Ab Kadir Zailani Bin Abdul Hukom (WA-62D-151-02/2024)

This judgment is issued following a notice of appeal filed by Ab Kadir Zailani Bin Abdul Hukom (the accused), who seeks to appeal before the High Court on the sentence imposed by this Court on 20 November 2024.

The accused was convicted under section 15(1)(a) of the Dangerous Drugs Act 1952 (DDA) and subjected to the enhanced penalty prescribed by section 39C(1) of the DDA. This court sentenced the accused to 7 years’ imprisonment coupled with police supervision for a period of three years. Notably, the accused did not appeal on the conviction but only on the severity of the sentence. In light of this, the 2 present judgment shall be confined to the considerations surrounding the sentence imposed.

The charge preferred against the accused is reproduced below in its original form for clarity: Bahawa kamu pada 15/11/2023, jam lebih kurang 12.55 tengah hari, bertempat di Pejabat Bahagian Siasatan Jenayah Narkotik IPD brickfields, Wilayah Persekutuan Kuala Lumpur telah didapati kamu menggunakan atau memasukkan dadah berbahaya jenis MORPHINE ke dalam badan kamu sendiri. Oleh yang demikian kamu telah melakukan kesalahan di bawah Seksyen 15(1)(a) Akta Dadah Berbahaya 1952 dan kamu juga didapati telah mempunyai 3 rekod kesalahan dahulu di bawah Seksyen 15(1)(a) Akta Dadah Berbahaya 1952 iaitu:

Sabitan pada 07.03.2013 oleh Mahkamah Magte.2 K. Lumpur (No kes 83D-164-13)- Pantai Rpt: 204/13.

(ii) Sabitan pada 29.04.2014 oleh Mahkamah Magte.5 K. Lumpur (No kes 83D-1873-4/14)- Petaling Rpt: 2025/14.

