NG KIAN TEIK v Pendakwa Raya (A-05A(H)-538-10/2025)

This appeal involves the consideration of principles of sentencing in criminal trials. Specifically, the question that came into focus is whether in absence of a specific provision under the law allowing for the enhancement of sentence of imprisonment in cases where the mandatory punishment of whipping is exempted due to the operation of section 289 of the Criminal Procedure Code, the trial Court has the power to enhance the term of imprisonment to compensate for the punishment for whipping which, if not for the exemption by operation by law, would have been mandatorily meted out against the accused.

The Appellant was originally charged for trafficking of 223.03 grammes of cannabis under section 39B(1)(a) Dangerous Drugs Act 1952 (‘DDA’) and punishable under section 39B(2) of the same Act. Before the trial commenced, the alternative charge for one of possession under section 6 and punishable under section 39A(2) DDA which 3 carries an imprisonment for life or for a term which shall not be less than 5 years and shall also be punished with whipping of not less than ten strokes, was offered to the Appellant. It is mandatory under section 39A(2) that the punishment to be passed under that provision involves both imprisonment and whipping.

The alternative charge read as follows: “Bahawa kamu pada 19.07.2023 jam lebih kurang 2.00 pagi bertempat di alamat No. 251, Jalan Kuda, Taman Sri Hijau, Taiping, Dalam Daerah Larut Matang & Selama, dalam Negeri Perak Darul Ridzuan, didapati memiliki dadah berbahaya seberat 223.03 gram Cannabis. Oleh yang demikian, kamu telah melakukan satu kesalahan di bawah Seksyen 6 Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39A(2) Akta yang sama”.

The Appellant pleaded guilty to the alternative charge. The Appellant would have been punished with both imprisonment and whipping, but because the Appellant had already passed the age of 50 years old on 26.9.2025 when sentence was passed, the Appellant was exempted from the punishment of whipping by operation of section 289 of the Criminal Procedure Code (‘CPC’) which provides that no male who has passed the age of 50 shall be punishable with whipping.

Following the plea of guilty and exemption against whipping, the High Court punished the Appellant with 10 years imprisonment only. In arriving at his decision in passing the imprisonment sentence, the Learned Judicial Commissioner (‘JC’) felt compelled to enhance the imprisonment sentence to compensate for the exemption from whipping despite acknowledging that the trend of sentencing for similar offences ranges between 6 to 8 years imprisonment. The relevant part of the Learned JC’s Grounds of Judgment is reproduced below: “[12] Setelah mengambilkira mitigasi tertuduh, faktor-faktor kepentingan awam, pengakuan salah tertuduh serta “trend of sentencing”, mahkamah ini memutuskan hukuman yang wajar adalah 10 tahun penjara bermula dari tarikh tangkap 19.7.2023. Tidak boleh dinafikan dadah kekal sebagai salah satu musuh utama negara dan menyebabkan banyak kerosakan kepada institusi kekeluargaan dan negara. Walaupun “trend of sentencing” menunjukkan bahawa hukuman kebanyakannya dalam lingkungan 6 hingga 8 tahun, namun dalam kesemua kes tersebut, para tertuduh telah dikenakan juga hukuman sebar minima 10 sebatan. Di dalam kes di hadapan mahkamah ini, tertuduh yang lahir pada 17.4.1975 telah berusia melebihi 50 tahun ketika hukuman dijatuhkan pada 26.9.2025. Oleh itu, mahkamah berpendapat hukuman tambahan perlu dikenakan sebagai ganti kepada hukuman minima 10 sebatan tersebut.” [6]. Dissatisfied with the decision, the Appellant had lodged this appeal against sentence (‘Appeal’).

As stated earlier, this Appeal centres only on one main issue that is whether the Learned JC was correct in enhancing the Appellant’s imprisonment sentence to compensate for the exemption from whipping.

The primary argument advanced by the Appellant is that in absence of an express provision permitting enhancement of imprisonment terms in lieu of exempted whipping, the Court should be slow to impose enhanced imprisonment terms unless there are sufficient grounds for doing so and proportionate to the offence.

