[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v 1. ) MOHD HAZLAN BIN MOHD HUSSIAN (WA-45A-93-11/2021)

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LEONG WEI BENG (LISAN) (KP NO. 890321-08-5429) MUHAMMAD HAIZAD BIN MOHD HUSSIAN (KP NO. 991108-03- 5791) JUDGMENT Decision of this court [1] I have meted out a sentence of eight (8) years imprisonment and whipping up to 10 strokes for an offence under section 39A (2) of the Dangerous Drugs Act 1952 (DDA/Act 234), as decided by this court against the accused person Mohd Hazlan bin Mohd Hussian (Hazlan) at the end of case of the prosecution. Background [2] At the outset, the accused was charged for an offence of drug trafficking pursuant to section 39B (1) read with 39B (2) of the DDA with two others, in furtherance of common intention of all of them. [3] The impugned drug were found in a car, and at point of raid, arrest and seizure, accused Hazlan was at the driver's seat, whereas the other two persons were passengers in the said car, one of them seated next to Hazlan and another (his brother) was at the back of the car. [4] At the end of the case of prosecution, I had decided to acquit and discharge two of the accused persons and ordered for Hazlan to enter his defence on a reduced and amended charge for an offence of possession of the same impugned drug pursuant to section 12 (2) of the DDA read together with section 39A (2) of the DDA, premised on the same evidence tendered by the prosecution. [5] The case against him was then fixed for trial. On the date of trial, the accused decided to plead guilty to the amended charge. He had pleaded guilty after knowing the nature and consequence of him pleading guilty, as he was counselled by his able and willing advocate. With that, upon conviction he is liable to be sentenced to imprisonment for a minimum period of five (5) years and maximum period of thirty (30) years. He is also to be punished with whipping up to a total of ten (10) strokes as the minimum. [6] The deputy public prosecutor (DPP) prosecuting the case against the accused, did not tender any fresh facts in support of the amended charge but had relied on the same set of facts and evidence adduced in the case against the accused as tendered by the prosecution throughout its case. Legally it is correct, as defence was ordered by this court to be entered by the accused on the amended charge for an offence of drug possession, premised on the evidence tendered by the prosecution for the original offence of drug trafficking. In any event the evidence tendered also discloses an offence of drug possession pursuant to section 12 (2) of the DDA read together with section 39A (2) of the DDA. The amended charge is P46, to which the accused had pleaded guilty. Plea in mitigation by accused [7] After having considered the plea in mitigation by the accused, advanced by his counsel, and submission by the DPP on the aggravating factors in the case, I have decided to mete out a sentence of eight (8) years imprisonment and whipping up to ten

strokes, being the mandated number of strokes under the law. Aghast with the sentence, the prosecution had decided to appeal against it to the Court of Appeal (COA). Its basis being, the sentence meted out was grossly inadequate considering the facts and circumstances of the case of the accused, as well as the law penalising such an offence. Hence, the pivotal issue to be addressed, is the sentence meted out grossly inadequate, although it is a sentence according to law? Why sentence of imprisonment up to eight (8) years? [8] When meting out an appropriate sentence on the accused person, this court has no alternative but to give effect to the intention of legislature, when penalising such offences. It has deemed it fit to prescribe whipping up to ten (10) strokes as a mandatory form of punishment. That per se denotes a deterrent corporal punishment on a convicted accused. Although whipping is favoured only for violent crimes like infliction of grievous hurt, causing culpable homicide not amounting to murder etc. but it is also provided for as punishment for drug possession as the crime entails a devastating effect on the society, especially so when the impugned drugs are on circulation, if not curbed soonest, it would be available for consumption. Its consumption wanes the life and fabric of an able, vibrant and healthy society. Thus, with imposition of the mandatory ten (10) strokes of the whip on the accused, this court considers it to be appropriate and adequately deterrent, to prevent the accused from re-offending and a cryptic message to the public at large is sent, specifically to the would-be offenders who wish to try such crime. [9] In all, the sentence of whipping has a crushing effect on the vigour and youthfulness of the accused who would be left permanently scarred for life, jolting a stark reminder when reflecting on his folly, and if he chooses to re-offend, he would run the risk of being labelled as a habitual offender, entailing a stiffer punishment. [10] As the sentence of whipping is already deterrent, the sentence of imprisonment meted out need not be for a long duration but sufficient to punish the accused person. This too, syncs with the intent of the Parliament to only prescribe a minimum five (5) years imprisonment, which is also suitable for a first offender, like the accused person. A longer period of incarceration and a greater number of strokes of the whip is best left to the habitual who has a greater ruin on the well-being and fabric of the Malaysian society. [11] It is never for this court to exercise its sentencing discretion willy-nilly but to adopt a balanced approach. A lip service to this rule of law is an affront to the administration of criminal justice, hence the premise for a reasonable and proportionate exercise of discretion when sentencing the accused. To sentence him to a longer period of incarceration when he does not deserve so, is also an affront to the rule of law. Perhaps, at the risk of repetition, it is best left to the habitual. Hence, a sentence of eight (8) years of imprisonment is a sentence not only in accordance with law, but also appropriate and proportional to the facts and circumstances of the case, comprising the following factors: • Facts of the case. o All three accused persons were arrested in a car type White Honda bearing registration number JSN 9127 parked at a parking lot in front of Desa Green Condominium. o The impugned drugs, 762.9 grams of meth were found concealed under the driver seat. o It was a mere fact that both the second and third accused were only travelling in the said car, with the second accused at the passenger seat in front and the third accused sitting at the back seat. o The first accused Hazlan was on the driver’s seat, under which there was concealed the impugned drugs. That was proven, which means he was in control of the car. o It could only be inferred that the accused would know of it as it was under his seat and he at the material time of arrest was having custody and control of the car. o The impugned drugs were in close proximity to him; he was having custody and control of the car; his conduct at the material time to flee from the scene; in totality points to mens rea possession. o But as the existence of Ah Kit, has been informed to the investigation officer of the case SP6, both by the first and second accused, it is only fair to arrive at a conclusion that albeit the sufficient notice on Ah Kit which is deemed in law as alcontra notice given to the prosecution, no further verification or investigation was done on it, at the highest, this court could only arrive at a finding of mens rea possession of the impugned drugs by the first accused and not trafficking of the same. o Thus, only the first accused is ordered to defend himself to an offence under section 12 (2) DDA punishable under section 39A (2) DDA

