Pendakwa Raya v MUHAMAD AZWAN BIN ZAKARIA

Case Significance

Confirms that the prosecutorial discretion vested in the Attorney General under Article 145(3) of the Federal Constitution is unfettered and cannot be substituted by the court, and that an appellate court will restore a repeat-offender drug sentence where the commencement date was wrongly backdated.

This Court of Appeal decision concerns a prosecution appeal against a High Court order that had varied the point from which a drug offender's sentence of imprisonment was to run. The respondent had been charged in the Sessions Court with self-administration of dangerous drugs — amphetamine and methamphetamine — under section 15(1)(a) of the Dangerous Drugs Act 1952, punishable as a repeat offender under section 39C(1)(b) read with section 38B, the charge reciting two previous convictions. The Sessions Court had sentenced him to imprisonment to run from the date of sentence, together with whipping and a supervision order. On his appeal, the High Court had varied the sentence so that the imprisonment ran instead from an earlier date, that of the pathology report, effectively backdating it, while maintaining the whipping and supervision. The prosecution appealed, contending that the High Court had erred in interfering with the Sessions Court's sentence and had encroached on the discretion vested in the Public Prosecutor. The Court of Appeal emphasised that, under Article 145(3) of the Federal Constitution, the power to institute, conduct or discontinue proceedings for an offence is vested in the Attorney General and is exercisable at his discretion, and that this discretion is unfettered and cannot be challenged or substituted by that of the court, as recognised in authorities such as Long bin Samat v Public Prosecutor. Finding merit in the appeal, the Court unanimously allowed it. It set aside the High Court's order that the imprisonment commence from the date of the pathology report and restored the Sessions Court's order that the sentence run from the date of sentencing. The decision illustrates the constitutional limits on judicial interference with matters committed to the prosecuting authority: while the assessment of an appropriate sentence is for the courts, the choice of charge, including whether to invoke the enhanced repeat-offender provisions, lies within the Attorney General's discretion, which a court cannot in substance dilute by manipulating the date from which the resulting sentence runs.