Pendakwa Raya v AZAHAR BIN OSMAN

Case Significance

Illustrates how a court calibrates concurrent custodial sentences across multiple linked drug charges following a negotiated plea to reduced possession charges, and the statutory bar on caning an offender over the age of fifty.

This High Court decision at Alor Setar concerns the sentencing of an accused who faced a total of six charges across three case numbers, tried together, involving four different types of dangerous drugs — four charges of possession and two of trafficking under the Akta Dadah Berbahaya 1952 (the Dangerous Drugs Act 1952). This case number carried a charge of possession under seksyen 6 punishable under subseksyen 39A(2) Akta Dadah Berbahaya 1952 (section 6 punishable under subsection 39A(2)), arising from drugs found at a house in the Langkawi district of Kedah in the early hours of 28 February 2020. As part of the disposal of the whole set of charges, the prosecution offered the accused reduced possession charges in place of the two trafficking charges on condition that he pleaded guilty, whereupon the original charges would be withdrawn, and the accused pleaded guilty.

In arriving at sentence the Court weighed the gravity of the offences and the quantity and variety of the drugs against the mitigation, including the accused's guilty plea, which spares the court's time and signals a measure of remorse, and the totality of the sentences to be imposed across the linked cases. It also had regard to the statutory restriction on caning for older offenders.

For the charge in this case number, the Court imposed eleven years' imprisonment from the date of arrest, a term it considered appropriate, reasonable and not manifestly excessive when set against the sentences imposed in the companion cases arising from the same course of conduct. No caning was ordered because the accused was more than fifty years of age, in accordance with subseksyen 289(c) Kanun Tatacara Jenayah (subsection 289(c) of the Criminal Procedure Code). The judgment is a useful illustration of how a court fashions and calibrates concurrent custodial sentences across multiple linked drug charges following a negotiated plea to reduced possession charges, and of the statutory bar on caning an offender over the age of fifty.