and sentence to this Court. All 3 appeals were heard together. [4] I am given to understand that quite a few cases involving the exercise of the Court’s decision had come up on appeal to the Court of Appeal on a similar issue as to the factors or circumstances that the High Court may have regard only to in imposing the alternative sentence of life imprisonment and 15 strokes of whipping (in short referred to as the alternative sentence of “life imprisonment and whipping”) upon a finding of guilt and conviction under s.39B(1)(a) of the DDA. [5] Like all principles in interpreting statutes, one must consider the language used by the Legislature and in this case, the Dangerous Drugs (Amendment) Act 2017 that introduced the new s.39B(2) of the DDA which now gives the Court a discretion in imposing the alternative sentence of life 5 of 44 imprisonment and whipping instead of the mandatory death penalty which was the case before the 2017 Amendment which came into effect on 15.3.2018. [6] S.39B(2) of the DDA reads as follows: “(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 death or imprisonment for life and shall, if he is not sentenced to death, be punished with whipping of not less than fifteen strokes.” [7] The new s.39B(2A) becomes extremely relevant because it speaks of the circumstances the Court may take into consideration in deciding whether to impose the alternative sentence of life imprisonment. It reads: “(2A) In exercising the power conferred by subsection (2), 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:

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

(b) there was no involvement of agent provocateur; or

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

(d) that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia.” (emphasis added) 6 of 44 [8] It is to be noted that at the Bill to the Dangerous Drugs (Amendment) Act 2017 had proposed a s.39B(2A)(d) and (2B) that read as follows: “(d) 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.

(a) the Royal Malaysia Police;

(b) the National Anti-Drugs Agency;

(c) the Royal Malaysian Customs Department;

(d) the Malaysian Maritime Enforcement Agency; or

(e) any other enforcement agency as may be determined by the Minister.” 7 of 44 Whether the use of “may” in “may have regard only to the following circumstances” in s.39B(2A) of the DDA confers a discretion on the Court [10] Generally the word “may” is the language of “consideration” and “discretion” and the word “shall” is the language of “compulsion” and “dictation”, even that of ‘demand.’ It is consistent with the intention of Parliament to repose “discretion” in the Court where sentencing is concerned. [11] Parliament could have used the word “shall” to convey a mandatory requirement but had refrained itself advisedly from doing so. It is not that it is more polite to use “may” rather than “shall” but that it recognises that the very nature of discretion is such that it does not sit snugly with “shall” for then it would be a contradiction in terms as in a “may but nevertheless shall”! [12] I say this because the word “may” is used 133 times in the DDA; the word “shall” is used 266 and the word “must”, if there is an even more mandatory word, is used 6 times. It goes without saying that these days with the use of a powerful “search” feature within a google document for a document such as the DDA, the result can be had fairly accurately with their occurrences being highlighted. [13] The point I want to make is that the Legislature does not use the word “may” and “shall” interchangeably but intentionally. Each time it wants discretion to be taken away “shall” is invariably used. We see examples of this is the very section 39B itself as follows: 8 of 44 “39B. (1) No person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Malaysia—

(a) traffic in a dangerous drug;

(b) offer to traffic in a dangerous drug; or

(c) do or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug.

(d) must be present before the Court may begin to consider imposing the sentence of life imprisonment and whipping? The answer is “NO” because all that it says are the circumstances that the Court may consider irrespective of whether only (a) is present or (b)/(c) or (d). If any or a combination or all of the circumstances are present then the Court may have regard to it alone and them in combination. [21] However s.39B(2A) of the DDA does not tell the Court how the discretion is to be exercised in terms of the weight to be attached to each of the circumstances (a); (b) or (c) and (d). All one can say is that if any of the circumstances listed from (a) to (d) are present, then the Court may have regard to those circumstances when exercising its discretion to impose the alternative sentence of life imprisonment and whipping. [22] Thus if circumstance (a) with respect to no evidence of buying and selling of a dangerous drug at the time the person convicted was arrested, then that is a circumstance in favour of exercising its discretion to impose life imprisonment and whipping. [23] Similarly if there is no involvement of agent provocateur or the involvement of the person convicted is restricted to transporting, carrying, sending or delivering a dangerous drug, that also is a circumstance to have regard to when the Court exercises its discretion to impose life imprisonment. 11 of 44 [24] Then we come to the more tricky circumstance. What if it is shown that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia. My immediate response would be “that surely is a circumstance in favour of the Court exercising its discretion to impose the alternative sentence of life imprisonment and whipping.” [25] We must be careful not to read into s 39B(2A) of the DDA what it does not say. While it does say what are the circumstances the Court may have regard only to, it does not say that if any of these circumstances are absent or that the opposite is true, then the discretion to impose the life imprisonment sentence and whipping may not be exercised. [26] So when it comes to circumstance (d) it does not say that if there is no evidence of the person convicted having assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia, then the death sentence is to be imposed because the discretion may not be exercised to impose the alternative sentence of life imprisonment and whipping. [27] All that (d) says is that if there is evidence of the convicted person having so assisted, the Court may have regard to that. It cannot be made to say and it does not say that absent (d) the Court may not exercise its discretion to impose the alternative life imprisonment sentence and whipping. 12 of 44 [28] The syntax is that of the circumstances that the Court may have regard only to and not the requirements to be fulfilled by the convicted person before the Court may exercise its discretion to impose the life sentence and whipping and thus spare him the death penalty. [29] If the Legislature had wanted the circumstances in (a) to (d) of s.39B(2A) to be fulfilled by the convicted person before the Court may exercise its discretion to spare him the noose, then surely it is not too difficult to draft it as prerequisites or requirements to be fulfilled much like conditions precedent that must be present. Surely the Legislature would have done a comparative study as is often done when it comes to drafting new statutes or amendments to existing ones, for the Parliamentary Draftsman in the Attorney General’s Chambers to study other jurisdictions that have explored and implemented an alternative to the death penalty if certain circumstances are present or requirements have been fulfilled by the convicted person. [30] Across the causeway we have our neighbour Singapore who had put in place a system for the Court to decide if the alternative sentence of life imprisonment and whipping is to be imposed, a position not previously countenanced when, like in Malaysia, only the mandatory death sentence was to be imposed. [31] In fact there was once a time when in 1975 the punishment when first introduced for drug trafficking was either the death sentence or life imprisonment but that discretion was taken away in 1983 by the Dangerous Drugs (Amendment) Act 1983 (Act A553). 13 of 44 [32] The relevant provision of the Singapore Misuse of Drugs Act (“MDA”) which came into force on 1.1.2013 reads as follows: “Discretion of court not to impose sentence of death in certain circumstances

