whether there was violence during the crime; . [18] I had considered the factors mentioned above before sentencing the accused. In addition, the factor of rampancy of dangerous drugs related offences in Malaysia in recent times have also been considered. [19] Nevertheless, this does not mean that the interests of the accused are disregarded. There should be a balance between public interest and the interest of the accused person. mitigation was taken into consideration. [20] On the facts of this particular case, it is my opinion that the the suitability of a fine warrant further discussion which I will canvass below. EVALUATION OF THIS COURT [21] ious convictions may be considered when meting out a sentence after finding the accused guilty of the charge. The case of Awang Ahmad Faisal Awang Sohor v PP [2015] 7 CLJ 955 is referred to where Alwi Abdul Wahab JC (as he then was) stated: nion, there is nothing wrong for the learned convictions before passing the sentence. This has been the practice by the court for the past years until now. It would only be reasonable for the cou past record of previous convictions in order to determine the appropriate sentence to be meted out. The sentence given to the accused with previous record of past convictions would certainly be different from the sentence given to the . [22] Regarding the manner in which previous convictions may be referred to by the courts, I rely on the case of Tan Shy Wen v Public Prosecutor [2021] MLJU 1849 which revolves around a similar issue whereby the learned Magistrate had considered the accused previous convictions on her own motion. I see no need to further elaborate on what Amirudin Abd Rahman JC has ruled on this matter. The following are relevant judgement: - ERATION OF PREVIOUS CONVICTIONS ON THE OWN MOTION OF THE COURT [44] At the outset, based on notes of proceedings of the own motion before meting out the sentence is recorded as follows: n Sey Wen, tahun lepas saya hukum kamu empat kali, tahun 2017 saya hukum kamu satu kali. So lima kali saya sudah hukum kamu untuk sek. 9(1) Akta Rumah [45] The Appellant then nodded and agreed to the statement made by the Magistrate. It is apparent from this that the Magistrate herself had previously convicted the Appellant on the same offence four times in 2019 and one it was detailed in depth on convictions made by her previously [46] In hindsight, the learned Magistrate was well aware of the convictions that she had imposed against the Appellant. Even though the Magistrate had not gone in length, she stated during the proceedings that she had convicted the Appellant accumulatively five times previously in 2017 and 2019 for the same offence. This matter was never denied or refuted by the Appellant during the sentencing process before the Magistrate which portrays that the previous convictions were indeed accurate. The Appellant would what was said by the Magistrate was inaccurate or untrue. Furthermore, this Appellant during this Appeal had never contested the veracity of the five previous convictions as stated in the grounds of judgement of the Magistrate which the Magistrate had considered in sentencing. [52] It is the view of this Court that when the Magistrate had was merely performing her judicial functions in compliance with section 173(b) CPC in determining the appropriate sentence [53] In determining what amounts to a sentence according to law, the court deciding on the sentence must firstly bear in mind the provisions of the law. When a statute provides for a mandatory sentence then the Magistrate would not have a say or discretion and in contrast, when a statute allows for the discretion of the court to be applied, it must be exercised in considering both mitigating and aggravating factors for example previous convictions, public interest, seriousness, age and plea of guilt, based on the facts and circumstances of the case. Thus, that when the Magistrate had made the statement on the previous convictions and granted the Appellant an opportunity to verify the previous convictions, she was purely performing her judicial functions in determining a the Appellant. [56] In this case, the Magistrate had performed her duty in recording the particulars of the previous conviction by making a statement and queried the Appellant when the Magistrate was aware that she herself had sentenced the Appellant for the same offences previously. The Magistrate was conscious that she had previously convicted the Appellant and what was the offence involved. Magistrate just to disregard the fact that the Magistrate herself had convicted the Appellant before even when the prosecution had failed to prove so. The Magistrate had on her own motion and effort, asked the Appellant to verify the fact that the she herself had convicted the Appellant multiple times previously for the same offence. To compel the Magistrate to neglect this fact would indeed hinder her from performing her judicial functi perform her judicial functions as mandated by law and this Court is of the opinion that the Magistrate had applied her discretion to take judicial notice in this case. er circuit would come across frequently where a person who they themselves have previously convicted appears before them yet again and has pleaded guilty and subsequently convicted by them again. Habitual offenders who are convicted time and time again and dwell in a life of crime should not escape the force of the law just because the prosecution had not produced any records of previous convictions of these offenders. At the end of the day it is the [59] A Magistrate whose duty is to administer justice conscientiously should not sit back and disregard the fact that an offender had previous convictions if this fact was indeed very well within the knowledge of the Magistrate. The law should also not hinder the Magistrate by being rigid and mandate that previous convictions can only be taken into account when it is proved by the prosecution. Such restriction is not within the spirit of the law to expect a Magistrate in such a situation just to disregard previous convictions made by the same Magistrate on the same Accused. [61] It is the view of this court when the Magistrate had considered the previous conviction of the Appellant, she was invoking judicial notice where a fact which is judicially noticeable need not be proved as