Heera Singh A/L Mohan Singh v Pendakwa Raya (A-05(SH)-239-07/2023)

The appellant was tried in the High Court at Ipoh with offence under section 39B(1)(a) of the Dangerous Drugs Act 1952. The charge reads as follows: "Bahawa kamu pada 13.08.2018, jam lebih kurang 10:45 pagi, bertempat di rumah No. 134, Jalan Eng Weng Hup, Taman Permata, 30100 lpoh, di dalam daerah Kinta, di dalam Negeri Perak Darul Ridzuan telah mengedar dadah berbahaya iaitu sejumlah berat 468.6 gram Cannabis dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama."

In support of its case, the prosecution called eight (8) witnesses to testify against the appellant.

At the end of the prosecution case, on 2 September 2022, the learned Judicial Commissioner ordered the appellant to enter their defence.

The appellant elected to give evidence on oath.

At the end of the defence case, on 7 July 2023, the appellant was found guilty and convicted of the offence charge. He was sentenced to 3 imprisonment for life (30 years) from the date of arrest (13 August 2018) and whipping of 18 strokes.

Being dissatisfied with that decision, on 7 July 2023 the appellant filed a notice of appeal against conviction and sentence to this court.

At the start of the party’s submission, the learned deputy public prosecutor informed us that they have accepted the accused representation for the charge to be reduced to one of possession under section 6 of the Dangerous Drugs Act 1952 punishable under section 39A

of the same Act. [8] The amended charge was read and explained to the appellant and he pleaded guilty to the said charge. [9] Hence, the appeal before us was only in respect of the sentence. Background Facts [10] The facts leading to the charge was well laid out by the learned trial judge in his grounds of judgment which is reproduced herein: [4] On 13 August 2018 at about 9:00 a.m., ASP Mohamad Azri bin Mohamad Jalil (PW5) received information about drug trafficking. He proceeded to give a briefing on the proposed operation to Detective Sub Inspector Ismail bin Mat Deli (PW6) and four other police personnel at the office of the Narcotics Investigation Division situated at the Police Contingent Headquarters of Perak. [5] At or about 10:45 a.m. on the same day, PW5 together with a raiding team arrived at the site of the proposed operation, that is, the House. [6] PW5 found the House to be closed and locked. He knocked on the door and called out to the occupant(s) to open the door. He identified himself as the police. [7] A shirtless man with shorts and who looked like he has just got up from sleep, and who's the accused, opened the door. [8] The accused was detained and upon a physical examination carried out on him in the living hall, no incriminating items were found on him. [9] PW5 then carried out a search in the first bedroom on the left of the House and found on the dressing table in this bedroom the following:

a black plastic bag containing compressed chunks of dried leaves suspected to be cannabis ("ganja") (exhibit

a closed plastic container with the word "Lava" and in it were dried leaves suspected to be cannabis (exhibit

Photographs of the above items are in exhibit P10 (photo nos. 7,9 and 10) [10] Thereafter a search was carried in the drawer in this first bedroom and the following were also found:

a wallet with the words "CompareTreasure" (exhibit P8A) and in it was the identity card with the name of: Heera Singh a/I Mohan Singh, new Identity Card No. 840730086283 carrying the address no. 134, Jalan Eng Weng Hup, Taman Permata, 30100 lpoh, Perak (exhibit P8B);

one passport in the name of Heera Singh a/I Mohan Singh, new Identity Card No. 840730086283, passport no. A51347116 (exhibit P8C);

one document which is a record of appeal carrying the name of Heera Singh a/I Mohan Singh as the respondent (exhibit P8D);

one document which is a salary voucher in the name of Heera Singh a/I Mohan Singh, new Identity Card No. 840730086283 (exhibit P8E);

a letter from the court on sentence of a fine of RM1,000.00 against Heera Singh a/I Mohan Singh, new Identity Card No. 840730086283 at no. 134, Jalan Eng Weng Hup, Taman Permata, 30100 lpoh, Perak and dated 25 April 2018 (exhibit P8F); and

Photographs of these items found can be seen in exhibit P10 (photo nos. 8 and 9) [11] From the floor of the first bedroom were also found the following:

a digital weighing machine with the brand "Camry" (exhibit P7C-IZ2(2);

a chopper with the brand "Japan" (exhibit P7H-1Z7 (2);

a yellow chopping board (exhibit PZ71-IZ8(2);

a plastic bag and in it were empty plastic packets (exhibit

Photographs of the digital weighing machine, chopper, yellow chopping board and the bag of plastic packets can be seen in exhibit P10 (photo nos. 5 and 9). [12] A search in the wardrobe in the first bedroom was found:

a shirt with the word "Assign" (exhibit P8H); and

a pair of jeans with name "Exhaust" (exhibit P8I).

Photographs of the shirt and jeans can be seen in exhibits P10 (photos nos. 1, 3,4, 6 and 9) and exhibit P11 (photo nos. 1, 2, 3) show the accused being made to wear the same to show that these items of clothing fit him. [13] PW5 seized all the above items found and arrested the accused. The seized items and the accused were brought back to the Perak Contingent Headquarters and throughout the journey, the seized items were under the custody of PW5. [14] The seized items were then handed over by PW5 to the Investigating Officer, Inspector lzwan bin Ibrahim (PW8) who acknowledged receipt. PW8 then sent the seized items to the Perak branch of the Chemistry Department of Malaysia on 16 August 2018 (exhibit P16). [15] From the analysis carried out by the Chemist, Puan Faznur binti Mahmud (PW3), it was found by her that the seized items suspected to be cannabis was in fact Cannabis with a total weight of 468.6 grams. Her report dated 22 January 2019 setting out her analysis was tendered and admitted (exhibit P17). [16] Traces of cannabis resin were also found on the chopper (exhibit P17 p2 'IZ 7') and on the chopping board (exhibit P17 p 2 'IZ 8'). Our Decisions [12] In mitigation, the learned counsel for the appellant pleaded for leniency from this Honourable Court and states as follows:

He is currently 40 years old and still single;

He has an aged father;

He has been in remand for more than five (5) years from the date he was arrested;

He has been detained for two (2) years without trial at the Pusat Tahanan Batu Gajah under the Dangerous Drugs (Special

He has a prior criminal record (exhibit P33) having been convicted on 20 June 2013 under section 12 (2) of the Dangerous Drugs Act 1952 punishable under section 12 (3) of the same Act and he was fined;

An unduly lengthy imprisonment sentence would have caused his severe hardship; and

He asks to be given an opportunity to turn over a new leaf. [13] On the other hand, the learned Deputy Public Prosecutor urged this court to imposed a heavy sentence having regard to the public interest as well as the gravity of the offence. The past records of the appellant show that he has no remorse in wanting to stay away from the drug menace. Conclusion [14] Having considered the facts of the case, public interest, the amount of drugs involved, the mitigation by the learned counsel on behalf of the appellant, we unanimously set aside the sentence of imprisonment for life and substituted with a conviction under section 6 of the Dangerous Drugs Act 1952 punishable under section 39A (2) of the same Act with nine (9) years imprisonment from date of arrest (13 August 2018) and 10 strokes of whipping. The sentence imposed is in tandem with the current trend of sentencing. Date: 27 May 2024 - sgd - Azmi bin Ariffin Judge Court of Appeal Malaysia Counsel For the Appellant : 1) Dato' Naran Singh 2) Encik Amrick SIngh [Naran Singh & Co.] For the Respondents : Mohd Fairuz bin Johari [Deputy Public Prosecutor]