ZAINAL ABIDIN BIN MANSOR

AA-62D-45-01/2024 Kand. 9 14/02/2024 16:27:41 AA-62D-45-01/2024 PP v. ZAINAL ABIDIN BIN MANSOR S.39C(1) ADB 1952 1 IN THE SESSIONS COURT AT IPOH 2 IN THE STATE OF PERAK 3 CRIMINAL CASE NO. AA-62D-45-01/2024 4 5 BETWEEN 6 7 PUBLIC PROSECUTOR 8 9 AND 10 11 ZAINAL ABIDIN BIN MANSOR 12 13 JUDGMENT 14 15 INTRODUCTION 16 17 [1] This is an appeal by the accused on sentence of 6 years and 2 years police 18 probation. 19 [2] The accused was charged with an offence of self-administration of dangerous 20 drugs under paragraph 15(1)(a) of the Dangerous Drugs Act 1952 [Act 234] 21 punishable under subsection 39C(1) of the same Act. 22 [3] The charge read— 23 Bahawa kamu pada 11/07/2023 jam lebih kurang 3.00 petang, di 24 pejabat Jabatan Siasatan Jenayah Narkotik IPD Manjung, Jalan Dato 25 Seri Kamaruddin Manjung Perak, di dalam daerah Manjung di dalam 26 negeri Perak, telah didapati memasukkan dadah jenis Morphine ke 27 dalam badan kamu sendiri, dan kamu juga mempunyai dua sabitan 28 dibawah seksyen 15(1)(a) ADB 1952 pada 6/2/2018 dan 16/11/2021 29 dengan sabitan. Kesalahan dan hukuman adalah seperti berikut: 30 1) No Kes: AH-83D-110-2/2018 31 No. Report: Sitiawan/10550/2017 32 Tarikh jatuh hukum: 06/02/2018 33 Hukuman: 10 bulan penjara dan 2 tahun pengawasan. 1 S/N 9KlkiZGtK02Cka9vJTdVSg **Note : Serial number will be used to verify the originality of this document via eFILING portal AA-62D-45-01/2024 PP v. ZAINAL ABIDIN BIN MANSOR S.39C(1) ADB 1952 34 2) No Kes: AH-83D-342-4/2021 35 No. Report: Sitiawan/3399/2021 36 Tarikh jatuh hukum: 16/11/2021 37 Hukuman: 10 bulan penjara dan 2 tahun pengawasan 38 Oleh yang demikian kamu telah melakukan suatu kesalahan yang 39 boleh dihukum di bawah seksyen 39C(1) ADB 1952. 40 41 CASE FOR THE PROSECUTION 42 43 [4] The accused was brought before the Court on 29.1.2024. 44 [5] The charge was read and explained to the accused in Malay. The accused 45 understood the charge read and explained and pleaded guilty. The nature and 46 consequences and penalty of pleading guilty were read and explained to the 47 accused in Malay. The accused understood the nature and consequences and 48 penalty explained and maintained his plea of guilty. 49 [6] The prosecution then tendered the facts of the case. The facts of the case was 50 read and explained to the accused in Malay. The accused understood the 51 facts of the case read and explained and admitted as correct. The facts of the 52 case was marked as exhibit P1. 53 [7] The prosecution further tendered the following exhibits— 54 a. police report Sitiawan/6740/23 – marked as exhibit P2; 55 b. akuan serah - marked as exhibit P3; 56 c. 3 photographs of the urine bottle - marked as exhibit P4(A)- 57 (C); 58 d. 4 photographs of the scene of crime - marked as exhibit 59 P5(A)-(D); 60 e. borang UPD - marked as exhibit P6; 61 f. Pathology Report - marked as exhibit P7; 62 g. sijil 90A - marked as exhibit P8; and 63 h. Rekod Sabitan Lampau - marked as exhibit P9. 64 [8] All exhibits were showed and explained to the accused, the accused 65 understood and admitted all the exhibits as correct. 2 S/N 9KlkiZGtK02Cka9vJTdVSg **Note : Serial number will be used to verify the originality of this document via eFILING portal AA-62D-45-01/2024 PP v. ZAINAL ABIDIN BIN MANSOR S.39C(1) ADB 1952 66 FINDINGS 67 68 [9] This Court accepted the guilty plea of the accused and proceeded to find the 69 accused guilty and convicted the accused of the charge preferred against him. 70 [10] The accused prayed for leniency and his mitigation read— (Pohon hukuman) 71 kurang dari tarikh tangkap. (Mempunyai seorang) isteri dan 2 (orang) anak 72 (yang masih ber) sekolah. 73 [11] The prosecution’s reply read— Pohon hukuman setimpal sebagai pengajaran 74 kepada OKT dan (sebagai) amaran kepada pesalah lain. 75 76 Sentence 77 78 [12] The Court took into account the guilty plea of the accused, the exhibits and 79 the mitigating and aggravating factors and sentenced the accused to— 80 i. 6 years imprisonment from the date of arrest 11.7.2023; and 81 ii. 2 years police probation. 82 83 The law 84 85 [13] Paragraph 39C(1)(b) of Act 234 read— 86 (1) Where a person who has not less than-(b) two previous convictions 87 under …paragraph 15(1)(a) … is found guilty of an offence under 88 paragraph … 15(1)(a) … he shall, instead of being liable to the 89 punishment provided for that offence under the section under which he 90 has been found guilty, be punished with imprisonment for a term which 91 shall not be less than five years but shall not exceed seven years, 92 and he shall also be punished with whipping of not more than three 93 strokes. 94 [14] This paragraph provides that the minimum imprisonment shall be 5 years and 95 the maximum shall be 7 years, with a maximum whipping of 3 strokes. 96 [15] Subsection 38B(1) of Act 234 read— 97 (1) Where a person is found guilty of an offence under section 15, he shall, 98 immediately after having undergone the punishment imposed upon him in 3 S/N 9KlkiZGtK02Cka9vJTdVSg **Note : Serial number will be used to verify the originality of this document via eFILING portal AA-62D-45-01/2024 PP v. ZAINAL ABIDIN BIN MANSOR S.39C(1) ADB 1952 99 respect thereof, undergo supervision by an officer as defined under 100 section 2 of the Drug Dependants (Treatment and Rehabilitation) Act 1983 101 for a period of not less than two and not more than three years as may be 102 determined by the court. 