Augustine Paul JC:

[1] This was an appeal by the accused (the appellant) against the sentence of nine months' imprisonment passed by the learned Magistrate, Magistrates' Court, Melaka on the refdowing charge:

Bahawa kamu pada 22.3.96 jam 4.20 petang berada di hadapan Balai Raya Batu 2 Limbongan di dalam Daerah Melaka Tengah di dalam Negeri Melaka sebagai seorang yang tidak dikecualikan dibawah Bahagian IV Akta Dadah Berbahaya 1952 (Akta 234 semakan 1980) atau sebarang peraturan yang dibuat dibawahnya kamu telah memiliki dadah bahaya ganja berat bersih 0.04 gram yang mana disenaraikan di Bahagian III Jadual Pertama dengan itu kamu telah melakukan kesalahan dibawah s 6 Akta Dadah Berbahaya 1952 dan boleh dihukum dibawah seksyen dan akta yang sama.

[2] Upon the charge being read and explained to the appellant, he had pleaded guilty and understood the nature and consequences of his plea. The facts tendered by the prosecution were that on 22 March 1996 at about 4.20pm, the complainant, together with a police party, detained the appellant in front of Balai Raya at 2nd Milestone, Limbongan, Melaka. On searching his person a bundle of 'rokok daun', tobacco and dried leaves, suspected to be ganja, were recovered from his left trousers pocket. The complainant made a police report as per Tengkera Report No 771/96 in respect of the arrest and seizure of the exhibits The exhibits were sent to the Chemistry Department for analysis and the suspected items were confirmed to contain ganja (cannabis) weighing 0.04 grams. In his plea in mitigation before sentence the appellant said that he regretted what he had done and promised not to repeat the offence. He has a wife and two children aged three and one to support. While his wife is employed as a clerk in Syarikat Melaka Jaya he is working as piling labourer with an income of RM1,000 per month. He has also purchased a house on a loan which has to be repaid.

[3] After having recorded a conviction the learned Magistrate took into account the refdowing factors before imposing sentence:

(i) the guilty plea of the appellant had saved time and expenses;

(ii) drug offences require a deterrent sentence;

(iii) the appellant had a previous conviction for an offence under s 379 of the Penal Code in 1986 for which he was sentenced to one day's imprisonment and a fine of RM1,000; and

(iv) the previous conviction did not seem to have had the desired effect on the appellant.

[4] He then concluded that, in the circumstance he ought to impose a longer custodial sentence than the one meted out for the previous offence.

[5] The grounds of appeal may be summarised under two issues as refdows:

(i) whether the learned Magistrate had erred in law and in fact in taking into account the previous conviction which should have no bearing on the present offence; and

(ii) whether the type and weight of the drugs for which the appellant had been found guilty warranted the sentence imposed.

[6] The relevant provision of law dealing with the imposition of sentences in the Magistrates' Courts is s 173(m)(2) of the Criminal Procedure Code which reads as refdows:

If the Court finds the accused guilty or if a plea of guilty has been recorded and accepted the Court shall pass sentence according to law.