JUDGMENT

Hamid Sultan Abu Backer JC:

[1] On 22 October 2007 I found all the 3 accused guilty as charged after hearing their defence. The charge read as follows:

That you all, on the 18th July, at about 11.40p.m., at the room number 1017, Tang Dynasty Hotel, in the District of Kota Kinabalu, in the State of Sabah, did have in your possession without lawful authority 1599.9 grammes of Methamphetamine and that you all have thereby committed an offence under Section 12(2) of the Dangerous Drugs Act 1952 and punishable under Section 39A(2)(r) of the same Act read together with Section 34 of the Penal Code.

Section 39A(2) of the Dangerous Drugs Act 1952 (DDA 1952) carries the maximum sentence of life imprisonment or for a term not less than five years and shall also be liable to whipping of not less than 10 strokes with the exception of female offender and male offender who is more than 50 years of age as set out in s. 289 of Criminal Procedure Code (CPC) . The 1st accused in this case now is 29 years old, 2nd accused 39 years old while the 3rd accused is aged 37 years old. Based on s. 288 of CPC , the maximum number in respect of whipping in this case cannot exceed 24 strokes.

[2] The mitigation of all the 3 accused were similar. In short their counsel says (i) 1st offenders. (ii) they were victims of circumstances. (iii) had not been the act of the informer instigating the 2nd and 3rd accused to commit the crime, this offence will not have been committed and the 1st accused will not have been involved at all. (iv) had the defence of instigation been pleaded in other countries like America (not in the Commonwealth) it would have provided a total defence. (v) accused have been in prison for the last six years (vi) the accused have all suffered prejudice in that if the case had been heard within the period of 2001 to 2003, they would have been convicted for very negligible amount based on the law of procedure relating to chemist evidence. (vii) the Singaporean who could have thrown some light on the case was not produced by the prosecution. (viii) the 2nd accused is 39 years old and has 4 children and the 3rd accused is 36 years. (ix) plead leniency.

[3] I have read the mitigation in detail. It does not reflect any form of remorse on the part of the accused persons after the court having found them guilty as charged. Further, in this case the prosecution in a well articulated submission asserts that the court imposes the most deterrent sentence allowed by the law based on the following grounds:

(a) Drugs cases are serious offences and public interest demands a deterrent sentence imposed on drugs offenders and relies on the case of ; [2000] 2 MLJ 35; [2000] 1 CLJ 213; [2000] 1 AMR 481 where Haidar Mohd Nor JCA (as he then was) opined "We agree that the appellant committed a serious offence and the mitigating factors far outweigh in favour of the public interest". After sentencing the accused for 18 years imprisonment for possession of 81.4 grammes of morphine, His Lordship stated: "The sentence imposed may appear to be excessive but in our view the sentence having regards to the seriousness of the offence of dangerous drugs and the public interest as opposed to the appellant's interest , is not manifestly excessive". In ; [2005] 2 MLJ 301; [2005] 1 CLJ 85; [2005] 1 AMR 321 , the Federal court agreed with the sentence imposed by the High court, that was 16 years imprisonment and 11 strokes of whipping for possession of 73.34 monoacetylmorphines and the grounds as stated by the High court was reproduced in the Federal court judgment and partly translated and reads as follows: "It cannot be denied that drugs offence is a serious offence in the eye of the authority and the public. It cannot be ignored that Public interest should be given priority in deciding the appropriate sentence for an offence of possession of dangerous drugs". In ; [1976] 2 MLJ 256, Hashim Yeop Sani J (as he then was) opined: "In my view, the courts will not be perform