provided for by section 56 Evidence Act 1950. judicial knowledge from matters that are made known to him from inside his own courtroom. If a matter has reached the court, he may take judicial notice of it, what more if it reached . (emphasis is mine) [23] Applying what has been ruled in Tan Shy Wen (supra), I had practice I regularly apply as one of the measures in determining a sentence according to law. Thus, I was invoking judicial notice of the Temerloh Magistrates Court records via the electronic cause book, accessed through CMS as explained above. As I was invoking no need for it to be proved as provided for by section 56 Evidence Act 1950 [Act 56]. [24] Noticing that the accused has had 3 previous convictions involving the consumption of dangerous drugs from 2018 to 2021, a deterrent sentence was in order. There is a need to distinguish the accused from a first offender. His previous convictions related to dangerous drugs related offences indicate that he is a habitual offender. From found that in his subsequent dangerous drugs related offence charged before this court, the accused has progressed to an offence of possession that carries a heavier punishment. [25] For avoidance of doubt previous conviction under section 457 Penal Code, I had not taken it into consideration as they are offences of a different nature. The reading of it was merely to confirm that the list of previous convictions stated in the electronic cause book was correct and accurate. [26] I would like to highlight here that the accused through the learned YBGK Counsel prayed for a sentence of a fine. Careful considerations were given to this request. To this, I refer to the case of PP v Loo Choon Fatt [1976] 2 MLJ 256 where Hashim Yeop A Sani J (as he then was) states:- normally bring up problems of family hardship and the other usual problems of living. In such a situation the courts might perhaps find it difficult to decide as to what sentence should be imposed so that the convicted person may not be further burdened with additional hardship. This in my view is a wrong approach. The correct approach is to strike a balance, as far as possible, between the interests of the public and . [27] Examining the penalties for the offence once again, the maximum sentence provided under subsection 12 (3) DDA is a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both. [28] Previously, the maximum fine for subsection 12 (3) DDA was twenty thousand ringgit (amended to the current one hundred thousand in 1998) and prior to that ten thousand ringgit (amended to twenty thousand in 1972). [29] Surely this must indicate that the war against drug abuse in this country has been in existence for decades long. Even in the 21st century, words from Hashim Yeop A Sani J half a century ago in Loo Choon Fatt (supra) when commenting on the increase of penalties for dangerous drug related offences still rings true to the current drug abuse situation in Malaysia today: - exercises was the government's realisation albeit gradual, of the problem of drug abuse in this country, the degenerating effect of the misuse of dangerous drugs and the attendant dangers it has posed to society itself. The amendments passed by Parliament therefore reflect the public policy. It must be presumed that behind the public policy is the consideration of public interest. The change in the attitude of the legislature itself during the last three years reflects the seriousness of the problem. In my view the courts will not be performing their functions honestly if the seriousness of the situation is not reflected in the sentence imposed or if the sentence appears to defeat the object of the statute. This is not saying that the courts in the treatment of drug offences should at all times be severe. Each case has to be determined on its own merits. But in . [30] Thus, in deciding a suitable punishment for the accused, another factor to be considered is the suitability of a fine or a custodial sentence. [31] On this issue, I refer to the case of Leong Kok Huat v Public Prosecutor [1998] 6 MLJ 406 where Abdul Kadir Musa J simplified that if a fine is sequenced first in the penalties of a particular offence, then a fine is to be considered first. I reproduce his words below:- st have been the intention of the legislature to punish the offender like the accused first, by an appropriate fine if the facts against his wrongful act so justified before considering . [32] Hence, as the accused prayed for and is willing to pay a fine, then his request should be appropriately considered. Moreover, in a written reply during Answers for Ministers Question Time during the First Meeting, Second Session, Fifteenth Parliament of 2023 (Question No. 660), the Home Affairs Minister, Datuk Seri Saifuddin Nasution bin Ismail said the Malaysian prisons are currently housing 75,187 inmates, surpassing the capacity limit of 65,762 inmates as of 15 September 2022. Taking this into account, I am reluctant to increase the strain on our prison system by sentencing the accused to prison when he prayed for a sentence of fine. [33] With regards to the appropriate amount of fine, I refer to the High Court case of Mohd Sulaiman Bin Miskon V Pendakwa Raya [2020] 1 LNS 1915; [2020] MLJU 1222 where it was decided as the follows: - 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.". [34] Regarding the I refer to Mohamad Abdullah Ang Swee Keng v PP [1988] 1 MLJ 167. Mohamad Azmi SCJ stated as follows: account of plea of guilty would be between one-quarter and one-third of what otherwise would have been the sentence. . [35] The maximum fine provided for under subsection 12 (3) DDA is one hundred thousand ringgit. One-quarter and one-third of this would have been RM25,000 dan RM30,000 respectively. It would be absurd to suggest that the accused would be able to pay this in one lump sum considering his occupation and monthly wages of RM900. [36] The courts have to be realistic and rational in deciding the appropriate amount of the fine. At this juncture, I refer to the case of Hossain (M) v PP [2007] 7 MLJ 454 which states: - [12] When parliament prescribes fine or custodial sentence there is a requirement first to consider whether a fine will be appropriate (see Leong Kok Huat v. Public Prosecutor [1998] 4 CLJ 106). The principles and law relating to fine can be summarized as follows: