Pendakwa Raya v YAP KIT SEONG

Case Significance

Illustrates the post-2023 sentencing discretion in serious drug cases: following the Abolition of Mandatory Death Penalty Act 2023, the death penalty is no longer mandatory for trafficking under section 39B(1)(a) of the Dangerous Drugs Act 1952, and the court here imposed 30 years' imprisonment and 12 strokes for trafficking together with concurrent four-year terms for possession.

This High Court decision at Shah Alam is the judgment in a joint criminal trial in which the accused faced both a drug-trafficking charge and separate charges of drug possession, the possession matter being registered under this case number and tried together with the trafficking charge. The accused was alleged to have been found, on 18 May 2020 at premises in Kampung Baru Ampang, in possession of dangerous drugs, alongside a charge of trafficking in methamphetamine of a net weight of 423.29 grams under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952). At the close of the prosecution case the accused was called to enter his defence and elected to give an unsworn statement from the dock (keterangan tidak bersumpah dari kandang OKT), the central question being whether his defence that the drugs were for his own use was of sufficient merit to rebut the statutory presumption of trafficking under section 37(da)(xvi) of the Dangerous Drugs Act 1952.

The court convicted on both the trafficking and the possession charges. In sentencing, it noted that, following the Akta Pemansuhan Hukuman Mati Mandatori 2023 (the Abolition of Mandatory Death Penalty Act 2023), the death sentence was no longer mandatory for the trafficking offence and the court had a discretion to impose the alternative punishment. Weighing the accused's mitigation against the aggravating factors urged by the prosecution, the court imposed penjara 30 tahun dari tarikh ditangkap dan 12 sebatan (30 years' imprisonment from the date of arrest and 12 strokes of the cane) for the trafficking charge, and empat tahun penjara dari tarikh ditangkap (four years' imprisonment from the date of arrest) on each possession charge, with all sentences of imprisonment to run concurrently. The judgment illustrates how the courts now exercise the sentencing discretion conferred by the 2023 abolition legislation in serious drug cases.