Pendakwa Raya v AZAHAR BIN OSMAN

Case Significance

Illustrates how a negotiated plea can convert trafficking charges into charges of aggravated possession, and the sentencing that follows — a substantial custodial term calibrated by the totality principle, without caning where the offender is over the age of fifty.

This High Court decision at Alor Setar concerns the sentencing of an accused who faced six charges across three case numbers, involving four different types of dangerous drugs, disposed of together. This case number originally carried two charges of trafficking in dangerous drugs under perenggan 39B(1)(a) punishable under subseksyen 39B(2) Akta Dadah Berbahaya 1952 (paragraph 39B(1)(a) punishable under subsection 39B(2) of the Dangerous Drugs Act 1952). The prosecution offered the accused, in place of those trafficking charges, alternative charges of possession under subseksyen 12(2) punishable under subseksyen 39A(2) Akta Dadah Berbahaya 1952 (subsection 12(2) punishable under subsection 39A(2)), on condition that he pleaded guilty to the alternative charges, whereupon the original trafficking charges would be withdrawn. The accused pleaded guilty to the two alternative possession charges.

The reduction from trafficking to possession is significant: it removes the exposure to the far graver penalties for trafficking and re-frames the offending as aggravated possession. In sentencing, the Court weighed the quantity and nature of the drugs against the mitigating effect of the guilty plea to the reduced charges and the totality of the sentences imposed across the three linked case numbers, and had regard to the statutory limits on caning for older offenders.

For the two alternative possession charges in this case number, the Court imposed eleven years' imprisonment from the date of arrest, holding that term to be appropriate, reasonable and not manifestly excessive in the context of the sentences imposed in the companion cases. 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 negotiated plea can convert trafficking charges into charges of aggravated possession, and of the sentencing that follows — a substantial custodial term calibrated by the totality principle, without caning where the offender is over the age of fifty.