Yugarajan A/L Garthigesen (AB-83D-1333-08/2024)

The accused was charged with three separate offences involving possession of dangerous drugs, all committed on 8/8/2024 at Bilik No. 27, Blok Lestari, Pusat Koreksional Kamunting, Perak (‘Pusat Koreksional Kamunting’) at around 7.10 in the morning. The gist of the amended charges (P1) are as follows:

First charge: possession of 12.65 grams of methamphetamine, an offence under section 12(2) of the Dangerous Drugs Act 1952 (‘DDA’) punishable under section 39A(1) of the DDA.

(ii) Second charge: possession of 7.21 grams of ketamine, an offence under section 12(2) of the DDA, punishable under section 12(3) of the DDA.

(iii) Third charge: possession of 4.13 grams of MDMB-4en-PINACA, also under section 12(2) and punishable under section 12(3) of the DDA.

On 26/6/2025, the accused pleaded guilty to all three amended charges (P1). The Court then found the accused guilty as charged.

Upon conviction, the Court imposed the following sentences:

First charge (section 39A(1) of the DDA): 3 years’ imprisonment and 5 strokes of whipping, to commence from the date of conviction, i.e., 26/6/2025;

(ii) Second charge (section 12(3) of the DDA): 1 year’s imprisonment to commence from the date of conviction, i.e., 26/6/2025;

(iii) Third charge (section 12(3) of the DDA): 1 year’s imprisonment to from the date of conviction, i.e., 26/6/2025; and

(iv) All imprisonment sentences were ordered to run concurrently from the date of conviction, i.e., 26/6/2025.

Aggrieved, the accused via his counsel has appealed to the High Court of Taiping on sentencing alone. This judgment sets out the reasons for this Court’s decision on sentencing and the approach taken in arriving at that decision.

After the amended charges (P1) were read and explained to the accused in Bahasa Tamil as preferred by him, the accused pleaded guilty. He also maintained his plea of guilt after the nature and consequences of his plea were explained to him including the mandatory and minimum requirements of imprisonment and whipping prescribed under section 39A(1) of the DDA for the first charge.

I am satisfied that the accused’s plea was made voluntarily and is unequivocal without any reservation, qualification or condition.

The prosecution then proceeded to tender the statement of facts (P2). I am satisfied that the facts disclosed the commission of all three offences as per the amended charges (P1). The statement of facts (P2) was read and explained to the accused in Bahasa Tamil. He confirmed that he understood and admitted to the facts (P2) without reservation or qualification.

The prosecution also tendered the relevant exhibits including the physical exhibits consisting of the dangerous drugs found in the possession of the accused as stated in all three amended charges (P1). These exhibits were marked and explained to the accused in Bahasa Tamil. The accused admitted to them without any reservation or qualification.

I accepted the accused’s plea of guilty in accordance with sections 173(a) and 173(b) of the Criminal Procedure Code (‘CPC’) and accordingly found him guilty of the offences as stated in the amended charges (P1). Thereafter, before recording a conviction and passing sentence, the Court heard the accused’s plea in mitigation.

The learned counsel for the accused, Mr. Aliff Aiman bin Rusli submitted the following in mitigation:

The accused is 29 years old, unemployed and currently supporting his 51-year-old mother. He submitted that a lengthy custodial sentence would cause hardship to his mother.

(ii) The accused pleaded guilty at an early stage, saving the court’s time and resources and therefore should be given credit for his plea.

(iii) The accused expressed genuine remorse and asked the court for a second chance.

(iv) He pleaded for the minimum sentence permissible by law.

He requested that the custodial sentences for all three charges be ordered to run concurrently from the date of arrest for this case, i.e., 8/8/2024.

(vi) Learned counsel referred the court to the following sentencing precedents:

Public Prosecutor v Muhammad Norhandiga bin Norcholis [2022] MLJU 633 (Magistrates’ Court, Kuala Lumpur): The accused in possession of 20.49g of MDMA was sentenced to 2 years’ imprisonment and 3 strokes of whipping upon pleading guilty; and

Public Prosecutor v Mohamad Ramadzan Mohd Yusof [2021] 1 LNS 1345 (High Court, Taiping): The accused was charged, among others, under sections 39A(1) of the DDA for possession of 3.69g of heroin and monoacetylmorphine. The High Court sentenced him to 2 years’ imprisonment and 3 strokes of whipping under section 39A(1) of the DDA.

