AIDIL ALIFF BIN MOHD JOHAR v Pendakwa Raya

Case Significance

Restates the narrow basis for appellate interference with sentence: an appellate court will not disturb a sentence merely because it might itself have imposed a different one, absent an error in principle or a manifestly excessive term — here the six years' imprisonment and two strokes under section 39C of the Dangerous Drugs Act 1952 for a repeat offender were maintained.

This High Court decision at Shah Alam, sitting in its appellate criminal jurisdiction, is an appeal against sentence in a drug case. The appellant had been charged in the Sessions Court under seksyen 15(1)(a) Akta Dadah Berbahaya 1952 (section 15(1)(a) of the Dangerous Drugs Act 1952 — self-administration of a dangerous drug) in circumstances attracting punishment under seksyen 39C (section 39C) of the same Act, the enhanced-penalty provision that applies to a repeat offender. The Sessions Court had sentenced him to six years' imprisonment and two strokes of the cane. He appealed against the sentence alone, contending that it was excessive.

The court dismissed the appeal against sentence. It approached the appeal on the settled principle that an appellate court will not readily interfere with a sentence imposed by the trial court, reminding itself, in the words of the authority it cited, that sentences will vary in apparently similar circumstances with the habit of mind of the particular judge, and that the mere possibility, or even probability, that another court would have imposed a different sentence is not by itself sufficient to warrant interference. Measuring the sentence against the statutory framework — an offence under section 15(1)(a) of the Dangerous Drugs Act 1952 punishable under the enhanced provision in section 39C applicable to a repeat offender — the court found nothing to show that the Sessions Court had erred in principle, taken into account irrelevant matters, or imposed a manifestly excessive term. It accordingly declined to disturb the sentence and maintained the six years' imprisonment and two strokes imposed below. In doing so the court underscored that the deference owed to a trial court on sentence reflects that court's closer feel for the offender and the offence, gathered from seeing the proceedings first-hand, and that an appellate court corrects only sentences that are wrong in principle, not those it would merely have calibrated differently. The judgment is a useful restatement of the narrow basis on which an appellate court will interfere with a sentence, and of the operation of the enhanced-penalty provision in section 39C for a repeat drug offender.