Public Prosecutor v Aris Bin Mohd Nor (W-05(H)-537-10/2018)

The respondent was originally charged with an offence of trafficking in dangerous drugs under the Dangerous Drugs Act 1952 (‘the Act’). Subsequently he was offered an alternative charge for possession in the same drugs. The respondent immediately pleaded guilty to the alternative charge. The alternative charge reads as follows: “Bahawa kamu pada 26 Oktober 2017 jam lebih kurang 12.15 tengahari di rumah No. 116A, Jalan Station, Kampong Pasir Baru, Taman Sri Jati, di dalam daerah Brickfields, Wilayah Persekutuan Kuala Lumpur, telah ada dalam milikan kamu dadah berbahaya Cannabis seberat 219 gram, dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 6 Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39A(2) Akta yang sama.”

Upon his guilty plea, the respondent was duly convicted by the learned High Court Judge (‘learned trial judge’). After hearing parties on sentence, learned trial judge imposed 6 years imprisonment to run from the date of arrest (26.10.2017) and whipping of the minimum 10 strokes of rattan on the respondent.

Dissatisfied with the sentence imposed by the learned trial judge, the prosecution appealed to this Court. We heard the appeal, where in at its conclusion, we allowed the appeal. Unanimously we set aside the sentence imposed by the learned trial judge and we substituted it with a sentence of 8 years imprisonment. The sentence of 10 strokes of whipping was maintained. Criminal Appeal No: W-05(H)-537-10/2018 3

The facts of the case are straight forward as submitted by the prosecution and admitted by the respondent. The facts were laid down by the learned trial judge in his judgment and we reproduce it as follows:

The complainant was a police officer leading a team from the Criminal Investigation Department (Narcotics) of IPD Brickfields. On 26 October 2017 at around 12.15 p.m., they went to the site of the incident and on arrival discovered the main wooden entrance door to the house to be closed and locked from the inside. The complainant knocked on the door a few times before the respondent opened the same.

(ii) The complainant introduced himself to the respondent and entered the house with the raiding team. The complainant did a body search on the respondent but did not find anything incriminating. The complainant and the raiding team then entered and inspected the first room and discovered in the wardrobe in that room a patterned plastic packet containing solid items covered in cello-tape. This was suspected to be cannabis.

(iii) The respondent and all items seized were taken to IPD Brickfields and handed over to the Investigating Officer. The Investigating Officer delivered the drugs items to the Chemistry Department under the care of chemist who confirmed the suspected item was indeed cannabis, weighing 219 grams.

