[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v LOCK CHEE WAI (WA-45A-52-06/2021)

The following constitute my grounds of judgment for an appeal arisen against my decision handed down on the 6th of March 2023 by the Public Prosecutor pertaining to sentence passed for plea of guilty for alternative charge under section 12 (2) of the Dangerous Drugs Act 1952 and punishable under section 39A(2) of the same Act. My rationale of deciding so shall follow in the succeeding paragraphs below.

The criminal alternative charge proffered against the 2nd accused person (Lock Chee Wai) by the prosecution before this Court is as follows in Bahasa Melayu (national language): Pertuduhan Pilihan: “Bahawa kamu pada 5 Oktober 2020 jam lebih kurang 8.15 malam, bertempat di Kawasan tempat letak kereta The Faces Suites, No 1020 Jalan Sultan Ismail, Kampung Baru, dalam daerah Dang Wangi dalam wilayah Persekutuan Kuala Lumpur telah ada dalam milikan kamu dadah berbahaya iaitu 18.9 gram Heroin dan 15.3 gram Monoacetylmorphines dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 12 Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39A(2) Akta yang sama”. Hukuman: Jika disabitkan kesalahan hendaklah dihukum penjara seumur hidup atau penjara tidak kurang dari 5 tahun dan hendaklah disebat dengan sebatan tidak kurang daripada 10 sebatan.

The facts are straightforward and of no complexity for comprehension in this matter. Acting on information, on 5/10/2020 at about 8.15 pm, the complainant – Insp Mohd Haszaruddin Kamaruzzaman together with his team made an observation on AUDI TT FSI black colour car bearing registration number JLT 8688 that was driven to the car park area of The Faces Suites, No 1020 Jalan Sultan Ismail, Kg Baru 50250 Kuala Lumpur. Based on observation further, the said car was parked at parking bay no.203 basement 2.

The complainant and his team saw the 1st accused person coming out from the driver’s seat and arrested him. Thereafter, the 2nd accused person also came down from the passenger seat holding one green plastic package written ‘My Bizcuit Durian Tart’. The 2nd accused person was also arrested and that green plastic package was seized. Drug suspected to be heroine was found inside the said package, estimation of 900 grams.

Further examination on the car revealed another yellow plastic package at the back passenger seat of the car where drug suspected to be heroine was found with estimation of 280 grams. Eventually, the chemist report confirmed the seized items to be drugs with the nett weight as stated in the alternative charge above.

When the matter was called up on 6/3/2022 before me, the prosecution informed the court that for the case of WA-45A-52- 06/2021, an alternative charge is offered to the 2nd accused person (Lock Chee Wai).

Accordingly, the alternative charge was read out and explained to the 2nd accused person to which he pleaded guilty unequivocally without any reservation. He fully understood the nature and consequences of his plea. All the exhibits tendered by the prosecution in support of the charges were duly marked and admitted by the court. I therefore, accepted the guilty plea of the 2nd accused person and convicted him on the same.

As for the mitigation in relation to the sentence, the learned defence counsel submitted on personal reasons of the 2nd accused person to have a lesser and lenient sentence from the court. The 2nd accused person is a married man with 3 children where all of them are still schooling. The wife is a homemaker and the 2nd accused person only works as a night market trader. He therefore supports the income of the family and an elderly mother of 71 years old is dependent on the 2nd accused person. His plea of guilty had therefore saved the time and costs of a lengthy proceedings and the amount of drug involved is relatively small. The learned defence counsel prayed for a lenient sentence to be imposed on the 2nd accused person.

On the other hand, the prosecution via rival submission submitted for a heavy sentence to be imposed by this court due to the seriousness and rampancy of drug offences in this soil as drug offences are seen as the first enemy of then nation since the government declared so in year 1983. It is also apparently a matter of judicial notice under section 56 of the Evidence Act 1950. Furthermore, the prosecution impressed upon this court that the public interest element outweighs the personal reasons of the 2nd accused person for leniency. The amount of drug in this matter is certainly not the minimum according to the prosecution. Few cases to demonstrate the sentencing trend by the Court of Appeal were also quoted in support of the stiffer sentence.

At the outset, I must say that a plea of guilty must necessarily lean in favour of the accused person. Sentencing is no doubt an intricate concept and exercise that the court must scrutinise carefully before deciding. There is of course, no fixed mathematical formula to it and each case stands unique based on its own facts and circumstances. No case is hundred percent the same and identical with another and all the decided judicial precedents only serve as a guidance to the sentencer.

The general rule is that an accused person who pleads guilty is entitled to a discount was applied by our Supreme Court in Mohamed Abdullah Ang Swee Kang v Public Prosecutor [1988] 1 MLJ 167. The Supreme Court adopted with 6 approval the views expressed by Cumming-Bruce LJ in R v Boyd where he said: “The policy of the court is that where a man does plead guilty, which does give rise to public advantage and avoids the expense and nuisance of a trial, which may sometimes be a long one, the court encourages pleas of guilty by knocking something off the sentence which would have been imposed if there had not been a plea of guilty.”

Similarly, in the earlier Federal Court decision of Sau Soo Kim v Public Prosecutor [1975] 2 MLJ 134, Lee Hun Hoe CJ (Borneo) said: “Whether a person is a hardened criminal or not, I feel that a plea of guilty should be treated as a mitigating factor. It not only saves the country the great expense of a lengthy trial but also saves time and inconvenience of many, particularly the witnesses.”

Despite the above, I also cannot divorce my mind from the very essential truth that drug offence is a fatal menace to any civilised country due to its abhorrent ramification on the society and country. The prevalence and increase of drug offences cannot be viewed lightly and the sentence of this court should reflect on such abhorrence towards drug offences. It is a mala in se (evil in itself) sort of offence. Eventually, this court must no doubt strike a proper balance between public interest and the individual interest of the accused person. There is no previous record of conviction tendered 7 by the prosecution in this matter and the sentence of the court must not have a crushing effect on the accused person.

After carefully considering both the mitigation and aggravation by the parties and applying my judicial mind to it, I ordered the sentence of 6 years imprisonment from the date of arrest (5/10/2020) and 10 strokes of whipping to be served by the 2nd accused person. So ordered. Dated: 30th of June 2025. (AZHAR BIN ABDUL HAMID) Judge (Criminal Division) High Court, Kuala Lumpur Parties Appearing: Prosecution: Goh Ai Rene Deputy Public Prosecutor (Kuala Lumpur Prosecution Office) 2nd Accused Person: Gobind Singh Deo & Ho Cheng En (Messrs. Gobind Singh Deo & Co.)