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[2018] MYCA 122 ENGLISH

Cha Siang Hock v Public Prosecutor
Suit Number: Criminal Appeal No. B-05(H)-221-06/2016 

Criminal law – Trafficking in dangerous drugs – Amended charge section 12(2) Dangerous Drugs Act 1952 – Guilty plea – Sentence – Appeal for reduction in sentence

Criminal law – Whether the trial court has applied the correct sentencing principles and appreciated relevant evidence – Whether the sentence manifestly excessive or unjust – Whether appellate intervention warranted

JUDGMENT

[1] The appellant was initially charged before the High Court at the instance of the Public Prosecutor with an offence of trafficking in dangerous drugs under section 39B of the Dangerous Drugs Act 1952 [Act 234] (the Act) together with 3 other accused persons. The charge was subsequently reduced by the prosecution to an offence under section 12(2) of the Act. The alternative charge reads as follows:

"Bahawa kamu pada 16 Mei 2014, jam lebih kurang 2.00 petang, bertempat di rumah no 568, Jalan 1, Kg. Baru, 42800 Tanjong Sepat, dalam Daerah Kuala Langat, di dalam Negeri Selangor Darul Ehsan telah didapati memiliki dadah berbahaya iaitu sejumlah 21.12 gram (17.5 gram Heroin dan 3.62 gram Monoacetylmorphine) dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 12(2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39A(2) Akta yang sama dibaca bersama seksyen 34 Kanun Keseksaan.”

[2] The appellant pleaded guilty to the alternative charge and was accordingly sentenced to 16 years imprisonment with effect from the date he was arrested and 10 strokes of whipping. The other accused persons were given a discharge not amounting to an acquittal after the appellant pleaded guilty to the amended charge.

[3] The appellant now appeals against the said sentence to this Court. The facts of the case which we glean from Exhibit P4 tendered by the prosecution reveal that on 16.5.2014, circa 2.00 pm, a police raiding team led by Corporal Sukdarshan Singh a/l Jangir Singh proceeded to a house at the address specified in the charge. The grill door of the house was locked. Having knocked the door several times, one Malay man (the first accused) opened the door and the police raiding team entered the house. There were 2 male Chinese (the appellant and the third accused) and an Indonesian woman (the fourth accused) inside the house. A bodily search was conducted on the four accused persons but nothing incriminating was found. Upon conducting a search in the second room in the presence of the accused, the police found 2 boxes with the words ‘BRICKS INTELLECT’ written on the first box and the words ‘SUPER HEROES’ written on the second box containing 10 and 6 transparent plastic packets respectively in which substances suspected to be heroin were found. In addition, a transparent plastic packet containing substances suspected to be heroin was also found by the police raiding party. All the 4 accused were then arrested. These substances were on analysis conducted by the Chemistry Department of Malaysia confirmed to contain 21.12 grammes of dangerous drugs comprising 17.5 grammes of heroin and 3.62 grammes of monoacetylmorphine.

[4] The appellant appeared in person during the hearing of this appeal before us. In pleading for the sentence to be reduced, the appellant told this Court that he had 2 children and a mother to look after. The learned Deputy Public Prosecutor on the other hand, urged this Court not to accede to the appellant’s plea for a reduction in sentence as the amount involved was substantial and the punishment meted out by the High Court not excessive.

[5] In considering an appeal against sentence, it is necessary to draw attention to the trite principle that an appellate court should be slow to interfere with the sentence passed by the court below if the trial court applies the correct principles in the assessment of the sentence. However, where it can be shown that the sentencing court has erred in principle in that it has passed a sentence which is manifestly wrong in the sense of being illegal or of being unsuitable to the proven facts and circumstances, it would be legitimate for the appellate court to intervene in order to come to a correct and just sentence. This Court in the case of Wong Chee Kheong v PP & Other Appeals [2016] 7 CLJ 68 in discussing the above principle had referred to the case of PP v Karthiselvam Vengatan [2009] 4 CLJ 632 in which it was said at page 635-

"An appellate court should not intervene unless the court below has erred in principle, that is to say, it took into account irrelevant consideration or failed to take into account relevant considerations or passed a sentence that is manifestly excessive or manifestly inadequate or not permitted by law. In short, an appellant court has no original discretion of its own but may act when sentencing court has gone wrong in the sense just discussed.”