Learned Counsel for the Appellant highlights that the Malaysian Criminal Procedure Code does not contain a provision similar to section 325(2) of the Singapore Criminal Procedure Code, which allows enhancements of punishment in lieu of caning which by operation of other provisions of the law cannot be ordered against the accused. Section 352(2) reads: “325. (2) Subject to any other written law, if a person is convicted of one or more offences punishable with caning (referred to in this section as the relevant offences) but the person cannot be caned because subsection (1)(a) or (b) applies, the court may, in addition to any other punishment to which that person has been sentenced, impose a term of imprisonment of not more than 12 months in lieu of the caning which it could, but for this section, have ordered in respect of the relevant offences.”

Reference was made to the decision of the Singapore High Court in Amin bin Abdullah v PP [2017] SGHC 215; [2017] 5 SLR 904 which discussed the approach to sentencing in cases where mandatory punishment such as caning is exempted because of operation of law. The Singapore High Court opined that the starting point is that the offender’s term of imprisonment should not be enhanced unless there are grounds for doing so. There remains a discretion to not enhance imprisonment terms and the law should not be construed so as to impose a mandatory duty on the court to enhance such punishment: “[53] In our judgment, the correct starting point is that an offender’s term of imprisonment should not be enhanced, unless there are grounds to justify doing so. Through ss 325(1), 328(1) and 331 of the CPC, Parliament has legislated to treat certain categories of offenders differently from others. Thus, women, men over the age of 50, those already sentenced to the maximum number of strokes of the cane at a single sitting of the court and those deemed medically unfit for caning are categories of offenders who are exempted from part or all of the 7 caning to which they would or might otherwise have been sentenced. This reflects a legislative choice. There has been no suggestion in the present case that such a choice was irrational or otherwise legally suspect or indefensible. In any event, this point was considered and disposed of by the Court of Appeal in Yong Vui Kong v PP [2015] 2 SLR 1129 at [102]]–[116]]. The question for us, therefore, was whether the court should proceed on the presumptive basis that once an offender is exempted from caning, his sentence of imprisonment should be enhanced. We did not think so.

We first note that the relevant provisions are all worded as open-ended discretion-conferring provisions. On a plain reading of the provisions, the courts have been given the discretion to enhance the sentences for the exempted offenders. What this means is that the courts have the power to impose additional imprisonment for such offenders. There is no mandatory requirement that this power be exercised, even where the caning would have been a mandatory part of the sentence, but for the exemption. Perhaps the clearest example of this is s 332(2)(a) of the CPC (see at [34]] above), which is explicit that the court may remit the sentence. But even aside from this, the relevant provisions are all worded in terms that confer a discretion rather than impose an obligation. In such circumstances, the starting point in our judgment is that the discretion to enhance the term of imprisonment should only be exercised if there are grounds to justify doing so. Hence, as a general matter, the sentence should not be enhanced until and unless the sentencing judge has considered the matter and concluded that there are grounds to warrant it.”

Reference was also made to the two Malaysian decisions in Pendakwa Raya lawan Nor Azmi bin Ahmad dan lain lain [2025] MLJU 4613; [2025] CLJU 3662, and PP v Hasan bin Yusof [2020] MLJU 2359; [2020] CLJU 2187.

In Nor Azmi bin Ahmad, the High Court had referred to the decision in Amin bin Abdullah and expressed the view that the approach taken by the Singapore High Court was highly persuasive and adopted the same approach: “[36] Untuk menjawab persoalan ini, Mahkamah ini merujuk keputusan Ketua Hakim Negara Singapura Sundaresh Menon CJ ketika menyampaikan keputusan Mahkamah Tinggi Singapura dalam kes Amin bin Abdullah v PP [2017] SGHC 215; [2017] 5 SLR 904. Walaupun keputusan ini tidak mengikat Mahkamah ini, namun ia adalah keputusan yang “highly persuasive” yang boleh dirujuk oleh Mahkamah ini dalam menentukan hukuman yang wajar kepada OKT