(vii) Based on the above, learned counsel submitted that the following sentence would be sufficient and appropriate as a deterrent and lesson to the accused:

First charge: 2 years’ imprisonment and 3 strokes of whipping.

Second and third charges: 1 year’s imprisonment each.

All sentences to run concurrently from the date of arrest, 8/8/2024. AGGRAVATING FACTORS

The prosecution submitted that public interest must take precedence. Given the seriousness of the offence, particularly because the dangerous drugs were found within a correctional centre, the Court was urged to impose an appropriate sentence that reflects the gravity of the crime.

Upon hearing the aggravating factors, the Court inquired further into the circumstances under which the accused was detain in the Pusat Koreksional Kamunting at the time of the offence on 8/8/2024.

The prosecution informed the Court that the accused was in remand at Pusat Koreksional Kamunting while awaiting trial at the Ipoh High Court for a separate charge under section 39B(1)(a) of the DDA. It was during this period of remand detention that the accused was found in possession of the dangerous drugs as stated in the amended charges (P1).

In response, the accused’s counsel (who also represented the accused at the Ipoh High Court) produced three court orders from the Ipoh High Court in respect of this accused. These orders were marked as D16(A-C). The contents of D16(A-C) and the oral explanation by defence counsel confirmed the followings:

The accused was charged at the Ipoh High Court under two case numbers: AA-45A-2-01/2023 and AA-45-1- 01/2023.

(ii) In case number AA-45A-2-01/2023, the accused was jointly charged with another person at Ipoh High Court. On 30 April 2025, his co-accused pleaded guilty to an alternative charge under section 39A(2) of the DDA and the accused before this Court was acquitted and discharged by the Ipoh High Court.

(iii) In case number AA-45-1-01/2023, the accused was jointly charged with another person at Ipoh High Court. On 30 April 2025, the co-accused pleaded guilty to an alternative charge under section 39A(2) of the DDA for the first charge and to the second and third charges under section 12(3) of the DDA. The accused before this Court however claimed trial. The matter was fixed for case management on 29 May 2025. On that date, the Ipoh High Court granted a discharge not amounting to an acquittal (‘DNAA’) to the accused in respect of all three charges.

The Court verified these facts with the accused who confirmed the three orders in D16(A-C) and he acknowledged that the proceedings in the High Court had been concluded. EVALUATION AND DECISION OF THIS COURT Salient facts

To properly understand the approach adopted by this Court in sentencing the accused, it is necessary to outline the salient facts of the case. Although some of these facts have been mentioned earlier, they are repeated here to provide a clearer context and for better understanding.

The accused was detained in remand at Pusat Koreksional Kamunting while awaiting trial at the Ipoh High Court for charges under two case numbers: AA-45A-2-01/2023 and AA-45-1- 01/2023.

During this remand period, on 8 August 2024 at approximately 7.10 a.m., the accused was found in possession of dangerous drugs in a cell at Pusat Koreksional Kamunting. A search conducted by the complainant, Koperal Abdul Azim bin Abdul Razak led to the discovery of a black plastic-wrapped package (‘the package’) concealed in the cleft of the accused’s buttocks. The package was suspected to contain dangerous drugs and the accused was subsequently arrested.

On 16 August 2024, the package was sent to the Department of Chemistry Malaysia, Ipoh branch for analysis. The chemical report (P9) confirmed that the contents of the package consisted of three types of dangerous drugs as follows:

(i)

12.65 grams of methamphetamine;

(ii)

7.21 grams of ketamine; and

(iii)

4.13 grams of MDMB-4en-PINACA.

On 23 August 2024, the accused was charged in this Court with three charges of dangerous drug possession under the DDA. He claimed trial to all three charges. The accused was subsequently remanded for this case together with the Ipoh High Court cases.

On 26 March 2025, upon receiving the chemical report (P9), the prosecution tendered amended charges (P1). The accused continued to claim trial at this time.

On 30 April 2025, in case number AA-45A-2-01/2023, the accused was discharged and acquitted by the Ipoh High Court.

On 29 May 2025, in case number AA-45-1-01/2023, the Ipoh High Court granted the accused an order of DNAA.

On 26 June 2025, the accused pleaded guilty to all three amended charges before this Court. He was convicted and sentenced from the date of the conviction as set out in paragraph [3] of this judgment. Reasons for sentence

From the submissions made by the accused’s learned counsel during mitigation, it can be surmised that the appeal stems from two main concerns:

whether the sentence imposed (particularly the three years’ imprisonment and five strokes of whipping for the first charge) is manifestly excessive in all the circumstances of the case; and

(ii) whether the sentence should have been ordered to take effect from the date of arrest, 8 August 2024.

Whether the sentence imposed is manifestly excessive

Under section 173(b) of the CPC, when an accused pleads guilty, the court must pass a sentence according to law. This means the sentence must not only fall within the ambit of the sentence stipulated but must also be determined based on established judicial principles (see: PP v Jafa bin Daud [1981] 1 MLJ 315 and Letitia Bosman v PP & Other Appeals [2020] 8 CLJ 147).

In this case, the first charge under section 39A(1) of the DDA carries a mandatory imprisonment of at least two years and up to five years along with a mandatory whipping of between three and nine strokes. Meanwhile, the second and third charges under section 12(3) of the DDA are punishable by a fine of up to RM100,000 or imprisonment of up to five years or both.

Having considered all mitigating and aggravating factors, as well as the ambit of the sentence prescribed by law and the established judicial principles, I find that the sentence of three years’ imprisonment and five strokes of whipping for the first charge and one year’s imprisonment for each of the second and third charges are appropriate and not manifestly excessive.

I believe the learned counsel of the accused should have no issue to the sentences for the second and third charges as these were precisely what they had requested during mitigation. However, I was not persuaded by learned counsel’s submission that merely two years’ imprisonment and three strokes of whipping would suffice for the first charge as an adequate deterrent and lesson for the accused.

The facts before me do not involve mere possession of dangerous drugs. It should be noted that the accused brazenly committed the offences that formed the subject matter of all the three charge whilst he was on remand for his Ipoh High Court cases at the correctional centre. In my respectful view, offences committed while an accused is on remand constitute an aggravating factor that justifies the imposition of a more severe sentence. The accused should not be allowed to walk away with merely the minimum sentence of two years’ imprisonment and three strokes of whipping for the first charge.

I find support in the High Court case of PP v Abu Yazid Ismail [2015] CLJU 220 (‘Abu Yazid Ismail’). In this case, the High Court on appeal set aside the original sentence of one year’s imprisonment and replaced it with four years’ imprisonment. The accused was found in possession of dangerous drugs, namely 1.84 grams of heroin and 0.53 grams of monoacetylmorphine and was therefore charged under section 12(2) of the DDA punishable under section 12(3) of the DDA. The offence took place at the Perlis Correctional Centre. In enhancing the sentence from one year to four years, the High Court stated the following: “15. Mahkamah ini berpendapat Tuan HMS itu terkhilaf apabila dalam alasan penghakimannya tidak memfokuskan mindanya kepada kesalahan dadah yang dilakukan oleh responden merupakan kesalahan yang berat. Mahkamah ini berpendapat hukuman penjara satu (1) tahun ianya tidak memadai dan tidak memberi deteran kepada responden dan amaran kepada orang ramai. Mahkamah ini berpendapat hukuman penjara empat (4) tahun berpatutan dan ianya tidak berlebihan. Sehubungan dengan itu, Mahkamah ini mengenepikan hukuman yang dijatuhkan oleh Tuan HMS itu.

