AB - 42S - 15 - 09/2020 & AB - 42H - 6 - 09/2020 (Mahkamah Tinggi)

AB - 42S - 15 - 09/2020 & AB - 42H - 6 - 09/2020 (Mahkamah Tinggi)

Section 39C(1) DDA does not make whipping mandatory; the phrase 'shall also be punished' confers judicial discretion to impose whipping only if facts and circumstances justify it. The Sessions Court erred by relying on unrelated prior convictions and imposed whipping without adequate reasons. Conviction is affirmed but the whipping is set aside and imprisonment reduced to the statutory minimum of five years.

Citation
AB - 42S - 15 - 09/2020 & AB - 42H - 6 - 09/2020 (Mahkamah Tinggi)
Parties
Appellant/accused: Mohammad Syukri bin Ramli; Respondent: Public Prosecutor
Court
High Court
Jurisdiction
Malaysia
Judgment Date
29 July 2021
Case Number
AB - 42S - 15 - 09/2020 & AB - 42H - 6 - 09/2020 (Mahkamah Tinggi)
Procedural Posture
Criminal Appeal / High Court Judgment on Appeals From Sessions Court; Conviction Affirmed; Sentence Varied
Outcome
Conviction affirmed; sentence varied
Legal Topics
Mandatory Vs Discretionary Punishment, Section 39 C(1) Dangerous Drugs Act 1952, Whipping as Corporal Punishment, Rehabilitation and Sentencing, Double Jeopardy/article 7 Federal Constitution, Appellate Review of Sentence
Source Language
Malay/English
Criminal Law Statutory Interpretation Sentencing Drug Offences Constitutional Law Mandatory Vs Discretionary Punishment Section 39 C(1) Dangerous Drugs Act 1952 Whipping as Corporal Punishment +3 more

Case Brief

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Parties

Mohammad Syukri bin Ramli

Appellant/accused

Public Prosecutor

Respondent

Procedural Posture

Criminal Appeal / High Court Judgment on Appeals From Sessions Court; Conviction Affirmed; Sentence Varied

Legal Issues

  1. 1 Whether whipping under section 39C(1) DDA is mandatory or discretionary
  2. 2 Whether the Sessions Court judge erred by considering unrelated prior convictions when sentencing under section 39C(1) DDA
  3. 3 Whether the six‑year sentence was lawful or manifestly excessive

Ratio Decidendi

Section 39C(1) DDA does not make whipping mandatory; the phrase 'shall also be punished' confers judicial discretion to impose whipping only if facts and circumstances justify it. The Sessions Court erred by relying on unrelated prior convictions and imposed whipping without adequate reasons. Conviction is affirmed but the whipping is set aside and imprisonment reduced to the statutory minimum of five years.

Court Disposition

Conviction affirmed; sentence varied

Orders

  • Conviction affirmed
  • Sentence of six years imprisonment and three strokes of whipping set aside and substituted with five years imprisonment only