… [43] Setelah meneliti segala alasan dan justifikasi yang dinyatakan secara terperinci oleh Mahkamah Tinggi Singapura dalam kes Amin bin Abdullah (supra), Mahkamah ini memutuskan walaupun Kanun Tatacara Jenayah kita tidak membuat peruntukan yang sama seperti dalam CPC Singapura, prinsip yang sama - yakni menambah tempoh pemenjaraan bagi seseorang pesalah yang disabitkan tetapi terlepas dari hukuman sebatan disebabkan faktor usia melebihi 50 tahun seperti dalam kes Perayu - boleh dipertimbangkan oleh Mahkamah ini dengan mengambilkira segala faktor berkaitan OKT 1. Ini khususnya apabila Mahkamah Tinggi Singapura memutuskan bahawa walaupun CPC Singapura membuat peruntukan mengenai penambahan hukuman, ia bukanlah peruntukan yang mewajibkan mahkamah melaksanakan penambahan itu tetapi hanya memberikan mahkamah kuasa budibicara untuk melaksanakan penambahan hukuman. Kuasa budibicara ini hanya wajar diguna hanya jika terdapat alasan-alasan yang kukuh. Mahkamah ini memutuskan ini membuatkan kedudukan di Singapura, walaupun selepas pindaan kepada CPC Singapura, tidak banyak berubah dengan kedudukan di Malaysia. Oleh itu, Mahkamah ini juga mempunyai budibicara untuk menambah hukuman jika wujud keadaan yang sesuai dan wajar.” [13] In Hasan bin Yusof, the High Court took guidance form section 291 of the CPC to hold that the Court has the power and discretion to enhance the term of imprisonment although such power is not mandatory: “[13]…Analogy is drawn from section 291 CPC, which caters for a situation where an accused cannot be whipped due to medical reasons. In those instances, the court is allowed to revise such sentence and may in its discretion either remit it or sentence the offender in lieu of whipping or in lieu of so much of the sentence of whipping as was not executed to imprisonment for a term which may extend to 24 months. In fact, this additional term is above any other punishment to which the accused has been sentenced for the same offence. The period of 24 months is based on the maximum number of strokes which can be imposed by a court of law, which is 24 strokes in the case of an adult. (See section 288(1) CPC). Thus, proportionately, it is one month of imprisonment for one stroke of the whip. In the premise, for the six strokes displaced, the accused ought to suffer a period of 6 months imprisonment. That analogy only stands as a guide. However, in the present case, the accused cannot be whipped at all, as the law forbids it. In the circumstance, an increase of term of imprisonment for another year in place of the whipping is justifiable and proportional to the offence of incest he had committed on his own daughter. In the premise, in total the term of imprisonment does not have a crushing effect on the accused person, as it would serve as deterrence and also fulfil the aim of rehabilitation.” [14] Based on those cases, the Appellant argues that the Learned JC fell into error when he decided to enhance the term of imprisonment without properly weighing all factors, not only in favour of the Prosecution but also those factors in favour of the Appellant that would justify a lower term of imprisonment of between 5 to 7 years. The Appellant argues that the trial Court had failed to consider the following factors:

that this was a ‘borderline case’ as the weight of the cannabis involved in this case is only 223.03 grammes, being merely 23.03 grammes above the minimum weight prescribed under the original charge under section 39B(1) of the DDA;

(ii) the type of drugs involved is only cannabis;

(iii) the trend of sentencing involving similar cases have imposed less than 10 years of imprisonment;

(iv) the facts and circumstances surrounding the present case clearly show that the Appellant was not involved in trafficking but had merely possessed the drugs for personal consumption;

the Appellant suffered from depression and insomnia;

(vi) the Appellant pleaded guilty as soon as an alternative charge was offered and well before the commencement of the trial; and

(vii) the Appellant is a first-time offender; [15] Reference was made to the decisions, inter-alia, in Public Prosecutor v Aris bin Mohd Nor [2019] MLJU 1136; [2019] CLJU 1555; Pendakwa Raya lwn Ahmad Zulfakar bin Abdul Wahab [2024] MLJU 1431; [2024] CLJU 1154; Public Prosecutor v Muammar Juzaili bin Syayal [2021] MLJU 3085; [2021] CLJU 1839; Public Prosecutor v Zulkamal Azman Narawi [2020] 1 LNS 2160; [2020] MLJU 2320; Tan Yew Choy v Public Prosecutor [2010] 5 MLJ 212; [2009] 4 CLJ 245 and Pendakwa Raya lwn Mohd Fazli Bin Alias dan Satu Lagi [1993] MLJU 253 on the trend of sentencing. By the Respondent [16] Learned Deputy Public Prosecutor argued on the other hand that the imprisonment term of 10 years is just and fair, taking into account the following factors:

the exemption from whipping;