Mahkamah ini juga berpendapat Tuan HMS itu tidak menimbangkan fakta kes yang dibentangkan oleh pendakwaan iaitu responden melakukan kesalahan ini di dalam Penjara. Semasa responden melakukan kesalahan ini beliau merupakan banduan yang sedang menjalani hukuman penjara 10 tahun daripada tarikh tangkap iaitu 5.5.2011 dan sebatan 10 kali bagi kesalahan dadah dibawah s. 39A (2) Akta Dadah Berbahaya 1952. Mahkamah ini berpendapat perbuatan responden yang membawa dadah ke dalam Penjara perlu dilihat dengan berat. Jabatan Penjara bernasib baik kerana mendapat maklumat dan bertindak segera membuat pemeriksaan atas responden. Perbuatan responden yang menyeludup masuk dadah ke dalam Penjara walaupun dengan cara memasukkan ke dalam “rectum” perlu diberi pengajaran untuk banduan atau tahanan dalam Penjara yang lainnya.”. (Emphasis added).

The accused’s possession of dangerous drugs within a correctional centre and prison places the principle of deterrence at the forefront and should set a precedent. Borrowing the words of the Court of Appeal in Public Prosecutor v Ooi Wang San [1998] 3 CLJ 270: “The court also accepted that the present offence was serious and that it was pre-planned and that it occurred in prison. The court also accepted that a prison is a place of rehabilitation and not to commit further crimes, and yet the law did not consider or sufficiently consider public interest. In a case of this nature, the first and foremost consideration is the public interest. On the facts and circumstances of this case, public interest demands a custodial sentence to commensurate with the offence.”. (Emphasis added).

It is important to bear in mind that the offence in the High Court case of Abu Yazid Ismail involved only minor possession under section 12(3) of the DDA where the punishment provided is a fine not exceeding one hundred thousand ringgit or imprisonment for a term not exceeding five years or both. Despite this, the High Court found that one year’s imprisonment was insufficient and substituted it with four years.

In the present case, the offence in the first charge falls under section 39A(1) of the DDA which carries an aggravated sentence due to the quantity involved (12.65 grams of methamphetamine). This amount is more than twice the minimum threshold of 5 grams required to trigger section 39A(1) of the DDA. The substantial weight of the methamphetamine is also a relevant factor warranting deterrence. Furthermore, the offence was committed within a correctional centre which adds to its gravity. It is worth noting that even minor possession offences involving dangerous drugs within correctional centre have attracted imprisonment sentences of up to four years by the High Court in Abu Yazid Ismail. In this context, the sentence imposed for the first charge under section 39A(1) by this Court is clearly justified.

I also find certain foreign cases helpful and relevant as persuasive guidance. These cases have held that the offence of possession of dangerous drugs in prisons and correctional centres constitutes an aggravating factor that justifies the imposition of a severe sentence.

Firstly, I refer to the incisive comments of the Hong Kong Court of Appeal in the case of Attorney General v Au Kwok Chai [1996] 3 HKC 192 (‘Au Kwok Chai’) which states as follows (at p. 193- 194): “Smuggling of dangerous drugs into prison is a serious offence. This was a distinct offence and was of a kind which particularly called for a deterrent sentence, imposed not only to deter the offender but also to deter others who might be like minded, especially when one was dealing with offences of this nature as they are calculated and committed with full knowledge of the seriousness of what is being done. A sentence of such circumstances should not be made wholly concurrent.”. (Emphasis added).

In the case of Au Kwok Chai, the quantity of drugs found in the accused’s possession was 0.42 grams of a mixture containing 0.06 grams of heroin hydrochloride, a much smaller quantity compared to the 12.65 grams of methamphetamine involved (among others) in the present case. The Hong Kong Court of Appeal bore in mind that a very small quantity of drugs was involved but stressed that smuggling drugs into prison even if the quantity of drugs was very small and was for the prisoner’s own use was an offence which called for a deterrent sentence.