(iii) Sabitan pada 06.09.2016 oleh Mahkamah Magte.3 K. Lumpur (No kes 83D-6557-07/16)- Pantai Rpt: 7508/16. Oleh itu, jika sabit kesalahan kamu boleh dihukum di bawah Seksyen 39C(1) Akta Dadah Berbahaya 1952. [4] The charge was read out to the accused by the Court Interpreter in Malay language. The accused indicated his intention to this court to stand trial. C) FACTS OF THE CASE [5] On 15 November 2023 at approximately 12.55 pm, the accused was brought to the Criminal Investigation Anti-Narcotics Division, Brickfields, Kuala Lumpur. There, the accused was instructed by Detective Sergeant Zulkifli bin Nordin (SP2) to undergo a preliminary urine test. SP2 provided the accused a box containing several empty urine sample bottles. It was the accused, of his own volition, who selected one such urine bottle, which was wrapped in plastic and marked with the serial number SN C0324792, (the said bottle). [6] SP2 inspected the said bottle and found no evidence of tampering. The seal and wrapping of the said bottle remained intact. The serial number SN C0324792 affixed to the seal, as well as the said bottle, its plastic wrapping, and the label, were all found to be in correspondence. SP2 then escorted the accused to a toilet facility situated at the Criminal Investigation Anti-Narcotics Office, Brickfield, where the accused was instructed to provide a urine sample into the said bottle. Throughout this process, SP2 remained in close proximity to the accused whilst the sample was provided. The accused filled approximately two-thirds of the bottle with his urine sample. Upon completion of the process, and in compliance of SP2’s instructions, the accused sealed the bottle. The accused thereafter presented the sealed bottle, containing his urine sample, to the designated testing station. [7] Thereafter, SP2 conducted a preliminary test, which was observed by the accused, by dipping six test strips, provided by the Royal Malaysian Police, into the accused’s urine sample. The purpose of this test was to ascertain the presence of Morphine, Ketamine, THC, Benzo, Amphetamine, or Methamphetamine in the accused’ s urine. The results of the test revealed a positive indication for Morphine. SP2 promptly informed the accused the outcome of the preliminary test. Following this, SP2 proceeded to complete the requisite documentation by affixing the accused’s details to the label on the said bottle, which was then signed by the accused. In the presence of the accused, SP2 sealed the said bottle. The said bottle is shown to this court and marked as Exhibit P2. The images of the toilet facility situated at the Criminal Investigation Anti-Narcotics Office, Brickfield were collectively marked as Exhibit P5. [8] SP2 subsequently prepared a form Borang Ujian Pengesahan Dadah (UPD), which was marked as Exhibit P1, and obtained the accused’s signature thereon. Upon the conclusion of the preliminary testing, on the same date, SP2 lodged a police report Travers/00746/23/22, which was marked as Exhibit P4. SP2 then surrendered the said bottle, together with the Borang Serah Terima Barang Kes, which was marked as Exhibit P6, to the investigating officer, SM Sufri Bin Sukarno (SP4). [9] On 15 November 2023, at approximately 3:00 p.m., SP4 took four photographs of the said bottle containing the accused’s urine sample. Thereafter, SP4 secured the bottle in a locked cabinet within SP4’s office, the access to which was restricted solely to SP4. [10] On 17 November 2023, at approximately 8:00 a.m., SP4 had instructed Sergeant Roziyah binti Hj Aha (SP3) to deliver the said bottle containing the accused’s urine sample to the Pathology Department of Kuala Lumpur Hospital for analysis. In compliance with SP4’s instructions, SP3 sent the bottle to the Pathology Department on the same day. [11] Upon receipt of the bottle containing the accused’s urine sample, Mr. Cheong Tar Wei, a chemist at the Pathology Department of Kuala Lumpur Hospital (SP1), conducted an analysis by employing the Gas Chromatography Mass Spectrometry (GCMS) method on the same day. SP1’s analysis concluded that the accused’s urine sample contained Morphine, a substance classified as a prohibited drug under the First Schedule, Part III of the DDA. SP1 issued a Confirmation Drug Report or Laporan Ujian Pengesahan Dadah Dalam Air Kencing Laboratory No: 2396053927 documenting his findings, which was marked as Exhibit P3. [12] The accused was brought before this Court on 9 February 2024. At that time, the accused was not represented by counsel. This Court adjourned the proceedings on three occasions to afford the accused an opportunity to appoint a defence counsel. On 3 May 2024, the accused informed this Court about his intention to conduct his own defence without assistance from a lawyer. He further requested that the trial date to be expedited. [13] The trial commenced on 17 September 2024. Throughout the proceedings, this Court had assisted the accused, particularly in guiding him on the proper conduct of cross-examination and submissions. The accused proceeded to cross-examine all four of the prosecution’s witnesses. [14] At the conclusion of the prosecution’s case, based on a maximum evaluation of evidence produced before this court, this Court found that the prosecution had established a prima facie case and accordingly called upon the accused to enter his defence. [15] This Court had duly discharged its obligation under section 173(ha) of the Criminal Procedure Code (CPC) by explaining to the accused the three available options for presenting his defence, namely: (i) to give sworn evidence from the witness box; (ii) to make an unsworn statement from the dock; or (iii) to remain silent. [16] The accused elected to be called as witness and gave his sworn evidence from the witness box. The accused did not call any other witnesses nor request to recall any