33B.—(1) Where a person commits or attempts to commit an offence under section 5(1) or 7, being an offence punishable with death under the sixth column of the Second Schedule, and he is convicted thereof, the court —

(a) may, if the person satisfies the requirements of subsection (2), instead of imposing the death penalty, sentence the person to imprisonment for life and, if the person is sentenced to life imprisonment, he shall also be sentenced to caning of not less than 15 strokes; or

(b) shall, if the person satisfies the requirements of subsection (3), instead of imposing the death penalty, sentence the person to imprisonment for life.

(a) the person convicted proves, on a balance of probabilities, that his involvement in the offence under section 5(1) or 7 was restricted —

(i) to transporting, sending or delivering a controlled drug;

(b) the Public Prosecutor certifies to any court that, in his determination, the person has substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities within or outside Singapore.

(i) to transporting, sending or delivering a controlled drug;

(b) he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in relation to the offence under section 5(1) or 7.

(a) and (b) or (c) such that in the absence of any one of them the Court may not exercise its discretion to impose the alternative sentence of life imprisonment and whipping, then it must express circumstances (a), (b) or

(c) and (d) as requirements to be fulfilled by the convicted person following the Singapore approach or otherwise express in clear language that the Court may impose the sentence of life imprisonment and whipping, only if, circumstances (a), (b) or (c) and (d) are present. 17 of 44 [41] Perhaps the thrust of the sentence may be better appreciated if a different example with the same sentence construction is used. For example: “The examiner in allowing the student who has failed his final year written examination to graduate may have regard only to the following:

(a) the student had passed all his class assignment for his final year;

(b) the student had more than a 50% attendance for his tutorials for final year or

(c) the student had participated in the university’s legal aid project and

(d) the student had assisted the University to win an Award by being in the winning team.” [42] Compare the above to a redrafting as follows: “The examiner may allow a student who has failed his final year written examination to graduate if the student satisfies the requirements below:

(a) the student had passed all his class assignment for his final year;

(b) the student had more than a 50% attendance for his tutorials for final year or

(c) the student had participated in the university’s legal aid project and

(d) the student had assisted the University to win an Award by being in the winning team.” [43] It is fairly obvious that in the first example, if a student has (a) or (b) or (c) or (d) or any combination of any of the items listed, he may be allowed 18 of 44 to graduate and that his chances would be higher if he has all the elements listed. The converse is not true in that if he only has either (a) or (b) or (c) or