(ii) seriousness of drug-related offences;

(iii) the impact of drug-related activities to the nation’s security and public health;

(iv) the enhanced imprisonment term signals to the public that drug-related offences are not to be taken lightly and serves as an effective deterrence to would-be offenders; and

public policy considerations in drug-related offences must take priority over the Appellant’s personal interests. [17] Based on those factors, it was argued that the sentence passed by the Learned JC was not excessive and that the Learned JC had considered all mitigating and aggravating factors fairly. The decision was in tandem with the trend of sentencing for similar offences. [18] Reference was made to the decisions in PP v Loo Choon Fatt [1976] 2 MLJ 256; [1976] CLJU 102, and Bhandulananda Jayatilake v PP [1982] 1 MLJ 83; [1981] CLJU 139 on principles of sentencing and the decisions in Azriff bin Azmi lawan Pendakwa Raya (Rayuan Jenayah No: W-05(H)-428-09/2022); Redzuan bin Abdullah lawan Pendakwa Raya (Rayuan Jenayah No. B-05(H)-204-05/2024) and Mohamad Saiful Izzudin bin Ismail lawan Pendakwa Raya (Rayuan Jenayah No: W-05(H)-594-12/2024) on the trend of sentencing. DELIBERATIONS AND FINDINGS [19] To begin with, we agree with Learned Counsel for the Appellant that the Malaysian CPC does not have an equivalent provision to section 325(2) of the Singapore Criminal Procedure Code. The Singapore Criminal Procedure Code was amended in 2011 vide Criminal Procedure Code (Commencement) Notification 2010 (S 776/2010) to include that provision. That being the case, there is indeed no express provision in the Malaysian CPC empowering the Court to impose a higher imprisonment sentence in lieu of the exempted whipping under section 289 of the CPC. [20] However, it is evident that the Singapore section 325(2) does not mandatorily require the Court to enhance punishment in all cases where caning is exempted. The word “may” used in that provision clearly indicates that the Court maintains the discretion whether or not to enhance punishment:

(2) Subject to any other written law, if a person is convicted of one or more offences punishable with caning (referred to in this section as the relevant offences) but the person cannot be caned because subsection (1)(a) or (b) applies, the court may, in addition to any other punishment to which that person has been sentenced, impose a term of imprisonment of not more than 12 months in lieu of the caning which it could, but for this section, have ordered in respect of the relevant offences.