103 [16] Section 2 of the Drug Dependants (Treatment and Rehabilitation) Act 1983 104 defines "officer" means any Rehabilitation Officer or any police officer; 105 [17] Hence, in sentencing the accused, this Court referred to paragraph 39C(1)(b) 106 and subsection 38B(1) of Act 234 and section 2 of the Drug Dependants 107 (Treatment and Rehabilitation) Act 1983 and sentenced the accused to 6 108 years and 2 years police probation. 109 110 Age of the accused 111 112 [18] At the time of sentencing, the accused was 57 years 6 months 11 days of age. 113 [19] Subsection 289(c) of the Criminal Procedure Code reads— 114 … none of the following persons shall be punishable with whipping: 115 (c) males whom the Court considers to be more than fifty years of age… 116 [20] Hence, no whipping was imposed on the accused, as he was more than 50 117 years old. 118 119 Date of commencement of sentence 120 121 [21] Subsection 282(d) of the Criminal Procedure Code reads— 122 With regard to sentences of imprisonment the following provisions shall 123 be followed: (d) every sentence of imprisonment shall take effect from the 124 date on which it was passed unless the Court passing the sentence 125 otherwise directs. 126 [22] Based on this subsection, the imprisonment should commence on 29.1.2024, 127 the date the sentence was passed, but since the accused was remanded from 128 the date of arrest on 11.7.2023 until the date of sentencing, this Court took 129 into account the period the accused was in remand pending disposal of the 130 case, to form part of the 6 years. 131 4 S/N 9KlkiZGtK02Cka9vJTdVSg **Note : Serial number will be used to verify the originality of this document via eFILING portal AA-62D-45-01/2024 PP v. ZAINAL ABIDIN BIN MANSOR S.39C(1) ADB 1952 132 Public interest 133 134 [23] The interest of the accused must be balanced with the interest of the public. 135 The sentence imposed should be such as to be a lesson to the accused so as 136 to turn his criminal ways to an honest living. At the same time, the public must 137 be assured that they are protected against such offenders. 138 [24] In the case of R v Ball (Kenneth John) [1951] 35 Cr. App. R. 164, the Court 139 held— 140 …The public interest is indeed served, and best served, if the offender 141 is induced to turn from criminal ways to honest living… 142 143 Repetitious act of the accused 144 145 [25] Based on the charge, this was the 3rd offence committed the accused. The 146 accused was charged and convicted under paragraph 15(1)(a) of Act 234 in 147 2018 and 2021, also as proven in exhibit P9. 148 [26] In 2018, the accused was sentenced to 10 months and 2 years probation. In 149 2021, the accused was also sentenced to 10 months and 2 years probation. 150 [27] The accused then committed the same offence again in 2023. This shows that 151 the accused is a repetitive offender and was not rehabilitated by the twice 10 152 months imprisonment. 153 154 Seriousness of the offence 155 156 [28] The offence committed by the accused was a serious offence as reflected by 157 the severe punishment provided under the Act. 158 [29] The sentence imposed must reflect the seriousness of the offence. In the 159 same case of R v Ball (Kenneth John) quoted above, Hilbery J. had this to 160 say— 161 Our law does not, therefore, fix the sentence for a particular crime, but 162 fixes a maximum sentence and leaves it to the Court to decide what is, 163 within that maximum, the appropriate sentence for each criminal in the 5 S/N 9KlkiZGtK02Cka9vJTdVSg **Note : Serial number will be used to verify the originality of this document via eFILING portal AA-62D-45-01/2024 PP v. ZAINAL ABIDIN BIN MANSOR S.39C(1) ADB 1952 164 particular circumstances of each case. Not only in regard to each crime, 165 but in regard to each criminal, the Court has the right and the duty to 166 decide whether to be lenient or severe. 167 168 Rehabilitation 169 170 [30] One purpose of a punishment is rehabilitation, to turn the accused into a better 171 person in the society and to allow him a chance to turn a new leaf. 172 173 Plea of guilty and remorse 174 175 [31] The accused had pleaded guilty and thereby saved the court's time and cost 176 of the prosecution. 177 [32] The plea of guilty of the accused could be taken as a sign of remorse. Further, 178 the accused had spent 6 months 18 days in remand pending disposal of his 179 cases, and that remand period was taken into consideration in imposing the 180 custodial sentence. 181 182 CONCLUSION 183 184 [33] The Court accepted the accused person’s guilty plea and found the accused 185 guilty and convicted, and sentenced the accused according to the law and had 186 taken into consideration the mitigating and aggravating factors before 187 imposing the sentences. 188 189 Dated this 14th day of February, 2024 190 191 Signed, 192 [34] 193 [35] 194 [36] 195 [37] 6 S/N 9KlkiZGtK02Cka9vJTdVSg **Note : Serial number will be used to verify the originality of this document via eFILING portal