JUDGMENT

Ahmad Zaidi Ibrahim JCA:

Introduction:

[1] The Appellant (Mohd Munawar bin Mohd Azizan) was charged before the High Court in Kuching, Sarawak, for trafficking in dangerous drugs, an offence under s 39B(1)(a) of the Dangerous Drugs Act, 1952 (DDA 1952). The charge against him, for which he pleaded not guilty and claimed trial is as follows:

"That you on 9 October 2018, at about 11.30pm, at house no. SL 14 L3175, 27 Jalan Semarang, Taman Anib in the District of Kuching, in the State of Sarawak, did traffic in dangerous drugs, to wit 325.7 grams of Cannabis, thereby you have committed an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under subsection 39B(2)of the same Act"

[2] Fast forward, at the conclusion of the trial, the learned High Court Judge (LHCJ) found the Appellant guilty and convicted him of the aforesaid charge and flowing from the conviction, the Appellant was then sentenced by the LHCJ to death by hanging.

[3] Aggrieved by the decision of the LHCJ abovesaid, the Appellant appealed to the Court of Appeal against the whole of the decision. Hence, the Appeal before us herein.

[4] On the morning of the hearing date of this Appeal, at the outset, learned counsel for the Appellant informed the Court that the Appellant would not pursue his appeal against conviction and instead, opted to proceed only against the sentence. This was duly confirmed to us by the Appellant in Open Court .

[5] Based on the abovesaid development, we ordered the Appellant's appeal in respect of conviction be dismissed/struck out accordingly and proceeded to hear submissions in respect of the Appellant's appeal on sentence only.

Submissions and Mitigation on Sentence:

The Appellant's Submission

[6] Foremost, learned counsel for the appellant referred to the Abolition of the Mandatory Death Penalty Act 2023 (Act 846) and accordingly urged for the death sentence imposed by the LHCJ be commuted to life imprisonment and whipping, in consonance with the provision and spirit of the said Act.

[7] Next, learned counsel urged for our indulgence and compassion for leniency in sparing the Appellant from the death penalty imposed by the LHCJ, by substituting it with the minimum imprisonment term and number of whipping based inter alia on the following factors:

(a) the amendment to the DDA 1952 gives the Court the discretion to either punish the offender with death or with an imprisonment between 30 years to 40 years and 12 strokes of whipping.

(b) the offence committed, on the facts is not the most heinous and exceptional nor the rarest of the rare.

(c) that the Appellant is a first offender with no previous criminal record/clean antecedent. The case of PP v. Jafa Daud; [1981] 1 MLJ 315 was referred to.

(d) that the Appellant warrants a second chance to change for the better. The cases of Abu Bakar Alif v. R; [1953] MLJ 19 and R v. Ball 35 Criminal Appeal Report 164, were referred to.

The Respondent's Reply Submissions

[8] Having heard the submissions by the Appellant's counsel abovesaid, the learned Deputy Public Prosecutor (DPP) on behalf of the Respondent, placed no objection to the sentences prayed for by the Appellant. By her conduct, effectively, the DPP consented to the death sentence to be commuted to life imprisonment.

Our Decision and Grounds:

[9] Foremost, in our considered view, despite the stance taken by the DPP in not objecting and in 'consenting' to learned counsel for the appellant's submission on sentence, it behoves the Court to consider what is the just and appropriate sentence to be imposed, based on the facts and circumstances of this case. This is because consent between the parties does not bind the Court . In the case of New Tuck Shen v. PP, [1982] 1 MLJ 27, [1982] CLJ 606, pertaining to plea bargaining, Wan Yahya J at p 232 said:

"Plea bargaining between the defence and the prosecution frequently takes place in our courts, but they are normally confined to the instances of the accused pleading guilty to le