Pp v Erwin Hardy - case law PDF

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MALAYSIA IN THE HIGH COURT IN SABAH AND SARAWAK AT KOTA KINABALU CRIMINAL TRIAL NO: K 45-08-2003

PUBLIC PROSECUTOR

VS

1.

ERWIN BIN HARDY

BEFORE THE HONOURABLE JUDICIAL COMMISSIONER Y.A. TUAN HAJI HAMID SULTAN BIN ABU BACKER IN OPEN COURT SENTENCING 1.

On 20-06-2007 the charge was amended to read as follows:“That you, on the 11th June 2003 at about 5.50 pm, at a car park located within the compound of Hotel Casuarina at Tanjung Aru, in the District of Kota Kinabalu, in the state of Sabah did have in your possession without lawful authority 117.16 grammes of Methamphetamine and that you have thereby committed an offence under Section 12(2) of the Dangerous Drugs Act 1952 and punishable under Section 39A(2)(r) of the same Act.”

2.

The accused pleaded guilty. I fixed the date for sentencing today. The 3 options were explained to the accused before the commencement of the defence case. After being satisfied that the accused understood the

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nature and consequence of his plea and given the fact that the accused had pleaded guilty voluntarily with full knowledge of the nature and consequences of the plea, I accepted his plea of being guilty and convicted him of the offence as in the amended charge.

3.

I have read the mitigation of the accused and the opposition by the prosecution in detail.

4.

The counsel for the accused in mitigation says:(a) the accused is a first offender. It is normal practice for the courts to give some discount to first offenders with regards to the sentence. The additional fact is that courts’ and that of the prosecution witnesses’ time and expense have been saved. It is generally accepted that the extent of a reduction on account of a plea of guilty would be between one quarter and one third than otherwise what would have been the sentence. References may be made to the Supreme Court case of Mohd Abdullah Ang Swee Kang v. PP [1987] 2 CLJ 405; [1987] CLJ (Rep) 209 and the case of Tan Ley Chen v. PP [2000] 4 CLJ 492, whereby his Lordship Augustine Paul held:-

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“The phrase “pass sentence according to law” in the subsection means that the sentence imposed must not only be within the ambit of the punishable section but it must also be assessed and passed in accordance with established judicial principles (See:Re Chang Cheng Hoe & Ors [1966] 2 MLJ 252, PP v. Jaafar Daud [1981] 1 MLJ 315, Philip Lau Chee Heng v. PP [1988] 3 MLJ 107). The assessment of a sentence in accordance with judicial principles clearly contemplates, inter alia, a consideration of the mitigating circumstances in favour of the person to be sentenced. It is generally accepted that an accused person should be given credit or discount for pleading guilty (See: Sau Soo Kim v. PP [1975] 2 MLJ 134,PP v. Sulaiman b. Ahmad [1933] 1 MLJ 74,PP v. Ravindran & Ors [1992] 1 LNS 47; [1993] 1 MLJ 45). However, it is not a strict rule as the court may, in the exercise of its discretion, refuse to grant any discount in an appropriate case (See:Zaidon Shariff v. PP [1996] 4 CLJ 441, Lee Say & Ors v. PP [1985] 2 CLJ 155). The severity of the offence may outweigh the mitigating effect of a guilty plea (See:Loh Hock Seng v. PP [1980] 2 MLJ 13,PP v. Oo Leng Swee & Ors [1981] 1 MLJ 247). Where public interest demands a deterrent sentence in the circumstances of a particular case, then the effect of a guilty plea must also give way (See:Sim Gek Yong v. PP [1995] 1 SCR 537,R v. Costen [1989] 11 Cr. App R (s) 182). Thus, there can be no automatic rule that a guilty plea on its own entitles an accused to a lesser punishment. (See:PP v. Govindan Clinden Nair [1998] 2 CLJ 370). Be that as it may, as I said earlier it must not be overlooked that the general rule is that an accused should be given a lesser punishment for pleading guilty. There can, as I have said, be a departure from this general rule. However, there must be good reasons for doing so.”