(iv) Thus the prosecution submitted that with the respondent had committed the offence of possession of dangerous drugs - being Criminal Appeal No: W-05(H)-537-10/2018 4 219 grams of cannabis - contrary to Section 6 of the Act and punishable under Section 39A(2) of the Act. [5] The offence for possessing 50 grammes or more in weight of Cannabis carry with it an imprisonment for life or for a term which shall not be less than five years, and shall also be punished with whipping of not less than ten strokes. According to section 3 of the Criminal Justice Act 1952, imprisonment for life shall be deemed for all purposes to be a sentence of imprisonment for a period of thirty years. [6] We have perused the appeal record especially the learned trial judge’s written judgment. In determining sentence, the learned trial judge had regard to all the facts of the case as presented by the prosecution. The learned trial Judge at the same time had considered the element of public interest, the seriousness of the offence committed by the respondent and the mitigating factors. The gravity of the offence is evidenced from the sentence provided by the law that is between 5 years to the maximum of 30 years imprisonment with the mandatory minimum sentence of whipping of not less than 10 strokes. [7] As rightly pointed out by the learned trial judge in his judgment the overall thrust of the prosecution’s submission was the public interest factor. Public interest would demand that the respondent would truly learn his lesson from the sentence imposed which should be the right signal to the public at large not to indulge in such crime. As Hilbery J in R v. Blake [1962] 2 QB 377 said: “It is of the highest importance perhaps particularly at the present time, that such conduct should not only stand condemned, should not only be Criminal Appeal No: W-05(H)-537-10/2018 5 held in utter abhorrence by all ordinary men and women but should receive, when brought to justice, the severest possible punishment. This sentence had a threefold purpose. It was intended to be punitive, it was designed and calculated to deter others, and it was meant to be a safeguard to this country.” [8] Hashim Yeop A. Sani J (as he then was) in an often cited case of PP v. Loo Choon Fatt [1976] 1 LNS 102; [1976] 2 MLJ said: “In respect of sentencing there can be only general guidelines. No two cases can have exactly the same facts to the minutest detail. Facts do differ from case to case and ultimately each case has to be decided on its own merits. In practice sentences do differ not only from case to case but also from court to court. All things being equal these variations are inevitable if only because of the human element involved. But, of course, there must be limits to permissible variations. 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. …… One of the main considerations in the assessment of sentence is of course the question of public interest. On this point I need only quote Criminal Appeal No: W-05(H)-537-10/2018 6 a passage from the judgment of Hilbery J. in Rex v. Kenneth John Ball as follows: “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 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 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.” [9] In Adam Atan v. PP [2009] 1 CLJ 33, Gopal Sri Ram (as his Lordship then was) had this to say on factor to be taken into consideration in assessing length of custodial sentence: “[5] It is well established that a sentencing court must have regard to the public interest when determining measure of punishment that is to be imposed in any given case. It is then to take into account the particular and peculiar facts and circumstances operating in mitigation in favour of the accused. It then has to carry out a balancing exercise. A sentencing Criminal Appeal No: W-05(H)-537-10/2018 7 court is also entitled to take into account the antecedents of the accused as well as the frequency of the commission of the offence in general. At the end of the day, it is essentially a matter within the discretion of the sentencing court to determine, have carried out the balancing exercise, the appropriate measure of sentence to be imposed in a particular case. [6] In an appeal against sentence, the initial function of this court is one of review only. The fact that each of us sitting separately or together would have imposed a lesser sentence is irrelevant. The appellant must satisfy this court that the sentencing court has either erred in principle or imposed a sentence that is manifestly excessive. We find it unnecessary to cite any authority in support of this well established principle. [7] There is no gainsay that drug offenders are a menace to society. They are nothing less than serpents on the front lawn of justice and should be dealt with accordingly. Everyday we read in the newspapers about the efforts of the law enforcement agencies in seizing large quantities of dangerous drugs and of the deleterious nature of these drugs which is visited upon members of our society, in particular our youth. The courts will be failing in their duty if they do not take a serious view towards the offences of this nature. The sentence imposed must not only be commensurate with the offence in this case but must also stop would be offenders dead in their tracks from committing it.” [10] It is beyond doubt that the most utmost factor to be taken into consideration is public interest. Circumstances that mitigate the crime such as hardship to the offender and family members if he were sent to long incarceration should not be given undue weight in assessing sentence. The fact that the offender pleaded guilty should not be given over emphasis when it comes to serious offence committed by the offender. In PP v. Shahrul Azuwan bin Adanan & Anor [2013] 8 MLJ 70, we agree with Abdul Rahman Sebli J (now FCJ) when his Lordship said: Criminal Appeal No: W-05(H)-537-10/2018 8 “[14] The sentencing court must only consider circumstances that mitigate the crime and not those that are personal to the offender and unconnected to the crime such as hardship to the offender and his family if he is sent to prison. These are matters that the offender should have thought of before committing the offence. If he was brave enough to tempt fate and got caught he must be brave enough to face the natural and probable