Raja Azlan Shah CJ (Malaya) (delivering the judgment of the Court):

The two appellants were jointly charged, tried and convicted on 22 June 1979 in the High Court in Malaya at Penang on the following charge:

That you jointly on 24 March 1978 at about 8.50pm at the car park of Central Hotel, Penang Road, in the District of George Town, in the State of Penang, in furtherance of the common intention of you all, did on your own behalf, traffic in dangerous drugs, to wit, heroin weighing 1,550.1g and you have thereby committed an offence under s. 39B(1)(a) of the Dangerous Drugs Ordinance No. 30 of 1952 punishable under s. 39B(2) of the same Ordinance read with s. 34 of the Penal Code.

The first appellant Loh Hock Seng was then sentenced to imprisonment for life and seven strokes of whipping and the second appellant Hong Hoo Chong to imprisonment for life and 14 strokes of whipping. They both appealed to this Court against conviction and the Public Prosecutor cross-appealed against the sentence imposed.

The appeal was heard before us on 5 December 1979. Counsel appearing for the appellants indicated at the outset that he had yet to obtain instructions from the first appellant as to whether he wished to proceed with his appeal and as a result only argued the appeal by the second appellant. There were ten grounds of appeal but Counsel intimated he was abandoning all the grounds except three which he argued, namely, on the question of proof of common intention, the admissibility of the statement made by the second appellant and the matter of possession, custody and control of the subject-matter of the charge. We found no substance in the arguments and contentions advanced, were satisfied that the second appellant had been properly convicted and accordingly dismissed his appeal against conviction. The DPP then proceeded with his appeal against the sentence imposed on the second appellant.

There have been several convictions in the country for trafficking in drugs under s. 39B of the Ordinance but the Courts have invariably sought out of a sense of compassion to exercise mercy and have imposed accordingly only the second alternative of a sentence of life imprisonment, and we understand this is the first time in which the Public Prosecutor has appealed against the imposition of such a sentence, no doubt in respect of the second appellant in view of the facts and circumstances surrounding and relating to his case.

Sentencing in a criminal case must of course bear relation to the particular circumstances of the offender as well as the particular circumstances of the offence. The legislature has in its wisdom and in the implementation of its plenary powers in this respect enacted the imposition of the alternative penalties of death or imprisonment for life under s. 39B of the Ordinance with the option and discretion in this regard to be no doubt judicially and judiciously exercised according to the facts and circumstances of a particular case, and we can see no reason whatsoever why the statutory enactment of the option for punishment by death cannot and should not be made functionally operative and exercised and applied proprio vigore if the circumstances and facts of the case so warrant, justify, require and perhaps even demand.

Notwithstanding the several convictions for trafficking in drugs that have been secured, the rampancy of this type of offence still continues unabated with sequential impetus to related offences under the Ordinance, and in view of the current and continuing upsurgence of indulgence in dangerous and deleterious drugs and offences relating to and connected therewith, we feel the time has now come for some more vigorous element of deterrence to be brought to bear upon those trafficking in drugs, both active and potential, who are no less than engineers of evil and pedlars of death, to the intent and extent that intending offenders should be made to desist and be deterred, that those one step ahead and