Jeevan Raj A/L Raju (BA-62D-119-06/2025)

Upon conclusion of mitigation submissions by both the prosecution and the OKT (who was unrepresented), this court sentenced the OKT to 5 years imprisonment (to run from the date of conclusion of his current sentence) and whipping (1 stroke). Brief facts of the case On 1/7/2025 the Public Prosecutor preferred against one Jeevan Raj A/L Raju (the accused i.e. OKT) a charge under section Section 39C(1)(B) of the Dangerous Drugs Act (DDA) 1952. The charge against the OKT is as the following: BA-62D-119-06/2025 BAHAWA KAMU PADA 30/12/2024 JAM LEBIH KURANG 04:50 PETANG, BERTEMPAT DI TANDAS PEJABAT BALAI POLIS USJ 8, DALAM DAERAH PETALING, DALAM NEGERI SELANGOR DARUL EHSAN, DIDAPATI KAMU TELAH MASUKKAN KEDALAM BADAN KAMU SENDIRI DADAH BERBAHAYA “AMPHETAMINE” DAN “METHAMPHETAMINE” DAN KAMU JUGA MEMPUNYAI (2) REKOD KESALAHAN LAMPAU DI BAWAH SEKSYEN 15(1)(a) AKTA DADAH BERBAHAYA 1952 SEPERTI BERIKUT. 1) MAHKAMAH MAJISTRET KLUANG; NO. KES: 83D-549- 08/2016 NO. REPOT: KLUANG/11646/16 KESALAHAN: SEKSYEN 15(1)(a) AKTA DADAH BERBAHAYA 1952 TARIKH SABITAN: 09/08/2016 HUKUMAN: DENDA RM 2000 TIDAK BAYAR 5 BULAN PENJARA DAN 2 TAHUN PENGAWASAN 2) MAHKAMAH MAJISTRET KLUANG; NO. KES: JG-83D-481- 06/2024 NO. REPOT: KLUANG/847/24 KESALAHAN: SEKSYEN 15(1)(a) AKTA DADAH BERBAHAYA 1952 TARIKH SABITAN: 15/07/2024 HUKUMAN: PENJARA 12 BULAN DAN 2 TAHUN PENGAWASAN. OLEH DEMIKIAN, KAMU TELAH MELAKUKAN KESALAHAN DIBAWAH SEKSYEN 15(1)(a) AKTA DADAH BERBAHAYA 1952 DAN BOLEH DIHUKUM DI BAWAH SEKSYEN 39C(1)(b) AKTA YANG SAMA DAN DIBACA BERSAMA SEKSYEN 38B AKTA YANG SAMA. HUKUMAN: PENJARA TIDAK KURANG DARIPADA 5 TAHUN DAN TIDAK LEBIH 7 TAHUN DAN DIKENAKAN SEBAT TIDAK LEBIH DARIPADA 3 SEBATAN DI BAWAH SEKSYEN 39C(1)(b) AKTA DADAH BERBAHAYA 1952 DAN DIIKUTI

PENGAWASAN DI BAWAH SEKSYEN 38B AKTA DADAH BERBAHAYA 1952 PINDAAN 2002 TIDAK KURANG 2 TAHUN DAN TIDAK MELEBIHI 3 TAHUN. The punishment upon conviction of this section is:  A jail sentence not less than 5 years and not exceeding 7 years; and  also whipping. The said charge was read and explained in Bahasa Malaysia which was understood by the accused. The accused, pleaded guilty to the charges read to him. The court explained to the accused the consequences of his plea and his rights under the law. The accused understood the full extent of his guilty plea i.e. the possible full sentence that he could face. The OKT maintained his plea of guilt. The facts of the case were read and explained to the OKT. The OKT understood and admitted the facts read. Following the accused’s plea, the Deputy Public Prosecutor (DPP) proceeded to tender the necessary documents which were the following:  P1 - The facts of the case;  P2 - police report (arrest report)  P3 - police report (2nd report i.e. correction report)  P4(a-d) - urine bottle pictures  P5 - illegal substances tracing form (borang kesan dadah dalam urin)  P6 - pathology report  P7 - record of past convictions (pengesahan kesalahan lampau) The facts of the case and each of these above listed exhibits adduced (and marked) were admitted by the accused. This Court then proceeded to convict the accused for the Section 39C(1)(B) Dangerous Drugs Act 1952 charge. Following the conviction both the prosecution and OKT made oral submissions and plea for sentencing. Mitigation Plea of the accused for a minimum sentence The accused pleaded that the court to impose a minimum imprisonment term to run from the date of a current sentence. At the current time, the OKT is serving a sentence for an offence under Section 379 of the Penal Code (PC). The OKT was sentenced 15 months years imprisonment from the date of his arrest for this arrest on 15/5/2025. The accused’s submission for the mitigating factors are summed up in the following: Background of the accused  31 years old  Is married (wife is currently pregnant)  Worked at a carwash General reasons  Remorseful  Is the sole breadwinner for the family  Has 2 older siblings with special needs (OKU)  Promises to repeat the offence again Submission of the prosecution for a heavy sentence The DPP submitted that the that