Sentences for distinct drug offences must run consecutively, reflecting proportionality and severity based on the type and weight of drugs involved.

JUDGMENT

Muniandy Kannyappan JC:

[1] The accused has appealed against the sentence meted out by this court on him via the prison authority.

[2] Although the notice of appeal filed does not state basis for the appeal, but it is reckoned the sentence passed on him is manifestly excessive.

[3] At the outset it is emphasised, this court had only imposed the minimum term of imprisonment which falls within the prescribed parameters of punishment under s 39A(2) and 39A(1) of the Dangerous Drugs Act 1952 ( DDA ; Act 234).

[4] For the first offence which forms subject matter of the alternative charge offered by the prosecution to the accused under s 39A (2) DDA , in place of s 39B which attracts death penalty, he was sentenced to a period of eight years' imprisonment. The minimum period of imprisonment allowed under the law is five years'. As whipping is mandatory and minimum allowed by law is ten strokes, this court had imposed the same on accused.

[5] As for the second offence pertaining subject matter of the second charge against accused, under s 39A(1) DDA , the accused was sentenced to a period of two years' imprisonment and three strokes of whipping. It is the minimum sentence of imprisonment and whipping allowed under the law.

[6] Hence, in sum total, he has to suffer a period of ten years' imprisonment and to be whipped with thirteen strokes.

[7] Why the appeal by accused? It can be surmised pursuant to submission by his counsel, plea was made for the sentences meted out to take effect from the date of arrest on 12 November 2019, concurrently and not consecutively.

[8] Order to have the sentences passed to take effect concurrently or consecutively is at the discretion of this court which has to be exercised based on the law, to wit, s 282(d) of the Criminal Procedure Code ( CPC ; Act 593) and established judicial principles. Concurrent sentence is not an entitlement to the accused person.

[9] Although in the present case, the two offences of possession of dangerous drugs committed by the accused emanates from one arrest, in law the offences are distinct in nature. It is so because it is punishable under two different legal provisions, one under s 39A(2) and another 39A(1) DDA . Another, subject matter of the offences pertains two different type of dangerous drugs. As such, punishment for the two offences has to be distinct and separate and must take effect consecutively.

[10] There has been so much written on the seriousness of drugs offences, be it in the form of legal literature as well as case authorities. However, the sole criterion has to be still the positioning of such offences in the law to wit, DDA . Surveying the scheme of the legal provisions on punishment for such offences, it is apparent that weight of the drugs in possession of the accused is always the mainstay.

[11] For the first alternative charge against accused under s 39A(2) DDA , he was cited to be in possession of 51.4 grammes of methamphetamine and for second charge under s 39A(1) , he was in possession of 3.69 grammes of heroin and monoacetylmorphine. The variation in provision under which the accused is charged, per se, denotes that for a heavier weight the trigger is s 39A(2) which attracts greater punishment and the lesser weight triggers lesser punishment pursuant to s 39A(1) .

[12] The minimum statutory limit of weight of methamphetamine to attract punishment under s 39A(2) DDA is 30 grammes, and accused was in possession of 51.4 grammes, which is 21.4 grammes more than the minimum statutory limit. As for the second charge, the minimum statutory limit of weight of heroin and monoacetylmorphine, attracting punishment under s 39A(1) is 2 grammes and accused was in possession of 3.69 grammes, which is 1.69 grammes more.

[13] Flowing from the above, taking into consideration weight of the drugs in possession of the accused, the sentence meted out against him is proportional to weight of the drugs.

[14] On proportionality, it would be incomplete