witnesses who had present in this court. In summary, the accused testified that the toilet located at the Criminal Investigation Anti-Narcotics Office, Brickfield, had two cubicles. The accused contended that the investigating officer failed to identify the specific cubicle in which he provided his urine specimen. The accused further asserted that the police should have produced photographic evidence of him providing the urine specimen. [17] In my considered opinion, the arguments put forth by the accused amounted to little more than a feeble defence, lacking in substance. I observed that the inquiries raised by the accused had been sufficiently addressed by both SP2 and SP4. [18] SP2, in his testimony, confirmed about the presence of two cubicles within the toilet located at the Criminal Investigation Anti-Narcotics Office, Brickfield. However, SP2 clarified that only one cubicle is designated for the collection of urine samples, while the other is reserved solely for Muslim ablution. SP2 further asserted that it would be wholly inappropriate for him to capture photos of the accused providing his urine sample. [19] Similarly, SP4 testified that the cubicle used by the accused for the purpose of providing his urine sample was the one depicted in the photographic evidence marked as Exhibit P5. [20] It is my considered finding that the law does not demand the production of photographic evidence of the accused in the act of urinating into the collection bottle. Such a requirement would, in my view, serve no legitimate purpose and would only result in unnecessary embarrassment to the accused. D) CONVICTION [21] After a thorough and maximum evaluation of the evidence presented before this court, it is the considered view of this court that the accused failed to raise a reasonable doubt in the prosecution’s case. Consequently, the accused is found guilty and convicted of the offence charged under section 15(1)(a) of the DDA. E) MITIGATION BY THE ACCUSED [22] Following the conviction, this court assisted the accused to submit his mitigation. In summary, the accused sought this court's leniency in sentencing and requested to be sent to a drug rehabilitation centre. The accused is unmarried, suffers from asthma, and was homeless and unemployed prior to his arrest. F) AGGRAVATING FACTORS BY THE PROSECUTION [23] On the contrary, the prosecution urged this court to impose a prolonged term of imprisonment upon the accused, citing his status as a recidivist offender and for the interest of the public. It was submitted that the accused had shown no remorse for the offence with which he was charged. The prosecution further impressed upon this court about the growing prevalence of drug-related offences, particularly in Kuala Lumpur, and contended that the sentence should reflect the government's strong commitment to addressing the misuse of drugs. The accused should not be afforded a lesser sentence on account of the case having undergone a full trial. Accordingly, the prosecution called for the maximum penalty to be imposed. [24] The following factors have been duly considered by this court in determining the appropriate sentence. G) PRINCIPLES OF SENTENCING [25] In criminal law, it is the duty of the court to carefully consider the public interest in determining the appropriate gravity of a sentence. While the court is vested with a broad discretion in determining the term of imprisonment to be imposed upon an accused, such discretion, must always be exercised in accordance with established sentencing principles. [26] The classical theory regarding the aims of sentencing initially encompassed three primary objectives: retribution, deterrence, and rehabilitation. It was only later, in the case of R v. Sargeant [1974] 60 Cr App R 74, that Lawton LJ introduced a fourth aim—prevention. Notwithstanding this development, the court retains the discretion to apply any one, or a combination, of these sentencing aims, as it deems appropriate in the circumstances of each case. In Mohamad Abdullah Ang Swee Kang v Public Prosecutor [1987] 2 CLJ 405, the Supreme Court chose not to follow the principles outlined in R v. Sargeant. Instead, the court adopted the approach set forth by Lawton LJ in R v. Davies [1978] 67 App R 207, wherein only the aims of retribution and deterrence were applied in determining the appropriate sentence. [27] The law in Malaysia is well-settled in that sentences should reflect a combination of several, if not all, of the aforementioned aims—namely deterrence, rehabilitation, prevention, and retribution. However, the question of which aim should take precedence over the others remains an unresolved issue, one that continues to present a quandary for the courts. H) THE LAW [28] Whenever a sentence is to be passed against the accused after conviction is recorded, section 173(m)(ii) of the CPC dictates that the sentence must be according to the law. Section 173(m)(ii) of the CPC provides: Section 173. Procedure in summary trials …(m) If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court shall find the accused guilty and he may be convicted on it and the Court shall pass sentence according to law: (emphasis added) [29] The phrase sentence according to law had been deliberated in Letitia Bosman v Public Prosecutor (No 1) [2020] 5 MLJ 277, wherein the Federal Court ruled that: ..Hence under the scheme of our FC, imposing sentence is a judicial power that must be exercised in accordance with the kind and range of punishments prescribed by the legislature. It is for the court to carry out these powers within that limit as provided by the federal law. The court, in exercising such powers will act according to the provision as prescribed by the law. [30] The accused in this case was found guilty and convicted under section 15(1)(a) DDA and the law provides: Section 15. Self administration.

