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1981 MarsdenLR 493

FC FEDERAL CRIMINAL (KUALA LUMPUR)

SUFFIAN, LP, LEE HUN HOE, CJ (BORNEO) & CHANG MIN TAT, FJJ


PUBLIC PROSECUTOR
versus
OO LENG SWEE

APPEAL NO 26 OF 1980

Decided On : 01-08-81

Advocates:
Lamin bin Haji Mohamad Yunus (Deputy Public Prosecutor) for the appellant.
R Rajasingam for the first respondent.
Jag-Jit Singh for the second respondent.
Karpal Singh for the third respondent.
Solicitors: R Rajasingam & Co; Jag-Jit Singh & Co; Karpal Singh & Co.

Suffian LP

(delivering the judgment of the Court: We allowed this appeal by the Public Prosecutor against the inadequacy of the sentence passed on each of the three accused, and did a very unusual thing. For the sentences of life imprisonment we substituted sentences of death. To the best of our knowledge, this is only the second time this court and our predecessors, the Court of Appeal, have done so in the last 32 years. We did so for the following reasons.

But first, the facts.

On April 19, 1977, at about 6.10 p.m. a police party led by Acting A.S.P. Tang Yau Hie raided a house, 6 Lorong Enam, Jalan Bunga Tanjong, Kulim. They entered through the back door which happened to be ajar. There they saw the three accused squatting and facing five frying pans placed on five burning charcoal stoves. A fan was blowing. The contents of the pans were being dried. The accused were arrested.

Various articles were seized by the police — among which were 3,441 grammes of morphine and 2,880.3 grammes of heroin, making a total of 6,321.3 grammes of dadah (deleterious drugs), one of the biggest hauls ever captured.

Many of the other articles appeared to have been used in the manufacture of dadah;and so on the following day at 10.45 a.m. the Government Chemist visited the house at the request of and accompanied by the A.S.P. The Chemist examined the premises and dusted the floors and swabbed the walls for trace of narcotic drugs and other chemicals. He noted the presence of morphine, heroin and caffeine in the dust collected from the floor of the wall. From the dusting and swabbing of the wall in another room he detected traces of morphine. He found traces of morphine in a plastic sheet, a towel and a small blue plastic container. Another plastic container was found in the space above the two rooms and this container had in it some hydrochloric acid and a spoon with traces of heroin.

The steps leading down to the kitchen and the floor and wall alongside it also had traces of heroin. On the floor there was also found sodium carbonate.

The room adjacent to the kitchen was littered with charcoal and ash. Traces of heroin were noted on the walls and floor.

On April 25, 1977, the Chemist examined at the Kulim police station a car which had been seized from the premises. He found some newspapers in the boot, which he dusted; and sodium carbonate, caffeine and heroin were present in the newspapers and the boot compartment.

To cut a long story short, from all this the Chemist was of the opinion that the evidence was consistent with the premises having been used for the processing of heroin from morphine.

In due course the accused were jointly charged with trafficking in dangerous drugs, contrary to section 39B(1)(a) of the Dangerous Drugs Ordinance, 1952, an offence punishable under subsection (2) of the same section, with either death, or life imprisonment and in the latter case with whipping also.

Such a clear case against the accused, caught red-handed in the processing of heroin, could have been dealt with expeditiously, but regrettably, like quite a number of criminal cases in the Alor Star High Court, it was not disposed of until late; in this case three years later, on June 5, 1980. That day each of the accused pleaded guilty, was convicted and sentenced to life imprisonment, and the first and third accused also to six strokes.

The Public Prosecutor appealed against the sentences. The only question before us was: should the sentences be enhanced?

We think that this is an eminently proper case where sentence of death should have been passed.

It is true that all the accused are first offenders. But drug addiction has been rampant for many years, and has reached very serious proportions. It is notorious that many addicts are young persons, many of them innocent children of decent families. Many addicts because of their craving are driven to commit crimes, in order to acquire money desperately needed to buy dadah, and almost daily we read reports of

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