ZUHAIMI BIN BASIR

ZUHAIMI BIN BASIR

The High Court upheld the mandatory whipping sentences because they are the minimum prescribed by statute and the court on appeal has no power to dispense with them; the only avenue for avoiding whipping is medical certification under CPC s.290 that the prisoner is unfit, followed by revision under s.291 which may substitute imprisonment (within statutory maxima) calculated consecutively to existing imprisonment; an appeal to the Court of Appeal was held incompetent while the High Court's directions and rights of the accused remain unresolved.

Citation
AB-42S-13-08/2020 (Mahkamah Tinggi)
Parties
Appellant: Zuhaimi bin Basir; Respondent: Public Prosecutor
Court
High Court
Jurisdiction
Malaysia
Judgment Date
3 February 2022
Case Number
AB-42S-13-08/2020 (Mahkamah Tinggi)
Procedural Posture
Criminal Appeal / High Court Judgment
Outcome
Appeal against sentence dismissed to the extent of varying or setting aside whipping; original sentences (5 years + 10 strokes; 2 years concurrent + 3 strokes consecutive whipping) maintained pending medical certification; Court of Appeal appeal held incompetent at this stage.
Legal Topics
Whipping, Imprisonment, Medical Fitness for Punishment, Dangerous Drugs Act 1952, Criminal Procedure Code, Appealability
Source Language
Malay/English
Criminal Law Sentencing Corporal Punishment Procedure Whipping Imprisonment Medical Fitness for Punishment Dangerous Drugs Act 1952 +2 more

Case Brief

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Parties

Zuhaimi bin Basir

Appellant

Public Prosecutor

Respondent

Procedural Posture

Criminal Appeal / High Court Judgment

Legal Issues

  1. 1 Whether the High Court can vary or set aside a mandatory whipping sentence on appeal
  2. 2 Whether the accused's medical condition renders him unfit for whipping and permits substitution with imprisonment
  3. 3 Whether an appeal to the Court of Appeal is competent while the High Court has not finally disposed of the rights of the accused

Ratio Decidendi

The High Court upheld the mandatory whipping sentences because they are the minimum prescribed by statute and the court on appeal has no power to dispense with them; the only avenue for avoiding whipping is medical certification under CPC s.290 that the prisoner is unfit, followed by revision under s.291 which may substitute imprisonment (within statutory maxima) calculated consecutively to existing imprisonment; an appeal to the Court of Appeal was held incompetent while the High Court's directions and rights of the accused remain unresolved.

Court Disposition

Appeal against sentence dismissed to the extent of varying or setting aside whipping; original sentences (5 years + 10 strokes; 2 years concurrent + 3 strokes consecutive whipping) maintained pending medical certification; Court of Appeal appeal held incompetent at this stage.

Orders

  • Maintain convictions and sentences as imposed by Sessions Court: imprisonment to run concurrently from date of arrest; whipping sentences to run consecutively as mandated.
  • Accused to be assessed by a medical officer before execution of whipping pursuant to CPC ss.290(1) and (2).