Pendakwa Raya v SUNG CHEAH SEANG

Case Significance

Illustrates the post-amendment sentencing discretion under section 39B of the Dangerous Drugs Act 1952 and the age-based bar on whipping: on a trafficking conviction the court imposed life imprisonment, but because the accused was over fifty years old, section 289(c) of the Criminal Procedure Code precluded any order of caning.

This High Court decision at Alor Setar, Kedah, delivered by Judge Datuk Mohamad Abazafree bin Mohd Abbas, concerns a conviction for drug trafficking and the effect of the accused's age on the sentence of whipping. The accused faced two charges: trafficking in dangerous drugs, namely methamphetamine of a net weight of 227.1 grams, under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952), and possession of a small quantity of ketamine under section 12(2)/(3) of the same Act. The prosecution called several witnesses, and the central question on the trafficking charge was whether the prosecution had proved its case beyond reasonable doubt, including the accused's possession of and knowledge of the drugs.

The court convicted the accused of trafficking. It was satisfied that the abundant evidence established the accused's possession of the drugs, and it treated as relevant, under seksyen 8 Akta Keterangan 1950 (section 8 of the Evidence Act 1950), evidence that the accused had pleaded to be released by a prosecution witness once the drugs were found, as conduct probative of guilt. Turning to sentence, the court noted that section 39B of the Dangerous Drugs Act 1952 had been amended so that an offender is punishable, on conviction, with death or imprisonment for life and, if not sentenced to death, with not less than twelve strokes of the cane — leaving the court a discretion in sentencing. Exercising that discretion, the court imposed penjara seumur hidup (imprisonment for life) for the trafficking charge under section 39B(1)(a). Because the accused was more than fifty years old, the court applied seksyen 289(c) Kanun Tatacara Jenayah (section 289(c) of the Criminal Procedure Code), under which whipping may not be imposed on such an offender, and so did not order caning. The judgment illustrates the post-amendment sentencing discretion under section 39B and the age-based bar on whipping under section 289(c) of the Criminal Procedure Code.