Mohd Ismail Bin Abd Rahman v Pendakwa Raya (A-05(H)-556-11/2024)

There is before us an appeal which emanates from the decision of the High Court dated 21.11.2024. At the High Court, the appellant was convicted on all of the charges under the Dangerous Drugs Act 1952 (“DDA”), which are particularised below. The appellant was sentenced to 12 years’ imprisonment for the alternative charge and three years’ imprisonment for the second charge - both to run concurrently from the date of arrest on 19.6.2020.

The appellant was charged with two offences under the Dangerous Drugs Act 1952 (“DDA”). The charges are as follows: The first charge Bahawa kamu pada 19.6.2020, jam lebih kurang 10.15 pagi bertempat di pondok kosong dalam kebun durian, Kampung Sempeneh, Batu Kurau, di dalam daerah Larut Matang dan Selama, di dalam Negeri Perak Darul Ridzwan telah didapati mengedar dadah berbahaya iaitu sejumlah berat 23.1 gram (10.9 gram heroin dan 12.2 gram monoacetylmorphines) dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama. The second charge Bahawa kamu pada 19.6.2020, jam lebih kurang 10.15 pagi bertempat di pondok kosong dalam kebun durian, Kampung Sempeneh, Batu Kurau, di dalam daerah Larut Matang dan Selama, di dalam Negeri Perak Darul Ridzwan telah didapati ada dalam milikan kamu dadah berbahaya iaitu 7.10 gram Methamphetamine dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39A(1) Akta yang sama.

Upon the completion of testimony by the two prosecution witnesses, the appellant, through his then counsel, submitted a representation to the Public Prosecutor (“PP”). The representation was eventually accepted by the PP. Consequently, the Appellant was offered an alternative charge to the first charge under section 12(2) of DDA, punishable under section 39A(2) of the same Act.

The alternative charge states as follows: Bahawa kamu pada 19.06.2020, jam lebih kurang 10.15 pagi bertempat di pondok kosong dalam kebun durian, Kampung Sempeneh, Batu Kurau, di dalam Daerah Larut Matang dan Selama, di dalam Negeri Perak Darul Ridzuan, didapati 4 memiliki dadah berbahaya seberat 23.1 gram (10.9-gram Heroin dan 12.2-gram Monoacetylmorphines). Oleh yang demikian, kamu telah melakukan satu kesalahan di bawah Seksyen 12(2) Akta Dadah Berbahaya yang boleh dihukum di bawah Seksyen 39A(2) Akta yang sama. The appellant pleaded guilty to the alternative charge and to the charge under s 12(2) of the DDA. The learned High Court Judge duly recorded the conviction on the two charges and imposed the sentences as aforesaid.

On 19.6.2020, at about 10.15 a.m., acting on information received, the complainant, Insp. Zulkifli Bin Ariffin, together with members of the Taiping IPD Narcotics Crime Investigation Division, conducted a raid at an empty hut situated in a durian orchard in Kampung Sempeneh, Batu Kurau. Upon arriving at the location, the complainant identified himself as a senior police officer by showing his authority card to the appellant.

The complainant then conducted a physical inspection of the appellant and found a “Nike” backpack on the appellant’s back. A further inspection of the said bag was carried out, and the complainant discovered the following items:

One (1) red plastic bag containing 28 transparent plastic packets filled with a substance suspected to be dangerous drugs of the Heroin type;

(ii) Four (4) transparent plastic packets containing a substance suspected to be dangerous drugs of the Methamphetamine type;

(iii) One (1) transparent plastic packet containing several empty plastic packets; and