under the circumstances, public interest ought to supersede the interest of the accused. The DPP argued the following reasons (in brief) for the imposing of such a substantial sentence:  the accused was not a first offender  the illegal drugs issue is a widespread problem  a sentence to serve as a lesson for would be offenders Sentence Upon conclusion of mitigation submissions by all parties, this court sentenced the accused to 5 years imprisonment (to commence upon conclusion of his current sentence for the offence under Section 379 PC), whipping (1 stroke) and 2 years police supervision upon conclusion of his imprisonment. THE COURT’S VIEW The learned DPP had submitted that in the instant case public interest ought to supersede the interest of the accused. Among the reasons provided by the prosecution that public interest ought to take priority is that the issue of drug abuse is widespread problem. This Court does see that the degree of seriousness in this offence. The fact that s.39C of the DDA falls into the category of unbailable offences and the minimum punishment is 5 years imprisonment reflects this. In the case of PP v Loo Choon Fatt [1976] 2 MLJ 256 it was highlighted that the various amendments made to the DDA 1952 to enhance sentencing for certain offences under the said act. The Court went on further to explain that such legislative exercise reflected the Governments realisation to the seriousness of drugs abuse in the country and the dangers it imposed upon society. Considerations of sentencing Under the circumstances, this Court is compelled to go back to the fundamentals of sentencing which is the striking of a proper balance between public interest and the interest of the accused. This principle was explained in the case of PP v Mohd Kamil bin Yahya [1998] 1 LNS 208 where Abdul Wahab Patail J (as he was then) held: “The principles governing sentencing have been stated on numerous occasions and we think no assistance is to be had by going through all the authorities on the subject. Suffice to say that a court should, when sentencing an accused, take into account all considerations relevant to the case, including the gravity of the offence, the circumstances surrounding the commission of the offence, the antecedents of the accused, the deterrent effect that punishment is to have, any factor that warrants special attention either in favour or against the accused and above all the public interest...." This said balance between public interest and interest in of the accused had earlier been ruled in the case of PP v Mohd Ramly [1974] 1 MLJ 95 where Azmi J held that ‘In assessing sentence, a proper balance should be struck between public interest and the interest of the accused..’ The term of public interest had played a central theme in the prosecutions plea for a heavy sentence. This Court does not deny that public interest must be viewed with an upmost consideration as it is in all criminal offences. Public interest however varies from each case based upon the particular facts of a case. This principle was explained in the case of R v Ball 35 Cr App R 164 in which it was held: “Public interest varies according to the time, place and circumstances of each case including its nature and prevalence. What may be of public interest in one place may differ from another..” It is understood there exists a degree of seriousness regarding the offence. This Court however, still has a commitment to bipartisanship in that the accused still retains undiminished rights under the law and his plea of guilt must also be afforded equal consideration. A guilty plea in earnest saves the time and cost of a full public trial. This was expressed in the case of R v Boyd (1980) 2 Cr App R (S) 234: "The policy of the courts 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.” I am thus obliged to provide proper consideration upon the OKTs plea. A fair sentence should be considered based on the facts of the case balanced with his plea of guilt Accused (OKT) plea for a sentence to run with his current sentence s.412 Penal Code) At the time when the accused