[2019] 9 CLJ PP v.

Muhammad Asyraf Ayut 565

A PP v. MUHAMMAD ASYRAF AYUT

MAGISTRATES’ COURT, PUTRAJAYA
SAIFULLAH QAMAR Mg
[CASE NO: FA-83D-37-04-2019]
12 JUNE 2019
B

CRIMINAL LAW: Dangerous Drugs Act 1952 – Section 6 – Possession – Plea of

guilty – Sentencing – Mitigating and aggravating factors – Youthful offender –
Public interest – Whether public interest best preserved in a rehabilitative sentence
as opposed to a deterrent one – Whether punishment of fine and imprisonment
C suitable for accused – Whether imposing a Community Service Order a more
appropriate sentence – Criminal Procedure Code, s. 293(1)(e)(i)
CRIMINAL PROCEDURE: Sentence – Youthful offender – Offence under s. 6 of
Dangerous Drugs Act 1952 – Plea of guilty – Mitigating and aggravating factors
– Public interest – Whether public interest best preserved in a rehabilitative sentence
D
as opposed to a deterrent one – Whether punishment of fine and imprisonment
suitable for accused – Whether imposing a Community Service Order a more
appropriate sentence – Criminal Procedure Code, s. 293(1)(e)(i)
The accused was charged with having in his possession cannabis weighing
E 1.34g, an offence under s. 6 of the Dangerous Drugs Act 1952 (‘DDA’). The
accused was 18 years old when he committed the offence but was charged
at the age of 19. The accused pleaded guilty. The court was then left with
the issue of sentencing. In mitigation, the accused submitted that he wished
to further his studies and asked for the compound to be reduced. The Deputy
Public Prosecutor (‘DPP’), however, sought a deterrent sentence considering
F
that this was a narcotics offence and submitted that public interest
outweighed the accused’s own interest. The issues that arose herein were
(i) whether the punishment of fine and imprisonment under s. 6 of the DDA
was suitable for the accused; and (ii) the feasibility of imposing a community
service order (‘CSO’).
G
Held (accused to serve rehabilitative sentence manifesting in a CSO):
(1) What constitutes public interest is coloured by the facts of the case. And
in determining the expectation of the public, the sentencing judge or
Magistrate is taken to know the particular mores of the society in which
H the offence was committed. The more outraged the public, the more
severe the punishment ought to be in commensuration. This court was
of the view that harsh sentences hardly seem to have an effect in
reducing narcotics cases. They have little to no deterrent effect. Statistics
indicate that in spite of the death penalty, the number of drug- related
I cases was seeing an exponential increase. (paras 15, 16 & 18)
566 Current Law Journal [2019] 9 CLJ

(2) The accused had pleaded guilty and was a first offender. The demeanour A
of the accused showed that he was truly remorseful and apologetic. This
was also manifest in his wasting no time to plead guilty at the first
instance. The weight of the cannabis in this case was also of a
significantly small quantity ie 1.34g. In assessing the proportionality of
the sentence, the sentencing court must have regard to the gravity of the B
offence. The quantity of drugs is one aspect constituting the gravity. The
lower the weight of the drugs, the less apparent is the seriousness of the
offence. The mitigating factors far outweighed the prosecution’s
effectively sole aggravating factor of public interest. (paras 20 & 21)
(3) As a general rule, when it comes to sentencing ‘youthful offenders’, the C
courts recognise that it is in greater public interest that such offenders
be rehabilitated. Public interest would be best preserved in a
rehabilitative sentence as opposed to a deterrent one. The fact that the
accused was a ‘youthful offender’, s. 293 of the Criminal Procedure
Code ought to be given meaning and in the result was the better D
provision. Therefore, this court was minded to invoke powers under
s. 293(1)(e)(i) of the CPC and not s. 6 of the DDA. (paras 23, 27 & 32)
(4) In this case, there was a single charge for possession under s. 6 of the
DDA. It was indeed serious and becoming increasingly rampant in the
Malaysian society. The answer, however, lay not in harsh punishments E
such as imprisonment or fine. The purpose, following the line of settled
judicial precedent and the law enacted by Parliament in s. 293(1)(e)(i),
is better served by way of a CSO which by its nature is punitive. The
accused, being a ‘youthful offender’, the punitive effect is better
manifested in ancient sentencing principles through a CSO ergo F
rehabilitation; than it would be through imprisonment ie deterrence.
(paras 54 & 55)
(5) This court did not impose a fine. Any fine imposed ought to be a hefty
one labouring in the thousands. The court would have been oppressive
in imposing a burden on the accused which he could not himself meet. G
Had the court imposed a fine simply to sustain a punishment under
s. 6 of the DDA, there could have been two hopeless eventualities
(i) the accused might not have been able to pay the fine and hence, would
have ended up in prison and this would be an undesirable result; and
(ii) the accused might have had the fine paid for him by some other H
person and may have merrily walked away not having learnt anything
from this episode. Like imprisonment, this court did not think a fine
suited the factual matrix of the case. A CSO was thus the more
appropriate punishment. (paras 59 & 64-66)
I
 [2019] 9 CLJ PP v. Muhammad Asyraf Ayut 567