(iv) One (1) digital weighing scale. [7] Upon the discovery of the same, the complainant seized the said items and arrested the appellant, informing him of the reason for his arrest. The appellant was then brought back to IPD Taiping, where the seized items were weighed by the complainant. It was found that the approximate gross weights of the drugs were 728 grams and 12 grams, respectively. A police report was lodged under Batu Kurau Report 780-781/20. All the seized items and the appellant were subsequently handed over to the Investigating Officer, Inspector Tayalan A/L Muthirulandi Servai. [8] The substances suspected to be dangerous drugs were further submitted to the chemist, Faznur-Azilah binti Mahmud. The analysis confirmed that the 28 transparent plastic packets contained a total of 23.1 gm of dangerous drugs, comprising 10.9 gm of Heroin and 12.2 grams of Monoacetylmorphines, while the remaining four transparent plastic packets contained 7.10 gm of Methamphetamine. [9] The facts of the case were tendered by the DPP and marked as Exh P17. The appellant admitted the facts and maintained his plea of guilty. All exhibits were admitted by the appellant, and accordingly, the Court accepted his guilty plea. The Appellant’s mitigation and sentencing at the High Court [10] The appellant was 47 years of age, divorced and had three children aged 16, 15 and 14, who are under the care of his former spouse. The appellant informed the High Court that he had been the primary caregiver to his 83-year-old mother, who is paralysed, while his father is deceased. The appellant earns his livelihood by managing a durian orchard in his village, inherited from his late father. [11] Learned counsel for the appellant submitted that the appellant had pleaded guilty to the alternative charge at the earliest available opportunity, thereby demonstrating genuine remorse and repentance for the offence committed. [12] In urging the High Court to impose a severe sentence, the learned DPP highlighted that the appellant had one previous conviction under s 12(2) of the DDA, for which he was sentenced to 12 months’ imprisonment from the date of arrest on 21.3.2017. The record of the previous conviction was duly admitted by the appellant and marked as Exh P25. The learned DPP contended that the imposition of a severe sentence is warranted to serve as a deterrent to both the appellant and the public at large, and to uphold the interest of justice. [13] In imposing the said sentences, the learned Judge held that while due weight was given to the appellant’s guilty plea to the alternative charge, such an offence could not be treated lightly. The Court further took into consideration that the appellant had a prior conviction for a drug possession offence in 2017. The two charges before the High Court were related to offences committed in 2017, indicating that the appellant had failed to show genuine remorse. [14] Not long after his release from prison, the appellant was again involved in similar drug offences, where the quantity of drugs seized was more than twice the amount prescribed under s 39A(2) of the Act, coupled with a second charge under section 39A(1) of the same Act. [15] The learned Judge further held that, given the substantial quantity of drugs involved and the seizure of related paraphernalia such as empty plastic packets and a digital weighing scale, a reasonable inference could be drawn that the drugs were, or were intended to be, repackaged into smaller plastic packets as depicted in photographs marked as Exh P23(7) and P23(8). [16] The learned Judge further observed that the sentences imposed were appropriate and not excessive, being well within the statutory limits prescribed by law, notwithstanding the appellant’s plea of guilty to the alternative charge. At the Court of Appeal [17] At the commencement of the hearing, learned counsel for the appellant intimated to us that the appellant is only pursuing the appeal on the alternative charge. [18] Before us, learned counsel for the appellant submitted that the learned High Court Judge had erred in interpreting and assessing the appellant’s prior conviction record, as tendered by the prosecution and marked as Exh P-25. Learned counsel for the appellant took exception to para [10] of the grounds of judgment of the learned Judge, which inter alia states as follows: Setelah menimbangkan segala faktor, berdasarkan fakta kes dan hujahan pemberat oleh TPR dan rayuan Tertuduh, walaupun Tertuduh telah mengaku salah atas pertuduhan pilihan dan pertimbangan sewajarnya diberikan, Mahkamah tidak boleh memandang ringan kesalahan seperti ini dan Tertuduh pernah ada sabitan untuk kesalahan memiliki dadah juga pada tahun 2017. [19] According to learned counsel, despite the previous conviction in 2017 (“the 2017 conviction”), the charge against the appellant was not of a “similar nature as the one with which he was presently charged”. Learned counsel cited the judgment of the High Court in PP v Jafa bin Daud [1981] 1 MLJ 315 as an authority for that proposition. With respect, the appellant's previous conviction by the Magistrates Court, Taiping, dated 21.3.2017, was of similar nature with the alternative charge which he faced at the High Court. According to Exh P-25, the appellant was convicted under s 12(2) of the DDA and he was sentenced to 12 months’ imprisonment from the date of arrest on 18.1.2017. [20] With respect, the 2017 conviction was of a similar nature - which is under s 12(2) of the DDA - with the alternative charge, which is the subject matter of this appeal. The learned High Court Judge was correct when he found that the appellant was a persistent offender of a similar type of offences, which justified the enhancement of the sentence despite the plea of guilty made to the alternative charge. In short, the 2017 conviction and sentence did not deter the appellant from committing the offence that is now the subject of appeal. [21] Under the circumstances of the case, the guilty plea does not constitute a mitigating factor. [22] Having said that, in view of the 2017 conviction, learned counsel for the appellant’s argument that the appellant is a first-time offender is not therefore untenable. The law [23] This Court in Pendakwa Raya v. Prabu A/L Veeramuthu and Ors [2010] 8 CLJ 257 CA reiterated the well-established proposition that in an appeal against sentence, an appellate court would not disturb the sentence imposed unless the trial court had erred in applying the correct principles of sentencing or had embarked on some unauthorised or extraneous exercise of discretion. The law is that an appellate intervention is warranted only if the sentence imposed is manifestly excessive or inadequate. [24] What then is the punishment provided under s 39A(2) of the DDA, which is the subject matter of the alternative charge? The provision states that the punishment shall be imprisonment for life or for a term which shall not be less than five years and “he shall also be punished with whipping of not less than ten strokes”. [25] In arriving at her conclusion, the learned Judge observed that the sentence imposed was appropriate and not excessive, being well within the statutory limits prescribed by law, notwithstanding the appellant’s plea of guilty to the alternative charge. [26] Let us now examine the trend of sentencing in respect of a charge of a similar nature:

