LIM Liah Wee v Public Prosecutor (JB-42S-1-03/2021)

This is an appeal against the decision of the Learned Sessions Court given on 7 March 2021 in Muar in the State of Johore whereby the Learned Sessions Court Judge convicted the Appellant on his own plea of guilty on a Charge under section 15(1)(a) Dangerous Drugs Act 1952 which is punishable under section 39C of the same Act and was sentence to 5 years imprisonment with effect from the date of re-arrest and 1 stroke of whipping.

This appeal is against conviction and sentence.

The Cause Papers are as follows: i. Notice of Appeal (Enclosure 1). ii. Grounds of Judgment (Enclosure 8). iii. Notes of Proceedings (Enclosure 9). iv. Appeal Records (Enclosure 13). v. Supplementary Appeal Record (Enclosure 16). vi. Supplementary Appeal Record (Enclosure 17).

On 4 November 2020, at about 5.25 am, Sub Inspector Mohd Najib bin Daud, carried out preliminary test on the Appellant and the result was positive for methamphetamine. The sample was sent to the Pathology Department, Sultanah Aminah Hospital in Johor Bahru. The Chemist report that was received confirmed that the urine sample contained Methamphetamine which is listed in the 1st Schedule of the Dangerous Drugs Act 1952. A search with the December 27, 2021 3 Registry of Criminal Records, Royal Malaysian Police Force Headquarters, Bukit Aman reveal that this is the 3rd offence of the same nature. The previous convictions are: Place Date Offence and Ordinance Sentence Case no. and Prison Signature Muar Magistrates Court 4 June 2012 Possession of dangerous drugs under section 12(2) Dangerous Drugs Act 1952 Fine RM3,500-00 in default 1 month (fine paid) 83-209-3- 2012 (Muar Report 2605- 2606/12) Nurul Adlida bt Hussain Muar Magistrates Court 5 February 2018 Possession of dangerous drugs under section 12(2) Dangerous Drugs Act 1952 Fine RM2,500-00 in default 8 month JB-83D-13- 01/18 (Muar Report 137/20) Aminuddin bin Mat Nor Muar Magistrates Court 14 July 2019 Self administration of Dangerous Drugs, section 15(1)(a) Dangerous Drugs Act 1952 Fine RM3,000-00 in default 5 month & 2 years police supervision JD-83D- 320-07/19 (Muar Report 10081/18) Aminuddin bin Mat Nor Muar Magistrates Court 2 March 2020 Self administration of Dangerous Drugs, section 15(1)(a) Dangerous Drugs Act 1952 Fine RM2,000-00 in default 5 month & 2 years police supervision JB-83D-59- 03/20 (Muar Report 6778/17) Aminuddin bin Mat Nor December 27, 2021 4

The proceedings before the Sessions Court sitting in Muar is as follows: (English Translation) Date : 7 March 2021 In Open Court Coram : Tuan Amran bin Jantan : Puan Syamim Fateha Accused : present : May it please your Honour, DPP Syamin Fateha for the prosecution. Accused person present. May this the Charge be read and explained, (Charge read and explained in Malay Language. The accused understand the Charge and pleaded guilty. Understood the nature and consequences of the plea of guilty) : My Honour, I would like to tender the Brief facts which have been marked “A” and pray that it be read. (Brief facts read and explained to the Accused and admitted by the accused) :

