[Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] v MOHAMMAD SALAM (WA-45A-56-07/2024)

Introduction The accused was initially charged with trafficking of cannabis 280.9 grams in weight, an offence under section 39B(1)(a) of the Dangerous Drugs Act (DDA). He had a second charge of being in possession of 77.17grams of cannabis an offence under sections 6 punishable under section 39A(2). He was also charged with possession of Methamphetamine 1.12gram grams S/N 4mnb4RVS/0ia1AGAflofnw under section 12(2) DDA punishable under section 12(3) of the same Act.

On a representation by the counsel for the accused, agreed by the Public Prosecutor, an alternative charge was offered. The said charges read as follows: Alternative charge in WA-45A-56-07/2024: “Bahawa kamu pada 1 November 2023 jam lebih kurang 2.15 petang bertempat di rumah kedai No.34, Tingkat 4, Jalan Tun Tan Siew Sin, di dalam daerah Dang Wangi, di dalam Wilayah Persekutuan Kuala Lumpur, telah memiliki 280.9gram Cannabis dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 6 Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39A(2) Akta yang sama”. 2nd charge “Bahawa kamu pada 1 November 2023 jam lebih kurang 2.00 petang bertempat di Restoran Fatema, No. 28, Jalan Tun Tan Siew Sin di dalam daerah Dang Wangi di Wilayah Persekutuan Kuala Lumpur, telah memiliki dadah berbahaya iaitu 77.17gram cannabis dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 6 Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39A(2) Akta yang sama”. S/N 4mnb4RVS/0ia1AGAflofnw WA-45-23-12/2024: the 3rd charge “Bahawa kamu pada 1 November 2023 jam lebih kurang 2.00 petang bertempat di Restoran Fatema, No.28, Jalan Tun Tan Siew Sin di dalam daerah Dang Wangi, Wilayah Persekutuan Kuala Lumpur telah memiliki 1.12gram Methamphetamine dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 12(3) Akta yang sama”.

All the alternative charge of possession of 280.9grams and 77.17 grams of cannabis and possession of 1.12gram of Meth were read out and explained to the accused by the Bangladeshi interpreter with the sentence the said charges carry, notified. Accused pleaded guilty to all the charges and this Court reemphasized that by pleading guilty, case will not go for trial and the Court will continue to sentence the accused upon hearing the mitigation submitted by counsel representing the accused and the aggravating submission by the prosecution.

When the drugs exhibit contained in the chemist transparent plastic bags were shown, the accused did not admit to them. Court, with the assistance of the accused’s counsel and the Bangladeshi interpreter, explained to the accused that these drugs now take a different form and in different packages as they have been analysed and re-packed by the chemist. The accused, understood the explanation and admitted them. S/N 4mnb4RVS/0ia1AGAflofnw

The facts prepared by the prosecution, was also read to the accused and admitted. The facts marked as “P8” reflected that a bunch of keys was found in the pocket of the pants the accused was wearing. Using this set of keys, the drawer of a steel cabinet in the store room in “Restoran Fatema” and the grill door of the “rumah kedai” was opened where those drugs were found.

The photographs of the items seized marked P17 and P20, were also shown to the accused and these photographs contained the original version of the packages that were seized from the accused. The accused admitted these photos.

Submission by the counsel for the accused focussed on the need for the sentence to run concurrently as the facts reveal it arose from the same transaction arising from the prior arrest at Restoran Fatema, before the subsequent arrest at “rumah kedai” at No. 34. All the charges are of the same kind being in possession of dangerous drugs. The accused being a first offender and had pleaded guilty at the first opportunity.

