Pendakwa Raya v 1. ) NG BOON KIAN 2. ) MOHAMMAD HAFIZ CHEAH BIN ABDULLAH 3. ) HU RONG 4. ) TAN OANH TUYEN

Case Significance

Illustrates the court's task in a multi-charge case of calibrating the totality of punishment through the choice between consecutive and concurrent terms, and the role of section 282(d) of the Criminal Procedure Code in giving effect to how multiple sentences of imprisonment and whipping take effect.

This High Court decision in Kuala Lumpur arises from a consolidated criminal trial of four accused on an assortment of drug and poison charges, and this record focuses on the structuring of the sentences imposed on the two accused who were convicted. After the two foreign co-accused were acquitted at the close of the prosecution case, the remaining two accused were called to enter their defence, gave sworn evidence, and succeeded in rebutting the presumption of trafficking, with the result that they were convicted of possession of dangerous drugs and poison rather than trafficking. In sentencing them across the several charges, the court had to decide how the individual terms of imprisonment and whipping should run in relation to one another. It ordered that the sentences of imprisonment imposed for the first, second and third charges run consecutively, producing an aggregate term of eighteen years, while the sentences for the fourth, fifth and sixth charges were to run concurrently with the sentence for the first and second charges — an arrangement made in accordance with section 282(d) of the Criminal Procedure Code, which governs the manner in which multiple sentences take effect. The court further ordered that the strokes of whipping imposed across the charges, totalling thirteen, be inflicted consecutively, and that the imprisonment take effect from the date of the first accused's arrest. In arranging the sentences in this way the court was mindful of the totality principle, under which the aggregate of consecutive sentences must remain just and proportionate to the overall criminality rather than becoming crushing through the mechanical stacking of individual terms. The judgment illustrates the court's task, in a multi-charge case, of calibrating the totality of punishment through the choice between consecutive and concurrent sentences, and the role of section 282(d) of the Criminal Procedure Code in giving effect to that choice.