Your Honour, I wish to tender the following Muar Report 13649 / 20

Muar Report 13647 / 20

Re-arrest Report Panchor 190 / 21

Muar Report 2460 / 20

Pathology Report

UPD Form

Previous Record

Photograph of Urine Bottle

Photograph Preliminary Test - P9 December 27, 2021 5

Photograph of storage - P10 (P1 – P10 shown to the accused person and admitted as correct) Judge : Can we hear you on mitigation Accused : Ask for lenient sentence. Age 33 years old, Not married, sell “otak-otak” (Baked fish dough) Judge : How long have you been taking drugs? Accused : I did not take drugs for 2-3 days already : the prosecution asked for a suitable sentence, taking into account public interest overriding private interest Judge : I found you guilty and I convict you thereof. I ordered that you to serve an imprisonment sentence for 5 years with effect from date of re-arrest on 6 March 2021 and one stroke of whipping and to be placed under police supervision for 2 years. Signed. Amran bin Jantan THE ISSUES IN THIS APPEAL i. Whether an Appellant who pleaded guilty to a Charge may appeal against conviction. ii. Whether there was sufficient evidence that the Appellant had previous conviction of a similar nature that invite the operation of section 39C Dangerous Drugs Act 1952. iii. Whether the Learned Sessions Court Judge had applied the correct principles in sentencing the Appellant to 5 years imprisonment with effect from the date of arrest and 1 stroke of whipping. December 27, 2021 6 I shall deal with the issues accordingly. i. Whether an Appellant who pleaded guilty to a Charge may appeal against conviction. [6] The law is laid down under section 305 Criminal Procedure Code which reads as follows: 305 When plea of guilty limited right of appeal When an accused person has pleaded guilty and been convicted by a Magistrate on that plea, there shall be no appeal except as to the extent or legality of the sentence. [7] This statutory provision prevents a person who pleaded guilty to go beyond appeal against sentence. [8] It must be, however, an unequivocal and unqualified plea of guilty. [9] An unequivocal and unqualified plea means that a plea that is without conditions and / or exceptions. [10] The phrase “there shall be no appeal except as to the extent or legality of the sentence” limits the extent by which an appeal may be filed in the High Court in cases where the Appellant had pleaded guilty. [11] These limitations are inapplicable in the following cases: i. Conditional Plea of Guilty. “Conditional Plea” means “a plea that does not fulfil the legal requirement in relation to a Plea of Guilty.” However a Plea of Guilty that is as a result of December 27, 2021 7 Plea Bargaining pursuant to section 172C because a plea bargaining pursuant to section 172C is a plea WITHOUT conditions and is NOT a conditional plea. ii. Plea of Guilty that does not fulfil the requirements of section 173 (b) as discussed earlier. iii. A plea of Guilty before the Court that has no local jurisdiction or legal jurisdiction to accept the Plea of Guilty. iv. A Plea of Guilty that is without consent or induced by anything other than what is provided by law. An example is a plea of guilty upon a promise of monetary benefits. Such is a conditional plea. v. Any other conditions that raised a reasonable doubt as to its voluntariness and invites the intervention of the Court by exercising the appellate jurisdiction and powers. [12] All amendments to the Criminal Procedure Code especially sections 172A,172B, 172C, 172D, 172E, 172F and 172G are legitimate and the operation of such amendment cannot be interpreted as contrary to other provisions of the Criminal Procedure Code. The amendments are made pursuant to the Amendment Act (Criminal Procedure Code) 2012 which is Act A1422 and gazetted in the Federal Government Gazette P.U.