Pendakwa Raya v AZAHAR BIN OSMAN

Case Significance

Illustrates how a sentencing court differentiates the terms attaching to lesser possession charges within a multi-charge drug matter, applies the totality principle across linked cases, and gives effect to the statutory bar on caning offenders over the age of fifty.

This High Court decision at Alor Setar concerns the sentencing of an accused who was dealt with, in one exercise, on six charges spread over three case numbers and involving four different kinds of dangerous drugs. This case number comprised three charges — two of possession under subseksyen 12(2) and one under seksyen 6, all punishable under subseksyen 39A(1) Akta Dadah Berbahaya 1952 (subsection 12(2) and section 6, punishable under subsection 39A(1) of the Dangerous Drugs Act 1952) — the drugs having been recovered at a house in the Langkawi district of Kedah on 28 February 2020. The prosecution offered the accused reduced possession charges in substitution for the two trafficking charges that formed part of the wider set, on condition that he pleaded guilty and the original charges were withdrawn, and the accused pleaded guilty to the charges against him.

In sentencing, the Court considered the seriousness of possession of several categories of dangerous drugs alongside the mitigating value of the guilty plea and the principle of totality, ensuring that the aggregate of the sentences across the linked case numbers remained proportionate to the overall criminality. It also took account of the statutory limitation on ordering caning for an offender of advanced age.

For the three charges in this case number, the Court imposed three years' imprisonment from the date of arrest in respect of each, a measure it held to be appropriate, reasonable and not manifestly excessive when considered together with the heavier terms imposed in the companion cases. No caning was ordered, the accused being 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 sentencing court differentiates the terms attaching to lesser possession charges within a multi-charge drug matter, applies the totality principle across linked cases, and gives effect to the statutory bar on caning offenders over the age of fifty.