Muhammad Azrien Bin Mat Hussin (AB-83D-1601-11/2023)

As the final stage of the judicial process in a criminal case, sentencing holds significant importance in upholding criminal justice. In determining an appropriate sentence, the court must consider a range of objectives, balancing the need for retribution, prevention, deterrence, and rehabilitation while maintaining the interest of both the public and the accused. This delicate balance is especially essential when an accused person commits an offence within the confines of a prison while already serving a sentence for a prior offence.

In this case, the accused was brought to this court to face a charge (‘the second offence’) while serving an imprisonment term of seven years (‘the first offence’). The accused has pleaded guilty to the charge of the second offence. After considering mitigating and aggravating factors, this court has imposed a one-year imprisonment term. This court ordered this one-year imprisonment term to begin once the accused completes his current imprisonment sentence of seven years for the first offence.

The accused, dissatisfied with the decision, is appealing the sentence to the High Court of Taiping. This judgment set out this court’s reasons for doing so, and the approach this court took in reaching that decision.

In this judgment, the Criminal Procedure Code will be referred to as the ‘CPC’ and the Dangerous Drugs Act 1952 as the ‘DDA 1952’.

The accused faced the following amended charge (exhibit P1) before this court (written in Bahasa Melayu): “Pertuduhan Pindaan Bahawa kamu 17.10.2023 jam lebih kurang 1620hrs di Lokap UKP Bahagian Pemeriksaan Penjara Taiping dalam Daerah Larut Matang Selama dalam negeri Perak telah ada dalam milikan kamu 1.01 gram yang mengandungi dadah berbahaya jenis Methamphetamine. Oleh yang demikian kamu telah melakukan kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 12(3) akta yang sama. AB-83D-1601-11/2023 3 Hukuman seksyen 12(3) Akta Dadah Berbahaya 1952 Jika disabitkan kesalahan boleh dikenakan denda tidak melebihi dari seratus ribu ringgit atau dikenakan hukuman penjara selama tempoh tidak lebih daripada lima tahun atau kedua-duanya sekali.”. (emphasis added).

The amended charge above was read and explained to the accused in Bahasa Melayu. He said he understood the charge and the punishment. He pleaded guilty. This court was satisfied that he understood the nature and consequence of his plea.

The learned Deputy Public Prosecutor then tendered the facts of the case (which was read to the accused by the court interpreter) and all the relevant exhibits (which were marked and shown to the accused). The accused admitted the facts of the case and all the exhibits tendered without any qualification.

This court accepted his plea and convicted him on the charge. After considering mitigating and aggravating factors, this court sentenced the accused to a one-year imprisonment term, to be served consecutively after his current imprisonment sentence.

The issue in this case revolves around determining the appropriate imprisonment sentence for the accused, particularly whether it should commence from the date of conviction or after the completion of his current sentence. To understand this matter better, it is necessary first to explain some background facts.

As mentioned earlier, when the present case came before this court, the accused was already in the midst of serving an imprisonment term of seven years for the first offence. The first offence was one of an attempt to murder under section 307 of the Penal Code (second limb).

The charge read as follows: “Pertuduhan: Bahawa kamu pada 11.04.2023 jam lebih kurang 1051 malam bertempat di hadapan Bangunan Angsana Mall, Jalan Raja Ashman Shah, Kampung Kastam Greentown 30450 Ipoh, di dalam Daerah Kinta, di dalam Negeri Perak, didapati mencuba membunuh orang dengan niat sehingga menyebabkan cedera keatas Norfatiha binti Zulkifli, KPT: 950222085556. Oleh itu kamu telah melakukan suatu kesalahan yang boleh dihukum dibawah seksyen 307 kanun keseksaan. Hukuman: Hendaklah dikenakan pemenjaraan yang boleh sampai dua puluh tahun.”.