(c) the accused has cooperated with the police at the time of his arrest which stands as a good mitigating factor. (See Radin Ibrahim bin Gusti Yassar [1988] 1 LNS 73). This is evident from the testimony of the raiding team and in particular the statement of PW 7 C/Insp. Edrian Mat Saad where he stated that the accused did not resist arrest

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or attempt to endanger the lives of the raiding officers by putting up a struggle or trying to flee during his arrest and body search. Furthermore, from the evidence of PW7, it was also the accused himself who not only pointed at but had also led the police to the car wherefrom the dangerous drugs were recovered. These actions de monstrate that the accused had cooperated with the police. It is also a recognised principle in sentencing that the maximum punishment should only be reserved for the worst possible example of an offence under that section of the law, but the facts in the present case is not an example of the worst possible example of an offence under section 39A(2) of the Dangerous Drugs Act 1952 (DDA 1952). (See PP v. Mohd. Nooh Yusof & Ors [1993] 4 CLJ 275). (d) the accused is remorseful and wishes to turn over a new leaf. Unfortunately, his arrest and his long incarceration for a period of almost 4 years now has caused his family institution to crumble, with his younger children now being separated from one another and having been in the care of differe nt relatives whilst neither he nor his wife know where his eldest child is. He is determined to make amends for his mistakes and vows to keep his family together and raise his children to grow up as responsi ble adul ts, as soon as he is released fr om prison . In PP v.

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Maruthamuthu Sretharan [2007] 7 CLJ 368, where the accused’s initial charge under section 39B of the DDA 1952 was reduced to one of possession of 1,037.9 grammes of cannabis under section 39A(2) of the DDA 1952 and to which he pleaded guilty and was sentenced by the High Court to 7 years imprisonment from the date of arrest and 10 strokes of rotan, the High Court held:“There was no doubt that the accused was the ‘author of his own misfortune’. If he had not got himself involved in this crime, he would have had an income of RM30 per day which could be used to support his family. The court recognises the element of human weakness and frailty and succumbed to the evil prey to commit the above offence. As a result of the accused being arrested for the offence the family institution upon which the marriage was built crumbled. The accused’s wife deserted him without trace and the three (3) children were placed in an orphanage home. The accused has expressed his remorsefulness and wishes to change his life style and to look after his three (3) children when he completes his prison term. Professor Cross in his book entitled ‘The English Sentencing System’, 3rd edn, p 141 reminded us that “prolonged and repeated imprisonment is destructive of family relationships and, by encouraging the prisoner’s identification with attitudes of the prison community, increases his alienation for normal society. In addition, institutionalization is all too likely to destroy a prisoner’s capacity for individual responsibility and increase the problems he must face when he returns to society.” All these factors are in the opinion of the court are extenuating circumstances for the court to ponder when considering the appropriate sentence according to law. (See PP v. Shariffah Syed Hashim [2006] 6 CLJ 503).”

Giving him a lengthy term of incarceration would undoubtedly deprive his wife and his children of his presence, love and financial support. In the end, a longer term of imprisonment would inevitably

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make the innocent people in his life be the victims of his incarceration. This is true undoubtedly, for, a long term of incarceration would further plunge his innocent parents, wife and children into depths of hardship and poverty. In PP v. Syariffah Syed Hashim [2006] 2 CLJ 503 it was held:“Mahkamah ini mendapati bahawa setelah mengamati faktor-faktor yang dikemukakan oleh peguambela tertuduh seperti umur dan latar belakang tertuduh dan juga memandangkan kepada faktor dan keadaan perlakuan jenayah yang dilakukan oleh tertuduh di dalam kes ini memungkinkan tertuduh menikmati faedah diskaun kepada hukuman yang akan dijatuhkan ke atasnya. Tertuduh mempunyai dua orang anak yang masih bersekolah dan sudah semestinya memerlukan kasih sayang daripada ibu bapa mereka. Suami tertuduh juga telah dihadapkan dengan pertuduhan yang sama dan di atas fakta yang sama dan masih lagi di dalam tahanan menunggu hari perbicaraan. Hukuman penjara yang terlalu panjang adalah tidak sesuai memandangkan perkara ini akan memudaratkan banyak pihak lain iaitu anak-anak tertuduh dan kedua ibu bapanya yang uzur yang kini dipertanggungjawabkan bagi menjaga anak-anak tertuduh. Mahkamah juga mengambil kira bahawa pengakuan salah tertuduh adalah konsisten dengan pengakuannya di mahkamah bahawa beliau telah sedar dan insaf tentang kesalahan yang dilakukannya dan beliau juga bertanggungjawab di atas kesalahan tersebut. Hukuman yang wajar dikenakan terhadap tertuduh hendaklah merupakan suatu hukuman yang berunsurkan pencegahan dan dapat menimbulkan kesedaran dan keinsafan kepada tertuduh. Dalam pada itu hukuman tersebut hendaklah juga merupakan suatu hukuman yang dapat memberikan peluang pemulihan dan rehabilitasi kepada tertuduh. Proses rehabilitasi di dalam penjara memerlukan masa dan sekiranya sesuatu hukuman itu terlalu pendek, proses tersebut mungkin tidak dapat dilakukan dan memberikan apa-apa kesan. Dalam masa yang sama juga hukuman penjara yang terlalu lama juga akan menimbulkan kesan negatif dan mungkin akan menjadikan seseorang pesalah itu sebagai ‘hard core criminal’ kelak. Mengulangi kata-kata Hilbery J di dalam kes R v. Kenneth John Ball (supra), “the public interest is indeed served and best served, if