A court may impose a term of imprisonment under subsection (2) notwithstanding that the aggregate of such term and the imprisonment term imposed for any of the relevant offences exceeds the maximum term of imprisonment prescribed for any of those offences. [21] That the provision merely provides for a discretion was expressed by the Singapore High Court in Amin bin Abdullah as follows: “[54] We first note that the relevant provisions are all worded as open-ended discretion-conferring provisions. On a plain reading of the provisions, the courts have been given the discretion to enhance the sentences for the exempted offenders. What this means is that the courts have the power to impose additional imprisonment for such offenders. There is no mandatory requirement that this power be exercised, even where the caning would have been a mandatory part of the sentence, but for the exemption.” [22] The Singapore High Court had also undertaken a detailed discussion on the different approaches taken by the courts in Singapore pre-and post-inclusion of section 325(2). Generally there were 2 approaches, one which held that the punishment should be enhanced unless there exists special circumstances justifying otherwise and the other which held that additional sentence will only be imposed if there are grounds warranting it. After undertaking a detailed analysis, the Singapore High Court speaking through Sundaresh Menon CJ, preferred the latter view (see earlier quote at paragraph 10 above). At paragraph 58 of the decision, His Lordship further stated as follows: “[58] In our judgment, the choice of legislative language in the context of the case at hand strongly pointed to the conclusion that an offender’s term of imprisonment should not be enhanced unless there are grounds to do so. Furthermore, it is also material that the relevant provisions in the present case each apply in contexts that are slightly different and with consequences that are similarly distinct. Section 325(1) of the CPC provides for an absolute prohibition for certain classes of offenders; s 328(1) exempts the offender from caning beyond the specified limit, but ordinarily the offender will suffer the maximum permitted number of strokes; and s 332 applies where an offender is found to be medically unfit to suffer some or all of the strokes to which he has been sentenced. These differences militate against the conclusion that the correct approach is to begin with a common default position that the sentence of imprisonment should be enhanced in the absence of some special circumstances. This also coheres better with the fact that the courts should not, in general, exercise punitive powers absent sufficient justification. As we noted above, all these considerations will require the court in each case to consider the circumstances that are before it and then decide whether enhancement is called for. We turn to identify a non-exhaustive list of factors to be considered in this context.” [23] In fact much earlier to the decision in Amin bin Abdullah, the Court of Appeal of Singapore in Er Boon Huai & Anor v PP [1991] 3 MLJ 351; [1991] 2 SLR(R) 340 had the occasion to consider the issue whether the imprisonment term of one of the accused ought to be enhanced in lieu of the prohibited caning. In that case, a co-accused who was not exempted from caning was sentenced to 24 years imprisonment and 15 strokes of caning, whilst the other co-accused, who was exempted from caning, received an enhanced term of imprisonment extending to 27 years. On appeal, the Court of Appeal set aside the additional 3 years of imprisonment. The decision was reasoned as follows: “Section 231 [of the 1985 CPC] places the three categories of persons stated therein in a special position in that any provision in any law imposing a liability to caning would not be applicable to such persons. That being so, unlike the first appellant, the maximum penalty that the second appellant was liable for was therefore 30 years’ imprisonment (without any caning) and the minimum penalty was 20 years’ imprisonment (without any caning). The additional three years’ imprisonment imposed on the second appellant in lieu of the caning cannot be justified as the second appellant, in the absence of any facts to distinguish his case from that of the first appellant’s, must be sentenced to the same term of imprisonment as the first appellant for this offence.” [emphasis added] [24] The decision in Er Boon Huai has been referred to in the following books and it is the common view of the authors, that the decision in that case sets the principle that it would be inappropriate to enhance the term of imprisonment in lieu of whipping: (i) The Process of Criminal Justice – Trial Proceedings, Sentencing and Appeal, Second Edition by Lee Chong Fook, Mazlifah Mansoor and Che Audah Hassan at page 437; and (ii) Sentencing Practice in Malaysia, Second Edition by Ho Mooi Ching at page 355. [25] Coming back to our position in Malaysia, we find the matter was well discussed by the Court in Nor Azmi bin Ahmad. Although the Court was largely persuaded by the approach taken by the Singapore High Court in Amin bin Abdullah, we do not find fault with the Court’s conclusion that notwithstanding that the Malaysian CPC does not have the equivalent provision to section 325(2) of the Singapore Criminal Procedure Code, our Courts are not dispossessed of the discretion to enhance imprisonment in appropriate cases: “[35] Namun, walaupun Kanun Prosedur Jenayah kita tidak membuat peruntukan yang sama seperti dalam CPC Singapura, adakah prinsip yang sama - yakni menambah tempoh pemenjaraan bagi seseorang pesalah yang disabitkan tetapi terlepas dari hukuman sebatan disebabkan faktor usia melebihi 50 tahun seperti dalam kes Perayu - boleh dipertimbangkan oleh Mahkamah ini? [36] Untuk menjawab persoalan ini, Mahkamah ini merujuk keputusan Ketua Hakim Negara Singapura Sundaresh Menon CJ ketika menyampaikan keputusan Mahkamah Tinggi Singapura dalam kes Amin bin Abdullah v PP [2017] SGHC 215; [2017] 5 SLR 904. Walaupun keputusan ini tidak mengikat Mahkamah ini, namun ia adalah keputusan yang “highly persuasive” yang boleh dirujuk oleh Mahkamah ini dalam menentukan hukuman yang wajar kepada OKT

