AB - 42S - 15 - 09/2020 & AB - 42H - 6 - 09/2020

DDA. On that plank, he was sentenced to six years’ imprisonment and three strokes of whipping. [5] Accused had appealed against both conviction and sentence vide case no. AB – 42S – 15 – 09/2020. The Public Prosecutor (PP) too being dissatisfied with inadequacy of sentence meted out, had appealed against it, vide case no. AB – 42H – 6 – 09/2020. Both the appeals were heard together. In the end, conviction entered against accused was affirmed but sentence was disturbed as it was manifestly excessive and not in accordance with the penal provision, to wit, section 39C (1) DDA. Thus, appeal by accused against sentence was allowed and by prosecution, dismissed. [6] Dissatisfied, PP had appealed to the Court of Appeal (COA) against decision of this court. In the notice of appeal filed by Deputy Public Prosecutor (DPP), case no. AB – 42S – 15 – 09/2020 was cited, which does not relate to the appeal by PP. However, appeal by PP is now against alteration of sentence emanating from both cases no. AB – 42S – 15 – 09/2020 and AB – 42H – 6 – 09/2020. Bereft of that, substance of the appeal would be delved into. [7] Another issue with regard to the notice of appeal is, it states: “ADALAH DIBERI NOTIS bahawa Pendakwa Raya Malaysia, merayu kepada Mahkamah Rayuan terhadap keputusan … di mana Yang Arif telah membenarkan 4 sebahagian rayuan Responden iaitu dengan mengenepikan perintah 6 tahun penjara dan 3 sebatan rotan dan menggantikannya dengan perintah 5 tahun penjara bagi satu pertuduhan di bawah seksyen 15(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39C (1) Akta yang sama. Rayuan ini adalah terhadap hukuman tersebut …” As alluded to above, this court had in fact dismissed appeal by PP to have sentence passed by the sessions court judge (SCJ) enhanced, but had allowed appeal by accused against sentence, by reducing the term of imprisonment from a period of six years to five years and sentence of whipping was set aside. This court had found the sentence of whipping meted out illegal. As prescribed by section 51(2) of the Courts of Judicature Act 1964 (CJA; Act 91), every notice of appeal shall state shortly, substance of the judgment appealed against. Perusing the notice of appeal, although appeal is generally against decision of this court on sentence, but it does not specify dissatisfaction of the PP on the exact aspect of the sentence which was set aside and substituted by this court. It can only be presumed that appeal lodged to the COA is against reduction of the six-years period of imprisonment to a period of five years, and pointedly against setting aside of the sentence of whipping. [8] Flowing from there, the ultimate issue to be addressed in this judgment is on the reason why sentence of whipping was set aside. 5 It is this court’s considered opinion that the sentence of whipping provided by section 39C (1) DDA is not a mandatory sentence to be imposed. Why is it so? [9] Sentence passed by court has to be according to law. (See: generally, section 173(b) of the Criminal Procedure Code (CPC; Act 593) and 173(m) (ii) CPC). It simply means the sentence must not only be within ambit of the punishable section, but it must also be assessed and passed in accordance with established judicial principles. (See: PP v Jafa bin Daud [1981] 1 MLJ 315). [10] A sentence passed would lead to incarceration of an accused or he may be whipped. Thus, he suffers condemnation in the eyes of law. Hence, when a punishment provision is interpreted by this court, it shall not give rise to doubt on its applicability. If doubt arises, it shall be resolved in favour of the accused. Just as constitutionality of the legal provision is presumed, the words and phrase employed is also deemed to be clear and precise. Thus, when interpreted and enforced by the court, its clear intent has to be deciphered from the language used. Section 39C (1) DDA bears no exception. [11] Back on track, section 39C (1) DDA, provides when an accused is found guilty of an offence under paragraph 15(1)(a) DDA 1952, he 6 shall, instead of being liable to the punishment provided for that offence under that provision, be punished with:

Imprisonment for a term which shall not be less than five years but shall not exceed seven years, and