The accused pleaded guilty and the Ipoh Sessions Court sentenced the accused to seven years of imprisonment from the date of arrest i.e.,

12.04.2023 (see case number: AA-62-35-04/2023). AB-83D-1601-11/2023 5 The second offence [13] The second offence is for possession of dangerous drugs of Methamphetamine under section 12(2) of the DDA 1952. The second offence occurred several months later in Taiping Prison i.e., 17.10.2023, while the accused was undergoing imprisonment for the first offence. [14] The facts giving rise to the second offence can be gleaned from the exhibits tendered by the prosecution especially the facts of the case (exhibit P2) and two police reports made by the complainant (exhibits P3(A) and P3(B)) which were admitted by the accused as correct. [15] The facts can be summarised as follows:

On the evening of 17.10.2023 in Taiping Prison, Sergeant Mohd Azhari bin Edris, a prison officer and the complainant, received the accused from Sergeant Shahril Azmi bin Shaari, the operator of the body scanner machine.

Sergeant Shahril Azmi bin Shaari informed Sergeant Mohd Azhari bin Edris that during the body scanning process, he discovered that the accused was concealing prohibited articles within his body.

Following this, Sergeant Mohd Azhari bin Edris instructed the accused to defecate into a black stool container in the toilet. AB-83D-1601-11/2023 6

The accused complied and expelled a lump wrapped in red plastic into the container during the process of defecation.

Upon further inspection of the lump wrapped in red plastic, Sergeant Mohd Azhari bin Edris discovered a transparent plastic packet suspected to contain approximately 3.09 grams of methamphetamine, a dangerous drug.

The transparent plastic packet’s contents were chemically tested by Yong Pui San, a chemist, and the test confirmed that the packet contained 1.01 grams of methamphetamine. MITIGATION FACTORS [16] The accused was represented by a counsel from the National Legal Aid Foundation (YBGK), Puan Puteri Hikmatul Raudah Dzulaika Mohamad. The learned YBGK counsel mitigated as follows:

The accused, aged 30, worked as an assistant in a restaurant before his arrest for the first offence with a monthly income of RM 1600.00.

(ii) The accused is unmarried and financially supports his family, especially his mother who suffers from heart disease.

(iii) The accused has pleaded guilty and expressed deep remorse, which has contributed to the expeditious disposal of the case. AB-83D-1601-11/2023 7 Hence, the accused should be given credit or discount for pleading guilty.

(iv) The accused deeply regrets his actions and seeks leniency from the court, requesting the most minimal imprisonment sentence, from the date of his arrest.

The accused confirmed that he is currently undergoing seven years of imprisonemnt for the first offence. The accused appealed for his imprisonment sentence to run concurrently with his current imprisonment imposed by the Ipoh Sessions Court in case number AA-62-35-04/2023. AGGRAVATING FACTORS [17] The learned Deputy Public Prosecutor on the other hand submitted that the prosecution is seeking a deterrent sentence, given the nature of this narcotic offence committed within the prison while the accused is serving a sentence. [18] Crucially, the learned Deputy Public Prosecutor submitted that the imprisonment sentence of the accused should begin after he completed the seven years imprisonment imposed by the Ipoh Sessions Court in case number AA-62-35-04/2023. The learned Deputy Public Prosecutor submitted that the first and second offences are two distinct offences and involve different transactions. AB-83D-1601-11/2023 8 THE CENTRAL ISSUE [19] The central issue is whether the accused should be sentenced to imprisonment, where he can serve the sentence concurrently with the seven years imprisonment sentence imposed by the Ipoh Sessions Court in case number AA-62-35-04/2023, or whether this court should impose a consecutive imprisonment sentence that will begin only after the completion of the seven years imprisonment sentences imposed by the Ipoh Sessions Court in case number AA-62-35-04/2023. [20] The duration of the consecutive imprisonment will be a relevant consideration if the latter option is preferred. ANALYSIS The relevant provisions [21] To address the issue at hand, two relevant legal provisions that need to be examined are sections 282(d) and 292 of the CPC. [22] Section 282(d) of the CPC reads as follows: “Provisions as to execution of sentences of imprisonment

With regard to sentences of imprisonment the following provisions shall be followed:

– (c) …

every sentence of imprisonment shall take effect from the date on which it was passed unless the Court passing the sentence otherwise directs.”. [23] Section 292 of the CPC provides as follows: “Commencement of sentence of imprisonment on prisoner already undergoing imprisonment

(1) When a person who is an escaped convict or is undergoing a sentence of imprisonment is sentenced to imprisonment, such imprisonment shall commence either immediately or at the expiration of the imprisonment to which he has been previously sentenced, as the Court awarding the sentence may direct.