In a similar vein, the High Court of Hong Kong in HKSAR v Chung Lam [2010] 3 HKC 258 stated as follows: “[9] Normally for a very small quantity of midazolam, where the offender is a repeat offender, and is not suitable for DATC, the court will consider a short sentence of imprisonment, perhaps of the order of 3 or 4 months. However, as has been recognised on many occasions in the past, the taking of dangerous drugs into a correctional institution should be regarded as a very serious aggravation of the offence of possession of a dangerous drug. [10] The reason is obvious. It is essential for the good order of prisons that those who are committed to such institutions do not seek to smuggle in dangerous drugs; and it is essential that those who may consider smuggling drugs into prison be deterred. That is why heavy sentences are generally imposed, and the Magistrate in dealing with this case referred to a number of previous cases both during the course of the sentencing procedure and his reasons for sentence.”. (Emphasis added).

Similarly, in the United Kingdom (UK), the Sentencing Council’s Drugs Sentencing Guidelines (which provide a framework for courts to determine appropriate sentences for drug-related offences in the UK) recognise that possession of dangerous drugs within a prison setting can significantly increase the severity of a sentence.1

Several UK cases also reflect the courts’ strict approach to drug possession in prison’s custody (see: R v Sanchez-Canada [2013] 1 Cr App Rep (S) 114; R v Bayliss and others [2013] EWCA Crim 1067 and R v Melim [2014] EWCA Crim 1915).

In R v Kavanagh [2011] EWCA Crim 1598, the UK Court of Appeal spoke of the necessity for deterrence where drugs are smuggled into prison. Lord Judge said: “In the instant case, having considered the authorities on importation of drugs into prisons, the inevitable conclusion was that, notwithstanding the judge’s concern to be as merciful as possible, the sentence was significantly unduly lenient. The authorities made plain that, although each case was to be decided on a fact specific basis, it was a serious aggravating factor to take drugs into prison, and that deterrent sentences were appropriate. The dissemination of drugs in prison disturbed the ordinary working of the prison and affected its ability to maintain a safe environment for staff and inmates.”. (Emphasis added).

In R v Cleworth [2015] EWCA Crim 14, the UK Court of Appeal emphasised the importance of deterrence in prison drug offences in the following words: “Further, the judge had failed to give effect to the important principle of deterrence in sentencing drugs supply offences in the prison 1 See: https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/possession-of-a-controlled-drug-2/ environment. ... In the circumstances, there had been a failure by the judge to have regard to the fact that the offences were further offences of a serious type committed by a serving prisoner where there was a need for deterrence to be demonstrated. (Emphasis added).

In a similar tone, the UK Court of Appeal in R v Smith [2021] EWCA Crim 1869 held as follows: “In our judgment, he was quite right to take account of the fact that this was a supply to prison into account. Quite apart from the damage that drugs do to society generally, which is evidenced on a daily basis in lives, medical clinics and courts throughout the country, the supply of drugs in prison is a very serious matter. This is because it undermines the prison regime by encouraging illegal activities, it destroys attempts made by prisoners to rid themselves of a drug habit, it creates the opportunity for influence to be pedalled in prison and other prisoners to be exploited. It causes those taking the drugs to behave in an unpredictable and often dangerous ways.”. (Emphasis added).

I also refer to Chilcott v De Wit [2022] TASSC 60, where Pearce J of the Supreme Court of Tasmania observed: “[26] I agree with the learned magistrate. Drugs in prison present a serious problem. Courts are frequently told that drugs are available in prison even though they should not be. Illicit drug use poses a risk to the physical and mental health of prisoners and obstructs attempts to rehabilitate and reform. It undermines the enforced abstinence that prison is sometimes intended to achieve. Use of illicit drugs in prison increases the risk of violence and anti-social conduct directed to other prisoners and to prison authorities. Moreover, violence and anti-social conduct both inside and outside prison may be generated by attempts to obtain illicit drugs, the competition for their supply and from debts arising from their trade.”. (Emphasis added).

Likewise, in R v Cole [1998] QCA 205, the Supreme Court of Queensland stated: “The offence is a significant one because the courts have an obligation to ensure that drugs are not taken into prison.”.

And in R v Sanchez-Canadas (Mariano Angel) [2012] EWCA Crim 2204, the English Court of Appeal remarked why drug-related offences within prisons must be treated seriously: “That is because drugs in prison are a currency, an instrument of power, extortion and oppression, and they fundamentally undermine the discipline and good order which is essential to running a prison properly.”.