(B) 189/2012 which came into effect on 1 June 2012. [13] In the case of MASNI YUSOFF v. PP [2019] 1 LNS 1984 the Court of Appeal ruled as follows: December 27, 2021 8 “In the premises, as correctly submitted by the learned DPP, section 305 of the Criminal Procedure Code applies. The section provides that where accused person has pleaded guilty and has been convicted, there shall be no appeal except as to the extent or legality of the sentence” [14] In the case of PP v. MUHAMMAD KASYFULLAH KASSIM [2017] 1 CLJ 63, the Court of Appeal discussed the limitations of an appeal in cases of Plea of Guilty and said: “The conviction of the respondent was never appealed against and canvassed before us. The appeal before us was solely by the prosecution and it was only on sentence. As the respondent has pleaded guilty and had been convicted on that plea, “there shall be no appeal except as to the extent or legality of the sentence”: see s. 305 of the Criminal Procedure Code. That being the case, we propose to deal with the issue of sentence only in this judgment.” [15] In the case of NESA GANDH BATUMALAI v. PP [2018] 10 CLJ 562 it was held that, “By virtue of s. 305 of the Criminal Procedure Code, no appeal should lie against conviction except as to the extent or legality of the sentence. Rightfully, the appellant did not challenge the conviction but prayed for a shorter sentence.” [16] In the case of LEE WAI KAM v. PUBLIC PROSECUTOR [1976] 2 MLJ 19, his Lordship Justice Eusoffe Abdoolcader said, “Normally by virtue of the provisions of s. 305 of the Criminal Procedure Code (FMS Cap. 6) no appeal will lie when an accused person has pleaded guilty as the appellant did in this case in the lower Court”. December 27, 2021 9 [17] It has been submitted by the Learned Counsel for the Appellant that the Appellant is a Chinese and does not know or is not fluent in the Malay language. The example that the Learned Counsel to draw the Court’s attention was as follows: Judge : How long have you been taking drugs? Accused : I did not take drugs for 2-3 days already. [18] According to the Learned Counsel, the answer given does not tally with the question posed. It was submitted that since the proceedings were conducted in Malay Language and in the absence of a Chinese interpreter, the Appellant could not defend himself properly and this was compounded with the fact that the Appellant had no legal counsel at the time. Hence it is proof enough that the Appellant does not know the Malay language and it vitiates the plea of guilty as well as the conviction. [19] I have perused over the Appeal Records. I found from the records of proceeding, the following: Date : 7 March 2021 In Open Court Coram : Tuan Amran bin Jantan : Puan Syamim Fateha Accused : present : May it please your Honour, DPP Syamin Fateha for the prosecution. Accused person present. May this the Charge be read and explained, (Charge read and explained in Malay Language. The accused understand the Charge and pleaded guilty. Understood the nature and consequences of the plea of guilty) December 27, 2021 10 : My Honour, I would like to tender the Brief facts which have been marked “A” and pray that it be read. (Brief facts read and explained to the Accused and admitted by the accused) : Your Honour, I wish to tender the following

