Augustine Paul J:

The charge preferred against the accused in the Magistrates Court at Melaka was for being in possession of 0.10 grams of morphine on 25 July 1997 in contravention of s. 12(2) of the Dangerous Drugs Act 1952 and punishable with a fine not exceeding twenty thousand ringgit or imprisonment for a term not exceeding five years or both.

The accused pleaded guilty to the charge when it was read and explained to him. He understood the nature and consequences of his plea. He admitted the facts of the case as presented by the prosecution and the learned magistrate accepted his guilty plea. In his plea in mitigation the accused prayed for leniency in view of his plea. He had 22 previous convictions. The first was in 1973 and the last in 1994. Seven of the previous convictions were drug related while most of the remaining ones were for theft. The last conviction on 3 December 1994 was for possession of dangerous drugs for which he was sentenced to 36 months' imprisonment. Accordingly, the prosecution prayed for a deterrent sentence as the previous convictions did not seem to have had any effect on him. The learned magistrate convicted the accused and imposed a sentence of 30 months' imprisonment from the date of his arrest to be followed by police supervision for 12 months. The prosecution appealed against this sentence.

In his grounds of judgment the learned magistrate advanced five reasons to justify the sentence that he had imposed. They are -

(a) the accused has been free from any conviction since his last conviction on 3 December 1994;

(b) the term of imprisonment ordered is to be followed by an order for police supervision;

(c) the accused has been in remand from the date of his arrest;

(d) the guilty plea of the accused has saved the time and expense of the court, the prosecution and the witnesses; and

(e) the weight of the drugs in the amended charge was lesser than in the original charge, that is to say, it was reduced from 2.4 grams to 0.10 grams after analysis by the Chemistry Department.

In his submission before me the learned deputy public prosecutor contended that the reasons given by the learned magistrate in support of the sentence that he had imposed are wrong in law. He said that the learned magistrate's view that the accused has been free from crime for the last three years is incomprehensible as the accused was in prison for a greater part of that period. He referred to Re Bakar Bin Ahmad [1959] and said that the order for police supervision should not have been considered as a ground for imposing the sentence. He said that the manner of treating the accused's period in remand in imposing the sentence was wrong. He concluded by saying that the learned magistrate had failed to take public interest into consideration in imposing the sentence. The accused prayed that the sentence imposed on him be not disturbed.

The principles governing an appeal against sentence are well settled. It has been laid down that an appellate court will not interfere with the sentence imposed unless the magistrate has proceeded on wrong principles or has given undue weight to some of the evidence (see R v. Leo De Cruz [1935] MLJ 1). If a sentence is excessive or inadequate to such an extent as to satisfy an appellate court that when it was passed there was a failure to apply the right principles, then intervention by the court is justified (see Abu Bakar Bin Alif V. R [1952]. As Gordon-Smith J said in R v. Teo Cheng Lian [1949] MLJ 170 at p 171:

There must be a manifest error, either in law or in considering the facts and circumstances of the case or an omission to consider such facts and circumstances, before the higher court interferes with the discretion undoubtedly vested in the lower court.

Section 173(b) of the Criminal Procedure Code provides that if the accused pleads guilty to the charge, whether as originally framed or as amended, the plea shall be recorded and he may be convicted thereon and the