(d) then he would not be allowed to graduate at all. Granted it would be very difficult if not impossible if none of the circumstances from (a) to (d) are present. [44] In the second example it is for the student to show that he has satisfied the requirements of (a) and (b) or (c) and (d). [45] From the judgment of the High Court with respect to the circumstances (a) and (b) or (c) and as affirmed by this Court, it is admitted that the circumstances were present. However, as circumstance (d) was absent then it was argued on behalf of the Public Prosecutor that the Court cannot impose the alternative sentence of life imprisonment and whipping as that would be a sentence not in accordance with the law. [46] With the greatest of respect, I cannot agree. Sentencing has always been the province and discretion of the Judge save for cases involving the mandatory death penalty. Where any sentence other than the mandatory death sentence is concerned, the Court in deciding on the sentence is entitled to consider a myriad of circumstances in hearing the mitigation of the convicted person bearing always in mind that in s. 39B(2A) of the DDA Parliament had constrained the Court to have regard only to the 4 circumstances set out. 19 of 44 [47] The focus is on the circumstances that the Court may have regard only to and not on whether the discretion to impose the life sentence and whipping may be exercised if anyone of the 4 circumstances is absent and especially if (d) is absent because it appears that (d) is often absent. If the circumstance (d) is absent then the Court may not have regard to (d). [48] When one breaks down the components in s. 39B(2A) of the DDA it boils down to these series of questions below. [49] May the Court have regard to (a) that there was no evidence of buying and selling of a dangerous drug at the time when the person convicted was arrested? The answer is “Yes, the Court may.” [50] May the Court have regard to (b) that there was no involvement of agent provocateur? Again, the answer is “Yes, the Court may.” [51] May the Court have regard to (c) that the involvement of the person convicted is restricted to transporting, carrying, sending or delivering a dangerous drug?” Here again the answer is “Yes, the Court may.” [52] Then comes the crucial question. May the Court have regard to (d) that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia? Surely the answer is a resounding “Yes, of course the Court may.” 20 of 44 [53] Next comes the question: What if (d) is absent in that there is no evidence of such assistance? The answer would be: “The Court cannot have regard to the circumstance not there.” [54] Is the Court then prevented from having regard to the circumstances

(a), (b) and (c) which are present? The clarification would be: “By all means have regard to those circumstances present and decide accordingly.” [55] The use of the expression “....may have regard only to the following circumstances” means that the Court may have to work within the constraints of the circumstances listed in deciding the weight to be attached to each circumstance. It is not a prerequisite, or condition precedent or requirements to be satisfied by the convicted person before the Court may begin to exercise its discretion such that if one circumstance especially (d) is absent then the Court shall not impose the alternative sentence of life imprisonment and whipping. [56] In “Words, Phrases & Maxims Legally & Judicially Defined” by Anandan Krishnan, Volume 8 G and H, LexisNexis at [H0175] with respect to the phrase “have regard to” it was stated as follows: “The phrase ‘have regard to’ has generally directory effect and not a binding effect. New Orissa Transport Company (P) Ltd. v Regional Transport Authority AIR 1957 Ori 121 AIR 1957 Ori 124. (Motor Vehicles Act, 1939, s 47.) ...... 21 of 44 The words ‘having regard to’ in a statutory provision do not mean that there must be strict compliance with the statutory provision, but that the provision should be taken for guidance only. Ryots of Gurbhandho v Zamindar of Parlakimedi AIR 1943 PC 164 Quoted Mohd Sagiruddin v DHENEF Rlys AIR 1996 Pat 184 AIR 1966 Pat 186 [Railway Establishment Code, Vol 1, R 149(3)].” (emphasis added) [57] For the reasons given above I cannot read the circumstances (a), (b) or (c) and (d) in s. 39B(2A) as circumstances that must be present before the Court may exercise its discretion to pass the alternative sentence of life imprisonment and whipping. The Court may have regard only to the circumstances set out and to determine such weight as may be attached to them whether they are all present or in combination if only some are present. Whether the Court should have regard to the Minister’s explanation of the impugned section in interpreting it [58] It was submitted by the learned DPP that the Minister in charge, Dato’ Sri Azalina Dato’ Othman Said’ when presenting the Bill in Parliament had explained that the circumstance (d) in s. 39B(2A) is mandatory. [59] A closer reading of the explanation of the Minister is that “having regard to clause (2A)(d) is mandatory in every case where the Court considers whether to impose the sentence of life imprisonment and whipping” and “factor (d) should be considered by the Court”. 22 of 44 [60] The relevant parts of the explanation of the Minister in charge are reproduced below in its original language at p 91 of DR.30.11.2017 the Second and Third Reading of the Dangerous Drugs (Amendment) Bill 2017 as follows: “Kerajaan tidak bersetuju dengan cadangan untuk mengeluarkan perkataan ‘only’ dalam fasal (2A) dan juga tidak bersetuju dengan pindaan hukuman yang dicadangkan. Kerajaan berpandangan bahawa pengeluaran perkataan ‘only’ tersebut akan membuka luas faktor-faktor yang boleh diambil kira oleh mahkamah dalam memutuskan hukuman. Keadaan ini juga akan membawa kepada situasi ketidakseragaman dalam hukuman sebagaimana berlakunya sebelum tahun 1983. Kerajaan tidak bersetuju dengan penggantian perkataan ‘and’ dengan perkataan ‘or’ di akhir frasa (2A)(c). Diperhatikan bahawa terletaknya perkataan ‘and’ di akhir fasal (2A)(c) bermaksud mahkamah hendaklah mengambil fasal (2A)(d) secara bersama atau conjunctive dengan salah satu daripada (2A)(a), (b) atau

(c) atau mana-mana kombinasi daripada ketiga-tiganya. Dalam kata lain, pertimbangan terhadap fasal (2A)(d) adalah wajib dalam setiap kes di mana mahkamah membuat pertimbangan sama ada hendak menjatuhkan hukuman penjara seumur hidup dengan sebatan. Kedudukan ini adalah selari dengan niat di sebalik rang undang-undang pindaan ini yang ingin memperkasakan agensi penguatkuasaan dalam memerangi pengedaran dadah di samping memberikan kuasa budi bicara kepada mahkamah dalam menjatuhkan hukuman selain daripada hukuman mati mandatori. Tuan Gobind Singh Deo [Puchong]: [Bangun] Tuan Pengerusi [Datuk Seri Dr. Ronald Kiandee]: Yang Berhormat Puchong bangun Yang Berhormat. 23 of 44 Dato’ Sri Azalina Dato’ Othman Said: Diperhatikan di sini bahawa faktor-faktor