Muar Report 13649 / 20

Muar Report 13647 / 20

Re-arrest Report Panchor 190 / 21

Muar Report 2460 / 20

Pathology Report

UPD Form

Previous Record

Photograph of Urine Bottle

Photograph Preliminary Test

Photograph of storage - P10 (P1 – P10 shown to the accused person and admitted as correct) Judge : Can we hear you on mitigation Accused : Ask for lenient sentence. Age 33 years old, Not married, sell “otak-otak” (Baked fish dough) [20] There are many parts where the Appellant had to respond to the matters raised. They are: i. (Charge read and explained in Malay Language. The accused understand the Charge and pleaded guilty. Understood the nature and consequences of the plea of guilty). December 27, 2021 11 ii. (Brief facts read and explained to the Accused and admitted by the accused). iii. Ask for lenient sentence. Age 33 years old, Not married, sell “otak-otak” (Baked fish dough). [21] All these happened in the proceedings before the Learned Sessions Court Judge. It is clear that the Appellant understood the Malay language and was able to respond accordingly. [22] On the issue that there was a wrong response to the question posted by the Learned Sessions Court Judge, I am of the view it is not totally an off-tangent answer. The issue was drugs taking and the response is still about drugs taking. And there may have been some small misunderstanding of the question posted by the Learned Sessions Court Judge. [23] For the record, this Court conveyed the proceedings in the appeal proper to the Appellant and he understood what was happening and all this happened without the privilege or services of a Chinese (Mandarin) interpreter. [24] It is my finding that the Appellant sufficiently understood the proceedings in the Malay Language and he was not prejudiced in any way. ii. Whether there was sufficient evidence that the Appellant had previous conviction of a similar nature that invite the operation of section 39C Dangerous Drugs Act 1952. December 27, 2021 12 [25] It is in evidence that the Certificate of Criminal Records of the Appellant was tendered in Court which was signed by one Aminuddin bin Mat Nor, Assistant Registrar of Criminal Records of Malaysia and Singapore and the Appellant admitted it as true. This was marked as “P7” [26] In the Certificate, it is stated that the Appellant had 4 previous convictions which are as follows: 4 June 2012 Muar Magistrates Court-Place Date Offence and Ordinance Sentence Case no. and Prison Signature Muar Magistrates Court 4 June 2012 Possession of dangerous drugs under section 12(2) Dangerous Drugs Act 1952 Fine RM3,500- 00 in default 1 month (fine paid) 83-209-3- 2012 (Muar Report 2605- 2606/12) Nurul Adlida bt Hussain Muar Magistrates Court 5 February 2018 Possession of dangerous drugs under section 12(2) Dangerous Drugs Act 1952 Fine RM2,500- 00 in default 8 month JB-83D-13- 01/18 (Muar Report No. 137/20) Aminuddin bin Mat Nor Muar Magistrates Court 14 July 2019 Self administration of Dangerous Drugs, section 15(1)(a) Fine RM3,000- 00 in default 5 month & 2 JD-83D- 320-07/19 (Muar Report No. 10081/18) Aminuddin bin Mat Nor December 27, 2021 13 Dangerous Drugs Act 1952 years police supervision Muar Magistrates Court 2 March 2020 Self administration of Dangerous Drugs, section 15(1)(a) Dangerous Drugs Act 1952 Fine RM2,000- 00 in default 5 month & 2 years police supervision JB-83D-59- 03/20 (Muar Report No. 6778/17) Aminuddin bin Mat Nor [27] The Certificate fulfils all the requirements of section 400 Criminal Procedure Code. The Appellant admitted it as correct. [28] There are 2 modes specifically provided for by section 400 Criminal Procedure Code which are:

by an extract certified under the hand of the officer having the custody of the records of the Court whether of Malaysia or the Republic of Singapore in which that conviction or acquittal was had to be a copy of the sentence or order; or