In sum, these authorities have made it clear that having or bringing drugs into prison is a very serious matter. It makes prison less safe, harms efforts to help prisoners recover from addiction and can lead to more crime inside. Because of this, strong sentences are needed to send a clear message and protect the prison system and the public.

Moreover, the rampancy of drug possession offences in Kamunting Correctional Centre and Taiping Prison is very concerning too. This appears to be an increasingly common scenario in both institutions. I take judicial notice of this trend. What was once an occasional case (perhaps one or two cases per month), it is now not uncommon to see two or three cases of this kind in a single week. This court views such cases requiring a sentence of substantial deterrent effect. Anyone who plays a part in making drugs available in the prison must face significant punishment so the message is clear so that people are deterred from that conduct (see the decision of the High Court in Muhammad Azrien bin Mat Hussin v Public Prosecutor [2025]

Needless to say, the appropriate sentence in this case must reflect the gravity of the offence particularly since the accused was found in possession of a substantial quantity of methamphetamine (12.65 grams) for the first change while being detained on remand in a correctional centre. Although the accused was not serving a sentence at the time, his custodial status placed him under the supervision of the correctional centre.

Committing such an offence in that context reflects a serious disregard for the law and for the authority of the prison. This undermines the integrity of the remand process and poses broader risks to the order and discipline of custodial institutions. In such circumstances, the sentencing objective of deterrence must take the front seat and a heavier sentence is warranted to reinforce the seriousness of the conduct and to send a clear message that the possession of dangerous drugs in a custodial setting (regardless of conviction status) will be met with firm consequences.

Apart from that, in determining the appropriate sentence, I have also considered the other mitigation factors raised by the learned counsel for the accused. The learned counsel submitted that a long custodial sentence would cause hardship to the accused’s mother. My short answer to that is that the accused has only brought this upon himself. The legal position on this issue is well established. While the Court may feel sympathy for the families of offenders, hardship caused to the family as a result of imprisonment carries little weight in sentencing (see: James Jeffery & Ors v Public Prosecutor and another case [2022] 7 MLJ 514).

The learned counsel also submitted that the accused pleaded guilty at an early stage and expressed genuine remorse and requesting a second chance. I have considered these mitigation factors too. However, the principle is clear that such mitigating factors must be weighed against the public interest in imposing a deterrent sentence. In my view, the mitigating circumstances put forward on behalf of the accused pale in comparison to the weight that must be given to deterrence in this case as discussed above.

It is also trite that a guilty plea by the accused does not as of right entitle the accused to a reduced sentence. In Bachik bin Abdul Rahman v PP [2004] 2 CLJ 572, the Court of Appeal affirmed that although it is generally accepted that an accused who pleads guilty may be granted a reduction of up to one-third of the sentence, this is not a rigid rule. The court retains discretion to withhold any discount where appropriate depending on the specific facts and circumstances of the case. For example, the court may refuse to grant a discount in cases involving serious offences (see: Prabath Sinnathamby & Anor v PP [2013] 1 CLJ 873) or where there is effectively no defence to the charge (see: PP v Low Kok Wai [1988] 3 MLJ 123).

In the present case, the accused’s guilty plea carries limited weight as a mitigating factor. This is due to the seriousness of the offence and the fact that there was effectively no viable defence to the charge as the dangerous drug was found concealed in the cleft of the accused’s buttocks.

Moreover, I am unable to accept the submission that the accused pleaded guilty at the earliest opportunity. When the original three charges were first read to him on 23 August 2024, he claimed trial to all three. On 26 March 2025, after the prosecution received the chemical report (P9), amended charges (P1) were tendered. The accused again claimed trial to these amended charges. It was only on 26 June 2025 (after the conclusion of all his High Court cases) that the accused pleaded guilty to the three amended charges. In the circumstances, it cannot be said that the accused availed himself of an early opportunity to plead guilty and this raise doubt as to the genuineness of the remorse expressed by the accused and in my view, it does not carry sufficient weight to significantly mitigate the sentence.

