Zainal Abidin Bin Mansor (AA-62D-45-01/2024)

(C); 57 d. 4 photographs of the scene of crime - marked as exhibit 58 P5(A)-(D); 59 e. borang UPD - marked as exhibit P6; 60 f. Pathology Report - marked as exhibit P7; 61 g. sijil 90A - marked as exhibit P8; and 62 h. Rekod Sabitan Lampau - marked as exhibit P9. 63 [8] All exhibits were showed and explained to the accused, the accused 64 understood and admitted all the exhibits as correct. 65 FINDINGS 66 67 [9] This Court accepted the guilty plea of the accused and proceeded to find the 68 accused guilty and convicted the accused of the charge preferred against him. 69 [10] The accused prayed for leniency and his mitigation read— (Pohon hukuman) 70 kurang dari tarikh tangkap. (Mempunyai seorang) isteri dan 2 (orang) anak 71 (yang masih ber) sekolah. 72 [11] The prosecution’s reply read— Pohon hukuman setimpal sebagai pengajaran 73 kepada OKT dan (sebagai) amaran kepada pesalah lain. 74 75 Sentence 76 77 [12] The Court took into account the guilty plea of the accused, the exhibits and 78 the mitigating and aggravating factors and sentenced the accused to— 79 i. 6 years imprisonment from the date of arrest 11.7.2023; and 80 ii. 2 years police probation. 81 82 The law 83 84 [13] Paragraph 39C(1)(b) of Act 234 read— 85

Where a person who has not less than-(b) two previous convictions 86 under …paragraph 15(1)(a) … is found guilty of an offence under 87 paragraph … 15(1)(a) … he shall, instead of being liable to the 88 punishment provided for that offence under the section under which he 89 has been found guilty, be punished with imprisonment for a term which 90 shall not be less than five years but shall not exceed seven years, 91 and he shall also be punished with whipping of not more than three 92 strokes. 93 [14] This paragraph provides that the minimum imprisonment shall be 5 years and 94 the maximum shall be 7 years, with a maximum whipping of 3 strokes. 95 [15] Subsection 38B(1) of Act 234 read— 96

Where a person is found guilty of an offence under section 15, he shall, 97 immediately after having undergone the punishment imposed upon him in 98 respect thereof, undergo supervision by an officer as defined under 99 section 2 of the Drug Dependants (Treatment and Rehabilitation) Act 1983 100 for a period of not less than two and not more than three years as may be 101 determined by the court. 102 [16] Section 2 of the Drug Dependants (Treatment and Rehabilitation) Act 1983 103 defines "officer" means any Rehabilitation Officer or any police officer; 104 [17] Hence, in sentencing the accused, this Court referred to paragraph 39C(1)(b) 105 and subsection 38B(1) of Act 234 and section 2 of the Drug Dependants 106 (Treatment and Rehabilitation) Act 1983 and sentenced the accused to 6 107 years and 2 years police probation. 108 109 Age of the accused 110 111 [18] At the time of sentencing, the accused was 57 years 6 months 11 days of age. 112 [19] Subsection 289(c) of the Criminal Procedure Code reads— 113 … none of the following persons shall be punishable with whipping:

males whom the Court considers to be more than fifty years of age… 115 [20] Hence, no whipping was imposed on the accused, as he was more than 50 116 years old. 117 118 Date of commencement of sentence 119 120 [21] Subsection 282(d) of the Criminal Procedure Code reads— 121 With regard to sentences of imprisonment the following provisions shall 122 be followed: (d) every sentence of imprisonment shall take effect from the 123 date on which it was passed unless the Court passing the sentence 124 otherwise directs. 125 [22] Based on this subsection, the imprisonment should commence on 29.1.2024, 126 the date the sentence was passed, but since the accused was remanded from 127 the date of arrest on 11.7.2023 until the date of sentencing, this Court took 128 into account the period the accused was in remand pending disposal of the 129 case, to form part of the 6 years. 130 131 Public interest 132 133 [23] The interest of the accused must be balanced with the interest of the public. 134 The sentence imposed should be such as to be a lesson to the accused so as 135 to turn his criminal ways to an honest living. At the same time, the public must 136 be assured that they are protected against such offenders. 137 [24] In the case of R v Ball (Kenneth John) [1951] 35 Cr. App. R. 164, the Court 138 held— 139 …The public interest is indeed served, and best served, if the offender 140 is induced to turn from criminal ways to honest living… 141 142 Repetitious act of the accused 143 144 [25] Based on the charge, this was the 3rd offence committed the accused. The 145 accused was charged and convicted under paragraph 15(1)(a) of Act 234 in 146 2018 and 2021, also as proven in exhibit P9. 147 [26] In 2018, the accused was sentenced to 10 months and 2 years probation. In 148 2021, the accused was also sentenced to 10 months and 2 years probation. 149 [27] The accused then committed the same offence again in 2023. This shows that 150 the accused is a repetitive offender and was not rehabilitated by the twice 10 151 months imprisonment. 152 153 Seriousness of the offence 154 155 [28] The offence committed by the accused was a serious offence as reflected by 156 the severe punishment provided under the Act. 157 [29] The sentence imposed must reflect the seriousness of the offence. In the 158 same case of R v Ball (Kenneth John) quoted above, Hilbery J. had this to 159 say— 160 Our law does not, therefore, fix the sentence for a particular crime, but 161 fixes a maximum sentence and leaves it to the Court to decide what is, 162 within that maximum, the appropriate sentence for each criminal in the 163 particular circumstances of each case. Not only in regard to each crime, 164 but in regard to each criminal, the Court has the right and the duty to 165 decide whether to be lenient or severe. 166 167 Rehabilitation 168 169 [30] One purpose of a punishment is rehabilitation, to turn the accused into a better 170 person in the society and to allow him a chance to turn a new leaf. 171 172 Plea of guilty and remorse 173 174 [31] The accused had pleaded guilty and thereby saved the court's time and cost 175 of the prosecution. 176 [32] The plea of guilty of the accused could be taken as a sign of remorse. Further, 177 the accused had spent 6 months 18 days in remand pending disposal of his 178 cases, and that remand period was taken into consideration in imposing the 179 custodial sentence. 180 181 CONCLUSION 182 183 [33] The Court accepted the accused person’s guilty plea and found the accused 184 guilty and convicted, and sentenced the accused according to the law and had 185 taken into consideration the mitigating and aggravating factors before 186 imposing the sentences. 187 188 Dated this 14th day of February, 2024 189 190 Signed, 191 [34] 192 [35] 193 [36] 194 [37] 195