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the offender is induced to turn from criminal ways to honest living.” Tertuduh adalah pesalah pertama dan tidak mempunyai sebarang latar belakang jenayah. Ini juga mendorong mahkamah untuk memberi pertimbangan yang sewajarnya. Bercakap mengenai hukuman penjara yang panjang, Cross di dalam tulisannya”The English Sentencing System” 3rd edn pada ms 141 mengingatkan bahawa “prolonged and repeated imprisonment is destructive of family relationships and, by encouraging the prisoner’s identification with attitudes of the prison community, increases his alienation for normal society. In addition, institutionalisation is all too likely to destroy a prisoner’s capacity for individual responsibility and increase the problems he must face when he returns to society.”

(e) the accused is of Bajau race hailing from the Philippines. He is the sole bread winner for his family. He comes from a very browbeaten and destitute family and he has had to earn a living to support his parents from a very young age even before his 10th birthday, sometimes by polishing shoes and other times by wiping parked vehicles. When things got so difficult that he found himself in total financial doldrums, he mustered the courage to leave his homeland in search of a better future in this country. To him and to a lot of others from his hometown in his situation, this was ‘The Promised Land’’. When he arrived in Sabah a few months before his arrest, he was unable to land any job. Instead of begging for alms, he attempted to earn a decent income by selling cigarettes by the roadside. However, due to incessant interruptions by the authorities who kept taking away

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his cigarettes every now and then, the income turned out to be barely enough to support himself and his family, namely his wife, Tinalyn S. Eldisin and their 4 children who are now between the ages of 8 and 19. Even then he never forgot to send some money home to his parents and his children back in the Philippines. In the merciless cycle of him trying to earn a decent income and having to forgo his stock to the authorities every so often, he eventually caved in to bad influences of so called ‘friends’. Fate would have it that he would eventually be in the company of the wrong people and end up doing the incorrect thing which led to his arrest on 11-06-2003 while being in possession of the said dangerous drugs. This he did for the very first time in hopes of a brighter future unselfishly not for himself, but for the family he loves. This was based on the hopes that his parents would have regular meals on their table and his children would not have to endure the torment he went through of being out on the streets at such an early age. His Lordship Wan Yahya in New Tuck Shen v. PP [1982] CLJ 38; [1982] CLJ 606 (Rep); [1982] 1 MLJ 27 held:“... Public interest varies according to time, place and circumstances of each case including its nature and prevalence. What may be of public interest in one place may differ from another. Similarly inducement to turn from criminal ways into honest living can take several forms and will have to

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depend to grater extent on the attitude of the offender and his suitability for any particular type of reformation.”

5.

The learned DPP on the other hand submitted that the court should impose a deterrent sentence against the accused on the following grounds namely: the seriousness of the offence, public interest and the rampancy of the offence. The DPP have also cited several authorities to show the trend of sentencing for similar offences, and inter alia, submits as follows:(a) drugs cases are serious offence and public interest demands a deterrent sentence imposed on drugs offender. (i) in PP v. Loo Choon Fatt [1976] 1 LNS 102, it was held that “In my view, the courts will not be performing their function honestly if the seriousness of the situation (referring to the drugs problem) is not reflected in the sentence imposed or if the sentence defeat the object of the statute.” (ii) in Tia Ah Leng v. PP [2004] 4 CLJ 77, the court opined that, “the seriousness of the offences on the drugs have been made known since the seventies. Eminent judges have expressed this in so many cases” (iii) in Balanchandran v. PP [2005] 1 CLJ 213, the Federal Court agreed to 16 years imprisonment and 11 strokes imposed by the High Court for possession of 73.34 grammes of monocetylmorphines. It