(a), (b) dan (c) berkaitan dengan kesalahan spesifik yang telah pun dilakukan oleh tertuduh. Hanya faktor (d) yang berkaitan dengan satu kelebihan yang boleh diperoleh agensi penguatkuasaan dalam usaha mengendalakan pengedaran dadah. Oleh itu, faktor (d) harus wajib dipertimbangkan oleh mahkamah jika niat dan semangat di sebalik pindaan ini hendak dizahirkan iaitu memperkasa agensi penguatkuasa dalam memerangi pengedaran dadah dan melindungi kepentingan masyarakat.” (emphasis added) [61] As stated before no one would dispute that if factor (d) is present, in that there is evidence of assistance given to the enforcement agency, then surely the Court would have regard to that. What is not stated and now sought to be read into s. 39B(2A)(d) is that if circumstance (d) is absent, then the Court cannot exercise its discretion at all. [62] Assuming for a moment that the Honourable Minister had meant that, one must be careful to refer to the explanation by the Minister in the Hansard when interpreting statute especially when the intention of the Minister is not borne out by the words used in their natural and ordinary meaning. [63] In Chor Phaik Har v Farlim Properties Sdn Bhd [1994] 3 MLJ 345 the Federal Court dealt in-depth with the issue of whether the Court in interpreting statute is permitted to refer to the reports in the Hansard of proceedings and debates in Parliament as the historic rule of the common law had been, until the landmark case of the House of Lords in Pepper (Inspector of Taxes) v Hart [1993]1 All ER 42, that it was not so permissible. 24 of 44 [64] The Federal Court in its erudite explanation and analysis settled for the following but with an important rider. Justice Edgar Joseph Jr FCJ observed as follows at p 360: “......Nevertheless, we have arrived at the conclusion that we should follow the recent trend of the cases decided in the United Kingdom, Australia, New Zealand and Singapore and permit a relaxation of the exclusionary rule by allowing a reference to Hansard as an aid to statutory interpretation where the enactment is ambiguous or obscure, or which if literally construed might lead to an absurdity and provided always that the statement reported in Hansard was made by a Minister or other promoter of a Bill. More particularly, we gratefully adopt the passage in the judgment of Lord Browne-Wilkinson in Pepper v Hart, reproduced above. We hasten to add, however, that when resort to Hansard is permissible, that by itself although meriting serious consideration cannot be determinative of the issue since it is only available as an aid to interpretation. To hold otherwise, would amount to substituting the words of the Minister or other promoter of the Bill for the words of the statute, and that cannot be the law.” (emphasis added) [65] To begin with the words and syntax of s. 39B(2A) are such that it sets out the circumstances that the Court may have regard only to and not a requirement that the convicted person shall satisfy. Thus, there is no ambiguity at all coupled with the fact that the discretionary power of the Court preserved in the use of the word may” is to be exercised having regard to the circumstances listed. 25 of 44 [66] Neither the Minister nor Parliament can make the statute say what it does not say when interpreted using the basic canon of interpretation, giving the words used and the sentence construction and syntax their natural and ordinary meaning. [67] Even assuming for a moment that there is some ambiguity in the words used, this amendment, being one effected to a criminal statute, the ambiguity should be resolved in favour of the convicted person. [68] More than that, this amendment to a criminal statute seeks to differentiate between the hitherto mandatory death sentence before the amendment or the present post-amendment alternative sentence of life imprisonment and whipping. Granted it is for Parliament to decide on what would be the appropriate sentence for any particular offence but where the difference is between that which is so final and irrevocable as the death sentence and that of the sentence of life imprisonment and whipping, any doubt should be resolved in favour of the convicted person. [69] To say that the life of the convicted person hinges on the meaning to be attributed to “may” and “and” in s.39B(2A)(d) of the DDA would be to hang his life too precariously on an auxiliary verb “may” and a conjunction “and” when clear words in clauses carefully crafted should be the gold standard before an accused is to be deprived of his life in the death sentence to be imposed. 26 of 44 [70] Much has been said about the purposive approach to the interpretation of statute that is enjoined by s.17A of the Interpretation Act 1948 and 1967 as follows: “Regard to be had to the purpose of Act 17A. In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.” (emphasis added) [71] However reference to that is problematic as it can be and has been argued that the purpose of the amendment is to introduce and reinstate the discretion of the Court to impose the alternative sentence of life imprisonment and whipping which was the position before the mandatory death sentence came into force for the offence of drug trafficking and that whilst the Court’s discretion on the circumstances to be considered are listed out, nevertheless the final discretion is with the Court with respect to the weight to be attached to the circumstances. [72] Can it be said that the executive had originally intended that the life of the convicted person hangs on the Certificate that the Public Prosecutor may issue to certify that the convicted person had assisted the enforcement agency and that when there is no such Certificate issued, then the Court’s hands are tied in that even if the other circumstances of (a), (b) or (c) are present in s. 39B(2A) of the DDA? 27 of 44 [73] The Explanatory Statement to the Bill reads as follows: “Pindaan yang dicadangkan juga bertujuan untuk kembali kepada kedudukan sebelum pembuatan Akta A553, yang mana fasal 2 bertujuan untuk meminda subseksyen 39b(2) Akta 234 untuk memberi Mahkamah kuasa untuk menjatuhkan hukuman mati atau pemenjaraan seumur hidup dan sebatan tidak kurang daripada lima belas kali bagi kesalahan pengedaran dadah. Walau bagaimanapun, dalam menjatuhkan hukuman pemenjaraan seumur hidup dan sebatan tidak kurang daripada lima belas kali, Mahkamah hanya boleh mengambil kira mana-mana hal keadaan yang dinyatakan dalam perenggan baharu 39b(2a)(a), (b) atau (c) yang dicadangkan dan Mahkamah hendaklah mengambil kira akan perakuan secara bertulis oleh Pendakwa Raya yang mana pada penentuan Pendakwa Raya, orang yang disabitkan di bawah subseksyen 39b(2) telah membantu agensi penguatkuasaan dalam menggendalakan aktiviti pengedaran dadah di dalam atau di luar Malaysia. Bantuan kepada agensi penguatkuasaan dalam menggendalakan aktiviti pengedaran dadah itu bolehlah termasuk, sebagai contoh, pemberian maklumat yang membawa kepada penangkapan, penahanan atau pendakwaan mana-mana orang yang terlibat dengan apa-apa aktiviti pengedaran dadah. Dengan cadangan pindaan ini, tanpa perakuan secara bertulis Pendakwa Raya, Mahkamah tidak boleh menjalankan kuasanya untuk menjatuhkan hukuman terhadap orang yang telah disabitkan dengan pemenjaraan seumur hidup dan sebatan tidak kurang daripada lima belas kali, walaupun hal keadaan yang dinyatakan dalam perenggan 39b(2a)(a), (b) atau (c) yang dicadangkan wujud.” (emphasis added) [74] The original version of the Bill reads as follows where the Certificate of the Public Prosecutor is concerned: 28 of 44 “(d) 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.