in case of a conviction either by a certificate signed by the officer in charge of the prison in Malaysia or the Republic of Singapore in which the punishment or any part of it was inflicted, or by production of the warrant of commitment under which the punishment was suffered. [29] I find that the Certificate is sufficient evidence that there were more than 3 convictions of drug related offences since 2012. December 27, 2021 14 [30] When the Appellant admitted that in P7 in a judicial proceeding is a judicial confession. Judicial confession is a confession made in a legal proceeding such as the trial in this appeal. Such confessions are, without doubt, sufficient of themselves, unaided by any corroboratory or confirmatory evidence of the corpus delicti, to sustain a conviction and there is no need of any other. [31] In EMPEROR V. LAL BAKHSH [1945] AIR (Lahore) 43 at 45 there is this passage - It is not denied that this judicial confession of the respondent is good evidence and he can be convicted on the strength of it. Two things are clear from that statement. One is that the respondent snatched the club from the deceased and hit him on his head with it when he found that the latter was going to attack him and the second is that the deceased made no effort to snatch back his club from the respondent or to attack him in any way after the respondent had disarmed him and had even given him the first blow. The learned Counsel for the Crown frankly admitted that if the respondent had genuine apprehension that the deceased was going to attack him and he was reasonably believed that the attack would result into grievous hurt he could go to the length of causing his adversary's death in exercise of the right private defence, even though his adversary had not actually inflicted any blow upon him. What he however argued was that in this case the respondent could have had no genuine apprehension and he acted not in order to defend himself against a threatened attack but because he was infuriated by the conduct of the deceased. Now there being no reliable evidence of his own judicial confession, I have no option but to accept it as true, and according to that statement the respondent, who was armed with a club, did intend to attack the deceased and taking into consideration the fact that the deceased was a man of desperate character who had recently come out of jail after undergoing a long sentence of imprisonment which had been awarded to him for causing somebody's death, the respondent had every reason to December 27, 2021 15 believe that unless he deprived him of his weapon and disabled him from doing any harm to him his life would not be safe. Accordingly I hold that the first blow given by the respondent to the deceased was in the exercise of the right of self defence. [32] In PAKALA NARAYAN SWAMI V EMPEROR (1939) 41 BOMLR 428 Lord Atkin observed- “A confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not in itself a confession”. [33] In the case of PALVINDER KAUR V STATE OF PUNJAB [1952] AIR 354, [1952] SCR 94 the Supreme Court approved the Privy Council decision in PAKALA NARAYAN SWAMI case over two scores. Firstly, that the definition if confession is that it must either admit the guilt in terms or admit substantially all the facts which constitute the offence. Secondly, that a mixed up statement which even though contains some confessional statement will still lead to acquittal, is no confession. Thus, a statement that contains self-exculpatory matter which if true would negate the matter or offence, cannot amount to confession. [34] However, in the case NISHI KANT JHA V STATE OF BIHAR [1969] 2 SCR 1033 the Supreme Court pointed out that there was nothing wrong or relying on a part of the confessional statement and rejecting the rest, and for this purpose, the Court drew support from English authorities. December 27, 2021 16 [35] Coming back to our instant case, the admission of P7 as being correct is a judicial confession that there were previous convictions of drugs related matters, 2 of which concerns possession of dangerous drugs under section 12(1) Dangerous Drugs Act 1952 and the remaining 2 are those of self-administration of dangerous drugs under section 15(1)(a) of the same Act. [36] Since there are evidence that there were 4 drugs related offences then would section 39C Dangerous Drugs Act applies? [37] Section 39C stipulates - “(1) Where a person who has not less than-

