Pejabat Timbalan Pendakwaraya Negeri Selangor v Yuvarrasen a/l Sundarasan (83D – 1499 – 12/2016)

The accused was charged under s. 6 of the Dangerous Drugs Act, 1952 (“the DDA”) for having in his possession 0.79 gram Cannabis. The offence was committed on 25/12/16 at about 3 am at Jalan Remia 1, Bandar Botanik, Klang. On 22/08/17, the charge has been read and explained to, and understood by the accused. The accused pleaded guilty to the charge unequivocally and unconditionally.

The accused was apprehended while walking along Jalan Remia 1 by a police party led by Insp. Azman Bin Tubin (the complainant). The 2 complainant recovered a small translucent plastic containing dry leaves from the accused. The accused was then arrested for further investigation. The facts of the case were then admitted by the accused unequivocally.

The counsel for the accused prayed for her client to be discharged under s. 173A (2) paragraph (b) of the Criminal Procedure Code. The prosecution, on the other hand, argued that the accused should be sentenced accordingly, as provided under s.6 of the Dangerous Drugs Act 1952. Drug misuse is so rampant nowadays among unwary youths. The learned DPP argued that this is a direct possession case. Therefore, an order under s. 173A of the Criminal Procedure Code is not proper. Puan Samsiah Mohamad from Jabatan Kebajikan Masyarakat recommended that the accused be fined as provided under s. 6 of the DDA 1952.

After considering the character, antecedents and age of the accused, I, nonetheless, decided to proceed under s.173A of the Code. The 3 accused was discharged on bond of good behavior for a period of two years with one surety and providing security of RM2,000. The accused was also ordered to pay the costs of the proceeding; RM500. There was no conviction recorded.

The court retains the discretion to choose the appropriate recourse for each offender after taking into account the particular circumstances of the case. The first and foremost consideration is the public interest. The famous case of R v Ball 35 Cr App R 164 is often cited in this regard. Hilbery J 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 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 mil 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 4 the offender is induced to turn from criminal ways to honest living. Our law does not, therefore, fix the sentence for a particular crime, but fixes a maximum sentence and leaves it to the court to decide what is, within that maximum, the appropriate sentence for each criminal in the particular circumstances of each case. Not only in regard to each crime, but in regard to each criminal, the court has the right and the duty to decide whether to be lenient or severe."

I am of the opinion that the public interest, in this case, is best served by not recording conviction against the accused as provided under s. 173A of the CPC. The accused is a young teenager of 20-year-old. He has a bright future. He graduated from Politeknik Ungku Omar with a Diploma in Shipping Engineering. He comes from a well to do family of three siblings. It must be borne in mind that, as succinctly put by Hilbery J in the above quoted case, the public interest is indeed served, and best served, if the accused is induced to turn from criminal ways to honest living. The accused must be given chance to turn a new leaf in his life. Second chance will always be there. The court was informed by the defence counsel that the accused is now waiting to get enrolled in internship programme. Therefore, the conviction record might have affected his chances to get enrolled. 5