6.21 ptg. Menteri di Jabatan Perdana Menteri [Dato’ Sri Azalina Dato’ Othman Said]: Tuan Pengerusi, sub fasal 2(b) rang undang-undang ini akan memasukkan subseksyen 39B(2A), (2B) dan (2C) ke dalam Akta Ibu dipinda:

(a) dalam perenggan 39B(2A)(d) yang dicadangkan dengan menggantikan perkataan “the Public Prosecutor certifies in writing to the court that in his determination”, dengan perkataan “that”;

(b) dengan memotong subseksyen 39B(2B);

(c) dengan menomborkan semula subseksyen 39B(2C) sebagai subseksyen 39B(2B); dan 29 of 44

(d) dalam perenggan 39B(2B) yang dinomborkan semula, dengan menggantikan perkataan “For the purposes of subsection (2A) and (2B)”, dengan perkataan “For the purposes of subsection (2A). Pindaan kepada subfasal 2(b) rang undang-undang bertujuan untuk meniadakan perakuan daripada pendakwa raya tentang bantuan yang diberikan oleh orang yang disabitkan.” (emphasis added) [76] Before the changes effected by deleting the requirement of the Certificate of the Public Prosecutor, the fact that such a Certificate is tendered would surely require the Court to give due regard to it. In the absence of such a requirement of a Certificate, evidence must be led by the prosecution as to whether the convicted person has provided the assistance referred to in s. 39B(2A)(d) of the DDA. More shall be said about this factor later in this judgment. [77] At any rate in referring to Explanatory Statement to the Bill and speeches of Minister when tabling the Bill, we must do so circumspectly for interpretation of statute is finally the domain of the Court and moreover our Interpretation Act 1948 and 1967 has not been amended to expressly allow the Court to have regard to Explanatory Statement to the Bill and the speeches of the Minister as recorded in the Hansard. [78] The relevant amendments to the Singapore Interpretation Act (Chapter 1) were made on 16.4.1993 taking into consideration the watershed decision of the House of Lords in Pepper (Inspector of Taxes) v Hart (supra). Their relevant s. 9A reads as follows: 30 of 44 “Purposive interpretation of written law and use of extrinsic materials 9A—(1) In the interpretation of a provision of a written law, an interpretation that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to an interpretation that would not promote that purpose or object.