A (6) In addressing the terms imposed under the SCO, s. 293(1)(e)(i) does not
indicate a minimum. It does, however, indicate a maximum of 240
hours. Having considered the offence herein was a relatively serious
one, and one pernicious in our society, this court was of the view that
100 hours would be sufficiently punitive. As for the nature of service,
B ‘community service’ as defined in s. 293(1)( e)(ii) means any work,
service or course of instruction for the betterment of the public at large
and including any work performed which involved payment to the
prison or local authority. The accused was only required to perform any
work, service or course of instruction for the betterment of the public
C
at large. Having determined the nature of the service the accused was to
perform, the nitty-gritty details on the execution of the CSO was better
determined by JKM. (paras 74-76, 78 & 84)
Obiter:
(1) Our CSO provision in s. 293 is far from perfect. But that did not mean
D that our courts should shy away from enforcing it in appropriate cases.
Any flaws and kinks in the works make for adequate calls for Parliament
to improve the provision. In any case, the provisions exist as a flexible
sentencing option geared towards rehabilitation. (para 87)
Case(s) referred to:
E
Oloofsen v. PP [1964] 1 LNS 125 HC (refd)
Positive Vision Labuan Ltd v. Ketua Pengarah Hasil Dalam Negeri & Other Appeals [2017]
9 CLJ 595 FC (refd)
PP v. Adith Sarvotham [2014] 3 SLR 649 (refd)
PP v. Jafa Daud [1981] 1 LNS 28 HC (refd)
PP v. Justin Heng Zheng Hao [2012] SGDC 219 (refd)
F
PP v. Kammoon Wannga & Anor [2008] 9 CLJ 479 HC (refd)
PP v. Tia Ah Leng [2000] 5 CLJ 614 HC (refd)
Rex v. Ong Chwee Hoh And Ng Geok Seng [1933] 1 LNS 84 HC (refd)
Rex v. Teo Woo Tin [1932] 1 LNS 71 HC (refd)
Sau Soo Kim v. PP [1975] 1 LNS 158 FC (refd)
G Sinnathurai Subramaniam v. PP [2011] 5 CLJ 56 CA (refd)
Sivarasa Rasiah v. Badan Peguam Malaysia & Anor [2010] 3 CLJ 507 FC (refd)
Sumardey Hj Jaidin v. PP [2010] 6 MLJ 54 (refd)
Tan Kah Eng v. PP [1965] 1 LNS 179 HC (refd)
Teo Siew Peng & Ors v. PP [1984] 1 LNS 71 HC (refd)
Tukiran Taib v. PP [1955] 1 LNS 166 HC (refd)
H Zaidon Shariff v. PP [1996] 4 CLJ 441 HC (refd)
Legislation referred to:
Child Act 2001, ss. 2, 90(13)
Criminal Procedure Code, ss. 2(1), 293(1)(e)(i), (ii), (iii), 294(6)(a)
Dangerous Drugs Act 1952, ss. 6, 39B
I
Offenders Compulsory Attendance Act 1954, ss. 3, 5
568 Current Law Journal [2019] 9 CLJ

Other source(s) referred to: A

Baljit Singh Sindhu, Amendments To The Criminal Procedure Code: Radical Or
Piecemeal Legislation?, [2007] 7 MLJ liii, p lxviii
For the prosecution - Noor Jazilah Mohd Yushaa, DPP
For the accused - Unrepresented
B
Reported by Suhainah Wahiduddin
JUDGMENT
Saifullah Qamar Mg:
Introduction
C
[1] On 19 April 2019, the accused, one 19-year old male was charged with
the following offence (translated into English):
CHARGE
That you on 08/03/2018 on or about 10.00 pm at Kawasan Aras 1,
D
adjacent to Big Apple Donuts, Alamanda Putrajaya, Presint 1, Putrajaya
in the Federal Territory of Putrajaya, were found to have in your
possession a type of drug called “CANNABIS” weighing 1.34 grams
whereby said drug is listed in part III of the first schedule of the
Dangerous Drugs Act 1952. Therefore, you have committed an offence
under Section 6 of the Dangerous Drugs Act 1952 and may be punished E
under the same section and Act.
PUNISHMENT
If found guilty, you shall on conviction be liable to a fine not exceeding
RM 20,000.00 or to imprisonment for a term not exceeding 5 years or to
both under the same section and Act. F

[2] It must be highlighted that the accused was 18-years-old when he

committed the offence but was charged at the age of 19.
[3] The charge was read to the accused in Malay. He pleaded guilty. I was
satisfied that he understood the nature and consequence of his plea. The
G
prosecution then read the facts of the case and tendered all the relevant which
were marked and shown to the accused. The accused admitted the facts of
the case and all the exhibits tendered.
[4] In those circumstances, I accepted the accused’s plea of guilty and
convicted him as charged. That only left us with the issue of sentencing. I H
then proceeded, as is the usual course, to hear mitigating factors from the
accused followed by aggravating factors from the prosecution.
[5] I must also state that the accused was unrepresented by counsel.

