The adequacy of the sentence for drug possession can withstand appeal scrutiny if the lower court's findings are supported by law and evidence.

Su Tiang Joo JC:

Introduction

[1] In this appeal, the appellant shall be referred to as the accused and the Respondent as the public prosecutor ("PP") as in the Court below.

[2] The accused was convicted by the learned trial Magistrate ("LTM") on two counts of possession of dangerous drugs pursuant to s 12(2) of the Dangerous Drugs Act 1952 (" DDA ") and due to the amount of dangerous drugs involved, the LTM sentenced him to 30 months' imprisonment with three strokes of the cane for each offence pursuant to but with both the terms of imprisonment to run concurrently from the date of conviction which is 25 January 2022.

Appeals By The Accused And The PP

[3] Both the accused and the PP appealed to the High Court with the accused appealing against both his conviction and sentence whereas the PP appealed against inadequacy of sentence. The PP's appeal against the sentence was registered as Ipoh High Court AA-41H-3-02/2022.

Outcome At The High Court

[4] On 29 August 2022, this Court dismissed both the appeals of the accused and that of the PP after finding that the convictions were safe and that the sentences were not unlawful and were not manifestly inadequate or excessive.

[5] After securing leave to appeal out of time from the Court of Appeal on 26 January 2023, the accused filed an appeal (Encl 32) against this Court's order of 29 August 2022. No appeal was filed by the PP against this Court's order of 29 August 2022.

[6] These are the grounds for the decision made by this Court on 29 August 2022.

The Two Charges Against The Accused

[7] The first charge against the accused was that he had on 23 October 2018 at about 11 am, whilst by the left side of the main door of the Amanjaya Bus Terminal at Meru Raya, 30020 Ipoh ("Amanjaya Bus Terminal") in Perak had in his possession dangerous drugs namely 2.1 grammes of heroin and by reason thereto had committed an offence under s 12(2) of the DDA and punishable under s 39A(1) .

[8] The second charge against the accused was that at the same place and time, he had in his possession dangerous drugs namely 2.2 grammes of monoacetylmorphine and by reason thereto had committed an offence under s 12(2) of the DDA and punishable under s 39A(1) of the .

[9] Pursuant to s 12(3) of the DDA , any person convicted of an offence under s 12(2) of the shall be liable to a fine not exceeding RM100,000.00 or to imprisonment not exceeding five years or to both. However, if the amount of drugs in the possession of the accused is 2 grammes or more but less than 5 grammes in weight for heroin and 2 grammes or more but less than 5 grammes in weight for so monoacetylmorphine, pursuant to s 39A(1) of the the person shall be liable to punishment of imprisonment for a term which shall not be less than two years but shall not exceed five years and he shall also be punished with whipping of not less than three strokes but not more than nine strokes.

At The Magistrate's Court

[10] The PP called seven (7) witnesses and at the end of the prosecution's case, the LTM invoked the statutory presumption provided in s 37(d) of the DDA and found that the prosecution had made out a prima facie case against the accused and called upon him to enter his defence.

[11] The accused elected to give sworn testimony. He was the sole witness called for his defence.

[12] The accused testified that:

i) he arrived by bus at the Amanjaya Bus Terminal on 23 October 2018 at 11:00 am.;

ii) he was to attend an interview at his friend's factory;

iii) his friend's name is Balu;

iv) Balu's friend met him at the bus terminal, they then went to a nearby Restoran Naina where they chatted for 10 minutes;

v) whilst at the restauran