(a) to confirm that the meaning of the provision is the ordinary mean-ing conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; or

(b) to ascertain the meaning of the provision when—

(i) the provision is ambiguous or obscure; or

(a) all matters not forming part of the written law that are set out in the document containing the text of the written law as printed by the Government Printer;

(b) any explanatory statement relating to the Bill containing the provision; 31 of 44

(c) the speech made in Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in Parliament;

(d) any relevant material in any official record of debates in Parliament;

(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; and

(b) the need to avoid prolonging legal or other proceedings without compensating advantage. [79] Their s.9A(1) is similar to our s.17A of our Interpretation Act 1948 and 1967 whereas our s. 17 A stops short of referring to the use of extrinsic materials in the interpreting written law, they have, like the case of Australia and New Zealand, given statutory footing to the such a permitted reference in interpreting written law. [80] The Minister cannot make the impugned section say what it does not say no matter the intent of the Minister or Parliament that passed the Bill may be as final interpretation rests with the Court and not the Executive or the Legislature. 32 of 44 Whether to read the circumstance of (d) as mandatory would lead to a manifestly absurd and unreasonable result [81] I accept the fact that where severity and scope of the sentencing is concerned Parliament may set certain parameters for the Court to have regard to or even to have regard to only. [82] Be that as it may what is stated as the rationale for the Minister to propose the relevant amendments to give a discretion to the Court to impose the alternative sentence of life imprisonment and whipping was described as nothing less than “historic” in the evolution of changes in our drugs legislation as captured in the Hansard at p 32 DR 30.11.2017 as follows: “Tuan Yang di-Pertua, hari ini 30 November 2017, merupakan satu tarikh bersejarah dalam evolusi perubahan perundangan dadah dalam negara kita. Rang undang-undang ini akan memberi ruang budi bicara kepada mahkamah serta mengekalkan prinsip konsistensi dan fairness dalam menjatuhkan hukuman berdasarkan kepada kategori dan severity, dengan izin, kesalahan yang dilakukan misalnya bagi kesalahan mengedar dadah yang melibatkan innocent carrier, dengan izin, dan drug mule, dengan izin, yang mana pesalah sebenarnya lebih wajar hanya dihukum penjara sedang dibacakan di Dewan Rakyat ini. Cadangan pindaan ini digubal dengan teliti dengan mengambil kira niat utama kerajaan, untuk melindungi kepentingan awam, public interest dengan memberikan mesej pencegahan yang serius dan meningkatkan keberkesanan operasi bagi agensi penguat kuasa termasuk PDRM, Agensi Antidadah Kebangsaan, Jabatan Kastam Diraja Malaysia dan Agensi Penguat kuasa 33 of 44 Maritim Malaysia dalam membanteras masalah pengedaran dadah dalam negara Malaysia. Cadangan pindaan ini memberi peluang kepada orang yang disabitkan untuk bekerjasama dengan pihak berkuasa bagi memberi maklumat yang mereka memiliki, khususnya berkaitan dengan pihak-pihak terlibat dalam sindiket pengedaran dadah. Maklumat berkenaan boleh membantu agensi penguat kuasa, dalam usaha-usaha untuk membawa kepada penangkapan, penahanan atau pendakwaan mana-mana orang yang terlibat dengan aktiviti pengedaran dadah.” (emphasis added) [83] What was specifically singled out for mention by the Minister tabling the Bill was that those convicted though guilty of the offence of trafficking but are actually innocent carriers and drug mules, should have the more appropriate alternative sentence of life imprisonment imposed if they have cooperated with the enforcement agency. [84] Those who may have information on parties involved in the drug trafficking syndicate may disclose them to the enforcement agency and such information may assist the enforcement agency in disrupting the trafficking activities of the real culprits. [85] The convicted person can only share what he knows and generally he would not know more than who had passed him the bag, parcel or present for delivery and to whom it is to be delivered. Drug trafficking syndicate are crafty and cunning enough not to disclose too much for fear that the information may be leaked out by the convicted person to the enforcement agency. 34 of 44 [86] In fact if the convicted person knows more on the involvement of others in the drug trafficking syndicate, it would be doubtful if his role was really that of an innocent carrier or merely a drug mule. Even discounting the fact that it may be the syndicate members themselves that leak out the information on their mules to the police, there is a clear differentiation between innocent carriers and drug mules on the one hand and those who manage and mastermind the trafficking trade whether it be manufacturing or distributing it through their nefarious networks. [87] Here the accused persons had given evidence during trial as to who had given them the present and to whom it was supposed to be given. These days with modern phone cracking technology the enforcement agency would be able to trace calls from as well as calls to the handphone of the accused persons. [88] The accused persons who are now convicted persons would have no control over the effectiveness of the information that they gave the police here. Much depends on how quickly the police acted on the information for once it is known that the drug mules had been arrested, the syndicate members who are supposed to receive the dangerous drugs would make themselves uncontactable for fear of being arrested. [89] Parliament could not have differentiated between the innocent carriers and drug mules on the one hand and the real traffickers on the other hand and yet make it virtually impossible for the Court to exercise its discretion in spite the use of the word “may” with respect to the circumstances that the Court may have regard to only. 35 of 44 [90] Carriers and mules are at the lowest end of the nefarious heirachy of the drug trafficking business and yet they stand to receive the maximum irrevocable and final sentence in law, that of the death penalty whilst the real culprit and mastermind may not be known, much less successfully arrested and prosecuted. There is a concern that there must be some room given to the application of the proportionality principle on sentencing when considering the involvement of carrier or mule in the drug trafficking activities. [91] There has been a consistent chorus of concerns expressed by international bodies such as the United Nation which in its Report by its Commission on Narcotic Drugs Fifty-third session at Vienna, 8-12 March 2010 titled “Drug control, crime prevention and criminal justice: A Human Rights perspective” commented as follows: “25. At the extreme end of the scale of punishment, the use of the death penalty for those convicted solely of drug-related or economic offences raises grave human rights concerns. The International Covenant on Civil and Political Rights specifies that in countries which have not abolished the death penalty, the sentence of death may be imposed only for the “most serious crimes”. The concept of “most serious crimes” is limited to those where it can be shown that there was an intention to kill which resulted in the loss of life. The weight of opinion indicates that drug offences (such as possession and trafficking) and those of a purely economic nature do not meet this threshold. Moreover, States that have abolished the death penalty are prohibited to extradite any person to another country where he or she might face capital punishment. 36 of 44