I
 [2019] 9 CLJ PP v. Muhammad Asyraf Ayut 569

A Mitigating Factors
[6] In mitigation, the accused had this to say (as translated):
Only my older sister is working. I wish to further my studies at a private
institution. I request that I be given the chance to further my studies. I
have in total 5 siblings all of which are unemployed. I also ask that the
B
compound be reduced.
Aggravating Factors
[7] The learned Deputy Public Prosecutor submitted the following
aggravating factors (as translated):
C
We seek a deterrent sentence considering that this is a narcotic offence.
Public interest outweighs the accused’s own interest in this case.
[8] Upon listening to the aggravating factors, I queried the prosecution on
the feasibility of imposing a community service order. I was met with the
following response (as translated):
D
We leave it to the Court. However, we ask that it be recorded that the
Prosecution seeks a section 6 punishment.
[9] I also asked the prosecution whether the accused has had any previous
convictions. The prosecution confirmed that he had none.
E
The Sentence
[10] In was of the view that neither the punishments of fine nor
imprisonment under s. 6 of the Dangerous Drugs Act 1952 (“DDA”) were
suitable for the accused in this case. I considered the options open to me
F under the law and saw it fit to impose a community service order (“CSO”)
under s. 293(1)(e)(i) of the Criminal Procedure Code.
[11] My oral grounds delivered on 19 April 2019 itself read as follows:
The accused is not yet the age of 20. This is also his first offence. Taking
into account the trite principles of sentencing, deterrence is but only one
G aspect. It remains to be seen whether heavy sentences have indeed
deterred drug offences. Considering the accused is a youthful offender
and a first offender, the Court thinks a community service order is more
appropriate.
The Court accordingly orders, under section 293(e)(i) of the CPC, that the
H accused perform community service in the form of work, service or course
of instruction for an aggregate of 100 hours subject to the time and place
and conditions which JKM (“Jabatan Kebajikan Masyarakat”) may
determine. This is on the grounds that the accused is a youthful offender.
Find something better to do with your time. The next time around, the
I
Court will not be as ‘pemurah’ (‘lenient’).
570 Current Law Journal [2019] 9 CLJ

Detailed Reasons A

Prelude
[12] I now state my reasons for imposing the CSO. Before doing so, I must
state that Malaysian case law and academic resources are rather thin on
s. 293(1)(e)(i). I did not to the best of my research find any authority on point B
with the circumstances of this case.
[13] At the outset, when in my oral grounds, I referred to the “trite
principles of sentencing”, I was referring the four recognised principles in
retribution, prevention, deterrence, and rehabilitation.
C
[14] The prosecution highlighted deterrence as the only reason to impose
a s. 6 punishment. Now, when it comes to this overarching concern called
“public interest”, it has generally been recognised that in cases involving
harsh and egregious offences, a deterrence is called for. See generally the
judgment of the Court of Appeal per the separate judgment of Abdul Malik
Ishak JCA in Sinnathurai Subramaniam v. Public Prosecutor [2011] 5 CLJ 56, D
at [19].
[15] From my extrapolation of the said judgment, what constitutes public
interest is coloured by the facts of the case. And, in determining the
expectation of the public, the sentencing judge or Magistrate is taken to know
E
the particular mores of the society in which the offence was committed. The
more outraged the public, the more severe the punishment ought to be in
commensuration. See: Sinnathurai (supra) [at [30]-[36]].
[16] On the point of social conditions, I am of the firm view, as I indicated
in my oral grounds, harsh sentences hardly seem to have an effect in reducing F
narcotic cases. They are having little to no deterrent effect.
[17] In the year 2017, Parliament amended s. 39B of the DDA by including
a life sentence as an alternative to the death penalty. In so doing, the then
Minister, Dato’ Sri Azalina Said said as follows (see: Hansard, Dewan
Rakyat, per Dato’ Sri Azalina Othman, 23 March 2017, at pp. 79-80): G
Tuan Yang di-Pertua, saya ingin menegaskan di sini walaupun itu adalah
keputusan Jemaah Menteri, tetapi hukuman mati mandatori tidak boleh
dilihat tidak berfungsi sebagai satu hukuman pencegahan. Hal ini kena
kita lihat di mana tidak adanya boleh dikatakan satu bukti yang
menyatakan bahawa kalau dikatakan hukuman mandatori ini boleh dilihat H
sebagai langkah pencegahan yang boleh dijamin 100 peratus. Contohnya,
jumlah tangkapan di bawah Akta Dadah Berbahaya 1952 tetap meningkat
khususnya daripada 93,100 orang bagi tahun 2010 kepada 140,938 orang bagi
tahun 2015. Perkara ini juga telah dibentangkan oleh pensyarah-pensyarah kanan
universiti UiTM yang dibentangkan dalam prosiding of International Conference on
Social Sciences Research. (emphasis added) I
 [2019] 9 CLJ PP v. Muhammad Asyraf Ayut 571