two previous admissions;

two previous convictions under paragraph 10(2)(b) or paragraph 15(1)(a) or any combination of the sections;

one previous admission and one previous conviction under paragraph 10(2)(b) or paragraph 15(1)(a);

one previous admission and two previous convictions under section 31A; or

one previous conviction under paragraph 10(2)(b) or paragraph 15(1)(a) and two previous convictions under section 31A, is found guilty of an offence under paragraph 10(2)(b), paragraph 15(1)(a) or section 31A, he shall, instead of being liable to the punishment provided for that offence under the section under December 27, 2021 17 which he has been found guilty, be punished with imprisonment for a term which shall not be less than five years but shall not exceed seven years, and he shall also be punished with whipping of not more than three strokes. [38] It is the view of this Court that section 39C of the Dangerous Drugs Act 1952 has set in. iii. Whether the Learned Sessions Court Judge had applied the correct principles in sentencing the Appellant to 5 years imprisonment with effect from the date of arrest and 1 stroke of whipping. [39] The maximum sentence provided for under section 39C is “imprisonment for a term which shall not be less than five years but shall not exceed seven years, and he shall also be punished with whipping of not more than three strokes.” SENTENCING PRINCIPLES [40] There are many different purposes of sentencing. There is the deterrent factor, the rehabilitative factor, the punitive factor and the restorative factor. These are by no means exhaustive but the most common considerations. [41] In R v. BALL (KENNETH JOHN) [1951] 35 Cr App R 164, Justice Hilbery stated: “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 December 27, 2021 18 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 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 the 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.” [42] Once convicted, a trial court must start with the maximum 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.” December 27, 2021 19 [43] In PUBLIC PROSECUTOR V. LOO CHOON FATT [1976] 1 LNS 102; [1976] 2 MLJ 256 the Court discussed the issues which are as follows: The principles to be applied in imposing sentence however are the same in every case. The High Court sitting in exercise of its revisionary powers will not normally alter the sentence unless it is satisfied that the sentence of the lower court is either manifestly inadequate or grossly excessive or illegal or otherwise not a proper sentence having regard to all the facts disclosed on the record or to all the facts which the court ought to take judicial notice of, that is to say, that the lower court clearly has erred in applying the correct principles in the assessment of the sentence. It is a firmly established practice that the court will not alter a sentence merely because it might have passed a different sentence. [44] Lord Chief Justice Goddard in REX v. GRONDKOWSKI [1946] 1 All ER 560 561 offered some good advice when he said: - “The judge must consider the interests of justice as well as the interest of the prisoners. It is too often nowadays thought, or seems to be thought, that the interests of justice means only the interest of prisoners.” [45] Hence among the factors to be taken into account are (but not limited to) i. The seriousness of the offence. ii. The protection of public interest. iii. When there is no justification for the criminal act perpetuated by the appellant. December 27, 2021 20 iv. Any previous conviction. v. Any plea of guilty. [46] His Lordship Justice Eusoffe Abdoolcader in PUBLIC PROSECUTOR v. TEH AH CHENG [1976] 1 LNS 116 has this to say, The respondent also puts forward in his plea in mitigation the fact that he is employed and supports an aged mother and step-brothers. He should of course have thought of this before committing the offences and not after; he is in fact pleading hardship arising from the consequences of his own acts and I would reiterate what I had occasion previously to observe in another case that an offender should not expect to excite or harness any sympathy on an ipse dixit by taking the stance of the impetuous youth who killed his parents with an axe and then pleaded in mitigation that he was an orphan. In any event from the probation report it would appear that his family is certainly not without other means of support. The respondent further undertakes to turn over a new leaf, as he puts it. That is as it should be and he should