It is admitted that cases involving cannabis are rampant nowadays. The punishment meted out by the courts would always be either imprisonment or fine or both. However, sentencing trend in previous cases is not to be made as the ultimate factor to determine the appropriate recourse for a particular offender. Facts of the case must always be the first thing to be considered. In Morah Chekwube Chukwudi [2017] 1 LNS 864, Hamid Sultan Bin Abu Backer JCA, speaking on behalf of the Court of Appeal, had this to say: It is also important to note that judicial precedent plays little role in sentencing. Providing statistics of crime and the sentence from decided cases without tabulating the facts and antecedent of the accused, his age, as well as whether the case was related to full trial or plea of guilt is in actual fact an affront to sentencing principles as set out in English cases. The learned author Christopher J. Emmins in his book 'A Practical Approach To Criminal Procedure' have this to say: "It should, however, be emphasised that precedent plays a relatively small part in sentencing. This is for three reasons. First, the truism that 6 every case turns upon its own facts is never truer than in the context of sentencing. No two offenders and no two offences are ever precisely the same, whatever the similarities between them. Therefore, if told about a Court of Appeal decision in a comparable case, a judge can always find a reason for distinguishing it if he so chooses. In fact, it is very rare for counsel to quote any cases when mitigating. He does not even suggest a precise sentence, but merely argues for a certain form of sentence. For example, he might say - 'if this offence is so serious that a prison sentence is required, then it should be suspended and not immediate', or 'in the light of my client's previous good character and regular income, the case can suitably be dealt with by means of a fine', but he would not say that in the case of X the Court of Appeal reduced a five year prison sentence to three years and therefore, since the present case is a little less serious than X's, the proper sentence is two years. Such an argument might be used before the Court of Appeal, but not in mitigation before the sentencing judge. Second, the Court of Appeal does not attempt to prescribe the one right sentence for a particular case. Instead, their Lordships allow Crown Court judges a broad discretion, and, in general, only interfere to reduce a sentence if it is outside the range of sentences appropriate to the gravity of the offence when taken in conjunction with any mitigating factors. Third, there is no procedure which enables the Court of Appeal to pronounce a sentence too light. The prosecution cannot appeal against a sentence they consider over-lenient, while if the defence appeal (against conviction or sentence) the Court of Appeal has no power to increase sentence. The most their Lordships can 7 do is state that, far from the sentence being too serve, they would, if they had been sitting in the Crown Court, have imposed a harsher penalty." Therefore, after having considered the antecedent of the accused, I decided to part ways with the current trends i.e. to impose fine or imprisonment under s. 6 of the DDA 1952. Instead, the accused was dealt under s. 173A of the CPC. However, I have made it clear to myself that s. 173A of the CPC must not be used liberally. It can only be invoked in extremely exceptional cases such as this case. One more thing I need to add here is, His Lordship Hamid Sultan Bin Abu Backer JCA in the above case decided that the learned trial judge had adequately considered the sentencing principle. One of the factors considered by the learned trial judge is the intention of the accused to continue his first degree in prison. It is about “education”. The same reason I considered here: The accused is now waiting to get enrolled into his internship programme. It is also about ‘education”. 8

I could not agree more with the counsel for the accused when she stated in her written mitigation that Bond of Good Behavior under s. 173A of the CPC should not be viewed as a lighter sentence compared to that of fine and imprisonment. The accused has committed himself to the Bond. It is some sort of promise that he will control himself and be a good citizen. In the event he breaches the promise, he will be made to account for it in court of law. The money he deposited may be forfeited. I reproduce the case of LEE LAI CHOI [2009] 1 CLJ 312 cited by the counsel for the accused where Zakaria Sam J stated: Hukuman berkelakuan baik selama tiga tahun dengan jaminan RM5000 dengan seorang penjamin bukanlah suatu hukuman yang ringan. Disamping memberi peluang kepada responden untuk mengubah hidup ke jalan yang benar, ianya sentiasa menjadi peringatan kepada responden supaya berhati – hati dan tidak melakukan sebarang kesalahan jenayah. Sekiranya beliau melakukan kesalahan jenayah dalam tempoh tiga tahun itu beliau boleh dihadapkan semula ke mahkamah yang mana wang jaminan RM50000 akan dirampas dan beliau sendiri akan dihukum penjara sebagai ganti kepada hukuman di bawah s. KAJ. 9

The accused has no previous criminal records. He pleaded guilty at the earliest possible moment. The accused possesses good education background and he has the intention to further his studies. This is not a bare and baseless insertion. In fact, the counsel for the accused, in her written mitigation, has enclosed education certificates obtained by the accused to substantiate the claim. Therefore, I think it is desirable for this court not to record conviction as provided under s. 173A of the CPC. Bellamy J in TUKIRAN TAIB [1955] 1 LNS 166 stated: It is desirable that young offenders, that is, offenders between the ages of 17 and 21 who are also offenders should be kept out of prison, if possible. Looking at factors such as age, no previous record, antecedent, pleading guilty at the earliest possible moment and bright future in education, I came to a conclusion that this case is a case where either imprisonment or fine (of course this will entail conviction record) is not proper. 10

The accused was also ordered to pay the costs of the proceeding under s. 173A (3) of the Code. The order, in my mind, will serve as a reminder for the accused not to repeat the offence in future.

It is for the above stated reasons that I, without proceeding to record a conviction and after having considered the age, character, antecedent and background of the accused, discharged the accused under s. 173A(2) paragraph (b) of the Criminal Procedure Code. 11 ROSLIZI BIN SULAIMAN Magistrate Klang Deputy Public Prosecutor : Puan Amira Binti Abd Aziz Jabatan Peguam Negara Counsel for the Accused : Puan Zafira Messrs Pari & Partners 08/09/17