A [18] From one angle, the honourable Minister attempted to justify the death
penalty in drug trafficking cases on the grounds that there was no proof that
it does not have a deterrent effect. But in the same breath, the honourable
Minister cited statistics indicating that in spite of the death penalty, the
number of drug related cases is seeing an exponential increase.
B [19] To be absolutely clear, I cite the above passage merely as an analogy
to illustrate that when it comes to social conditions, harsh sentences per se are
not playing their role as a deterrent. Thus, why repeat the same perceivably
failed experiment indefinitely expecting the same result?
[20] Secondly, public interest aside and taking heed of the above-quoted in
C
judgment in Sinnathurai, I am minded that in pursuing a course of deterrence,
I must be minded of the facts and circumstances of a given case. In this vein,
I think the following mitigating factors (both submitted and obvious in the
face of this court), far outweigh the prosecution’s effectively sole aggravating
factor of public interest.
D
[21] Said mitigating factors are as follows:
(i) firstly, the accused pleaded guilty. It is trite that a plea of guilty is a
mitigating factor. See generally: Sau Soo Kim v. PP [1975] 1 LNS 158;
[1975] 2 MLJ 134 per Lee Hun Hoe J (as His Lordship then was).
E
(ii) secondly, the accused is a first offender. It is trite that this is also a
mitigating factor. See generally: PP v. Jafa Daud [1981] 1 LNS 28; [1981]
1 MLJ 315 per Azmi J (as His Lordship then was).
(iii) thirdly, with the benefit of my audio-visual advantage, I observed from
F the demeanour of the accused that he was truly remorseful and
apologetic. This is also manifest in his wasting no time to plead guilty
at the first instance. Exhibiting remorse has also been recognised as a
mitigating factor. See: PP v. Kammoon Wannga & Anor [2008] 9 CLJ 479;
[2009] 8 MLJ 430, per Zamani Rahim J (as His Lordship then was) at
[35].
G
(iv) fourthly, the weight of the cannabis in this case is of a significantly small
quantity ie, 1.34g. In assessing the proportionality of the sentence, the
sentencing court must have regard to the gravity of the offence. In the
case of dangerous drugs, the quantity of the drugs is one aspect
H constituting the gravity. See generally: Oloofsen v. Public Prosecutor [1964]
1 LNS 125; [1964] 1 MLJ 305 and PP v. Tia Ah Leng [2000] 5 CLJ 614;
[2000] 5 MLJ 401. These authorities suggest that the higher the weight
of the drugs, the heavier the sentence ought to be to commensurate for
the seriousness of the offence. By parity of reasoning, the lower the
I
572 Current Law Journal [2019] 9 CLJ

weight of the drugs, the less apparent is the seriousness of the offence. A
Hence the High Court’s holding in one case that the DDA distinguishes
the various drug-related offences on their weight. That is why weight
plays a crucial role in cases concerning dangerous drugs. See: Zaidon
Shariff v. PP [1996] 4 CLJ 441; [1996] MLJU 159, at p. 15.
(v) in furtherance to the point made immediately above, I would also note B
in passing that our courts have even gone on to distinguish, in
appropriate cases, the type of drug. For example, cannabis is not as
deleterious as drugs like heroin. In the words of Augustine Paul JC (as
his Lordship then was) in Zaidon (supra), at p. 16:
C
[T]he penalty under the (Dangerous Drugs) Act is also dependent on the
nature of the drug involved. For example, an offence for possession of ganja
attracts lighter sanctions than one for possession of heroin under the Act. As
the dangerous drug involved in this appeal is ganja and its weight is
only 0.04 grams the learned Magistrate ought to have taken these factors into
account in assessing sentence. Evidently, he was swayed by the D
overstatement that drug offences require a deterrent sentence.
(emphasis added)
(vi) fifthly, while all the above constitute standalone points justifying a
departure from a deterrent sentence, I think the factor which forms the
crux of my judgment is the accused is a youthful offender. There exists E
a judgment of the Bruneian Court of Appeal acknowledging youth as a
mitigating factor. See: Sumardey Hj Jaidin v. PP [2010] 6 MLJ 54, per
Mortimer PCA at [30]. The accused in that case was 24 years old at the
time the offence was committed. All the more, the accused herein was
only 18 years of age at the time of commission.
F
[22] In all fairness to the accused who was unrepresented by counsel, I
found it necessary to further carve out the above mitigating factors. At this
juncture, I seek to turn to elaborate my judgment on the “youth” point in
greater detail.
Rehabilitation Is The Preferred Approach When Dealing With “Youthful G
Offenders”
[23] As a general rule, when it comes to sentencing “youthful offenders”,
our courts recognise that it is in greater public interest that such offenders be
rehabilitated.
H
[24] In Tukiran Taib v. Public Prosecutor [1955] 1 LNS 166; [1955] MLJ 24,
at p. 25, Bellamy J had this to say on a set of facts which resemble those in
the present case:
[A]s I stated earlier, the accused is at most 18 years old -- he is said to
look very much younger -- and he is furthermore a first offender. It has been I
stressed by this Court that it is very desirable that young offenders, that is, offenders
between the ages of 17 and 21 years, who are also first offenders, should be kept
out of prison, if possible.
 [2019] 9 CLJ PP v. Muhammad Asyraf Ayut 573