consequences of his act. But if for any valid reason there is a need to temper justice with mercy a proper balance has to be struck between sympathy for the offender and the pain and suffering that he had inflicted on his victim or the damage that his criminal activity had done to society.” [emphasis added] [11] Coming back to the instant appeal, with due respect, we are of the considered view that the learned trial judge had in his judgment given undue weight to the mitigating factors put forward by the respondent as evinced from the following excerpt of his Lordship’s well written judgment: “[14] In mitigation, it was submitted by his counsel that the accused has chosen to plead guilty immediately upon being offered the alternative charge under Section 6 of the DDA, and this has saved much judicial time, as well as costs and resources of various parties, including particularly those intended to be called as witnesses. [15] The counsel for the accused submitted that the accused although aged 41 was still single and was prior to his arrest the one who took care of his elderly mother who was suffering from bone disease. His father had passed away in 2015 from cardiac arrest. The accused himself was a heart disease patient at the University Hospital in Petaling Jaya before his arrest. In addition, the accused was also involved in a road accident in 2012 which resulted in some fingers on his hand to be unable to function normally. Criminal Appeal No: W-05(H)-537-10/2018 9 [16] The accused, according to his counsel, chose to plead guilty as he was remorseful for his actions and apologised to the Court and other parties and promised not to repeat his mistaken ways. [17] The accused has no record of previous conviction of any criminal offence. He is a first offender. The accused sought the forgiveness for the crime that he had committed and promised to be more careful in the future when released, and not to be involved in any form of any criminal activity. [18] It was also highlighted to this Court that the amount of cannabis involved as specified in the charge was not large. This, counsel suggested show that the drug was more for the accused’s own consumption; and that in any event, the drugs in question, namely cannabis would generally be deemed less harmful than most other types of dangerous drugs. The counsel for the accused had also referred this Court to a number of cases to demonstrate the prevailing trend in sentence in the same offence, some of which I shall allude to later. …… [50] Mitigating factor in favour of the accused, particularly the fact that he had pleaded guilty immediately upon the alternative charge being preferred, and that he is a first time offender with no previous criminal record and claimed to be remorseful are especially pertinent too, if not strong considerations. ……. [52] The mitigating considerations especially the accused having chosen to plead guilty, having no previous criminal record and his responsibility to his elderly and sickly mother, and cannabis being considered less deleterious and harmful compared to other dangerous Criminal Appeal No: W-05(H)-537-10/2018 10 drugs, have all been taken into account; as well as particularly the comparatively smaller volume of drugs involved which is merely 19 grams above the statutory threshold of trafficking of cannabis of 200 grams (albeit more than four times the threshold under Section 39A (2); as against the undeniable scourge of drugs abuses which has not shown signs of abating.” [12] To our mind, some other irrelevant factor had been considered by the learned trial judge. With due respect, this can be found at paragraph 53 of his Lordship judgment as follows: “[53] And when the seriousness of the offence of trafficking is properly understood, it cannot be denied that the punishment for conviction for drug trafficking under Section 39B is since very recently no longer a mandatory death sentence pursuant to the amendment to the law under the Dangerous Drugs (Amendment) Act 2017 which amended Section 39B of the DDA which effectively has done away with the automatic mandatory death sentence upon conviction for trafficking given that under certain circumstances the alternative of life imprisonment may be meted out instead.” [13] However the learned trial judge had rightly considered the trend of sentencing in similar offences. Cases referred by the learned trial judge were cases referred by the High Court in PR lwn. Faridah binti Salleh [2017] MLJU 175. In this cited case itself which involved 470 grammes of Cannabis 7 years imprisonment was imposed. We observed that cases cited by the High Court Judge in Faridah Salleh’s case were cases ranging from 1993 till 2006. They were of course not the prevailing trend of sentencing. Therefore, the learned trial Judge had fallen into error on this principle of sentencing and in holding that those cases were the prevailing trend. In the final analysis, the learned trial judge held: Criminal Appeal No: W-05(H)-537-10/2018 11 “[54] Having evaluated those considerations, including having referred to a number of other similar cases and in seeking to achieve a sentence that as closely as possible reflect the key objectives of especially prevention and deterrence, but also retribution and reformation (see PP v Teh Ah Cheng [1976] 2 MLJ 186), in my judgment, a fair, proportionate and appropriate sentence for the accused for having pleaded guilty to the commission of the offence under Section 6 of the DDA as charged is a term of imprisonment of 6 years from the date of his arrest and 10 strokes of whipping. Conclusion [55] In view of the foregoing, in particular having regard to the facts of the case, the mitigating and aggravating factor and the principles of sentencing and its prevailing trend, I sentenced the accused who is convicted upon his guilty plea to a charge for an offence under Section 6 of the DDA to a term of imprisonment of 6 years from the day of his arrest and be whipped with minimum 10 strokes.” [14] The learned Deputy Public Prosecutor had on the other hand submitted that the recent prevailing trend of sentencing were between 8 to 12 years imprisonment for a similar type and weight of drug. The following table showed the more current trend of sentencing: Case No./Court Facts Sentence Date of Offence Federal Court Ng Kah Loon v PP / 05-122-07/2017(W)

