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2022 MarsdenLR 3056
COURT OF APPEAL PUTRAJAYA
PP – Appellant
Versus
AZFAIZ JAMIL – Respondent
[Criminal Appeal No: J-09-168-05-2021]
Mandatory sentencing under section 39C of the Dangerous Drugs Act applies when prior convictions are established, and evidence from the court registrar is admissible under section 400 of the CPC.
Headnote:(A) Dangerous Drugs Act 1952 – Sections 15(1)(a) and 39C – Appeal against sentencing – Respondent found guilty of self-administration of dangerous drugs yet sentenced under a lesser provision – The mandatory sentence under s 39C for repeat offenders was not applied – Section 39C stipulates a required sentence of five to seven years and possible whipping – Past convictions were established but improperly disregarded in sentencing – Court resolves that the evidence from the registrar is admissible under s 400 of the CPC, maintaining that RCUPA does not override CPC despite being specific legislation (Paras 1-54).
Facts of the case:
The respondent was guilty under s 15(1)(a) for consuming amphetamines and methamphetamines, previously convicted for the same offences in two prior cases.
Findings of Court:
Court finds previous convictions proved by admissible evidence from the court registrar.
Issues
: Whether past convictions can be proved through the Registrar under the CPC and the applicability of mandatory sentencing under s 39C given past convictions.
Ratio Decidendi:
The Court determined that the Registrar's evidence was valid and that the mandatory penalties under s 39C must be applied where prior convictions are established.
Result:
Appeal allowed, sentence corrected to mandatory imprisonment of five years and whipping. Parties involved: Appellant, Respondent.
JUDGMENT
Introduction
[1] This is the appellant's appeal against the decision of the learned Judicial Commissioner (the learned JC) in dismissing the appellant's appeal against the Session Court Judge's (the SCJ) decision for failing to sentence the respondent under s 39C of the Dangerous Act 1952 ("the DDA"). The SCJ sentenced the respondent with a fine of RM 5,000.00 in default 6 months imprisonment under s 15(1)(a) and 3 years supervision under s 38B of the DDA.
[2] Section 39C of the DDA carries punishment of imprisonment for a term which shall not be less than five years but shall not exceed seven years, and shall also be punished with whipping of not more than three strokes.
[3] The charge against the respondent at the Session Court reads as follows:
"Bahawa kamu pada 31 July 2019 jam lebih kurang 0530 petang, di Pejabat Bahagian Siasatan Jenayah Narkotik IPD Kulai Johor, di dalam daerah Kulai, dalam Negeri Johor Darul Takzim, telah memasukkan dadah berbahaya jenis Amphetamine dan Methamphetamine kepada diri sendiri ke dalam badan kamu, oleh yang demikian itu kamu telah melakukan satu kesalahan di bawah s 15(1)(a) ADB 1952 dan boleh dihukum di bawah di bawah s 39C(1)(b) Akta Dadah Berbahaya 1952."
The Undisputed Facts
[4] The finding of facts by the SCJ leading to the conviction of the respondent is not disputed. The respondent is found guilty for an offence under s 15(1)(a) of the DDA.
[5] At the Session Court, the Registrar of the Surbodinate Court of Johore Bahru (SP2) tendered two (2) sealed Orders of the Court which clearly show the respondent had been convicted on the same offence under s 15(1)(a) of the DDA by two different Magistrates' Court of Johore Bahru. SP2 gave evidence under s 400 of the Criminal Procedure Code ("CPC") for such purpose. The Orders of the Court were then marked as exhibits P7 (a) and (b).
[6] It is the appellant's case that the respondent who was convicted under s 15(1)(a) of the DDA shall be sentenced under s 39C(1) of the DDA based on his past convictions on the same offence as shown in the exhibits P7 (a) and (b) tendered through SP2 as mode of proving the same under s 400 of the CPC.
[7] The SCJ rejected SP2's evidence and the exhibits on reason that SP2 lacks authority and not competent to give evidence under s 400 of the CPC. The SCJ held that SP2 is not the appropriate officer under s 400 of the CPC. The approppriate officer in her view is the Registrar of Criminal under Registration of Criminals and Undesirable Persons Act 1969 ("RCUPA").
[8] On appeal, the learned JC agreed with the SCJ and affirmed the SCJ's decision. It was decided inter alia that past records of criminals must be proved under RCUPA since RCUPA is specific legislation dealing with registrations of criminals.
[9] The learned JC was of the view that CPC is a general legislation. Since the words, "Registrar" under s 2 of RCUPA is defined as the Registrar of Criminals under s 3 and the registers are maintained by Registrar of Criminal under s 7 therefore, RCUPA overrides the CPC. She held that SP2 is not a qualified person and had no authority to prove past convictions records of the respondent under s 400 of the CPC.
The Main Issue
[10] The appellant raised several issues pertaining to the decision of the learned JC. However, in our view, the main issue is whether the respondent's past convictions records under s 15(1)(a) of the DDA may be proved through SP2 under s 400 of the CPC for purpose of punishment under s 39C of the DDA. In other words, whether SP2 is a qualified or relevant officer to prove past convictions records of the respondent by way of s 400 of the CPC.
The Appellant's Submission
[11] The appellant submitted that the evidence by SP2 and the past convictions records of the respondent ie exhibits P7 (a) a& (b) tendered during the trial must be accepted as admissible evidence under s 400 of the CPC. The words "may be proved in addition to any other mode provided by any law for the time being in f
