Lee Wei How v - (41S-09-08/2017)

This is an appeal against the sentence imposed by the Magistrates’ Court.

The Appellant was charged as follows: “Bahawa kamu pada 12 haribulan Mac 2017 jam lebih kurang 5.00 ptg bertempat di tepi Jalan Lorong Gamelan 1, Taman Gamelan, Sungai Bakap, di dalam Daerah Seberang Perai Selatan di dalam Negeri Pulau Pinang, telah ada dalam milikan kamu dadah berbahaya, jenis Methamphetamin seberat 3.99 gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah Seksyen 12(2) Akta Dadah Berbahaya yang boleh dihukum di bawah Seksyen 12(3) Akta yang sama.”

At the opening of the trial, the Appellant pleaded guilty to the charge and was imposed 4 years imprisonment from the date of arrest on 12 March 2017. 3

The Appellant was dissatisfied with the Magistrate’s decision and appealed to the High Court.

Consequently the appeal came before me and after having read the appeal record and written submissions of the parties; I heard oral submission of counsel on 24 April 2018. I thereafter allowed the appeal by reducing the sentence to 2 years imprisonment from the date of arrest.

The Respondent was dissatisfied with my decision and has accordingly appealed to the Court of Appeal on 7 May 2018.

I hence furnish the supporting grounds of my decision below

The Appellant is a male of 34 years in age. However he has several previous drug related convictions, to wit: 4 TEMPAT TARIKH KESALAHAN/ ORDINAN HUKUMAN Mahkamah Majistret Jawi 18/4/2008 Menyuntik dadah ke dalam badan sendiri S.15(1)(a) ADB Denda RM 1500 i/d 3 bulan penjara & 2 Tahun PS AADK (Denda Dibayar) Mahkamah Majistret Jawi 4/11/2008 Memiliki Dadah Memiliki Dadah Memiliki Dadah Denda RM 1000 i/d 8 bulan penjara (Denda Dibayar) Denda RM 3000 i/d 10 bulan penjara (Denda Dibayar) Denda RM 800 i/d 5 bulan penjara (Denda Dibayar) 5 Menyuntik dadah ke dalam badan sendiri S.15(1)(a) ADB Denda RM 1000 i/d 2 bulan penjara & 2 tahun pengawasan AADK (Denda Dibayar) Mahkamah Majistret Jawi 16/2/2011 Memiliki Dadah Denda RM 2500 i/d 10 bulan penjara (Denda Dibayar) Mahkamah Majistret Jawi 17/12/2012 Memiliki Dadah Denda RM 3000 i/d 6 bulan penjara (Denda Dibayar) 6

The Appellant submitted that the sentence imposed by the learned Magistrate is excessive because the maximum sentence is 5 years imprisonment but he was sentenced to 4 years imprisonment which is just a year lesser than the maximum sentence. He had shown remorse and pleaded guilty at the first possible opportunity. In addition, the drug was administered on the Appellant himself but not to others. In the circumstances, the Appellant pleaded that a fair and reasonable sentence would be 1 ½ years imprisonment. The Appellant referred to Mohamed Abdullah Ang Swee Kang v. Public Prosecutor [1988] 1 MLJ 167, SC where Mohamed Azmi SCJ held as follows in support of the Appellants plea: “For determining the length of custodial sentence in pleading-guilty cases, the test to be adopted could be found in R v Boyd (1980) 2 Cr App R (S) 234; Thomas Encyclopaedia of Current Sentencing Practice p 1061 where Cumming-Bruce L.J. said: 7 "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. So one asks oneself, if there had been a plea of not guilty, and he had been convicted, what would have been the appropriate sentence? The answer to that is that the appropriate sentence in these circumstances would not have been more than three years. That points to the fact that this sentence was rather on the heavy side, because it did not give sufficient allowance for the plea of guilty.”

