Pendakwa Raya v ILHAM UTAMA SAWAI BIN SUARDI

Case Significance

Illustrates the principle that sentences of whipping cannot be ordered to run concurrently and must be carried out consecutively.

This Court of Appeal decision concerns an appeal by the prosecution on a point of sentencing law: whether a court has power to order that sentences of whipping imposed for separate drug offences run concurrently, or whether they must be carried out consecutively. The respondent had been convicted in the High Court of three charges, one under section 6 of the Dangerous Drugs Act (possession of cannabis) and two under paragraph 39B(1)(a) (trafficking in cannabis), with the two trafficking charges relating to seizures of cannabis, including a quantity of 373.80 grams, at a resort car park in Seremban. The High Court had sentenced the respondent to four years' imprisonment on the first charge and thirty years' imprisonment on each of the second and third charges from the date of arrest, together with twelve strokes of whipping for each trafficking charge, and had ordered both the imprisonment and the whipping to run concurrently. The prosecution appealed against the order that the whipping run concurrently. The central question was whether a sentencing court has any power or discretion to direct that sentences of whipping be served concurrently. The Court held that the High Court's order that the whipping run concurrently was plainly contrary to the principle authoritatively explained by the Federal Court in Santanasamy v Public Prosecutor, observing that the High Court had made its order before that authoritative clarification was issued. Concluding that a court has no power or discretion to order sentences of whipping to be carried out concurrently, the Court allowed the prosecution's appeal, set aside the order that the whipping run concurrently, and directed that the strokes of whipping for the second and third charges be carried out consecutively, while maintaining the sentences of imprisonment as ordered by the High Court. The judgment is a useful illustration of the principle that sentences of whipping cannot be ordered to run concurrently and must be carried out consecutively.