The prosecution sought to move this Court to sentence the accused consecutively as 2 different type of drugs involved and time, place of discovery of those drugs were separate. The prosecution impressed upon this Court that the accused is of S/N 4mnb4RVS/0ia1AGAflofnw the age that sentence of whipping ought to be imposed. The prosecution also reminded this Court that the guilty plea only came in much later. Determination by this Court

Having heard the submissions from both parties and with the facts of the case and exhibits shown and admitted by the accused, this Court sentenced the accused as follows: Alternative charge in WA-45A-56-07/2024 section 6/39A(2): 30 years imprisonment from the date of arrest 1.11.2023 and 10 strokes of whipping 2nd charge in WA-45A-56-07/2024 section 6/39A(2): 6 years imprisonment from the date of arrest 1.11.2023 and 10 strokes of whipping 3rd charge in WA-45-23-12/2024 section 12(2)/12(3): 6 months imprisonment from the date of arrest 1.11.2023

The chemist reports marked as P21 and P22 supported by “Polis 31” show that these drugs were in the following packaging: S/N 4mnb4RVS/0ia1AGAflofnw P21 (77.17grams of cannabis and 1.12grams of Methamphetamine in accused’s possession at ‘Restoran Fatema’) -found in 6 small packages of dry plants 1 blue plastic containing 100 pills P22 (280.9 grams of cannabis in accused’s possession at “rumah kedai No.34”) -found in 1 (one) lump of dry plant wrapped in a plastic; and 5 smaller plastic packings containing dry plants. The appropriate sentence

This Court in passing the sentence, noted that the initial trafficking charge of 280.9grams of cannabis was offered an alternative charge, and not an amended charge by the Public Prosecutor. The reason being, the Public Prosecutor can still fall back to this original charge of trafficking if the accused subsequently opted to appeal and the plea of guilt by the accused is found to be qualified or not taken in accordance with the law.

The drug cannabis recovered at “Restoran Fatema” and “rumah kedai No.34” apart from one in a big lump, others were in small packaging, meaning they were prepared into smaller packs and are ready for use. The big lump was weighed by the raiding S/N 4mnb4RVS/0ia1AGAflofnw officer and gross weight (dry plant and packaging) found to be 242grams. The smaller packs of 5 and 6, weighed by the raiding officer with the gross weight (dry plant and packaging) found to be of 58.48grams and 86grams respectively.

The accused was also in possession of a different kind of drugs, Methamphetamine found in a form of 100 pills. These pills minus the packaging, was weighed by the chemist and found to be 10.17grams in weight. When analysed, found to contain 1.12grams of Methamphetamine. The increased penalty under section 39A(1) stipulates for 5 grams or more.

This Court took the view that the smaller packs are ready for use but how those drugs will be used by the accused is still uncertain. In the absence of any evidence of a urine test to show these drugs were for the accused’s own use, it is still open to the prosecution to fall back to the original charge of trafficking, should the accused’s conviction on a plea of guilt is questioned, should he opted to appeal and the admission of his guilty plea, questioned.

The decision by the Public Prosecutor to offer an alternative charge and not an amended charge cannot simply be ignored. It must also be remembered that the submission by the counsel for the accused was for all the sentences to run concurrently. S/N 4mnb4RVS/0ia1AGAflofnw Put all these together, it could only mean that the drugs cannabis recovered at the “Restoren Fatema” must have originated from the “rumah kedai No.34”.

The drugs must have been brought to “Restoran Fatema” either for the accused’s own use or for some other reasons. In the absence of any explanation put forward by the accused, the purpose of him being in possession of these drugs remain open.

That being the case and by virtue of the provision contained in section 39A(2) itself, this Court is empowered to sentence the accused between the term permitted by that section. The sentence allowed is not less than 5 years or life imprisonment sentence that is 30 years, with whipping not less than 10 strokes.

The accused’s plea of guilt only came in on 6.11.2025 despite the outcome of the alternative charge by the Public Prosecutor was notified to the accused via e-mail to his counsel on 4.8.2025. Surely, the accused would have been informed of the positive outcome of his representation soonest by the counsel representing him. Unfortunately, 2 case management dates were fixed to sort this out, after the very next day 5.8.2025 when the matter was fixed by this Court, to monitor the outcome of the representation. S/N 4mnb4RVS/0ia1AGAflofnw

One of the reasons for the delay, based on the address by counsel to this Court when instructed for the accused to be notified, was that the accused faced difficulty understanding either the English language or Bahasa Malaysia. Court then wondered, how both the counsel and the accused had been communicating all the while, how instruction was obtained to move the preparation of the representation to the Public Prosecutor then, if communication between the two was already an issue.