On the opposite side, the Respondent submitted that the Appellant is a habitual offender and a deterrence sentence must thus be imposed in the public interest as ordered by the learned Magistrate. The Respondent referred to PP v. Tia Ah Leng [2000] 5 CLJ 614, HC where Augustine Paul J (later FCJ) held as follows: “The phrase "pass sentence according to law" in the section means that the sentence imposed must not only be within 8 the ambit of the punishable section but it must also be assessed and passed in accordance with established judicial principles (see Re Chong Cheng Hoe & Ors [1966] 1 LNS 155[1966] 2 MLJ 252; PP v. Jafa Daud [1981] 1 LNS 28;[1981] 1 MLJ 315; Phillip Lau Chee Heng v. PP [1988] 1 CLJ 873;[1988] 3 MLJ 107). In R v. Ball 35 Cr App R 164 the principles which should guide a court in considering the appropriate sentence that should be imposed was laid down in the following terms: In deciding the appropriate sentence a Court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition that, if the offender is caught and brought to justice, the punishment will be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best 9 served, if the offender is induced to turn from criminal ways to honest living. Our law does not, therefore, fix the sentence for a particular crime, but fixes a maximum sentence and leaves it to the Court to decide what is, within that maximum, the appropriate sentence for each criminal in the particular circumstances of each case. Not only in regard to each crime, but in regard to each criminal, the Court has the right and the duty to decide whether to be lenient or severe. Therefore, one of the main considerations in the assessment of sentences is the question of public interest (see PP v. Loo Choon Fatt [1976] 1 LNS 102 PP v. Darmalingam [1988] 2 CLJ 227 (Rep) It is left to the discretion of the court to pass an appropriate sentence within the prescribed maximum dependent on the particular circumstances of a case. Thus the observation in R v. Ball that the public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living cannot be construed as a carte blanche argument for the avoidance of custodial sentences in all cases. This was succinctly explained by Wan Yahya J (as he then was) in New Tuck Shen v. PP [1982] CLJ 606 (Rep) at pp 30 - 31: 10 The case of R v. Ball 35 Cr App R 164 has been widely canvassed in this court as a means for avoidance of custodial sentence. Unfortunately the sagacious observation of Hilbery J that 'public interest is indeed served, and best served, if the offender is induced to turn from criminal ways into honest living' has been used in more ways than the learned judge could ever imagine. In that case the learned judge was not laying any rules on public interest but was merely observing what public interest would be in relation to the 23 years old offender who had exceptional antecedents and character. 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. Similarly inducement to turn from criminal ways into honest living can take several forms and will have to depend to a greater extent on the attitude of the offender and his suitability for any particular type of reformation. What now requires consideration is the manner in which public interest is affected by drug abuse. In PP v. Loo Choon 11 Fatt [1976] 1LNS 102 Hashim Yeop A Sani J (as he then was) traced the gradual attitude of the legislature towards drug abuse as reflected in the various amendments made to the Act. His Lordship pointed out that each time the Act was amended the penalties attached to the various offences under it were enhanced. His Lordship then added at p. 257: It is common sense to say that behind these legislative exercises was the government realization 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 if the sentence appears to defeat the object of the statute. This is not saying that the courts in the 12 treatment of drug offences should at all times be severe. Each case has to be determined on its own merits. But in every case the courts must be realistic and rational. What the learned judge said in 1976 is the same, if not worse, today. The seriousness of the drug menace must therefore be reflected in the sentence, depending on the circumstances of the case, so that the requirements of public interest can be served effectively. The corollary is a determination of whether the quantity of drugs involved in cases of drug abuse ought to affect the sentence to be passed in view of the fact that different penalties are prescribed in the Act dependent on the weight involved. I had the occasion to consider this aspect of sentencing in drug cases in Zaidon Shariff v. PP [1996] 4 CLJ 441 (refd) [1996] 4 CLJ 441 where I said at pp. 446 - 447, In my opinion the learned Magistrate's view that drug offences require a deterrent sentence is too wide and broad a statement. The appropriate sentence for each drug offence depends on its own peculiar circumstances. In particular the weight of the drugs found on a person plays a significant role 13 in assessing sentence. In Oloofen v. PP [1964] MLJ 305 Wee Chong Jin CJ emphasised the consideration to be given to the quantity of drugs involved in drug offences in assessing sentence. The same guideline applies even to more serious drug offences. In PP v. Ang Soon Huat (Mallal's Digest 4th Ed 1994 Reissue Vol 5 No 2378) it was held that in drug trafficking cases the sentence should be proportionate to the gravity of the offence, which is the quantity of the drugs that was being trafficked. This is also manifested by the fact that the Dangerous Drugs Act 1952 (the Act) itself prescribes different penalties for drug offences depending on the weight of drugs involved. In Mohamed bin Abdul Rahman v. PP [1979] 1 MLJ 252 Syed Othman J (as he then was) substituted a sentence of six months imprisonment for possession of 0.10 grams of heroin with a fine of RM400 in default four months imprisonment. Furthermore, the penalty under the Act is also dependent on the nature of the drugs involved. For example, an offence for possession of ganja attracts lighter sanctions than one for possession of heroin under the Act. As the dangerous drugs involved in this appeal is ganja and its weight is only 0.04 grams the learned Magistrate ought to have taken these 14 factors into account in assessing sentence. Evidently, he was swayed by the overstatement that drug offences require a deterrent sentence. It follows that the weight of the drugs is an indication of the gravity of the offence though, as I will explain in a later part of the judgment, it may be mitigated. Another principle of sentencing, rendered significant by the facts of this case, is the effect of a guilty plea on the sentence to be imposed. It is settled law that a plea of guilt will operate as a mitigating factor in favour of an accused. Cases such as Sau Soo Kim v. PP[1975] 1 LNS 158 PP v. Sulaiman bin Ahmad [1992] 3 CLJ 447 (Rep);[1993] 1 MLJ 74 and PP v. Ravindran & Ors [1992] 1 LNS 47;[1993] 1 MLJ 45 lay down the rule that an accused person should be given credit or discount for pleading guilty as it saves time and costs. However, that is only a statement of the general rule. The demands of public interest may, in the circumstances of a particular case, far outweigh any mitigating effect which might have been attached to an accused's guilty plea (see Sim Gek Yong v. PP [1995] 1 SLR 537). In PP v. 15 Govindnan a/l Chinden Nair [1998] 2 CLJ 370 I considered the applicable principles governing a guilty plea at pp 191 - 192: It is generally accepted that an accused person should be given credit or discount for pleading guilty (see PP v. Ravindran & Ors [1992] 1 LNS 47[1993] 1 MLJ 45). However, as I had the occasion to observe in Zaidon Shariff v. PP [1996] 4 CLJ 441 (refd) [1996] 4 CLJ 441 at p 446: 205 Be that as it may, this rule is not a strict rule as the court may in the exercise of its discretion, refuse to grant any discount in appropriate cases (see Lee Say & Ors v. PP [1985] 2 CLJ 155).” The Respondent hence submitted that the Appellant would unlikely stay away from drugs and should be incarcerated. Accordingly, the decision of the learned Magistrate ought to be upheld. 16

