Mohd Faris bin Din v Pendakwa Raya

Appellant(s): Mohd Faris Bin Din

Respondent(s):

• Pendakwa Raya
• [Pendakwa Raya]

• YA Dato' Paduka Azman Bin Abdullah
• YA Datuk Meor Hashimi bin Abdul Hamid
• YA Datuk Dean Wayne Daly

• The appellant was originally charged jointly with a co-accused for drug trafficking under s. 39B(1)(a) of the Dangerous Drugs Act 1952, involving heroin, monoacetylmorphine and methamphetamine, following a police raid at a house in Gurun, Kedah.
• After the appellant's original counsel withdrew mid-trial, newly assigned counsel negotiated a plea bargain under s. 172C of the Criminal Procedure Code, resulting in reduced charges of possession under s. 12(2), punishable under s. 39A(2) of the Act.
• Pursuant to the plea bargain documents signed by the appellant, counsel and the prosecution, the High Court imposed life imprisonment and 10 strokes of whipping for each of the two charges, with sentences to run concurrently.

• Whether the plea bargaining mechanism under ss. 172C and 172D of the Criminal Procedure Code was legally available for an offence under s. 39A(2) of the Dangerous Drugs Act 1952, which provides for a discretionary maximum of life imprisonment.
• Whether the trial judge had complied with the mandatory procedural safeguards under s. 172C(2)(c), particularly in ensuring the appellant fully understood that no further mitigation on sentence would be considered once the plea bargain for a 30-year term was accepted.
• Whether the sentence of life imprisonment, in the circumstances, was proportionate and consistent with the sentencing trend for possession offences under s. 39A(2) of the Act.

• The Court found a clear procedural error by the trial judge, who had referred only to one of the two plea bargain documents and failed to canvass or explain to the appellant the agreed 30-year term reflected in the second document, nor confirm his understanding that this sentence was non-negotiable.
• The Court held that s. 172C(2)(c) of the Criminal Procedure Code imposes a special and strict procedural duty on the trial judge to ensure, through direct engagement in camera, that the accused fully understands the consequences of the plea bargain, particularly that no further mitigation would be entertained.
• The appeal against sentence was allowed; the life sentences were set aside and substituted with 15 years' imprisonment from the date of arrest for each charge, to run concurrently, with the whipping sentences to be executed separately as originally ordered.