The Court held that sentences of whipping under the Dangerous Drugs Act can be executed concurrently, aligning with principles of proportionality and fairness in sentencing.

Abu Bakar Jais FCJ (Majority):

Introduction

[1] Of importance to note in this case is the sole issue of whether sentences of whipping could be executed concurrently or only consecutively in the event such sentences are given in respect of more than one.

Relevant Facts

[2] When the appellant appeared before us for the appeal, the prosecution informed that they would not proceed with the charge on trafficking of drugs under s 39B(1)(a) of the Dangerous Drugs Act 1952 (' DDA '). The appellant had been convicted by the High Court for this charge and sentenced to death. Subsequently, the Court of Appeal had dismissed the appellant's appeal for this conviction. Instead, the prosecution informed us that they would offer the appellant the lesser charge of possession of the drug on two separate charges. First, under s 12(2) of the punishable under s 39A of the and the other under s 6 of the with common intention under s 34 of the Penal Code.

[3] The appellant then pleaded guilty to the charge for possession of the drug. We then ordered that the conviction under s 39B(1)(a) of the DDA be set aside and substituted with a conviction under s 12(2) of the punishable under s 39A of the . We then imposed a sentence of 9 years imprisonment from the date of arrest, to run concurrently with the sentence for the second and third charges, and as mandatorily required, 10 strokes of the cane in respect of the two charges for possession.

[4] The appellant's counsel then urged this Court to order that the sentences of whipping for the first charge and the second charge to run concurrently. The learned Deputy Public Prosecutor objected, submitting it is long established that whipping could not be executed concurrently.

No Statutory Provisions

[5] First, there are no statutory provisions in Malaysia that indicate whether the sentences of whipping should be carried out concurrently or consecutively. However, several points are stipulated with regard to the sentence of whipping in the Criminal Procedure Code (" CPC "). For example, s 286 of the speaks of the designated place for execution of the same, timing (s 287 ), method (s 288 ), prohibitions in certain cases (s 289 ), requirement of a medical officer's certificate (s 290 ), and procedures when whipping cannot be inflicted (s 291 ).

[6] Even s 288(5) of the CPC , at best, is the provision that only mentions the maximum strokes for whipping is 24 for adults and ten strokes for youthful offenders. It still does not explain whether the whipping should be executed concurrently or consecutively. This provision states as follows:

When a person is convicted at one trial of any two or more distinct offences any two or more of which are legally punishable by whipping, the combined sentences of whipping awarded by the Court for any such offences shall not, anything in any written law to the contrary notwithstanding, exceed a total number of twenty-four strokes in the case of adults and ten strokes in the case of youthful offenders.

[7] First, the above provision indicates that for whipping, the maximum number to be whipped cumulatively is 24. It could not be more than this. There is no such limitation for the sentences for imprisonment. No statutory provisions exist to say that imprisonment must not be more than a certain duration cumulatively. Therefore, in my view, whipping should not be concurrent as whatever effect physically or mentally in that sense on the person being whipped has in a certain way been considered by that limitation. This is not the same position as imprisonment. As stated, there is no such limitation for the sentences of imprisonment cumulatively. That is why the sentences could be executed concurrently for imprisonment depending on what the courts consider just.

[8] Second, even if one attempts to look at the history of s 288 of the CPC , one would not be enlightened in trying to ascertain whether it ought to be performed concurrently or consecutiv