A sentence of death shall be executed notwithstanding the pendency of any sentence of imprisonment.

Nothing in subsection (1) shall be held to excuse any person from any part of the punishment to which he is liable upon his former or subsequent conviction.”. Legal principles on the exercise of the discretion under section 292(1) of the CPC [24] Section 292(1) of the CPC (reading together with section 282(d) of the CPC) confers on the court the discretion, in cases when a person who is an escaped convict or is undergoing a sentence of imprisonment is AB-83D-1601-11/2023 10 sentenced to a further term of imprisonment, to order the latter sentence of imprisonment to commence either:

Immediately; or

(ii) at the expiration of the term of imprisonment to which he was previously sentenced. [25] The effect of choosing the latter option will mean that the earlier sentence and the subsequent sentence run consecutively, whereas choosing the former option will involve an overlap between the earlier sentence and the subsequent term of imprisonment. [26] Section 292(3) goes on to add that nothing in section 292(1) shall be held to excuse any person from any part of his punishment to which he is liable upon his former or subsequent conviction. [27] Numerous decisions have clarified the legal principles regarding the exercise of discretion under section 292(1) of the CPC. These principles can be summarised as follows:

The discretion conferred under section 292(1) of the CPC must be exercised based on the law and established judicial principles. Concurrent sentence is not an entitlement to the accused (see the decision of Taiping High Court in the case of Public Prosecutor v Mohamad Ramadzan bin Mohd Yusof AB-83D-1601-11/2023 11 [2021] MLJU 1629, at [8], per Muniandy Kannyappan JC (now HCJ)).

The court is not entitled to backdate the sentence of any accused who is an escaped convict or is undergoing a sentence of imprisonment (see the decision of Singapore Court of Appeal in Chua Chuan Heng Allan v PP [2003] 2 SLR(R) 409 at [18], per Yong Pung How CJ).

In deciding whether to order a subsequent term of imprisonment to run immediately or at the expiration of the earlier term of imprisonment, the court should have regard to whether the second offence arose in the one transaction as the first offence. As a general rule, sentences for offences that form part of one transaction should run concurrently. In contrast, sentences for different transaction offences should run consecutively (see the decision of the Court of Appeal in Bachik bin Abdul Rahman v PP [2004] 2 CLJ 572 (‘Bachik bin Abdul Rahman’) at [7], per Augustine Paul JCA (later FCJ), citing the decisions of English Courts in R v Saleem (1964) Crim LR 482 and R v Walsh (1965) Crim LR 248).

For there to be one transaction, four elements must be satisfied, that is; proximity of time, proximity of place, continuity of action, and continuity of purpose or design (see Bachik bin Abdul Rahman at [7] citing the decisions in Jayaraman & Ors v Public Prosecutor [1979] 2 MLJ 88; Amrita Lal Hazra v AB-83D-1601-11/2023 12 Emperor 42 Cal 957; and Chin Choy v Public Prosecutor [1955] 1 MLJ 236).

The one transaction rule is not absolute. There are situations and circumstances where consecutive sentences are necessary for one transaction offences to deter the type of criminal behaviour being punished (see Bachik bin Abdul Rahman at [7] citing the decision of the Singapore Court of Appeal in Kanagasuntharam v Public Prosecutor [1992] 1 SLR 81). The applicability of the exception is said to depend on the facts of the case and the circumstances of the offence.

The fact that the second offence arose in a different transaction is a weighty consideration that warrants the imposition of an order that the subsequent term of imprisonment should start at the expiration of the earlier term of imprisonment (see the decision of the Supreme Court of India in Anil Kumar v State of Punjab [2017] 5 SCC 53 at [5], per R. Banumathi J).