FC Decision –

7.2018 Appellant was charged for an offence under with drug weighing 977 grams of Cannabis 18 years imprisonment & 10 strokes of rattan 26.8.2015 Criminal Appeal No: W-05(H)-537-10/2018 12 Haryadi bin Dadeh v PP [2000] 3 CLJ 553 Appellant was charged for an offence under with drug weighing 251.06 grams of Cannabis 10 years imprisonment & 10 strokes of rattan - Subramaniam a/l Arumugam PP [2000] 2 CLJ 1 Appellant was charged for an offence under with drug weighing 236.07 grams of Cannabis 12 years imprisonment & 10 strokes of rattan - Helmi bin Jamaluddin v PP /

FC Decision –

5.2016 Appellant was charged for an offence under with drug weighing 4,500 grams of Cannabis 18 years imprisonment & 10 strokes of rattan March 2007 Mohd Shukri bin Abu Seman @ Hashim v PP / 05-

FC Decision –

11.2013 Appellant was charged for an offence under with drug weighing 453 grams of Cannabis 18 years imprisonment & 10 strokes of rattan 18.2.2009 Mohd Radzi bin Abu Bakar v PP [2006] 1 CLJ 457 FC Appellant was charged for an offence under with drug weighing 18 years imprisonment & 10 strokes of rattan Criminal Appeal No: W-05(H)-537-10/2018 13

342.1 grams of Cannabis Court of Appeal Md. Adha bin Md. Nor Rahim v PP / J- 05-214 & 215-08/ 2012

COA Decision –

11.2013 Appellant was charged for an offence under with drug weighing 373 grams of Cannabis 16 years imprisonment & 10 strokes of rattan 17.12.2010 Mohd Kamarul Zaman bin Irwan v

COA Decision –

10.2013 Appellant was charged for an offence under with drug weighing 295 grams of Cannabis 12 years imprisonment & 10 strokes of rattan 16.5.2009 PP v Okwuhoa Edozie Stephen / B-

COA Decision –

2.2018 Appellant was charged for an offence under with drug weighing 295 grams of Cannabis 12 years imprisonment & 10 strokes of rattan 3.12.2013 PP Shahrulnizam bin Borhan / J-

COA Decisionn –

8.2014 Appellant was charged for an offence under with drug weighing 248 grams of Cannabis 10 years imprisonment & 10 strokes of rattan 27.3.2013 Criminal Appeal No: W-05(H)-537-10/2018 14 PP v Mohd Saifuddin bin Mohd Yusop / J-05(S)-14- 01/2014

COA Decision –

8.2014 Appellant was charged for an offence under with drug weighing 200.18 grams of Cannabis 10 years imprisonment & 10 strokes of rattan 27.2.2012 PP v Marzuki bin Kahar / C-05(S)-67- 2/2013

COA Decision –

12.2013 Appellant was charged for an offence under with drug weighing 232.05 grams of Cannabis 11 years imprisonment & 10 strokes of rattan 10.4.2012 Jegatheswaran a/l Muniandy PP / P- 05-380-10

COA Decision –

2.2012 Appellant was charged for an offence under with drug weighing 958 grams of Cannabis 18 years imprisonment & 10 strokes of rattan Reza Mohd Shah v PP [2005] 4 CLJ 581 Appellant was charged for an offence under with drug weighing 795.3 grams of Cannabis 18 years imprisonment & 10 strokes of rattan [15] In the case earlier cited, Adam Atan v. PP [supra], this Court imposed a sentence of 18 years of imprisonment where 379.36 grammes Criminal Appeal No: W-05(H)-537-10/2018 15 of Cannabis was involved but the appellant did not plead guilty to the charge. [16] We are satisfied that there was merit in the appeal against sentence imposed by the learned trial judge. In our judgment, the sentence passed by the learned trial judge was inadequate and suffer from an error in the principle of sentencing in that it does not follow the prevailing trend of sentencing and undue weight was given to the respondent’s personal interest over public interest. [17] Based on the above stated reasons, we unanimously allowed the appeal. The sentence imposed by the High Court was set aside and substituted with an order that the respondent be sentenced to 8 years imprisonment to run from the date of arrest whilst the 10 strokes of whipping imposed by the High Court was retained. Dated: 10 October 2019 signed (KAMARDIN BIN HASHIM) Judge Court of Appeal Malaysia Criminal Appeal No: W-05(H)-537-10/2018 16 Counsel For the Appellant: Muhammad Azmi bin Mashud Deputy Public Prosecutor Attorney General’s Chambers Putrajaya For the Respondent: Sutheswary Perumalu Messrs Suthes & Associates N0. 2.2, Suite G, Block A