A The Magistrate does not appear to have taken this into consideration at
all. I consider that it would be more beneficial to the accused, and in the long run
to the community at large, to send him to an advanced approved school rather than
to prison, and I therefore quash the sentence of four months' imprisonment
and order that the accused be committed for three years to the Henry
Gurney School at Telok Mas. (emphasis added)
B
[25] There was of course, at the time no provision for CSOs in the CPC.
Perhaps that is why the learned judge sent the accused to Henry Gurney. That
and probably the fact that the accused may have been below 18 years of age.
But the above case buttresses the point that youthful offenders ought to be
kept out of prison. Further, the fact that Bellamy J sent the accused in that
C
case to a reformative institution cements the fact that rehabilitation takes
precedence over deterrence.
[26] On this subject of preferring rehabilitation over deterrence, another
decision is on all fours. Tan Chiaw Thong J held in Teo Siew Peng & 4 Ors
D v. PP [1984] 1 LNS 71; [1985] 2 MLJ 125 at p. 129, as follows:
In the Principles of Sentencing by Thomas (1st Edition), quoting from the
judgment in the case of R v. Smith [1964] Crim LR 70 that publication at
page 19 thereof states:
In the case of a young offender there can hardly ever be any conflict
E between the public interest and that of the offender. The public have no greater
interest than that he should become a good citizen. The difficult task of
the Court is to determine what treatment gives the best chance of
realising that object. That realisation is the first and by far the most
important consideration.

F
Now, in respect of each of the appellants here, there is a favourable
probation report. The Probation Service is ready to undertake their
supervision if the appellants are placed on probation. The matter for
consideration is whether, in order to give the best chance of realising the object of
turning the appellants into good citizens, they should be sent to prison or given another
chance to turn over a new leaf, behave themselves and keep out of trouble having
G regard, as earlier observed, to the fact that all of them were young offenders at the
time of the commission of the offence.
The Smith case laid emphasis that the public have no greater interest than that young
offenders should become good citizens. Having regard to the circumstances of the
offence, the character and antecedents of each of the appellants and the probation
reports, I am of the opinion that the object of turning the appellants into good citizens
H
could be better achieved by not sending them to prison and imposing whipping at
the same time. (emphasis added)

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574 Current Law Journal [2019] 9 CLJ

[27] I am bound by the authorities aforementioned. Thus, with respect, it A

seems to have escaped the learned Deputy Public Prosecutor, that the public
interest in the present case would have been best preserved in a rehabilitative
sentence as opposed to a deterrent one. Faced with the mitigating factors in
para. [21] of this judgment, I was therefore minded to invoke my powers
under s. 293(1)(e)(i) of the CPC and not s. 6 of the DDA. B
Of “Youthful Offenders” – The CSO Under s. 293(1)(e)(i) Of The CPC
The Legislative Intent And General Rationale Behind s. 293(1)(e)(i)
[28] In s. 2(1) of the CPC, Parliament defines “youthful offender” to mean:
C
… a person convicted of an offence punishable by fine or imprisonment
who is of or above the age of eighteen and below the age of twenty-one
…
[29] As mentioned earlier, the accused is 19 years of age. Section 6 of the
DDA stipulates the punishment of fine or imprisonment or both. The
D
accused is therefore a “youthful offender” and the nature of the offence being
punishable by imprisonment or fine satisfied the conditions of s. 293.
[30] The marginal note of s. 293 of the CPC refers to “youthful offenders”.
In my view, Parliament expressly enacted the statutory definition in s. 2(1)
and its corresponding procedure in s. 293 for a set purpose. E
[31] It is a core feature of statutory interpretation that Parliament does not
legislate in vain. In other words, each and every word in a statute must be
given meaning. See the judgment of the Federal Court in: Positive Vision
Labuan Ltd v. Ketua Pengarah Hasil Dalam Negeri & Other Appeals [2017] 9 CLJ
595; [2017] 2 MLJ 421, at [44]. F

