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2022 MarsdenLR 2352
COURT OF APPEAL PUTRAJAYA
SELVA PRAKASH GANESAN – Appellant
Versus
PP – Respondent
[Criminal Appeal No: M-05(M)-352-07/2018]
Public interest is the paramount consideration in sentencing for drug offences, justifying a substantial prison term and corporal punishment.
Headnote:(A) Dangerous Drugs Act, 1952 – Sections 12(2) and 39A(2) – Appellant convicted for possession of Methamphetamine – Alternative charge offered due to circumstances, leading to guilty plea – Sentence imposed of 12 years' imprisonment and 10 strokes of the whip for public interest and deterrent effect (Paras 1, 4, 18, 23).
(B) Sentencing Principles – Public interest as paramount in sentencing for drug offences – Consideration of past cases and quantity of drugs involved for sentencing (Paras 19, 22).
Facts of the case: The Appellant, charged for distributing 62.4 grams of Methamphetamine, was initially sentenced to death, but after accepting an alternative plea, faced a reduced charge leading to a guilty plea.
Findings of Court: The court ruled that a 12-year prison term and 10 strokes were appropriate for the offence, reflecting its seriousness and the need for deterrence.
Issues: The appeal centered on whether the sentence was excessive given the reduced charge and surrounding circumstances.
Ratio Decidendi: The Court emphasized public interest in sentencing, maintaining that severe penalties are necessary for such offences to underline their seriousness.
Result: Appellant sentenced to 12 years' imprisonment and 10 strokes.
JUDGMENT
Introduction
[1] The Appellant, Selva Prakash a/l Ganesan, was charged and tried before the High Court at Melaka for the following charge:
"Bahawa kamu pada 24 August 2015 jam lebih kurang 6.30 petang, di hadapan pintu beralamat MB-2-53, Tingkat Dua, Jalan SB Utama, Taman Seri Bayan, Durian Tunggal di dalam daerah Alor Gajah, di dalam Negeri Melaka telah didapati mengedar dadar berbahaya iaitu Methamphetamine seberat 62.40 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."
[2] At the end of the trial, the Appellant was convicted and sentenced to death. Aggrieved, the appellant appealed against the conviction and sentence.
[3] During the case management on 28 April 2020 the Appellant had informed the Court that he would put in a representation upon request by the Respondent. On 31 May 2021, the Appellant told the Court that the representation made was accepted by the Respondent.
[4] Eventually, on 29 November 2021, the Appellant was offered an alternative charge under s 12(2) of the Dangerous Drug Act 1952 read together with s 39A(2) of the same Act for possession in the same drugs.
[5] Before us, the Appellant had pleaded guilty to the alternative charge. We heard the submissions put forth by the Appellant and Respondent in respect of the sentence. After due consideration of the issues raised, we unanimously agree to impose a sentence of twelve (12) year of imprisonment with effect from the date of arrest and ten (10) strokes of the whip against the Appellant.
Material Facts Of The Case
[6] Acting on information received on the 24 August 2015, at about 6.00 pm, PW8 together with a team of 10 policemen from Bahagian Siasatan Jenayah Narkotik Daerah Melaka Tengah arrived at Taman Seri Bayan. After ascertaining the address, at about 6.15 pm, PW8 and his team took their position near a staircase and near an accessory shop.
[7] At about 6.25 pm, PW8 saw 3 Indian men appearing from the right of the staircase and proceeded to go up the stairs. PW8, PW10, Kpl Malek and Kpl Awang proceeded to follow the 3 men by walking quickly up the stairs until the second floor. At the second floor, PW8 saw clearly that the earlier 3 Indian men were standing in front of a grill door of the said address. At that time, PW8 could see the Appellant opening a lock at the grill door of the said address with a key while holding a red package in his left hand.
[8] Whilst the other two Indian men together with the Appellant were later identified as Mahendar Kumar a/l Ganesan on the Appellant's right while on the right of Mahendar was Nantha Kumar (PW12). All three Indian men were facing the grill door.
[9] Upon introduced himself as a police officer by showing his identification card, PW8 proceeded to seize the red plastic package held by the Appellant in his left hand.
[10] PW8 then opened the knot of the red plastic package and examined its contents in front of the Appellant, Mahendar and PW12 as well as the other policemen. PW8 found inside the package was one clear plastic packet containing crystalline substance suspected to be methamphetamine. The Appellant, Mahendar and PW12 were arrested and the red plastic package and its content were seized.
[11] By using the key that was still attached to the lock at the grill door, PW8 opened the grill door and entered the apartment. A search was conducted in the premise and PW8 further found dangerous drugs but unrelated to the charge proffered against the Appellant.
[12] The Appellant, Mahendar and PW12 were then brought back to the police station. At the police station, PW8 marked the exhibits by placing the date and signature on them and later issued a search list to the Appellant and lodged a police report about the arrest. On the same day, he handed the exhibits and the Appellant, Mahendar and PW12 to the Investigating Officer Inspector Ahmad Hafizi bin Mohamad (PW11). PW11 also made his own