The above principle provides a useful sentencing guide in determining appropriate sentence in the instant appeal.

[6] Having considered the judgment of the learned judge, it is clear to this Court that His Lordship had applied the correct sentencing principles and factors as well as relevant evidence. Hence, we do not find any error which renders the sentence meted out by His Lordship to be manifestly wrong or unjust. We agree with the learned judge that in this case public interest should be uppermost in our minds given the gravity of the offence committed by the appellant even through he had pleaded guilty to the amended charge. The learned judge had correctly taken into account the cumulative quantity of the impugned drugs involved which was substantial and His Lordship had also considered the rampancy of the offence in this country in holding that the offence for which the appellant was charged called for a deterrent sentence to be imposed. In this regard, the scourge of drug abuse and illicit possession of dangerous drugs undoubtedly could cause untold misery to drug users and inflict irreparable harm on the society in particular the younger generation who is easily placed in great jeopardy as a result of exposure to such abuse and dependency to such drugs. We shudder at the thought of the effect of this menace on the society if an accused person convicted of an offence of this nature is given a lenient sentence. Needless to say such leniency will not deter potential wrongdoers from committing this offence in future thus exposing our younger generation to the risk of negative and serious consequences.

[7] We bear in mind that a guilty plea by an accused person should be treated as a mitigating factor as it not only saves the country expense but also saves time and inconvenience of many particularly the witnesses [see Federal Court’s decision in Sau Soo Kim v Public Prosecutor [1975] 2 MLJ 134 at page 137]. However, the plea of guilty does not warrant a discount absolutely on the sentence for the exercise of discretion to mete out a lenient sentence by the court ought to be considered by looking at the facts and circumstances of each case so that where it merits a deterrent sentence the court should not hesitate to impose such a sentence [Wong Chee Kheong v PP & Other appeals, supra]. In this case, the gravity and the rampancy of the offence justify the imposition of the sentence by the learned judge. The need for a deterrent sentence manifestly far outweighs the necessity to impose a lighter sentence in view of the appellant’s guilty plea. In our opinion, it is difficult to gainsay a contention that offences relating to possession of dangerous drugs have become a major and serious national problem. Public interest therefore demands that such sentence ought to be meted out against the appellant.

[8] This Court in Public Prosecutor v Ling Leh Hoe [2015] 4 CLJ 869 had acknowledged that the cases decided by the Federal Court show an inclination of the apex court to impose deterrent punishment for the offences of possession of dangerous drugs. It is not hard to fathom out the underlying rationale for the sentencing trend which the Federal Court has presently adopted. Firstly, such deterrent sentence is aimed at deterring a potential wrongdoer from committing the offence and at beating the menace of drug abuse and illicit possession of dangerous drugs. Secondly, an immediate deterrent sentence is punitive to the offender himself and is the appropriate way to emphasise specific deterrence on the appellant in the hope that the clang of prison gates upon being closed behind him for a long duration would also work towards rehabilitating him.

[9] For all these reasons, it would be our inevitable finding that the conclusion reached by the learned judge in imposing the sentence as he did was correct and such sentence was not manifestly excessive or unjust. Accordingly, we dismiss the appeal and affirm the decision of the learned judge.

Signed

IDRUS BIN HARUN
Judge
Court of Appeal, Malaysia
Putrajaya

Dated: 17th April 2018

COUNSEL

For the Respondent: Tuan Khairul Anuar bin Abd. Halim, Timbalan Pendakwa Raya, Unit Perbicaraan, Jabatan Peguam Negara, No. 45, Persiaran Perdana, Presint 4, 62100 Putrajaya

For the Appellant: Cha Siang Hock (NRIC No: 670808-10-5319)

Legislation referred to:

Dangerous Drugs Act 1952, Sections 12(2), 39B

Judgments referred to:

PP v Karthiselvam Vengatan [2009] 4 CLJ 632

Public Prosecutor v Ling Leh Hoe [2015] 4 CLJ 869

Sau Soo Kim v Public Prosecutor [1975] 2 MLJ 134

Wong Chee Kheong v PP & Other Appeals [2016] 7 CLJ 68

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