[32] After careful consideration, I arrived at the view that a deterrent

sentence is unsuitable in the present case, and the fact that the accused is a
“youthful offender”, s. 293 of the CPC ought to be given meaning and in the
result is the better provision. Otherwise, why have the provision? Surely
Parliament did not legislate it in vain. G

[33] The relevant portions of s. 293 read:

293(1) When any youthful offender is convicted before any criminal Court
of any offence punishable by fine or imprisonment, the Court may, instead
of awarding any term of imprisonment in default of payment of the fine
H
or passing a sentence of imprisonment:
…
(e) (i) to make an order requiring the offender to perform community
service, not exceeding 240 hours in aggregate, of such nature and
at such time and place and subject to such conditions as may be I
specified by the Court;
 [2019] 9 CLJ PP v. Muhammad Asyraf Ayut 575

A (ii) in this paragraph, “community service” means any work, service

or course of instruction for the betterment of the public at large and
includes, any work performed which involves payment to the prison
or local authority; and
(iii) the community service under this paragraph shall be under the
B Minister charged with the responsibility for women, family and
community. (emphasis added)
[34] The emphasised portion indicates that s. 293 is applicable to any
offence so long as it is punishable with fine or imprisonment. A CSO is
therefore granted in lieu of those punishments on the discretion of the
C sentencing judge or Magistrate.
[35] To confirm that the above section applies to any offence, and that it
was meant for rehabilitative purposes, I referred to its legislative history. It
is settled law that reference may legitimately be had to the Hansard to
interpret legislation. See the judgment of the Federal Court in Sivarasa Rasiah
D v. Badan Peguam Malaysia & Anor [2010] 3 CLJ 507; [2010] 2 MLJ 333, per
Gopal Sri Ram FCJ at [33].
[36] In the Hansard, the then Honourable Minister of Home Affairs
elaborated the purpose of amending the then s. 293 (at that time cl. 25 of the
relevant Bill which later became Act A1274), as follows:
E
Tuan Yang di-Pertua, Fasal 25 ialah fasal yang meminda Seksyen 293.
Jawatankuasa mencadangkan supaya Perintah Khidmat Masyarakat diwujudkan
sebagai suatu pilihan bagi pemulihan pesalah muda selain pemenjaraan.
Pelaksanaan Perintah Khidmat Masyarakat yang dicadangkan adalah
berdasarkan model dari negara Singapura. Jawatankuasa telah mendengar
F
maklum balas daripada Menteri Pembangunan Wanita, Keluarga dan
Masyarakat. Berdasarkan pandangan mereka, Perintah Khidmat
Masyarakat boleh dikenakan ke atas pesalah muda yang berumur di
antara 18 hingga 21 tahun.
Sehubungan itu, jawatankuasa mencadangkan supaya Perintah Khidmat
G Masyarakat diperkenalkan bagi semua jenis kesalahan bagi pesalah muda …
Jawatankuasa juga memutuskan bahawa pelaksanaan Perintah Khidmat
Masyarakat itu dipertanggungjawabkan kepada Menteri Pembangunan Wanita,
Keluarga dan Masyarakat. (emphasis added)
See: Hansard, Dewan Rakyat, per Dato’ Seri Mohd Radzi bin Sheikh
H
Ahmad, 13 July 2006, at p. 34)
[37] The Bill was passed. At this juncture, two primary points stand out
from the Hansard:

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576 Current Law Journal [2019] 9 CLJ

