The court established that in drug trafficking cases, sentencing must reflect the severity of the offence while considering mitigating factors, especially following the abolition of the mandatory death penalty, allowing for judicial discretion.

Introduction

[1] This is the Grounds of Judgment on sentencing following 4 convictions against the Accused ('Convicted Accused') at the end of defence case under the Dangerous Drugs Act 1952 ('DDA') and the Poisons Act 1952 . He was convicted for offences under s 39B(1) read with s 39B(2) for the trafficking of 94.99 grams Heroin ('First Conviction'), Section 12(2) read with s 39B(2A) for the possession of 10.15 gram Monoacetylmorphines ('Second Conviction') and s 12(2) read with s 12(3) for the possession of 4.21 gram Methamphetamine (Third Conviction') under the DDA, and s 30(3) read together with s 30(5) of the for the possession of Phenazepam ('Fourth Conviction').

[2] This Court convicted the Accused on 23 May 2023. At the request of Learned Counsel for the Accused, absent objection from the Prosecution, the passing of sentence under s 39B(2) was deferred until after the amendments under the DDA pursuant to the Abolishment of Mandatory Death Penalty Act 2023 ('Act 846') took effect. The sentencing for all the remaining convictions was also deferred to the same date.

[3] Pursuant to the Federal Government Gazette PU (B) 229, Act 846 came into effect on 4 July 2023. The hearing for sentencing on all convictions was fixed on 14 August 2023.

[4] At the end of the hearing, this Court sentenced the Accused to 2 years imprisonment and 3 strokes of whipping under the Second Conviction, 6 months imprisonment under the Third Conviction and 6 months imprisonment under the Fourth Conviction. This Grounds deals with the sentencing under the First Conviction.

Background

[5] The charge under s 39B(1) read as follows ('Charge'):

"Bahawa kamu pada 19 Ogos 2015 jam lebih kurang 5.30 petang, di tepi jalan, Kampung Paya Rumput Dalam, Paya Rumput, di dalam daerah Melaka Tengah, di dalam Negeri Melaka telah mengedar dadah berbahaya jenis Heroin seberat 94.99 gram. Oleh itu kamu telah melakukan suatu kesalahan di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah s 39B(2) Akta yang sama".

[6] The facts of this case showed that two police officers were riding on motorcycles travelling along the road at Kampung Paya Rumput Dalam when they saw the Convicted Accused standing next to a car that was parked at the side of the road. The police officers stopped after seeing him behaving suspiciously. As they were approaching the Convicted Accused, they saw him throwing a black plastic bag into some bushes. A search was done and the police found a black plastic bag containing dangerous drugs that are the subject matter of the Charge. The dangerous drug heroin was found packed in 6 packets.

Submissions

Mitigation

[7] In his plea of mitigation for the Convicted Accused, Learned Counsel stated that the Accused was a first offender, he was 25 years old of age at the time of arrest, he has a mother and a sibling and he did odd jobs to support the family. Although the amount of heroin was high that is 94.99 grams, the facts of the case showed that there was no involvement of an agent provocateur, he had given full cooperation to the police and he was not caught in the act of selling dangerous drugs. Based on those reasons, it was pleaded on behalf of the Convicted Accused that the death sentence is not appropriate to be passed in this case and that this Court should instead sentence the Convicted Accused to life imprisonment and the minimum of 12 strokes of whipping.

By The Prosecution

[8] The Deputy Public Prosecutor appealed for a deterrent sentence commensurate with the seriousness and g