MOHAMED SAHUL HAMID BIN ZAINAL ABIDIN v Pendakwa Raya

Case Significance

Illustrates appellate restraint in reviewing a drug-possession sentence under section 39A(1) of the Dangerous Drugs Act 1952, where the quantity exceeded the statutory threshold and the sentence was within the lawful range.

This High Court decision at Ipoh is an appeal against conviction and sentence in a drug-possession prosecution. The appellant had been charged, on an amended charge, with possession of dangerous drugs — a quantity of methamphetamine of about 6.63 grams — under "seksyen 12(2) Akta Dadah Berbahaya 1952" (section 12(2) of the Dangerous Drugs Act 1952), punishable under section 39A(1) of the same Act. He claimed trial, and after the prosecution called its witnesses the Magistrate found the offence proved, convicted him and imposed thirty months’ imprisonment from conviction together with four strokes of the cane. On appeal, the appellant argued that the Magistrate had erred in finding the elements of the charge made out, had failed to give proper consideration to contradictions in the prosecution case, and had wrongly rejected a defence said to raise a reasonable doubt, and further that the custodial sentence was excessive and did not properly account for the totality principle and the prevailing trend of sentencing. The Court examined the findings and the sentence and declined to interfere. On sentence, it held that the term imposed was not excessive but fell within the range permitted by law, was not too light given the strong public interest in deterring drug offences, and reflected the fact that the weight of methamphetamine involved, at 6.63 grams, exceeded the five-gram threshold that engages section 39A(1). Applying the principle in Dato’ Seri Anwar bin Ibrahim v Public Prosecutor that an appellate court will not normally alter a sentence unless it is manifestly inadequate, excessive, illegal or otherwise improper, and referring also to established sentencing authorities such as Bhandulananda Jayatilake v PP and PP v Loo Choon Fatt, the Court reasoned that the mere fact that another court might have passed a different sentence is no reason to interfere where the correct principles have been applied. Finding no such error, the Court found no basis to disturb the Magistrate’s orders and dismissed the appeal against both conviction and sentence. The judgment illustrates appellate restraint in reviewing a drug-possession sentence under section 39A(1).