In PP v Lechman Singh a/l Mahindar Singh [2024] MLJU 1645, the accused was charged under s 12(2) of the DDA, which carries the sentence under s 39A(2) of the same Act. The offence involved the possession of 29.8 grams of Heroin and 15.30 grams of Monoacetylmorphines. He pleaded guilty to the charge. The learned JC of the Ipoh High Court imposed a sentence of 12 years’ imprisonment and 10 strokes of whipping.

In Mat Zaid bin Mat Noor v PP [Rayuan Jenayah No. T-05- 373-10/2021 & T-05-374-10/2021] CA, the original charge against the appellant was under s 39B(1)(a) of the DDA. The Appellant’s representation was accepted and an alternative charge of s 12(2) read with s 39A(2) of DDA was proffered at the High Court, to which the appellant entered a guilty plea. The charge involved 18.93 grams of Heroin. The Kuala Terengganu High Court imposed a 16 years’ imprisonment, which was later reduced to 12 years by the Court of Appeal. No whipping was imposed as the appellant was over 50 years of age.

In Yogaraj A/L Subramaniam v PP [Rayuan Jenayah No. A-05(H)-479-11/2021] CA, the appellant entered a plea of guilt to the alternative charge under s 12(2) read with s 39A(2) of DDA at the High Court. The charge concerned a total of 40.7 grams of dangerous drugs, comprising 17.6 grams of Heroin and 23.1 grams of Monoacetylmorphines. The High Court imposed a 12 years’ imprisonment and 10 strokes of whipping, which was later affirmed by the Court of Appeal.

In Mohd Shafir bin Abdul Rashid v PP [Rayuan Jenayah No. K-05(H)-272-08/2020] CA the appellant pleaded guilty to an alternative charge under s 12(2) read with s 39A(2) of the DDA. The charge involved a total of 15.6 grams of dangerous drugs, comprising 7.1 grams of Heroin and 8.5 grams of Monoacetylmorphines. In that case, the appellant also had prior convictions under s 12(2) of DDA and s 12 15(1)(a) of the same Act, committed in 2013 and 2014, respectively. The High Court recorded the conviction and imposed a sentence of 15 years’ imprisonment and 10 strokes of whipping. On appeal, the Court of Appeal reduced the sentence to 13 years' imprisonment but maintained the 10 strokes of whipping. [27] We agree with the learned High Court Judge that the appellant is a persistent offender and that he showed no remorse. While we acknowledge that a plea of guilty is a mitigating factor, the gap of less than three years since his release from prison is too short – especially given that the two offences are of the same kind. It is quite obvious that the appellant did not make any effort to rehabilitate himself after the termination of his last prison sentence pursuant to the 2017 conviction; see PP v Iran bin Sadikon [1998] 7 MLJ 503. [28] As to the appellant’s assertion that he’s the primary caregiver to his ageing mother, reference can be made to PP v Teh Ah Cheng [1976] 2 MLJ 186. In that case, the respondent put forward, in his plea in mitigation, the fact that he was employed and supported an aged mother and step-brothers. The High Court rejected the mitigation and held that “he should of course have thought of this before committing the offences and not after”. Conclusion [29] Having gone through the mitigating factors raised by the appellant and the trend of sentencing as alluded to earlier, we are of the view that the sentence imposed by the High Court on the alternative charge is not excessive. There is no reason for us to disturb the sentence so imposed. [30] The appeal is dismissed and the order of the High Court is affirmed. Dated 19 November 2025 -sgd-WAN AHMAD FARID BIN WAN SALLEH JUDGE COURT OF APPEAL Counsels/Solicitors Appellant : Ms. Izleen Ismail Messrs Izleen (Kuala Lumpur) Respondent: DPP How May Ling AGC