Pendakwa Raya v 1. ) ZULKIFLEE BIN MAT ISA 2. ) HASNAH BINTI ABU HASSAN

Case Significance

Illustrates the practical operation of a reduction from a trafficking charge to an alternative possession charge under section 12(2) of the Dangerous Drugs Act 1952, punishable under section 39A(2), and the sentencing approach to a large quantity of methamphetamine following a plea of guilty.

This High Court decision at Alor Setar concerns the conviction and sentence of an accused on an alternative charge offered by the prosecution in a drug case, and the fate of a co-accused. The two accused had originally faced a charge under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952, Act 234). During the proceedings the prosecution offered the first accused an alternative charge under seksyen 12(2) of the same Act, punishable under seksyen 39A(2), for possession of 218.5 grams of methamphetamine. The alternative charge was read to the first accused, who confirmed that he understood it and the consequences of his plea, and pleaded guilty. The court convicted the first accused on the alternative charge and sentenced him to fifteen years' imprisonment from the date of arrest, being dissatisfied with which the first accused appealed against sentence. The charge against the second accused was withdrawn, and the second accused was discharged and acquitted (dilepaskan dan dibebaskan). In its grounds the court explained the sentencing considerations for a possession offence of this magnitude, weighing the quantity of drugs and the public interest against the mitigation advanced, and referring to authorities on the principles governing sentence, including PP v Jafa Bin Daud. The judgment is a useful illustration of how a reduction from a trafficking charge to an alternative possession charge under section 12(2), punishable under section 39A(2), operates in practice, and of the sentencing approach the courts take to a large quantity of methamphetamine following a plea of guilty. The court also explained the importance, in sentencing, of reflecting both the gravity of the offence, measured by the substantial quantity of methamphetamine involved, and the individual circumstances of the offender, and it recorded that an accused who pleads guilty to an offered alternative charge is entitled to have that plea taken into account, while the public interest in deterring dealing in dangerous drugs remains a weighty consideration. The distinct treatment of the two accused, one convicted and one acquitted on withdrawal, reflects the prosecution's assessment of the evidence against each of them individually.