was brought before me, he was serving a 15 months sentence for another case (case no: JE-83RS-12-05/2025). In that case the OKT was convicted for an offence under Section 379 of the Penal Code (PC) for theft. The OKT had pleaded guilty to the aforementioned charges upon which that Sessions Court sentenced him to 15 months imprisonment from the date of his arrest. This order by the Sessions Court was on 15/5/2025. The OKT during his mitigation, pleaded for his sentence for the offence under Section 39C(1)(a) DDA to run concurrently with his sentence for Section 379PC. I explained to him that Section 379PC was a distinct offence from the Section 39C DDA charges. As such it would be improper under the law for his sentence for Section 39C(1)(B) DDA to commence at the same time his current sentence under Section 379PC. Despite this the OKT maintained his plea of guilt and still asked for a sentence to commence with his current sentence. Concurrent or consecutive sentencing On the issue as to whether the sentence ought to be concurrent or consecutive I refer to Sections 282 and 292 of the Criminal Procedure Code (CPC). Section 282(d) of the CPC provides the general rule that a sentence of imprisonment shall take effect from the date on which it was passed unless the court passing sentence otherwise directs as such. Section 292 however is a specific provision dealing with the date of commencement of a section of imprisonment of a person who is already undergoing imprisonment. Under this Section 292, the court may order the imprisonment to commence either immediately or upon expiration of the imprisonment to which he has been sentenced previously. The application of discretion in determining the date of commencement of the sentence of imprisonment depends on the facts and circumstances of each case. In deciding whether imprisonment terms should be consecutive or commence at another date, the court is guided by the one transaction rule and the principle of totality. With regards to the one transaction rule where two or more offences are committed in the course of a single transaction, in general all sentences in respect of these offences should be concurrent and not consecutive. In order for an act to fall within one transaction four elements must be present, that is to say, proximity of time, proximity of place, continuity of action and continuity of purpose or design. This is as decided in the case of Amrita Lal Hazra v Emperor 42 Cal 957. In the case at hand, as previously mentioned, the OKT was at the time serving a sentence for an offence under Section 379 PC. It is clearly a distinct offence than the one which the OKT is charged with before this court under Section 39C(1)(B) DDA. The latter offence did not take place in the same time, place or occasion as the offence under Section 379PC. As such it does not fall within the category of the one transaction rule. It would thus be appropriate that the sentence for the offence under Section 39C(1)(b) of the DDA to commence after the OKTs current sentence under Section 379PC. It would be inappropriate for the 2 sentences to commence simultaneously as both occurred on separate times, dates and occasions. I refer to the case of Bachik bin Abdul Rahman v Public Prosecutor [2004] 2 MLJ 534 in which the Court of Appeal addressed this issue. It was held: The exercise of the discretion to determine the date of commencement of the sentence of imprisonment is dependent on the facts and circumstances of each case. In deciding whether the terms of imprisonment should be consecutive or commence at another date, the court should be guided by the one transaction rule and the totality principle Based on the decision of Bachik Abdul Rahman’s case, it is clear that the 2 sentences ought to commence separately. Conclusion Upon a full consideration of the law, the facts, adduced articles evidence as well as great appreciation towards the submission of the prosecution and the plea of the accused, this court is of the view the sentence ordered is appropriate and within the law. (MUHAMAD ANAS MAHADZIR) SESSIONS COURT, SHAH ALAM