The court must ensure procedural fairness when considering previous convictions in sentencing to prevent miscarriages of justice.

Introduction

[1] The accused ("the appellant") was charged under s 15(1)(a) Dangerous Drugs Act 1952 (" DDA "). He was convicted on his own plea of guilty and was then sentenced to six months imprisonment and supervision for three years under s 38B . The sentence took effect from the date of sentencing, ie 6 March 2015. The sentence was passed by the learned Sessions Court Judge who sits as the Magistrate ("the learned Magistrate").

The Appellant's Complaint

[2] The appellant's complaint against the learned Magistrate's sentence centred around where the learned Magistrate said:

"From this Court record, the accused had ever been charged (Case No: SRA- 83D-45-10-2014) whereby last year, he was fined of RM1,000.00 in default of two months jail and he was put under supervision for the period of two years. However, on 6 March 2015 (today), again the accused was charged under the same offence whereby in Case No: SRA-83D-23-1-2015, the accused was fined of RM3,500.00 in default of three months imprisonment and he was ordered to undergo a two years supervision. And now, the accused is facing another one charge of the same nature of which the accused is appealing now. Looking at strings of the same nature of the offence that the accused has committed, I am of the view, the imposition of fined has carried less deterrent to him and he has not learnt and regretted from what he has done". (pp 15 and 16 of the Record of Appeal)

The learned Magistrate then said:

"I am of the view, the maximum fined of RM5,000.00 as provided under s 15(1) DDA 1952 has no deterrent effect to the drug abusers".(p 17 of the Record of Appeal)

The learned Magistrate further said:

"Therefore the best measure to curb and to deter the abusers is by imposing an appropriate sentence. It is because this Court has imposed an immediate imprisonment sentence of six months upon the accused, the accused immediately appealed against my sentence for sending him to jail. I do not think that the accused would appeal against my sentence if I were to pass a sentence of fined and that does not serve any deterrent to him. This is shown and proven when the accused did not appeal on another case of the same nature of which I have convicted him on the same day with this case under Case No: SRA-83D-23-1-2015 whereby I had imposed a fined of RM3,500.00 in default of three months imprisonment". (pp 18-19 of the Record of Appeal)

[3] From the above judgment, the learned Magistrate took the view that the imposition of fine on the accused in the instant case was not effective to deter the accused from committing the same offence. The sentence of fine was also not suitable for reason that the accused could settle the fine if imposed by the Court as what had happened in both previous cases (Case No: SRA- 83D-45-10-2014 and Case No: SRA-83D-23-1-2015). Hence, the appropriate sentence to be meted out was an imprisonment.

[4] For Case No: SRA-83D-45-10-2014, the accused was charged and convicted under s 15(1)(a) DDA in 2014 and for Case No: SRA-83D-23-1-2015, the accused was charged and convicted for the same offence on 6 March 2015 together with the conviction in the instant case which also involved similar offence (Case No: SRA-83D-47-3-2015).

[5] The crucial part of the complaint was this. The appellant was never told of the consequence of his guilty plea that in passing sentence in the instant case, the learned Magistrate will take into account his previous conviction in Case No: SRA-83D-23-1-2015. As appeared in the notes of proceedings, the appellant was only told of the nature and consequences under ss 15(1) and 38B DDA but nowhere was he ever been told by the learned Magistrate of the effect of his