Ng Kian Teik v Public Prosecutor

Appellant(s): Che Ku Sahabudin Bin Che Ku Man

Respondent(s): Pendakwa Raya

• YA Dato' Collin Lawrence Sequerah
• YA Datuk Hayatul Akmal binti Abdul Aziz
• YA Datuk Mohd Radzi Bin Abdul Hamid

• The appellant was charged with trafficking a significant quantity of cannabis, later pleading guilty to an alternative charge of possession under section 39A(2) of the Dangerous Drugs Act 1952.
• This alternative charge carried a mandatory sentence of imprisonment and whipping.
• The appellant was exempted from whipping due to being over 50 years old at the time of sentencing, as per section 289 of the Criminal Procedure Code.

• Whether the High Court had the power to enhance the term of imprisonment to compensate for the exempted mandatory whipping, in the absence of an express statutory provision allowing for such enhancement.
• Whether the trial judge erred in enhancing the imprisonment term by failing to adequately consider mitigating factors and the prevailing sentencing trends.
• Whether the judicial discretion to enhance imprisonment in lieu of exempted whipping should be exercised as a matter of course or only when specific aggravating factors warrant it.

• The Court of Appeal held that while the Malaysian Criminal Procedure Code lacks an express provision similar to Singapore's section 325(2) for mandatory enhancement, Malaysian courts do possess the discretion to enhance imprisonment in lieu of exempted whipping.
• This discretion must be exercised judiciously, based on aggravating factors of the case, and not merely to compensate for the exempted punishment. The default position should not be to enhance the sentence unless grounds exist.
• The Court found that the trial judge erred by feeling compelled to enhance the sentence due to the exemption, thereby failing to adequately consider mitigating factors and sentencing trends, and set aside the enhanced sentence.