A sentencing provision must be correctly stated in a charge, and failure to do so can result in an unsafe conviction and necessitate a retrial.

JUDGMENT

Mohamed Zaini Mazlan JCA:

Introduction

[1] The respondent had pleaded guilty to a drug possession charge in the Sessions Court . He was sentenced to seven years of imprisonment and four strokes of whipping. The error lies in the number of strokes for whipping, as the minimum number of strokes for the offence was ten strokes. The Sessions Court had relied on the sentencing provision stated in the amended charge, as the prosecution had erroneously stated "less than ten strokes" instead of "not less than ten strokes". The prosecutors only realised the error later and appealed to the High Court . The High Court , however, dismissed the appeal and maintained the four strokes of whipping imposed on the basis that the respondent had pleaded guilty to the amended charge, even if the sentencing provision stated in the amended charge was erroneous.

[2] The pertinent issue is whether the sentencing provision must be stated in a charge and consequently forms part of the charge. The other arising issue is whether the Court is constrained to pass the sentencing provision expressed in a charge even where it is erroneous.

Brief Facts

[3] The respondent was charged at the Sessions Court for an offence under s 6 of the Dangerous Drugs Act 1952 (' DDA 1952'), punishable under s 39A(2) of the same Act. The amended charge read as follows:

Amended Charge

"That you, on 17 September 2022, at about 0945 hrs, at a house addressed No. 142 Lorong 7A Taman Malihah Jalan Matang, in the District of Padawan, in the state of Sarawak, did have in your possession, to wit, 89.77 grams of cannabis, and thereby you have committed an offence under s 6 of the Dangerous Drugs Act 1952 and punishable under s 39A(2) of the Act."

Sentence

Life imprisonment or not less than 5 years and less than 10 strokes of whipping

[4] The respondent was unrepresented. He chose to plead guilty. The Sessions Court sentenced him to seven years imprisonment and four strokes of whipping from the date of conviction. The prosecution did not object when the Sessions Court passed the sentence.

[5] The issue is with the sentence on the number of strokes of whipping, as s 39A(2) DDA 1952 prescribes whipping of not less than ten strokes. The section reads as follows:

Increased penalty where the subject matter is the prescribed amount of certain dangerous drugs

39A.(1) ...

(2) Every person found guilty of an offence against this Act where the offence is not punishable with death and where the subject matter of the offence is:

...

(f) 50 grammes or more in weight of cannabis;

...

shall instead of being liable to the punishment provided for that offence under the section under which the person has been so found guilty, be punished with imprisonment for life or for a term which shall not be less than five years, and he shall also be punished with whipping of not less than ten strokes.

[Emphasis Added]

[6] The Sessions Court had only imposed four strokes of whipping contrary to the minimum ten strokes set out under s 39A(2) DDA 1952. The Sessions Court had relied on the sentencing provision set out in the amended charge on the whipping. The prison authorities and the prosecution later realised this discrepancy. The former sought a revision of the sentence through a letter dated 1 December 2022 to the High Court . The prosecution filed an appeal on 25 November 2022. Both revision and appeal were heard simultaneously by the High Court .

The Appeal At The High Court

[7] The prosecution acknowledged the error under the heading of "sentence" in the amended charge sheet, where it had inadvertently left out the word "not" before "less than ten strokes of whipping".

[8] The prosecution pointed out that the Sessions Court had informed the respondent that the sentence liable to be imposed on him was not less than ten strokes of whipping in addition to the prison sentence before passing the sentence. The respondent had acknowledged this.

The High Court 's Decision

[9] In refusing to revise the sentence a