Any person who—

consumes, administers to himself or suffers any other person, contrary to section 14 to administer to him any dangerous drug specified in Parts

is found in any premises kept or used for any of the purposes specified in section 13 in order that any such dangerous drug may be administered to or smoked or otherwise consumed by him, shall be guilty of an offence against this Act and shall be liable on conviction to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding two years. [31] However, the prosecution had proved that the accused had three previous convictions of similar offence based from the Form Pol R.J.2B (Exhibit P7). Exhibit P7 was produced through SP4 coupled with a certificate issued under section 90A of the Evidence Act (Exhibit P8). The particulars of the accused’s previous convictions of similar offence are as follows: Date of Conviction Offence Court 7 March 2013 section 15(1)(a) DDA Kuala Lumpur Magistrate’s Court (2) 29 April 2014 section 15(1)(a) DDA Kuala Lumpur Magistrate’s Court (5) 6 September 2016 section 15(1)(a) DDA Kuala Lumpur Magistrate’s Court (3) [32] Given the accused’s previous convictions for similar offence, the accused became subject to an enhanced penalty under section 39C(1) of the DDA. Section 39C(1) of the DDA provides: Section 39C. Increased penalty where person has prior admissions or convictions.

Where a person who has not less than—

two previous admissions; … is found guilty of an offence under paragraph 10(2)(b), paragraph 15(1)(a) or section 31A, he shall, instead of being liable to the punishment provided for that offence under the section under which he has been found guilty, be punished with imprisonment for a term which shall not be less than five years but shall not exceed seven years, and he shall also be punished with whipping of not more than three strokes. (emphasis added) [33] Section 39C(1) of the DDA provides for a mandatory minimum sentence of five years of imprisonment, with a maximum term not exceeding seven years. The law provides that once an accused is convicted for the offence charged, the court should always consider the maximum sentence prescribed by the law. In Public Prosecutor v Rosnan bin Ismail [2020] MLJU 1816, the learned High Court Judge observed the following principle on sentencing: Once convicted, a trial court must start with the maximum sentence allowed by law. It must then consider the facts and circumstances of the case, giving “discounts” for less than the most serious manner of commission. The word “discount” is found in the case of MOHD ABDULLAH ANG SWEE KANG v. PUBLIC PROSECUTOR [1987] CLJ Rep 209 where it was held that “A sentencer must give sufficient discount for all extenuating circumstances pertaining to the degree of culpability or criminality involved, which must necessarily vary from case to case apart from other mitigating factors. Unless there is a proper reason for withholding such credits, failure to do so may result in the sentencer not exercising his or her discretion judicially in assessing the level of custodial sentence”. (emphasis added) [34] In this respect, this court is vested with the discretion to determine the appropriate term of imprisonment. In the exercise of this discretion, I am mindful of the need to strike a fair and just balance between the public interest and the mitigating factors presented in favour of the accused. The Court of Appeal in the case of PP v Zulkifli Bin Omar [1998] 6 MLJ 65 held: No judge or magistrate could rest be assured that he is resting on rock-colid terra firma when it comes to sentencing, given that the material facts in, as well as opinion on, what is the appropriate sentence for a given offence vary from one case to another. The exercise of his discretion on the sentence to mete out, is often based on a tenuous balance between the vital interests of the community at large and the mitigating factors of the crime and the criminal in particular. I) EVALUATION AND SENTENCE OF THIS COURT [35] The plea in mitigation presented by the accused in this present case had been seriously considered by this court in adherence to the principles set forth in the ruling of Hashim Yeop Sani J. in the case of Raja Izzuddin Shah v PP [1979] 1 MLJ 20 that: No plea in mitigation should be thrown aside lightly but must be examined and considered equally with the facts presented. [36] Similarly, the Federal Court in Letitia’s case ruled that: …a mitigation plea is a constituent element of the sentencing process. A plea in mitigation must be considered together with the aggravating factor so as to strike a balance in the scale of justice. [37] The sentences imposed on the accused by this court are hinged on the following considerations: i) Mitigating Factors [38] It is a common observation that a plea in mitigation would be undertoned with some melancholic background of the accused person. The present case is no exception. The accused sought to persuade this court to impose a more lenient sentence by citing factors such as his age, asthmatic condition, unemployed, and homeless. Unfortunately, this court is impervious by these