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held that “It cannot be denied that drugs offence is a serious offence in the eye of the authority and the public. It cannot be ignored that public interest should be given priority in deciding the appropriate sentence for an offence of possession of dangerous drugs.” (b) the total weight of the drugs were 117.16 grammes which were more than 4 times of the minimum weight provided under section 39A(2)(r) under DDA 1952 which is 30 grammes. (i) in Surentheran Selvaraja v. PP [2005] 2 CLJ 264, the Court of Appeal was of the view that “There seems to be a statutory policy of grading the severity of penalty according to the amount of drug. Bearing that in mind, no matter how important are such questions as that of public interest, in a case that does not have aggravating or suchlike circumstances, such as a previous conviction and the appellant does not have a previous conviction the sentence of imprisonment must, as far as possible, though not necessarily with mathematical accuracy, be made to adhere to that policy. It would be manifestly wrong, for example, although allowed by s. 39A(2)(d), to sentence a first offender to life imprisonment for possession of a mere 5 grammes, as it would be manifestly wrong, although so allowed, to sentence an offender, even though a first offender, to only five years for possession of 14.999

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grammes, in the absence of special mitigating circumstances.” (ii) in PP v. Ooi Teng Chin [2006] 1 MLJ 213, it was held “…the amount of dangerous drugs involved is very substantial.” The amount of drugs in this case is 117.16 grammes of methamphetamine which is 4 times more than minimum weight provided under section 39A(2) of the DDA 1952. As a matter of common sense, that quantity of drugs raised an inference that it was not used for his own consumption and a deterrent sentence is justified to be imposed against the accused. (c) drugs offences are very rampant and the court can take judicial notice of the increase in drugs offences, drugs addicts and crimes in Malaysia. (i) in Tia Ah Leng v. PP [2004] 4 CLJ 77, the Court of Appeal held that “It is true that the general rule is, when imposing a sentence, the court should take into consideration the fact that an accused person who has pleaded guilty be given certain credit and discount, but we are of the view that there are exceptions to this rule. In our opinion, one of these are the offences under the Dangerous Drugs Act 1952. The Government and the legislature have taken very serious views in the abuse of usage of dangerous drugs. Drug addictions are rampant and the Government as well as the legislature have tried to curb these addictions especially amongst youths but met

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with little success. Death sentences and heavy penalties have been introduced but we find drug addicts everywhere.” A deterrent sentence should be imposed on drugs offender as this offence is very rampant in our country and this would be a warning to the others who are involved in this kind of activities. (d) in the absence of special mitigating factor and the circumstances surrounding the commission of the offence that does not warrant a lesser punishment be imposed on the accused, the most deterrent sentence should be imposed. (i) in the case of Public Prosecutor v. Ooi Teng Chian [2006] 1 MLJ 213 the Court of Appeal enhanced the sentence from 9 years imprisonment to 15 years imprisonment and 10 strokes of whipping for having in possession

of

149.60g

of

heroin

and

35.77

grammes

of

monoacetylmorphines and held that “It is well established that sentencing in drug offences must reflect the public interest to be served as it is an on-going national problem. The weight of the drugs involved is another factor to be considered. In this case, the amount of dangerous drugs involved is very substantial. In such circumstances, neither the guilty plea of the accused nor the fact that he is a first offender can be considered too favourably in favour of the accused.” The learned counsel for the defence submits that the accused is of

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Bajau race hailing from the Philippines and also the sole bread winner for his family. The accused is also a first offender and had pleaded guilty to the amended charge. However, the gravity of the offence committed

ie,

having

possession

of

117.16

grammes

of

methamphetamine outweighs the mitigating factors submitted. The quantity of the drugs found was substantial as the larger the quantity of drugs involved, the stronger the inference that they were not intended for the personal consumption. In this case, the amount of drugs involved raise an inference that it was not intended for his own consumption and a deterrent sentence should be imposed against the accused.

6.

I have dealt with the issue and the principles of sentencing in my judgment delivered on 26-03-2007 in Leken @ Delem Ak Gerik (m) v. Public Prosecutor [2007] 3 AMR 230; [2007] 8 CLJ 158 and [2007] 3 MLJ 730, which I adopt here and in addition, there are other guiding principles namely:(a)

The right measure of punishment for a crime is a matter regarding which no hard and fast rules can be laid down. It is to be determined by a consideration of a variety of circumstances.

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(b)

In imposing sentence, the main consideration is the character and magnit ude of the offen ce. Ho wever, the Court cann ot lose s ight of th e proporti on which must be maintai ned betwe en the offen ce and the pena lt y, a nd...