(i) Firstly, Parliament intended that s. 293 be applicable for any offence A
meeting that description as long as the offender is a youthful one. This
is in stark contrast to s. 294 on “first offenders”. Subsection 6(a) thereof
expressly prohibits the application of the said provision to those charged
with serious offences. There is no like prohibition re s. 293(1)(e)(i).
(ii) Secondly, Parliament intended that in cases concerning “youthful B
offenders”, the primary target of the sentencing judge ought to be the
main focus. This, I think, also speaks to my point on deterrence.
[38] The above portions of the Hansard lend credence to what has already
been decided by our courts. When it comes to “youthful offenders”, the
C
primary focus and aim of the sentencing judge ought to be rehabilitation.
Such is also what the public is taken to expect.
[39] In fact, most recently, Magistrates and all other judges have been
encouraged to give effect to the community service provision in s. 293 of the
CPC. Tan Sri Richard Malanjum, the former Chief Justice of Malaysia, D
called upon judges and Magistrates CSOs as opposed to sentences of
imprisonment in appropriate cases.
[40] Malanjum CJ said this in his speech on the occasion of the Opening
of the Legal Year 2019 the relevant portion of which reads as follows [see:
Richard Malanjum, ‘Speech – Opening of the Legal Year’ (11 January 2019), at E
[22]] <http://www.kehakiman.gov.my/sites/default/files OLY%202019%
20CJ%27s%20Speech%20-%20Final_0.pdf>:
We are encouraging our judges and judicial officers to consider imposing
community services instead of imprisonment to offenders in appropriate
cases. In this way not only it may better rehabilitate the offenders, it is F
also costs savings for the Prison.
A Sentence Of Imprisonment Was Inappropriate In Light Of The Principle Of
Rehabilitation
[41] With that backdrop, I will now elaborate why I think the requisites
G
to grant a CSO under s. 293(1)(e) have been met. I will first establish, why
in my view, the sentence of imprisonment is inappropriate in the present case
having regard to the sentencing principle of rehabilitation.
[42] One academician, in her PhD thesis notes one of the important
benefits of CSOs. For one, it insulates otherwise innocent youths from being H
contaminated by hard core actual criminals in prisons. Shortly put, it is
geared toward rehabilitation. Secondly, and to me a lesser consideration in
the facts of this case, it is cost effective vis-à-vis the prison system.

I
 [2019] 9 CLJ PP v. Muhammad Asyraf Ayut 577

A [43] To quote the said academician (see: Asmah Othman, ‘The Community
Service Order (CSO) In Malaysia: An Exploration of the Perceptions and
Experiences of the Youthful Offenders and Supervisors’ (PhD Thesis, 2013)
available at <http://usir.salford.ac.uk/id/eprint/30875/1 Asmah_
PhD_theses_28.02.2014.pdf>):
B It is indisputable that all the participants seemed to prefer the CSO to
custody for many reasons such as the lower operating costs compared to
prison or other custodial services, the noble objectives of the sentences
besides its primary aim of punishment, the good it brings to the offenders and
the possibility of alleviating the problems in the prisons. A typical response is best
summed up through the words of P01 when he viewed CSO as meeting
C
the objective of its implementation,
... it is cheaper, no stigma, avoidance of exposure to serious crime or hardened
criminals in the custody. Benefitting the community with unpaid work and
enlightening the offenders with virtues of giving or serving the community, and returns
the trainees to the society … (emphasis added)
D
[44] The learned academician refers to management staff, social workers
and supervisors of CSOs in alpha numeric. The above P01 constitutes a staff
of the said class of person. And so, we have it from the proverbial horse’s
mouth that CSOs represent better alternatives to imprisonment. At the very
least, the academic paper represents at least one study proving the sound
E
reasoning of the judgments cited above emphasising rehabilitation over
deterrence in cases concerning youthful offenders.
[45] Leaving aside the academic paper, I further supplement my reasoning
by reference to decisions of the courts in Singapore. Of interest is the
F
observation in the Hansard regarding Parliament’s insertion of s. 293(1)(e)(i)
of the CPC that the said provision was drawn from Singapore. Hence, my
reference to Singapore.
[46] In Public Prosecutor v. Adith s/o Sarvotham [2014] 3 SLR 649, the
accused, a 17-year-old male was charged and convicted of drug trafficking
G under the Singapore Misuse of Drugs Act (Cap 185, 2008 Rev Ed). He was
also charged with the offence of using dangerous drugs – cannabis (like in the
present case). The accused pleaded guilty to all charges.
[47] The District Court Judge had sentenced him, among others, to 24
hours of community service. The prosecution appealed. On appeal, the High
H Court held that the sentence was inappropriate on account that the accused
had committed a litany of serious offences including trafficking,
consumption, cultivation and possession of dangerous drugs. The High Court
however declined to intervene as the accused had already served his
sentence.
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578 Current Law Journal [2019] 9 CLJ