… [43] Setelah meneliti segala alasan dan justifikasi yang dinyatakan secara terperinci oleh Mahkamah Tinggi Singapura dalam kes Amin bin Abdullah (supra), Mahkamah ini memutuskan walaupun Kanun Tatacara Jenayah kita tidak membuat peruntukan yang sama seperti dalam CPC Singapura, prinsip yang sama - yakni menambah tempoh pemenjaraan bagi seseorang pesalah yang disabitkan tetapi terlepas dari hukuman sebatan disebabkan faktor usia melebihi 50 tahun seperti dalam kes Perayu - boleh dipertimbangkan oleh Mahkamah ini dengan mengambilkira segala faktor berkaitan OKT 1. Ini khususnya apabila Mahkamah Tinggi Singapura memutuskan bahawa walaupun CPC Singapura membuat peruntukan mengenai penambahan hukuman, ia bukanlah peruntukan yang mewajibkan mahkamah melaksanakan penambahan itu tetapi hanya memberikan mahkamah kuasa budibicara untuk melaksanakan penambahan hukuman. Kuasa budibicara ini hanya wajar diguna hanya jika terdapat alasan-alasan yang kukuh. Mahkamah ini memutuskan ini membuatkan kedudukan di Singapura, walaupun selepas pindaan kepada CPC Singapura, tidak banyak berubah dengan kedudukan di Malaysia. Oleh itu, Mahkamah ini juga mempunyai budibicara untuk menambah hukuman jika wujud keadaan yang sesuai dan wajar.” [26] In fact, there was an earlier High Court decision prior to Nor Azmi bin Ahmad and Hasan bin Yusof in PP v Goh Kee Seng [2019] CLJU 1037; [2019] MLJU 716 that had undertaken a deliberation on a similar issue although the decision in Amin bin Abdullah was not discussed. In that case, the High Court took the approach that, guided by the power to enhance imprisonment under section 291 of the CPC, the Court also has the power to enhance the term of imprisonment taking into account the seriousness of the offence particularly due to the large weight of 981 grammes of cannabis in that case: “[28] Due to the Accused's age of 60 years, he is exempted from whipping by operation of Section 289 of the Criminal Procedure Code. If not for the age of the Accused this Court must impose a sentence of whipping. Guided by the same cases referred to by Learned Counsel for the Accused and taking account the weight of cannabis in this case that is 981.13 grams this Court would have imposed the whipping of at least 10 strokes. [29] Therefore, in this Court's view imposing an imprisonment term of 10 years without the sentence of whipping would be inadequate and would frustrate the intention of the legislature in providing enhanced punishments under Section 39A(2) of the DDA. This Court must substitute the exempted whipping with a further term of imprisonment so as to achieve the intent of the legislature to punish serious offenders under the DDA. This Court cannot allow the Accused's age to shield him from a heavier sentence. The sharp end of the sword of the law must reach the Accused. [30] This Court finds support for this approach in Section 291 of the Criminal Procedure Code… … [32] Therefore in the present case this Court holds the view that the exemption of the sentence of whipping should not give any hope and comfort to the Accused that he will be given a lighter sentence. [33] The weight of cannabis of 981.13 grams is an aggravating factor against the Accused. This Court cannot close an eye to the fact that the weight of cannabis in this case exceeds those in both in Haiqal and Faiz's case. To do so would be a dereliction of the Court's duty to preserve the public's interest in ensuring that serious offenders are adequately punished. Notwithstanding that the Accused did not commit an offence that was so horrific like in Yee Tham Soon's case or a life was lost as in Yong Kim Nyien's case, the menace that has been brought down on society resulting from the abuse of drugs have included robbery, injury to persons and even murder.” [27] After considering arguments put forth by the respective parties, the approaches taken in Amin bin Abdullah, Nor Azmi bin Ahmad, Hasan bin Yusof and Goh Kee Seng and the views expressed in the books referred to earlier, we are inclined to agree that the default position to be taken by a criminal court faced with a similar position is that the Court should not enhance the term of imprisonment unless there exist conditions warranting so. The basic reasoning for this is that the Court must recognise that the legislature had intended to exclude certain categories of people from the punishment of whipping. The Court must give cognisance to the presumption that males beyond the age of 50 years would not be fit to withstand the punishment of caning (see Ratnam Alfred Christie v PP [2000] 1 SLR 467; [1999] SGHC 279). To strip away the privilege given by law by enhancing punishment to compensate for the exemption would be to ignore the intent of the legislature and constitutes a failure in passing sentence in accordance with the law. [28] In our view, the fact that our legislators have not decided to extend the application of section 291 of the CPC on enhancement of term of imprisonment in situations where the punishment of whipping cannot be inflicted due to medical reasons to males reaching the age of more than 50 years under section 289 must mean that the Court is left with the discretion to enhance the term of imprisonment in appropriate cases and that the enhancement may not be limited to only 24 months as provided under section 291. The absence of the equivalent of the Singapore section 325(2) in our CPC supports the view that the Malaysian legislators have not yet the intention to dispossess the Malaysian Courts the discretion to enhance punishment in appropriate cases despite the bar under section 289. [29] That discretion would be consonant with the long line of authorities on the power and discretion of Court in applying the diverse principles of sentencing in passing sentence such as decided in Fan Yew Teng v. Public Prosecutor [1975] 2 MLJ 235; [1975] CLJU 38; PP v. Loo Choon Fatt [1976] 2 MLJ 256; [1976] CLJU 102; Mohamed Abdullah Ang Swee Kang v. Public Prosecutor [1987] CLJ Rep 209; [1988] 1 MLJ 167; Veerian T. Latchmanen v. PP [2001] 7 CLJ 466; [2001] MLJU 499; Bhandulananda Jayatilake v. PP [1982] 1 MLJ 83; [1981] CLJU 139; and Public Prosecutor v. Mohamed Danny bin Mohamad Jedi [2018] 5 CLJ 692; [2018] 6 MLJ 383. [30] Indeed, there can be justification for enhancement of imprisonment term beyond 24 months where, for example, the type of drugs involved for an offence under the DDA are “hard drugs” such as heroin and methamphetamine and the amount of drugs far exceeds the minimum threshold. Also, to give further example, pursuant to the Abolishment of Mandatory Penalty Act 2023, the provision for the death penalty for an offence of murder under section 302 of the Penal Code has been amended to include an alternative punishment of imprisonment for a term of not less than thirty years but not exceeding forty years and if not sentenced to death, shall also be punished with whipping of not less than twelve strokes. Thus in cases where the offender is not sentenced to death but is more than 50 years of age, the Court may enhance the term of imprisonment to beyond the minimum 30 years in lieu of whipping taking into account the degree of violence, injury, weapon used and pre-meditation. [31] In our view, the exercise of discretion to enhance the term of imprisonment in lieu of whipping must be based on a number of criteria. Most importantly, the Court cannot feel compelled to enhance sentence just because of the exemption. That would be the wrong approach. As stated earlier, the law recognizes that certain categories of offenders are exempted from whipping. That is the privilege granted by law. Any enhancement of imprisonment must be guided by the consideration of aggravating factors against the offender and each case must be weighed based on its own facts. It would be relevant to refer to the oft quoted decision of the Court of Appeal in PP v Morah Chekwube Chukwudi [2017] CLJU 864; [2017] MLJU 958; on the matter of factors to be considered by the Court in passing sentence: “Jurisprudence relating to sentence [5] It is well established that there are a number of factors that courts take into consideration before sentencing. Some of them are as follows: (a) the gravity or severity of the facts constituting the offence;