I have attended the James Richardson Logan Memorial Penang Lecture 2017 in November last year titled “Why Malaysia needs a drug policy reform?” where Professor Dato’ Dr Adeeba Kamarulzaman of the University of Malaya gave illuminating insights on the ineffectiveness of imprisonment in rehabilitating a drug dependent just like the Appellant here. It was advocated that the better remedy and solution would be to send drug dependents to rehabilitation cure and care centres such as those administered by the Agensi Anti Dadah Kebangsaan.

However it seems to me that the power to send drug dependents to the rehabilitation cure and care centres is only available for such offenders caught pursuant to the Drug Dependents (Treatment and Rehabilitation) Act 1983. There is no similar power available for offenders or convicts pursuant to the Dangerous Drugs Act 1952 or Criminal Procedure Code.

On the facts of herein, an imprisonment sentence is thus inevitable because the Appellant is not a first time but a habitual offender. I nonetheless noted that he stayed clean free for arrest from 5 years 17 between 2012 and 2017. In PP v. Mohamed Danny Mohamed Jedi [2018] 1 LNS 50, CA Mohd Zawawi Salleh JCA (now FCJ) held as follows: “[14] It is trite law that the sentence must be proportionate to both the seriousness of the offence and the degree of responsibility of the offender. The concept of proportionality was explained in the Canadian Supreme Court case of R v. Ipeelee [2012] SCC13, [2012] 1 SLR 433 in paragraph 37 as follows: "Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system.... Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principles serves a limiting or restraining function and ensures justice for the offender." 18 [15] The protection of society is one of the important purposes of punishment under the principle of proportionality. In Channon v. The Queen [1978] 20 ALR 1, 5, the Court stated: "The necessary and ultimate justification for criminal sanctions is the protection of society from conduct which the law proscribes. Punishment is the means by which society marks its disapproval of criminal conduct, by which warning is given of the consequences of crime and by which reform of an offender can sometimes be assisted. Criminal sanctions are purposive, and they are not inflicted judicially except for the purpose of protecting society; nor to an extent beyond what is necessary to achieve that purpose." [16] In the same vein, in Sumer Singh v. Surajbhan Singh & Others [2014] 7 SCC 323, the Supreme Court of India, while elaborating on the duty of the court in imposing sentence for an offence, ruled that it is the duty of the court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of society and legitimate response to the collective conscience. The paramount 19 principle that should be the guiding laser beam is that the punishment should be proportionate. It is the answer of law to social conscience. In a way, it is an obligation to the society which has reposed faith on the court of law to curtail the evil.”

I have recently held in Kathiravan v. Pendakwa Raya [2018] 1 LNS 352 after a thorough review that there is dearth of reported past cases on sentencing pursuant to s. 12(3) of the Dangerous Drugs Act 1952. In that case, I dismissed the appellant’s appeal (there was no cross appeal by the respondent/prosecution) and upheld the order of the Magistrates’ Court of 3 years imprisonment where the appellant had 8 previous convictions including imprisonment term of between 8 months to 36 months for several of the convictions.

In my opinion and mindful of the aforesaid principles in sentencing, the sentence meted out by the Courts ought not to be only proportional and fair but also consistent as far as it is possible. Consequently based on the facts of this case where the Appellant had fewer previous convictions without imprisonment, I was of the view that 2 years imprisonment is fair and adequate comparatively. 20

It is for the foregoing reasons that I allowed the appeal as so ordered. Dated this 18 May 2018 t.t LIM CHONG FONG JUDGE HIGH COURT GEORGETOWN PENANG 21 COUNSEL FOR THE APPELLANT: BALDEV BHAR SOLICITORS FOR THE APPELLANT: SYARIKAT BALDEV BHAR COUNSEL FOR THE RESPONDENT: MOHAMAD SYAFIQ BIN MOHAMAD SAZALI SOLICITORS FOR THE RESPONDENT: PEJABAT PENASIHAT