The totality principle is an exception to the general rule of consecutive sentences for different transaction offences. The totality principle is applied at the end of the sentencing process to ensure that the total sentence is just and proportionate and reflects the overall seriousness of the accused’s criminal behaviour when all the offences are considered together (see the decision of Taiping High Court in Noor Azmi bin Ibrahim v AB-83D-1601-11/2023 13 Public Prosecutor and other appeals [2023] 12 MLJ 182 at [62], per Noor Ruwena JC citing Kanagasuntharam v Public Prosecutor [1992] 1 SLR 81).

The totality principle has two limbs:

first, it must be examined whether the aggregate sentence (combining the earlier sentence and the subsequent sentence) is substantially above the normal level of sentences for the most serious of the individual offences committed; and

(ii) secondly, it must be examined whether the effect of the aggregate sentence on the accused is crushing and not in keeping with his record and prospects. If an aggregate sentence is considered excessive, the court may opt for a different combination of sentences to run consecutively or adjust the individual sentences (see the decision of Singapore High Court in Mohamed Shouffee bin Adam v Public Prosecutor [2014] 2 SLR 998 at [54] and [57], per Sundaresh Menon CJ).

The totality principle is not an excuse for a ‘bulk discount’ to be given to different transaction offences (see New South Wales Court of Criminal Appeal in R v MAK, R v MSK [2006] NSWCCA 381 at [15]–[18]). AB-83D-1601-11/2023 14 [28] In short, as a general rule, an accused who has committed multiple different transaction offences should be separately punished for each offence, and this should be achieved by an order that the individual sentence run consecutively. However, this general rule is in turn subject to qualifications, including an examination of the proportionality of the aggregate sentence by applying the totality principle and determining whether the aggregate sentence would have a crushing effect on the accused. [29] Additionally, for persuasive purposes, reference can be made to the UK Sentencing Council’s guidelines outlined in “Offences Taken into Consideration and Totality: Definitive Guideline” (11 June 2012) (see pages 6-8), read together with UK Sentencing Council, A Short Guide: Sentencing for multiple offences (Totality) (15 September 2011) which sets out a four-stage approach for sentencing accused involved in multiple different transaction offences. [30] This four-stage approach can be summarised as follows:

First, the court should consider the appropriate individual sentences. To do so, the court may refer to the sentencing framework that applies for each offence.

Secondly, the court should consider whether the sentences should be ordered to run concurrently or consecutively. Generally, concurrent sentences are appropriate where the offences arise out of the same incident or facts, or where the AB-83D-1601-11/2023 15 offences are a series of the same or similar kind, especially when committed against the same person. Conversely, consecutive sentences are generally appropriate if:

the offences arise out of unrelated facts or incidents;

(ii) the offences are of a similar kind but the overall criminality will not be sufficiently reflected by concurrent sentences; or

(iii) one or more of the offences qualifies for a statutory minimum sentence and concurrent sentences would improperly undermine that minimum.

Thirdly, the court should then consider whether the overall sentence is just and proportionate. In particular, if the court determines that concurrent sentences are appropriate, it must ensure that the overall sentence reflects the overall criminality and to this end, one option is to adjust the individual sentences to reflect the commission of other offences that are not being separately punished. Conversely, if consecutive sentences are more appropriate, the court must consider whether the aggregate sentence, once the individual sentences have been added up, is just and proportionate. If the aggregate sentence is not, the individual sentences may have to be adjusted. AB-83D-1601-11/2023 16

Fourthly, the court should consider whether the sentence is structured in a way that will be best understood by all concerned with it. Application of the legal principles to the facts [31] With the above legal principles in mind, this court applied them to the facts. [32] It is the opinion of this court that the appropriate individual sentence for the second offence is one year of imprisonment. This court considers a one-year imprisonment sentence to be sufficient, especially given that the offence, which carries a maximum imprisonment of five years (among others), was committed within the four walls of the prison while the accused was already serving a sentence for another offence. [33] Following this, the court agreed with the prosecution’s submission that the one-year imprisonment sentence for the accused should commence after he completes the seven-year imprisonment imposed by the Ipoh Sessions Court in case number AA-62-35-04/2023. Based on the facts of this case, this court is of the view that the first and second offences are distinct and involve different transactions. This includes, among other things:

different legal provisions, that is section 307 of the PC and section 12(2) of the DDA 1952;