the circumstances in which it was committed; (c) the rampancy of such offence in the area; (d) the offender's previous record; (e) the offender's contribution and support to his family members; (f) the offenders means; (g) the effect of conviction and sentence on his job opportunities; (h) the age and health of the accused; (i) whether it is his first offence; (j) whether the accused had cooperated with the police after the commission of the offence; (k) whether the accused had pleaded guilty; (i) status of the accused; (m) whether there was violence during the crime; (n) public interest, etc. [6] All these factors where applicable need to be addressed by the defence to secure a just sentence. It is equally important for the prosecution to rebut the facts adduced by the accused if they are not bona fide, as ultimately the power to sentence is placed on the trial judge and the judge had to rely on the facts adduced in court. In addition, if the accused is a young offender or below the age of 21 years, special consideration may have to be taken into account or probation report need to be considered, etc. [7] It is important to note that the court has to consider various sentencing principle not only to the nature of the crime but also to each criminal and his antecedent and ultimately decide whether to be lenient or severe. The sentencing policy in a crux is aptly described by Hilbery J in R v. Ball 35 Cr. App. R164. His Lordship observed: "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 criminal ways 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 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." [32] Now, coming back to the present Appeal, although the Learned JC stated that he had given consideration to the Appellant’s mitigating factors, public policy, the Appellant’s plea of guilty and trend of sentencing, it is quite evident in paragraph 12 of his Grounds of Judgment that the Learned JC felt compelled to enhance the term of imprisonment since he is barred by law from also punishing the Appellant with whipping as otherwise required by section 39A (2) of the DDA notwithstanding that the trend of sentencing for a similar offence is between 6 to 8 years. For reasons as discussed earlier, the Learned JC clearly fell into error when he took that approach as it gave the impression that he had no discretion to impose a term consistent with the trend of sentencing for a similar offence if not for the exemption. This had prejudiced the Appellant since it effectively negated the privilege accorded to him by law under section 289 of the CPC. [33] Having taken the wrong approach, we find that the Learned JC had failed to adequately consider all mitigating factors in particular that:

this case involves a “soft drug” that is cannabis;