The learned counsel for the accused also cited two cases for my consideration which I have referred to in paragraph 10(vi) of this judgment. Without delving into the details of those cases, it suffices to state that the cases cited are not factually relevant to the present matter. Both cases can be clearly distinguished based on the circumstances in which the offence in this case was committed as well as the type and quantity of drugs involved.

Based on the foregoing, I find that the sentence of three years’ imprisonment and five strokes of whipping for the first charge and one year’s imprisonment each for the second and third charges is appropriate and not manifestly excessive. While the first charge under section 39A(1) of the DDA provides for a mandatory minimum punishment of two years’ imprisonment and three strokes of whipping and a maximum of five years’ imprisonment and nine strokes of whipping, the Court has imposed a sentence of three years’ imprisonment and five strokes of whipping which I find appropriate in light of the circumstances of this case.

(ii) Whether the sentence should have been ordered to take effect from the date of arrest, 8 August 2024

The next issue concerns this Court’s decision to order that all terms of imprisonment are to run concurrently from the date of conviction, i.e., 26 June 2025 rather than from the date of arrest namely 8 August 2024 as requested by the accused.

The Court’s power to backdate a custodial sentence is always discretionary. The general rule of sentencing is that every custodial sentence takes effect from the date on which it is passed unless the Court passing the sentence otherwise directs. This is expressly provided for in section 282(d) of the CPC in the following manner: “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.”.

Therefore, the court’s power to backdate a custodial sentence is purely discretionary. The backdating of a custodial sentence is an exception to the general rule of sentencing and is never available as of right. The leading authorities on this principle are Sinniah Pillay v PP [1992] 1 SLR 225 (‘Sinniah Pillay’) and Mani Nedumaran v PP [1998] 1 SLR 411 (‘Mani Nedumaran’).

In Sinniah Pillay, the Singapore Court of Appeal held as follows: “… The power of the Court to back-date a sentence of imprisonment is a discretionary power. The trial Judge decided not to back-date the custodial sentence of the appellant in this case. All the relevant facts were before the trial Judge. The maximum sentence for the offence was life imprisonment and caning. ... Their sentences were not back-dated. The offence was a heinous one. Throwing formic acid on a person is a particularly vicious and painful way to injure him. In this case, the victim died. In the circumstances, it could not be shown that the trial Judge had erred in not giving to the appellant a discount on the custodial sentence and not back-dating it to the date of his arrest. Nor were we satisfied that the sentence without taking into account the back-dating was manifestly excessive, having regard to the circumstances of the case.”. (Emphasis added).

In Mani Nedumaran, the Singapore High Court stated as follows via Yong Pung How CJ: “[9] As I noted in Tang Kin Seng v PP [1997] 1 SLR 46, s 223 permits a sentencing court the discretion to backdate a custodial term, thereby achieving in effect a discount in an accused’s sentence. Conversely the court may, by refusing to backdate a custodial term, impose what amounts in effect to an enhanced sentence. In my view, counsel for the first appellant was right in saying that it is only fair that a court take into consideration any period spent in remand by an accused when contemplating the exercise of its discretion to backdate. … [11] The above does not mean that a custodial sentence must invariably be backdated to the date when an accused was taken into remand. There are a number of other considerations which are relevant to a court’s decision to backdate the sentence: these include the seriousness of the offence committed and the corresponding demands of public policy as well as the quantum of the maximum punishment prescribed for the offence.”. (Emphasis added).

Thus, it is trite that the court is not obliged to backdate a sentence of imprisonment in any case and where the court is aware that an offender has spent time in remand, it should take that period into consideration when determining whether to backdate a custodial sentence. However, this does not impose an obligation on the court to backdate the sentence in every case where time has been spent in remand. The fact that an offender has been in remand does not, by itself, necessarily increase the likelihood that the sentence will be backdated.