factors. In this regard, I adopt the reasoning and ruling of Abdul Rahman Sebli J, (now CJSS) in PP v Shahrul Azuwan Adanan & Anor [2013] 2 CLJ 686 where His Lordship had this to say: [14] The sentencing court must only consider circumstances that mitigate the crime and not those that are personal to the offender and unconnected to the crime such as hardship to the offender and his family if he is sent to prison. These are matters that the offender should have thought of before committing the offence. If he was brave enough to tempt fate and got caught he must be brave enough to face the natural and probable consequences of his act. ii) The severity of the offence-proportionate punishment [39] It is the solemn duty of this court to ensure that the sentence imposed upon the accused commensurate the gravity of the offence. The principle of proportionality in sentencing demands a judicious balance, one that weighs both the legitimate interests of the accused and the overarching interests of the State. [40] The interest of the State is best served by ensuring the intention of the Parliament in enacting section 39C of the DDA is duly upheld by the court. Section 39C was introduced as a new section through the Dangerous Drugs (Amendment) Act 2002 which came into effect on 1 November 2002. In seeking to ascertain the true intention of section 39C of the DDA, I have turned to the Hansard of 19 June 2002, which unambiguously articulates the Parliament’s intention to mitigate drug problems in the country by imposing enhanced penalties to deter recidivist offenders. The statements made therein by the then Parliamentary Secretary to the Ministry of Health provide unequivocal insight into Parliament’s intention, which I hereby reproduce in its original form for clarity: Memandangkan masalah penagih dadah tegar semakin meningkat, Fasal 8 (Note: “Fasal 8” of the Bill is the new s. 39C) adalah untuk memasukkan seksyen baru dalam Akta Dadah Berbahaya untuk mengenakan hukuman penjara yang lebih panjang serta sebatan ke atas penagih tegar. Ada negara seperti Singapura di mana penagih yang ditangkap menagih bagi kali ketiga akan dipenjara dari lima hingga tujuh tahun beserta rotan tiga hingga lapan kali. Bagi kesalahan yang berikutnya mereka akan dipenjara dari tujuh hingga tiga belas tahun berserta rotan enam hingga dua belas sebatan. Tindakan yang diambil ini didapati memberi kesan yang baik dalam menangani masalah dadah di negara berkenaan. Di bawah Akta Dadah Berbahaya 1952 sekarang, penagih dadah terutama yang tegar boleh dipenjarakan sehingga dua tahun setiap kali kerana melakukan kesalahan di bawah seksyen 10 dan seksyen 15, oleh itu tindakan untuk meletakkan penagih-penagih yang tegar di penjara atau kurungan bukanlah perkara baru. Dalam pindaan yang dicadangkan, mereka yang pernah menjalani rawatan di pusat pemulihan untuk dua kali atau lebih, atau pernah disabit kesalahan mengguna dadah berbahaya di bawah seksyen 10 atau seksyen 15 sebanyak dua kali atau lebih, atau gagal memberi air kencing untuk ujian yang diperuntukkan di bawah seksyen 31A, sebanyak dua kali atau lebih dan di samping itu pernah menjalani rawatan pemulihan atau disabitkan kesalahan menggunakan dadah berbahaya akan dikenakan hukuman penjara lima hingga tujuh tahun dan sebatan tidak melebihi tiga kali, sekiranya disabit lagi kesalahan di bawah seksyen 10, seksyen 15 atau seksyen 31A. Mereka yang mengulangi lagi kesalahan-kesalahan tersebut, akan dikenakan hukuman penjara tujuh hingga tiga belas tahun dan sebatan tiga hingga enam kali. (Hansard (House of Representatives) 4th Session, Second Meeting, DR 19/6/2002, Column 16) [41] I also bear in mind the ruling made in PP v Muhari bin Mohd Jani [1999] 8 CLJ 430, wherein KC Vohrah J ruled as follows: The prescribing of a maximum penalty in respect of an offence not only marks the limits of the Court’s discretionary power as to sentence, it also ordinarily prescribes what the penalty should be in the more serious types of cases falling within the relevant class of the offence meriting the maximum punishment prescribed. The principle of holding in abeyance the maximum sentence for the most serious likely instance of the offence should mean that an offender who pleads guilty does not receive the maximum sentence. iii) Public Interest [42] In principle, a custodial sentence should be avoided, as it exposes offenders to the influence of more hardened individuals, potentially resulting in the offender becoming a more hardened criminal (see Norshahrizan Junaidi v PP [2016] MLJU 465). However, this principle is not suitable to be applied to the accused in the present case. The evidence, notably Exhibit P7, serves as a clear indication that the accused is a recidivist, having repeatedly committed similar offence under section 15(1)(a) of the DDA, and this is now the fourth for such similar offence. [43] This court is inclined to adopt the established principle articulated by Hilbery J in Rex v Kenneth John Ball, 25 Criminal Appeal Reports 64, which was cited in approval by the High Court in Public Prosecutor v Loo Choon Fatt [1976] 2 MLJ 256, that, the court must