certainly do so but only after the proper and necessary correction has been administered to him in accordance with established principles of law for the offences under consideration in this matter. [47] As Lord Justice Lawton put it in REG. v. SARGEANT [1975] 60 Cr. App. R. 74, 77, 78 (at p. 78) or, perhaps more appropriately transmuted in a local context, the creaking of the prison doors closing shut behind him will afford the respondent ample opportunity to ponder on his folly in the company he keeps, and give to others of his ilk and equally gullible, cause to reflect on the desirability of the company they should or rather should not keep, for, as the December 27, 2021 21 ancient adage goes, he who sups with the devil must use a long spoon. (PUBLIC PROSECUTOR v. TEH AH CHENG [1976] 1 LNS 116; [1976] 2 MLJ 186) [48] The Appellant in his plea in mitigation, asked for a lenient sentence, he was then 33 years old, not married, and he sells traditional Malaysian baked fish dough (“otak-otak”) for a living. [49] I accepted that the Appellant pleaded guilty at first instance. This is a strong mitigation factor, in itself. [50] I must say this that, in section 39C Dangerous Drugs Act 1952, the penalty that follows a conviction would entail “be punished with imprisonment for a term which shall not be less than five years but shall not exceed seven years, and he shall also be punished with whipping of not more than three strokes.” [51] In PP v. MUHAMMAD FIQRY JAFRI & ANOR [2021] 4 CLJ 552 the High Court was of the view “And that if a minimum sentence of imprisonment is featured in the provision, the court is obliged to abide by the same but only if the court decides to pass a jail sentence in the first place.” [52] In PUBLIC PROSECUTOR v. LEE LAM (F) [1952] 1 LNS 87; [1952] 1 MLJ 86, his Lordship Justice Wilson had the occasion to comment on provision that provides for a minimum sentence as follows: “So far as this case is concerned the Legislative authority has laid it down that an accused person charged with an offence such as that alleged in the first charge shall be sent to prison for a period of not less than one year. If the Legislative authority had wished to December 27, 2021 22 say that such a person should not be sent to prison for this minimum period if he or she had no previous conviction, the Legislative authority would have so stated. Whilst I have every sympathy with the domestic circumstances of the accused person, I find it impossible to allow myself to be influenced by them. During the period of this Emergency the Executive and the Legislature alone can be fully aware of the reasons which make extraordinary legislation necessary. Judges and Magistrates are not in a position and are not entitled to query such legislation unless it can be found to be ultra vires.” [53] I fully agree with his Lordship, Justice Wilson that “So far as this case is concerned the Legislative authority has laid it down that an accused person charged with an offence such as that alleged in the first charge shall be sent to prison for a period of not less than one year. If the Legislative authority had wished to say that such a person should not be sent to prison for this minimum period if he or she had no previous conviction, the Legislative authority would have so stated.” [54] The Court cannot and should not usurp the functions of the Parliament in determining the appropriate sentence for a particular offence. This is provided for by Articles 73 & 74 Federal Constitution. [55] Otherwise, it would be crossing the line and be guilty of judicial legislation, violating the separation of powers. [56] Keeping in mind the principle that “If the Legislative authority had wished to say that such a person should not be sent to prison for this minimum period if he or she had no previous conviction, the Legislative authority would have so stated”, the Learned Sessions Court had no alternative but to start with 5 years and 1 strokes. The sentence passed is the minimum allowed (or December 27, 2021 23 required) by law and I find no error in the decision of the Learned Sessions Court Judge. CONCLUSION [57] The Learned Counsel for the Appellant invited the Court to exercise its powers of revision. After having scrutinised the Appeal Records, I find no error in the procedures in the Court below that would vitiate the conviction and sentence. Because the Orders made were neither illegal, nor incorrect or improper, I must respectfully decline the invitation. [58] Section 316 Criminal Procedure Code reads as follows:

Decision on appeal At the hearing of the appeal the Judge may, if he considers there is no sufficient ground for interfering, dismiss the appeal, or may-

in an appeal from an order of acquittal, reverse the order, and direct that further inquiry be made, or that the accused be re-tried, as the case may be, or find him guilty and pass sentence on him according to law;

in an appeal from a conviction or in an appeal as to sentence-

reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried; or

(ii) alter the finding, maintaining the sentence, or with or without altering the finding reduce or enhance the sentence or alter the nature of the sentence; December 27, 2021 24

in an appeal from any other order, alter or reverse such order. [59] The provision starts with “At the hearing of the appeal the Judge may, if he considers there is no sufficient ground for interfering, dismiss the appeal,...”. [60] In short, there must be sufficient ground for interfering, before the Court should interfere. I found there isn't sufficient grounds and it is trite law that an appellate court will be slow to interfere with the sentence of the trial court merely because the appellate court would have imposed a different sentence. In this regard, the case of BHANDULANANDA JAYATILAKE v. PP [1981] 1 LNS 139; [1982] 1 MLJ 83 held: “Therefore sentences do vary in apparently similar circumstances with the habit of mind of the particular judge. It is for that reason also that this court has said it again and again that it will not normally interfere with sentences, and the possibility or even the probability, that another court would have imposed different sentence is not sufficient, per se, to warrant this court's interference.” [61] In DATO’ SERI ANWAR BIN IBRAHIM v. PUBLIC PROSECUTOR [2002] 3 CLJ 457; [2002] 3 MLJ 193, the Federal Court said: “It is of the upmost importance to stress here that the appellate court will not normally alter the sentence unless it is satisfied that the sentence passed by the lower court is manifestly inadequate or excessive or illegal or otherwise not a proper sentence having regard to all the facts disclosed or that the court has clearly erred in applying the facts disclosed or that the court has clearly erred in applying correct principles in the assessment of sentence, see December 27, 2021 25 PUBLIC PROSECUTOR v. LOO CHOON FATT [1976] 1 LNS 102; [1976] 2 MLJ 256.” [62] Similarly, in PUBLIC PROSECUTOR v. AHMAD KHAIRUL FA'AIS BIN MAT DAHLAN & ORS [2006] 6 CLJ 555; [2006] 5 MLJ 190, his Lordship Justice VT Singham said: “The court, in sentencing any prisoner, has an obligation to have regard to the public’s expectation of what an appropriate punitive period of imprisonment should be having regard to all the relevant circumstances.” [63] For the reasons aforesaid, I find the conviction safe and the sentence neither excessive nor inadequate and I dismiss this appeal and reaffirm the conviction and upheld the sentence imposed by the Learned Sessions Court Judge. Dated this 27th December 2021 in Muar in the State of Johore. t.t. AWG ARMADAJAYA BIN AWG MAHMUD Judicial Commissioner High Court of Malaya Muar Johor Darul Ta’zim Curia Advisari Vult Counsels: For the Appellant : Mohd Ismail Bin Mohamed For the Respondent : Muhammad Azfar Mahmod Deputy Public Prosecutor December 27, 2021 26 Solicitors: For the Applicant Messrs Ismail, Khoo & Associates Advocates & Solicitors Level 4, Unit 9-11, Premier Centre No. 253G, Burmah Road 10350 Penang. [Ref. No.: IKA/LLW/3293/2021/I] For the Respondent Timbalan Pendakwa Raya Pejabat Timbalan Pendakwa Raya Mezzanine Floor Muar Trade Centre 16 Jalan Petrie 84000 Muar Johor Darul Tak’zim. Hearing Date : 20th December 2021. Decision Date : 27th December 2021. LEGISLATURE ➢ section 15(1)(a), 39C Dangerous Drugs Act 1952 ➢ s. 172A,172B, 172C, 172D, 172E, 172F, 172G, 173(b), 305, 316, 400 Criminal Procedure Code ➢ Amendment Act (Criminal Procedure Code) 2012 which is Act A1422 ➢ Federal Government Gazette P.U.(B) 189/2012 ➢ section 12(2), 15(1), 39C Dangerous Drugs Act 1952 ➢ Articles 73 & 74 Federal Constitution LITERATURE: December 27, 2021 27 CASES REFERRED TO: ➢ PUBLIC PROSECUTOR v. LEE LAM (F) [1952] 1 LNS 87; [1952] 1 MLJ 86 ➢ DATO’ SERI ANWAR BIN IBRAHIM v. PUBLIC PROSECUTOR [2002] 3 CLJ 457 ➢ BHANDULANANDA JAYATILAKE v. PP [1981] 1 LNS 139; [1982] 1 MLJ 83 ➢ REX v. GRONDKOWSKI [1946] 1 All ER 560 ➢ PUBLIC PROSECUTOR v. TEH AH CHENG [1976] 1 LNS 116 ➢ PUBLIC PROSECUTOR v. AHMAD KHAIRUL FA'AIS BIN MAT DAHLAN & ORS [2006] 6 CLJ 555; [2006] 5 MLJ 190 ➢ PUBLIC PROSECUTOR V. LOO CHOON FATT [1976] 1 LNS 102; [1976] 2 MLJ 256 ➢ PP v. MUHAMMAD FIQRY JAFRI & ANOR [2021] 4 CLJ 552 ➢ MOHD ABDULLAH ANG SWEE KANG v. PUBLIC PROSECUTOR [1987] CLJ Rep 209 ➢ R v. BALL (KENNETH JOHN) [1951] 35 Cr App R 164 ➢ MASNI YUSOFF v. PP [2019] 1 LNS 1984 ➢ PP v. MUHAMMAD KASYFULLAH KASSIM [2017] 1 CLJ 63 ➢ NESA GANDH BATUMALAI v. PP [2018] 10 CLJ 562 ➢ LEE WAI KAM v. PUBLIC PROSECUTOR [1976] 2 MLJ 19 ➢ EMPEROR V. LAL BAKHSH [1945] AIR (Lahore) 43 ➢ PAKALA NARAYAN SWAMI V EMPEROR (1939) 41 BOMLR 428 ➢ PALVINDER KAUR V STATE OF PUNJAB [1952] AIR 354, [1952] SCR 94 ➢ NISHI KANT JHA V STATE OF BIHAR [1969] 2 SCR 1033