(ii) He shall also be punished with whipping of not more than three strokes. [12] Thus, for all intents and purposes, section 39C (1) caters for an enhanced penalty, to wit, if an accused who is found guilty and convicted for an offence of self-administration of drugs under section 15(1)(a) DDA has in his criminal record, not less than two previous convictions for a similar offence, like in the present case, the enhanced penalty which entails a longer period of imprisonment would be imposed. [13] However, as for sentence of whipping, the phraseology employed is not “shall be punished” but qualified by a linker “shall also be punished …”. It is trite that the legislature does not legislate in vain. Thus, the use of phrase “shall also be” implies, unlike sentence of imprisonment, the court is bestowed with discretion to either pass or not to pass a sentence of whipping, subject always to the facts and circumstances of the case. It has to sync with the sacrosanct principle of administration of criminal justice, that sentencing is 7 within discretion of the court. It is for the sentencing judge who is armed with all facts and circumstances of the case, to decide if a sentence of whipping is appropriate and proportionate. [14] Wan Arfah Hamzah and Ramy Bulan in their works on “An Introduction to The Malaysian Legal System at page 61 had stated on language rules, that: no matter which approach of statutory interpretation is adopted, the fundamental principle is that the statute must be read as a whole. A word or phrase must be read in the context of the rest of the section, and each section must be read subject to every other section which may explain or modify it. In that respect, as an external aid to interpretation of a statutory provision, dictionaries could be referred to. In Collins Cobuild English Language Dictionary, meaning of the word “also” includes, usage of it to link and contrast two different actions when their association is unexpected and it is inserted before the second action is mentioned. On that plank, under section 39C (1) DDA, the first action is for the court to impose a mandatory term of imprisonment which extends from five to seven years and the second is for the court to impose sentence of whipping if there is an unexpected turn of events on the facts and circumstance of the case. It is only meted out by the court if it is desirable to do so, so as to give effect to aim of deterrence when sentencing an accused. In sum total, the 8 legislature vide section 39C (1), has allowed discretion to the court to either impose or not to impose sentence of whipping, in addition to a term of imprisonment. In that regard, sentence of whipping is not mandatory, and it shall not be meted out as a matter of course. [15] The above reasoning is further fortified by the rehabilitative aim of sentencing when a drug dependent who has committed an offence of self-administration of drugs, pursuant to section 15(1)(a) DDA is sentenced. With that noble aim, an offender is encouraged to be law abiding and responsible during the period of incarceration, so that he would follow on upon release. It is also hope and aspiration of the State, that a drug dependent like the accused in the present case, would move away from addiction of drugs to normalcy in life. It is for that reason; the period of imprisonment is made stiffer so that clanging of the prison gates would enable him to ponder on his folly and move away from addiction after pursuing rehabilitative program at the prison. Undoubtedly, drug dependency is a social problem and a perennial one, but the legislature has deemed it fit to deal with it by a stiffer sentence of imprisonment. It has also to be noted, notwithstanding the sentence meted out pursuant to section 15(1) (a) or 39C (1) DDA, the accused cum drug dependant may 9 also be liable for treatment under the Drug Dependants (Treatment and Rehabilitation) Act 1983 (Act 283). [16] Historically, section 39C DDA was introduced to cater for an enhanced penalty if the accused, pursuant to his criminal record underscoring drug dependency, is deemed unmanageable. Thus, the State takes over the responsibility by managing him with a longer period of incarceration, as he stands wayward in the eyes of law, albeit being convicted more than once for an offence of self-administration of drugs. [17] Subject to the legal provision applicable, sentence of whipping is normally inflicted on an accused, if he commits a violent crime, like causing grievous hurt, armed robbery etc. Unlike such gamut of offences, self-administration of drugs is not violent in that sense, but as alluded to earlier, the State has taken its role to curb addiction by incarcerating the drug dependents for a longer period of time. But, unless the circumstance of the case is such that it warrants a harshly deterrent sentence, a sentence of whipping is appropriate. Moreover, with the promulgation of section 39C DDA, the offender does not get away only with a fine or a shorter period of imprisonment as envisaged by section 15(1)(a) DDA. That would be the raison d’etre for the existence of section 39C (1) DDA, with its 10 phraseology “shall be punished”, for a period of imprisonment but not so for sentence of whipping. The court still holds its discretion not to impose whipping, with the linker phrase “shall also be punished with whipping …”. Thus, in sum total, although penalty under section 39C (1) DDA is considered deterrent, sentence of whipping remains an optional sentence. It would be imposed by the court, if facts, circumstances of the case as well as condition of the accused permits. [18] In the upshot, the entire spectrum of sentencing flows from the bedrock principle of administration of criminal justice, that sentence is always at discretion of court. In the present case, it is noted that the SCJ when imposing maximum three strokes of whipping did not render a compellable reason, other than merely stating it is the law, when it is not. It is also apparent on the record that; she did not state her reasons as to why she had exercised discretion to impose sentence of whipping of up to three strokes, when it is a cardinal principle of sentencing that when imposing the said maximum sentence, there ought to be reasons given. (See: Harnam Singh v Emperor AIR 1926 Lah 239, cited in the case of Mohd Jalani bin Saliman v PP (1997) 5 MLJ 551) as referred to by Mr. Chris Kooi 11 Wei Kit in his well-researched submission advanced before me when arguing the appeal. [19] For the above reasons, this court is left without an alternative but to set aside the sentence of whipping ordered. For the record, a similar interpretation was made by His Lordship Awang Armadajaya Awang Mahmud JC, in the case of PP v Rosnan Ismail [2020] 1 LNS 1596. [20] As to the period of imprisonment, this court, in its exercise of appellate jurisdiction, had reduced it from a term of six years to five years. When doing so, I agree with contention by learned counsel for the accused that the SCJ had once again misdirected herself when she took into consideration the entire criminal record of the accused as essential when deciding on the sentence. Such consideration, is incongruent with the law. Section 39C (1) DDA allows for enhanced penalty if the accused had two other previous convictions pertaining to the same offence, i.e. section 15(1)(a) DDA and not any other offences. Regardless of that, and the charge preferred against accused, specifying the two previous convictions under section 15(1)(a) DDA, the SCJ had taken into consideration other previous convictions for offences of theft and other drug related offences, ranging from the year 1997 to 2016, without any justifiable reasons. The enhanced penalty pursuant to section 39C 12

DDA is damning to the accused person. Thus, to also consider other crimes for which he had been convicted in the past, would tantamount to double jeopardy, infringing Article 7 (1) of the Federal Constitution, which bars an accused from suffering greater punishment for an offence than was prescribed by law at the time it was committed, which in the present case of accused, is only section 15(1)(a) read together with 39C (1) DDA, and nothing more. On that score alone, the six-year period of imprisonment imposed is also illegal. Premised on the facts and circumstances of the case on record, a sentence of five years’ imprisonment, the minimum period allowed under the law is fair, just and proportionate to the offence of self-administration of drugs committed by the accused. Moreover, for all intents and purposes, he is deemed to be a first offender who has committed an offence entailing an enhanced penalty under section 39C (1) DDA. Sentence of six years’ imprisonment with whipping of three strokes is set aside and substituted with five years’ imprisonment only. Dated 11 February 2022. Sgd. Muniandy Kannyappan Judicial Commissioner High Court, Taiping. 13 Mr. Chris Kooi Wei Kit, of Messrs. Kit & Co, counsel for appellant/accused. DPP Azrul Faidz Abdul Razak for respondent/Public Prosecutor.