(ii) the amount of drugs is borderline just above the minimum threshold under section 39A(2) of the DDA;

(iii) the Appellant is a first offender and the alternative charge is just for the offence of possession; and

(iv) the trend of sentencing for a similar offence is just between 6 to 8 years. [34] By comparison, we find that the learned High Court Judge in Nor Azmi bin Ahmad had taken the correct approach in arriving at his decision to enhance the term of imprisonment when His Lordship asked himself two pertinent questions; firstly whether there were factors favouring an enhanced term of imprisonment taking into account the exemption and secondly, if those factors are present what would then be the fair length of enhancement: “[41] Setelah mengambil kira segala faktor yang disebutkan dan Mahkamah berpuashati bahawa perlu dan wajar untuk hukuman penjara ditambah, maka persoalan seterusnya yang perlu diputuskan oleh Mahkamah ialah apakah tempoh yang sesuai, munasabah dan adil. … [44] Mahkamah ini memutuskan bahawa terdapat keadaan yang sesuai dan wajar untuk Mahkamah ini menggunapakai budibicara untuk menambah hukuman penjara terhadap OKT 1 setelah mendapati OKT 1 dikecualikan dari hukuman sebatan rotan. Keadaan-keadaan itu termasuklah yang berikut:

Bagi Pertuduhan Pertama OKT 1 asalnya dituduh di bawah pertuduhan yang boleh dihukum di bawah s. 39B(2). Selain Pertuduhan Pertama ini, OKT 1 disabitkan dengan tiga lagi pertuduhan di bawah s. 12(2) yang boleh dihukum di bawah s.12(3) dan 39A(1) ADB. Perihal keseriusan pertuduhan-pertuduhan yang dihadapi OKT 1 tidak perlu dijelaskan.

(ii) Prinsip yang sedia terpakai dalam penetapan hukuman, khususnya untuk memberi pengajaran kepada OKT 1 serta pencegahan kepada orang awam, hendaklah dipastikan akan terlaksana sepenuhnya.

(iii) Andainya OKT 1 di bawah umur 50 tahun, beliau akan dijatuhkan hukuman minima 10 kali sebatan rotan bagi sabitan di bawah s. 39A(2) ADB untuk Pertuduhan Pindaan. Namun undang-undang berpihak kepadanya dan OKT 1 dikecualikan dari 10 sebatan rotan itu.

(iv) Keadaan kesihatan OKT 1 yang tiada apa-apa penyakit kronik, serta usia OKT 1 yang tidak menghalang untuk menjalani hukuman penjara bagi tempoh yang munasabah panjangnya.

Tidak wujud alasan di pihak OKT 1 yang disifatkan oleh mahkamah boleh menimbulkan ikhsan mahkamah terhadapnya, selain dari pengakuan salah OKT 1 yang telah menjimatkan masa dan kos Mahkamah.” [35] Thus, to recapitulate, based on our discussions above, we would lay down the correct approach to be taken by Courts in passing sentence where the mandatory punishment of whipping is barred by operation of section 289 of the CPC as follows:

the trial Court shall pass sentence of imprisonment on the offender as it would in any other cases of similar offence where there is no such bar;

(ii) a decision to enhance sentence of imprisonment in lieu of whipping must be based on the proper exercise of judicial discretion and not as a rule;

(iii) a decision to enhance the term of imprisonment term must be considered based on the facts and relevant aggravating factors of the case and not driven merely by the need to compensate for the exempted punishment; and For the Appellant : Mr. Ramkarpal Singh a/l Karpal Singh and Cik Balqis Qisteena binti Mohd Zedreen Messrs. Karpal Singh & Co. For the Respondent : Puan Hafizah Johor binti Ariff Johor Deputy Public Prosecutor Attorney General's Chambers