o This court was justified in arriving at this decision pursuant to section 169 (2) of the CPC which provides that the accused who was charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it. Thus, the accused was ordered by this court to enter on his defence for commission of a minor offence under section 12

DDA punishable under section 39A (2) DDA, as opposed to the graver offence of trafficking of dangerous drug, for which he stands originally charged. • Criminality of the accused – he was not alone but together with two others, but the evidence tendered by the prosecution tend to only implicate the accused and not the other two persons, who were acquitted by this court. • Circumstance of raid and arrest – he was caught in control of the car with the impugned drug under his seat. • Offence charged – originally for drug trafficking but this court had found him to be only criminally liable for an offence of drug possession, at the end of the case of prosecution. • Plea of guilty by accused – shows remorse on his part. • Mitigating factors offered by accused, being his personal and family factors – although not the overwhelming consideration but a salient factor to be considered. • Poverty as the factor that drove the accused to commit the said crime, with the hope of making a fast buck, but alas! he was arrested, prosecuted and punished; • Aggravating factors like seriousness of the offence; scourge in cases of drug possession; sentence meted out ought to reflect deterrence, both specific and general; public interest ought to be served when sentencing an accused; • The law applicable – where a minimum term of five (5) years imprisonment is provided for with a mandatory ten (10) strokes of the whip. • Overcrowding in the prison – a fact which this court ought to take judicial notice and • Longer period of incarceration ought to be reserved for the habitual offenders. [12] Currently, with amendment to the penal provision for an offence of drug trafficking carrying the death penalty, a sentencing option is available to the court, to wit either the death penalty or a longer period of incarceration for thirty (30) years. The preferred approach seems to be the longer period of incarceration, unless the sentence of death is the deserving sentence in a given case. This could be seen from the plethora of cases decided by both the COA and Federal Court, pursuant to the Abolition of Mandatory Death Penalty Act 2023 (Act 846) which had amended section 39B of the DDA in its Part VI and Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) 2023 (Act 847) which abolishes the mandatory death penalty, thus providing an option for the Federal Court when commuting the sentence of death to one of imprisonment. Thus, it would serve well for such cases to be treated with a longer period of incarceration and not the present, where the accused although deserving a period of incarceration, but not for a longer period than eight (8) years. [13] A well balanced approach is when the sentence meted out is proportional to the above factors considered by this court, taken cumulatively. Past cases and precedents are only a guide and not the sole determining factor, as otherwise it rips of the discretion of the sentencing judge in the exercise of his discretion. Each case befits both solitary and salutary consideration on its facts and circumstances and not anything more. So, will be for this case, the precedents cited before me serves as a guide which I am not bound by. Likewise, the decision on sentence in this case too, serves as a guide to the subordinate courts but not to be latched on as a precedent that for an offence of drug possession under section 39A

of the DDA, it can or has to be eight (8) years imprisonment, as the facts and circumstances of each case differs. In sum total, the sentence of eight (8) years imprisonment and ten (10) strokes of the whip, meted out by this court, is befitting and proportional to the facts and circumstances of the case of the accused. It is also not grossly inadequate. Accused sentenced to a period of 8 years imprisonment and whipping up to 10 strokes. Dated 25 July 2024 SGD Muniandy Kannyappan Judge, High Court 2 (Criminal) Kuala Lumpur. Parties For the prosecution: DPP Nur Aqilah Ishak of the Attorney General’s Chambers. For the accused person: Wan Azwan Aiman Wan Fakhruddin together with Effa Azuin Aidrul Hisham of Messrs. Scivetti & Associates.