The court will take a variety of factors into account when deciding whether to exercise its discretion to backdate a custodial sentence. In Mani Nedumaran and Sinniah Pillay, the court identified several relevant considerations including the seriousness of the offence, the corresponding demands of public policy and the maximum punishment prescribed for the offence. However, this list is not exhaustive. After all, the discretion to backdate a sentence lies with the sentencing judge and must be exercised in accordance with the particular facts and circumstances of each case (see: Chua Chuan Heng Allan v Public Prosecutor [2003] SGHC 105).

The Court also refers to the case of PP v Dato’ Seri Anwar Ibrahim (No. 3) [1999] 2 CLJ 215 (‘PP v Anwar Ibrahim’) where Augustine Paul J (as he then was, later Federal Court Judge) stated as follows: “… section 282(d) of the Criminal Procedure Code provides that every sentence of imprisonment shall take effect from the date on which the same was passed unless the court passing such sentence otherwise directs. Such a direction may include an order that a sentence of imprisonment is to take effect from the date on which the offender was arrested. The exercise of this power is discretionary (see Sinniah Pillay v. PP [1992] 1 SLR 225). A court may also make some allowance in imposing sentence where the accused has spent a long time in custody while awaiting trial (see R v. Layton [1959] Crim LR 61; R v. Newman [1959] Crim LR 138; R v. Yakimovitch [1960] Crim LR 66). … If the sentence of imprisonment is to take effect from the date it was passed then the period spent in remand may be considered in assessing the prison term. If that course is adopted then the prison term cannot be ordered to take effect from the date of arrest. If the period spent in remand is not taken into account in assessing sentence then the sentence of imprisonment imposed may be ordered to take effect from the date of arrest.”. (Emphasis added).

In other words, where the remand period is considered in mitigation, there is no need to backdate the sentence. The court is not required to do both.

Revert to the present case and based on the above principles, I have exercised my discretion not to backdate the custodial sentence to the date of arrest. Instead, the imprisonment terms were ordered to commence from the date of conviction. This decision was made for the following reasons.

First and foremost, the accused was found in possession of multiple types of dangerous drugs while in remand custody at a correctional centre. Committing such an offence while on remand is a serious offence and this indicates a grave breach of correctional centre’s security. It is an aggravating factor that demands a firm and deterrent response from the Court. The seriousness of this offence cannot be understated and I have discussed about it earlier in this judgment.

Furthermore, it is important to note that the accused was charged before this Court on 23 August 2024 with three charges of drug possession under the DDA. At that time, he claimed trial to all three charges. The accused only pleaded guilty on 26 June 2025 after the conclusion of both his High Court matters in Ipoh. This sequence of events indicates that the decision of the accused to plead guilty was not made at the earliest opportunity. Rather, it was in my opinion a deliberate choice made after resolving the more serious charges in the High Court. This delay further reinforces the Court’s decision not to consider backdating the sentence.

Additionally, to allow the sentence to be backdated to the date of arrest (i.e., the date the drugs were discovered) would, in my view reduce the deterrent effect of the punishment and potentially send the wrong message. The offence before this Court was a new and independent offence and not a continuation of the Ipoh High Court cases. Treating the pre-conviction remand period as time “served” for this conviction would be inappropriate especially considering that the accused remained in custody for multiple cases during that time.

In short, the time spent in remand was not solely attributable to the present charges. The accused would have remained detained even if this offence had not occurred.

In light of these factors and considering the maximum punishment provided under the DDA for the amended charges (P1), this Court finds it necessary and appropriate that the sentence should commence from the date of conviction, reflecting the gravity of the offence and the importance of upholding the integrity of custodial institutions.

Based on the above reasons, the accused is sentenced as follows: for the first charge under section 39A(1) of the DDA, 3 years’ imprisonment and 5 strokes of whipping; for the second and third charges under section 12(3) of the DDA, 1 year’s imprisonment each. All sentences are to run concurrently from the date of conviction, i.e., 26 June 2025.

My decision was based on the reasons above however, I am guided by the decision of the High Court. Dated: 19 July 2025 List of Counsel: 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: Mr. Aliff Aiman bin Rusli [Messrs. Alif, Hafiz & Partners] No. 24A & 24B, Jalan Teh Hawa, 30300 Ipoh, Perak Darul Ridzuan.