Despite such prohibitions, a considerable number of the 47 retentionist States that continue to use capital punishment have carried out executions for drug offences in recent years. In some of these countries, drug offenders constitute a significant proportion of total executions. As an entity of the United Nations system, UNODC advocates the abolition of the death penalty and calls upon Member States to follow international standards concerning prohibition of the death penalty for offences of a drug-related or purely economic nature.” (emphasis added) [92] Parliament is of course free from the shackles of standards set by international bodies like the United Nations but it can be surmised that the need to introduce the amendments to our DDA to allow for a limited discretion to impose the alternative sentence of life imprisonment and whipping is perhaps due in part to standards espoused by the United Nations Commission on Narcotic Drugs having regard to human rights concerns. [93] Whatever might be the motivation for the amendments in allowing the Court to exercise its discretion to impose an alternative sentence of life imprisonment and whipping, the language used must be clear such that any doubt must be resolved in favour of the convicted person whose very life stands to be forfeited having regard to the reasonableness of the interpretation sought to be placed on the circumstances that the Court may have regard only to. To make the fate of the convicted person hangs on the quality of the information given to the enforcement agency and the effectiveness of such a lead to disrupt the trafficking activities would be to make the convicted person responsible for matters beyond his control. 37 of 44 [94] Parliament could not have intended that and so it frames it as circumstances that the Court may have regard to only and not requirements that the convicted person must satisfy the Court before deserving of the Court exercising its discretion to impose the life sentence and whipping. [95] To insist on the presence of circumstance (d) in s.39B(2A) of the DDA before the Court may even consider whether to impose the alternative sentence of life imprisonment and whipping would lead to a manifestly absurd and unreasonable result when the language used does not bear out that meaning and requirement. [96] As for the convicted person, it would be to give him some hope that he may have a chance to live though subject to the life imprisonment and whipping sentence for he was just an innocent carrier or a drug mule but that this hope would be taken away if the information he gave the enforcement agency does not prove to be effective in disrupting the drug trafficking activities. [97] As for the Court, it would be giving it some discretion to impose the alternative sentence of life imprisonment and whipping where the rehabilitation purpose of sentencing may be achieved but only to be told that it is still up to the prosecution to say whether the information given was effective in disrupting the drug trafficking activities. [98] While I appreciate that it is not for the Court to question Parliament on the reasonableness of the law, here one is looking at unreasonableness or 38 of 44 absurdity if the plain meaning is not followed but instead allowing it to be read as requirements that the convicted person must satisfy. Whether a pre-sentencing hearing is to be had if the prosecution said before sentencing that the convicted person has not satisfied circumstance (d) in s. 39B(2A) of the DDA [99] Whilst circumstances (a), (b) or (c) of s.39B(2A) of the DDA may emerge from the evidence adduced during the trial, it would be unreasonable if not absurd to expect the accused person, while conducting his defence to also adduce evidence as to how he had given information to the enforcement agency that was effective in helping them to disrupt drug trafficking activities. [100] The accused would be incriminating himself and literally defending himself with one hand tied to his back! An accused person cannot be expected to disclose and divulge what information he had given the enforcement agency beyond who had give him the bag, parcel or present and to whom it was meant to be delivered and their contacts. More than that would be self-defeating as it would render his role as an innocent carrier or a drug mule inherently incredible. [101] The accused cannot be expected to run a defence of not having possession of the dangerous drugs and at the same time give evidence that he was merely a carrier or a mule. He is however expected to cooperate with the enforcement agency in giving information that has led to the enforcement agency disrupting drug trafficking activities for as the prosecution said, without such an evidence he is not entitled to be shown 39 of 44 mercy with the Court handing down the alternative sentence of life imprisonment and whipping. [102] As was observed in the Singapore Court of Appeal by Chao Hick Tin JA in Public Prosecutor v Chum Tat Suan and another [2014] SGCA 59 as follows though the majority did not agree with him: “28 In such exceptional circumstances where the raising of the statutory relief of being a courier at trial would undermine his primary defence, an accused person would be acting reasonably in not putting forth a submission that he was a courier. To say that the accused person should raise this latter alternative albeit inconsistent position at trial would place him in an invidious position as he would be required to undermine his primary defence. This is exacerbated by the fact that admitting to be a courier, even on an alternative basis, is not a guarantee to the accused person that he will escape the death penalty. He would still have to be given the s 33B certificate, a matter which is entirely at the discretion of the Public Prosecutor (save where the determination by the Public Prosecutor is done in bad faith or with malice) (see [2] above).” (emphasis added) [103] Moreover the convicted person would not know the effectiveness of the information he had given the police for instance. It is only the police and by extension the Public Prosecutor who would know. S. 106 of the Evidence Act 1950 placed the burden of proving fact especially within the knowledge of any person on that person as follows:

Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 40 of 44

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him. [104] The Deputy Public Prosecutor (“DPP”) cannot merely stand up in Court during sentencing to say that the convicted person had not assisted the enforcement agency in any way in disrupting drug trafficking activities. [105] Previous to the deleting of the proposed amendment in s.39B(2A)(d) where the Certificate of the Public Prosecutor in stating in his determination that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia would suffice as evidence that the Court may have regard only to, now there is a need to have evidence before the Court of assistance provided by the convicted person to help the enforcement agency to disrupt drug trafficking activities. [106] Surely it cannot be that in place of the previous reference to a Certificate by the Public Prosecutor is now the statement or submission from the Bar by the DPP that the convicted person had not given any assistance to the enforcement agency to help it disrupt drug trafficking activities. [107] There must of necessity be a pre-sentencing hearing before the Court may exercise its discretion whether or not the convicted person is deserving 41 of 44 of the alternative sentence of life imprisonment and whipping. Whilst there is no specific provisions on the Criminal Procedure Code (“CPC”) on pre-sentencing hearing, that should not prevent the Court from developing a pre-sentencing protocol to determine if circumstance (d) of s. 39B(2A) is present especially when the DPP asserts that it is absent. [108] There is already provision under s.183A of the CPC on the Court calling upon the victim or a member of the victim’s family to make a statement on the impact of the offence on the victim or his family. Here it is the reverse as in giving evidence as to the circumstance which the Court may have regard only to when exercising its discretion to impose the alternative sentence of life imprisonment and whipping. [109] Surely a convicted person must have the opportunity to challenge the prosecution if it should assert through the DPP that the convicted person had not assisted the enforcement agency in disrupting drug trafficking activities. As stated since this matter of effectiveness in disrupting drug trafficking activities is a matter of extent and degree, evidence needs to be introduced for the Court to make an assessment in exercising its discretion whether to impose the alternative sentence of life imprisonment and whipping. [110] The convicted person is at liberty to cross-examine the prosecution witnesses on how the prosecution had used the information provided and whether there was a serious effort to follow through with the information provided. After all his life hangs in a balance as to whether he may be allowed the alternative life imprisonment and whipping sentence. 42 of 44 [111] As the question of effectiveness in disrupting drug trafficking activities is a matter especially within the knowledge of the enforcement agency, the prosecution should call its witnesses first in complying with showing whether the circumstance under s.39B(2A)(d) of the DDA is present or otherwise as required under s 106 of the Evidence Act 1950. [112] Anything short of that would render s. 39B(2A) of the DDA good for the optics only when as yet the onus on the prosecution to show that circumstance (d) is absent has not been discharged. Every opportunity must be given for the convicted person to be heard especially when the prosecution seeks to persuade the Court that no assistance had been given as contemplated under circumstance (d) of s.39B(2A) of the DDA and that he should be hanged instead. [113] There is no evidence that the prosecution had called any witnesses to prove that the convicted person had not assisted the enforcement agency as provided for under s.39B(2A)(d) of the DDA and that is a fatal non-compliance which is not curable. [114] The fact that circumstances (a) and (c) were present were patent from the evidence adduced as there was clearly under (a) no evidence of buying and selling of the dangerous drug at the time when both the convicted persons were arrested and under (c) the involvement of both the persons convicted is restricted to transporting and carrying the dangerous drug. 43 of 44 [115] As such the learned Judge cannot be faulted in having exercised his discretion to impose the sentence of life imprisonment and whipping of 15 strokes as the learned Judge in the absence of further evidence to the contrary had given due credit to the fact that both the accused persons had cooperated with the police when the raid and arrest were made on them and that there was no evidence that they tried to run away. [116] Any doubt in this case should be resolved in favour of the accused persons where sentencing is concerned. Pronouncement [117] I would thus uphold the sentence of life imprisonment imposed on both the accused persons from the date of their arrest on 8.10.2014 and 15 strokes of whipping in accordance with s. 39B(2A) of the DDA. Dated: 9 November 2020. Sgd LEE SWEE SENG Judge Court of Appeal Malaysia 44 of 44 For the 1st Accused Ridha Abdah Subri Messrs Ridha & Rai) For the 2nd Accused Azamuddin bin Abd. Aziz Messrs Azamuddin & Co For the Public Prosecutor Puan Faizah binti Mohd Salleh Deputy Public Prosecutor Attorney General’s Chambers Date of Decision: 8 September 2020.