accord priority to the protection of the public interest when determining an appropriate sentence. The court may safeguard the interest of the public in this instance by ensuring the separation of the accused from the society through imposition of deterrent sentence. (see also Public Prosecutor v Dato’ Waad bin Mansor [2005] 2 MLJ 101 and Public Prosecutor v Tan Ah Cheng [1976] 2 MLJ 186). [44] The next legal poser is, how this court should balance the interests of the public with those of the accused person? In this regard, I found guidance in the principle of law set forth by Abdul Rahman Sebli JCA (now CJSS) in delivering the judgment of the Court of Appeal in Iwan Bujang Dara & Anor v Public Prosecutor [2017] MLJU 283 that: [17]…No matter how strong the plea in mitigation is in favour of a lenient sentence, the court’s overriding consideration has always been and will always be the public interest. iv) Deterrence [45] Jeremy Bentham, a preeminent jurist in the philosophy of punishment, in his seminal work An Introduction to the Principles of Morals and Legislation expounded that punishment should be designed to promote greatest happiness in society, and this would mainly be achieved by deterring potential criminals from committing offences. Bentham posited that the gravity of the punishment should correspond to the magnitude of the mischief caused by the offence, such that more severe transgressions are met with proportionately greater penal sanctions. (see. Jeremy Bentham (1781), An Introduction to the Principles of Morals and Legislation, Batoche Books, Kitchener, Canada, 2000, p 14-18) [46] The accused in this case had demonstrated a clear and repeated disregard for the law, having committed similar offences on no fewer than three previous occasions. The present case concerns his fourth such offence. In light of the principle set forth in the preceding paragraph, this court is of the view that the objective of deterrence can only be realised through the imposition of a prolonged custodial sentence, with a view to curbing the accused’s pattern of recidivism. [47] The short custodial sentences previously imposed upon the accused by the Magistrates for similar offences, while intended to serve as a deterrent; did not achieve the desired result of reforming the accused. Those previous sentences have proven to be ineffectual, failing to bring about any meaningful change in the accused’s conduct. Accordingly, this court must give serious consideration to the imposition of a prolonged custodial sentence. [48] This court finds itself unable to discern any remorse in the conduct of the accused in the entire trial proceedings. It is apparent that the accused, was fully aware about the weakness of his defence, was unable to raise any credible arguments to defend the charge against him. The issues raised by the accused were of a trivial nature and failed to cast doubt to the prosecution’s case in any material respect. The accused has prolonged this trial unnecessarily, burdening the court with a protracted process. During mitigation, the accused told this court about his intention to escalate his arguments before the High Court. v) Rehabilitiation [49] In light of the three prior convictions of the accused, coupled with the conviction in the present case for similar offence, it is abundantly clear that the accused had engaged in persistent drug misuse over an extended period. This court is of the firm view that the only means by which the appellant may be rehabilitated is through the imposition of a prolonged custodial sentence, as detailed in the preceding paragraphs. [50] In determining whether to impose a minimum or maximum term of imprisonment, I found valuable guidance in the decision of the High Court in Tan Shy Wen v Public Prosecutor [2021] MLJU 1849, where Amirudin Abd Rahman JC held that a repeated offender should be sentenced to a minimum term of imprisonment, provided that previous convictions did not involve custodial sentences. However, where a repeated offender remains unremorseful after completing a minimum custodial sentence, the court must then consider the imposition of a longer, or maximum term of imprisonment, in order to effect rehabilitation. [51] I am, therefore, of the view that a prolonged custodial sentence is the most fitting and proportionate punishment to be imposed upon the accused, in light of the offence committed. J) DECISION OF THIS COURT [52] After exhaustive consideration of all factors pertinent to the gravity and nature of the offence committed by the accused, and applying the legal principles adumbrated above to the facts of the case, It is the judgment of this Court that the accused shall be sentenced to a term of imprisonment for a period of seven years commencing from the date of his arrest. In addition, pursuant to section 38B(1) of the DDA, the accused is hereby placed under police supervision for a period of three years following his release. Given the fact that the accused is over the age of fifty, he is exempted from the penalty of whipping, in accordance with section 289(c) of the CPC. ………………………………… Dr. Azrol bin Abdullah