(ii) different complainants; AB-83D-1601-11/2023 17

(iii) different FIR reports;

(iv) each offence took place at different premises;

all offences arose out of unrelated facts or incidents; and

(vi) there was no proximity of time, proximity of place, continuity of action, or continuity of purpose or design between the first and second offences. [34] Therefore, it was evident that the two offences committed were unrelated and not part of the one transaction. In such circumstances, the sentence for the second offence should take place consecutively after the accused completes his current imprisonment sentence of seven years for the first offence. [35] Moreover, as mentioned above, the fact that the second offence arose in different transactions is a weighty consideration that warrants the imposition of the subsequent term of imprisonment to start at the expiration of the earlier term of imprisonment. [36] This court believes that since the first and second offences are unrelated, each offence committed by the accused should attract its distinct consequence. There is no reason in principle why a second offence should attract less or possibly no distinct consequence just because it is the second offence for which the accused is being sentenced. Apart from that, nothing AB-83D-1601-11/2023 18 in the accused’s mitigation plea raised any issue such as would warrant concurrent sentences. [37] Having said that, this court also needs to ensure that the overall sentence meted out should be proportionate and not crushing. [38] A strict addition of the two sentences for the first and second offences would give an aggregate sentence of eight years of imprisonment. The total maximum sentence for the first offence and second offence is 25 years. Therefore, the total 8 years imprisonment for both offences did not go against the totality principle and would be appropriate in light of the overall seriousness of the accused’s criminal behaviour. [39] Additionally, this court has observed the rampancy of similar offences involving the possession of dangerous drugs among prisoners in Taiping. This is evident from the number of cases of a similar nature from Taiping prison that have been brought before this court. It would send the wrong message to the public if the court were to order the second offence committed in prison to run concurrently with the earlier sentence being served by the accused. Reoffending must, as a matter of principle and policy, be considered aggravating, especially when it occurs within the confines of a prison. [40] Therefore, by adding the one-year imprisonment upon completion of the seven-year sentence for attempted murder, it sends a strong message that such behaviour, particularly involving narcotics offences, will not be AB-83D-1601-11/2023 19 tolerated. This ensures clear consequences for violating the law, even within the confines of prison walls. [41] On the crushing effect point, this court found that sentencing the accused to one year in prison for the second offence, which adds up to a total of eight years for both offences, would not cause a crushing effect on the accused. This consideration took into account the relative youth of the accused, the possibility of reform and rehabilitation, and the application of the aggregation principle. It is disheartening to note that despite prior conviction for the first offence, the accused has shown no sign of remorse or willingness to rehabilitate, which undermines the legal system. [42] On that account, this court refers to the statement made by David Wong Dak Wah JC (later CJSS) in Yusuf bin Busrah v Public Prosecutor [2006] MLJU 163, which is quite convincing: “... if the total sentence of twenty seven years crushes this man, then so be it. The public interests demand that I show no sympathy to the appellant.”. THE SENTENCE [43] For the above reasons, this court sentenced the accused to a one-year imprisonment term, which will commence once the accused completes his current seven-year imprisonment sentence imposed by the Ipoh Sessions Court in case number AA-62-35-04/2023. AB-83D-1601-11/2023 20 [44] My decision was based on the reasons above however, I am guided by the decision of the High Court. Dated: 10th March 2024 Signed (PRABAKARAN RAJOO) Magistrate Magistrate Court Taiping Perak Darul Ridzuan Counsels: For the prosecution: Puan Nor Arfahanim Azureen binti Arfanuddin Pejabat Timbalan Pendakwa Raya Taiping Lido Business Center, No 10/21 & 12/21 Tingkat Atas, Jalan Manecksha, 34000 Taiping, Perak Darul Ridzuan. For the accused: Puan Puteri Hikmatul Raudah Dzulaika Mohamad National Legal Aid Foundation (YBGK) Taiping Branch Perak Darul Ridzuan.