Be that as it may, Court obliged the accused with a Bangladeshi interpreter on the next date. This Court having considered all the aggravating facts and the mitigation put forward by both the Deputy Public Prosecutor and the counsel for the accused, passed the said sentence as per para 7 of this judgment. All sentences were ordered to commence from the date of arrest. The enhanced sentence despite all to run from the date of arrest is to reflect the gravity of the offence.

This Court should not be cornered into giving a less severe punishment merely by the fact that the Public Prosecutor had offered an alternative charge. Otherwise, it’s a dual bonus to the accused. It must be reminded that the accused is a foreigner but yet, he felt free to commit this crime on our sovereign land. S/N 4mnb4RVS/0ia1AGAflofnw

Courts in Malaysia have moved away from the trend of giving a discounted sentence even when there is in place a plea of guilt by the accused. In forming this view, reliance by this Court is placed on the principle pronounced by Hashim Yeop A Sani J (later Chief Justice of Malaya) in Public Prosecutor v Loo Choon Fatt [1976] 2 MLJ 256 that “when it comes to the imposition of punishment, each case depends on its own facts”.

In Che Hasan bin Senawi v Public Prosecutor [2009] 1 MLJ 55, the Court of Appeal in dealing with the sentencing principles, said at page 58: “In our judgment whether a plea of guilt constitutes a mitigating factor would depend largely on the facts and circumstances of a particular case. Where there is a course of circumstances similar to those that have occurred here, a plea of guilt, having regard to the seriousness of the case, carries little weight. As Karthigesu JA said when delivering the judgment of the Court of Appeal of Singapore in Fu Foo Tong v Public Prosecutor [1995] 1 SLR 448: It is not axiomatic that every plea of guilty ‘entitles’, as it was contended by counsel to a discount of between one-quarter to one-third of what might otherwise be considered an appropriate sentence after a trial. A plea of guilt can be of no mitigating S/N 4mnb4RVS/0ia1AGAflofnw value, for example, when the evidence overwhelmingly supports a conviction. “In our judgment, the correct approach to be taken where the maximum or near maximum sentence is warranted is that set out in the judgment of Yong Pung How CJ in Sim Gek Yong v Public Prosecutor [1995] 1 SLR 537. The learned Chief Justice of Singapore expressed a view with which we respectfully agree. This is what His Honour said: The principles espoused above in R v Tait and Bartley (1979) 24 ALR 473 and Bensegger v R [1979] WAR 65 represent, in my view, the approach which should be adopted by a court towards the issue of maximum sentences. To restrict the maximum sentence to the ‘worst case imaginable’ would only invite an endless permutation of hypotheses. In the appellants’ case, for instance, would the ‘worst case imaginable’ be one in which the custom officers had been injured? Or would it be one in which one of the officers had been killed? Or would it be one in which an innocent bystander had been fatally hit by the appellant’s car? The possibilities are limitless and the uncertainty intolerable. All that a court can realistically do — and all that it should do — when deciding whether or not to impose a maximum sentence is to identify a range of conduct which characterises the most S/N 4mnb4RVS/0ia1AGAflofnw serious instances of the offence in question. This would, as the court in R v Tait and Bartley pointed out, involve consideration both of the nature of the crime and of the circumstances of the criminal”.

For all these reasons, the said sentence was passed by this Court having in mind the overwhelming evidence against the accused, the facts and circumstances that exist and duly admitted by the accused and the sentencing principles enunciated by the Courts in Malaysia. Dated 6th November 2025 Sgnd. (NURULHUDA NUR’AINI BINTI MOHAMAD NOR) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR S/N 4mnb4RVS/0ia1AGAflofnw Deputy Public Prosecutor for the Prosecution : En. Joshua Tee KL State Prosecution’s Office Solicitor for the Accused : En. Pushpa Rajan Chambers of Rajan S/N 4mnb4RVS/0ia1AGAflofnw