[48] In any case, what I distil from the judgment of the High Court is that A
even in cases of such kind, rehabilitation should be the primary
consideration. Deterrence is only an option, where even if the accused is a
youthful offender, the crime was so abhorrent and where the propensity to
re-offend is high.
[49] I find guidance for this view in the words of the Chief Justice of B
Singapore, Sundaresh Menon (sitting as a High Court Judge), who in the said
case held as follows (at [13]):
[R]ehabilitation is generally the dominant sentencing consideration when
deciding on an appropriate sentence for a young offender aged 21 years
and below (see PP v. Mok Ping Wuen Maurice [1998] 3 SLR(R) 439 at [21]). C
However, this consideration is usually outweighed by the need for
punishment or deterrence where serious crimes such as drug trafficking
have been committed (see PP v. Justin Heng Zheng Hao [2012] SGDC 219
at [13] (“Justin Heng”). The District Court in Justin Heng took pains to emphasise
that probation had been ordered in PP v. Wong Jia Yi [2003] SGDC 53 only
D
because it was an exceptional case where the risk of re-offending was clearly low.
Where the individual offender’s capacity for rehabilitation is “demonstrably high”,
this could outweigh public policy concerns that are traditionally understood as
militating against probation (Justin Heng at [15]). (emphasis added)
[50] The High Court essentially referenced and affirmed a prior judgment
of the Singapore District Court in PP v. Justin Heng Zheng Hao [2012] SGDC E
219. Incidentally, the decision of Justin Heng is that of a subordinate court.
But seeing as it has been cited with approval by higher authority, I am
inclined to refer to and follow it.
[51] The Justin Heng (supra) decision is readily distinguishable from the one
F
before Menon CJ. In Justin Heng (supra), the accused had pleaded guilty to
three charges comprising drug trafficking, use and possession. But, the
learned Senior District Court Judge, after considering the probation report
(the age of the accused was simply stated as below 21 years of age), his
Honour decided to sentence him (among others), to 240 hours of community
service (the maximum). G

[52] Of significance, the Senior District Court Judge, his Honour See Kee
Oon (later High Court Judge) opined as follows, with which I am in full
agreement (at [26]):
I was constantly mindful that drug offences, particularly involving H
trafficking, are among the most pernicious in our society. However I did not
see why a rehabilitative approach for suitable young offenders would trivialise these
offences in any way. As I had noted previously in Wong Jiayi’s case,
probation is rarely considered and if at all, it should only be in exceptional
cases. While custodial sentences have represented the ‘benchmark’ or norm, the
court’s discretion should not be fettered by adopting what V K Rajah J (as he then I
 [2019] 9 CLJ PP v. Muhammad Asyraf Ayut 579

A was) had described as a ‘calcified and rigid’ approach towards sentencing, as if such
benchmarks are immutable: PP v Dinesh Singh Bhatia [2005] 3 SLR(R) 1 at [38].
There must be room in the exercise of sentencing discretion for a more nuanced, or
a more ‘textured and measured’ approach. (emphasis added)
[53] I bear strictly in mind that the above Singapore judgments concerned
B drug trafficking cases in addition to other charges. But, in spite of such
charges, said courts took a ‘textured and measured’ approach by emphasising
the importance of rehabilitation.
[54] In the present case however, comparatively speaking, there is only a
single charge for possession under s. 6 of the DDA. Like the Singapore
C Courts, I am not trivialising the offence. It is indeed comparatively serious
and is becoming increasingly rampant in our Malaysian society. The answer
to me however, lies not in harsh punishments such as imprisonment or a fine.
[55] The purpose, following the line of settled judicial precedent and the
law enacted by Parliament in s. 293(1)(e)(i), is better served by way of a CSO
D
which by its nature is punitive. As I have stated repeatedly, the accused being
a “youthful offender”, the punitive effect is better manifested in our ancient
sentencing principles through a CSO ergo rehabilitation; than it would be
through imprisonment ie, deterrence. The point is seeing the punitive effect
through via a restorative or rehabilitative approach.
E
Reasons For Not Imposing A Fine
[56] I did not impose a fine for the same reason I did not impose a sentence
of imprisonment. The reason again has to do with the general disfavour
against deterrence vis-à-vis “youthful offenders”. In addition, I had other
F reasons for not fining the accused.
[57] A simple glance at the sentencing trend of the cases, and to my
understanding, the general practice of the Putrajaya Magistrates’ Courts is to
impose a hefty fine. This, to me, makes sense otherwise a fine would serve
merely as a gentle slap on the wrist. This is all the more so in the context
G of s. 6 of the DDA where the fine goes up to RM20,000.
[58] That being said, the accused submitted in mitigation that his siblings
are currently unemployed. I have no information as to whether the accused
himself is gainfully employed. But, considering that he is only 19 years old,
I think it would be logical to conclude that he is not. I therefore did not
H impose a fine for two reasons.
[59] Firstly, to reiterate, any fine imposed ought to be a hefty one labouring
in the thousands. Assuming that I were to impose such a fine, I would think
that the court would have been oppressive in imposing a burden on the
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580 Current Law Journal [2019] 9 CLJ

accused which he could not himself meet. As a corollary, a fine is usually A

accompanied by a default prison sentence. Imposing a hefty fine which the
accused could not meet would in effect be sentencing him to prison.
[60] This is not to say that poor people or those not well stationed in life
ought to be let off scot-free. It simply means that a fine ought to be
proportionate to the means of the offender. I find support for my reasoning B
in the judgment of Ambrose J in Tan Kah Eng v. Public Prosecutor [1965] 1
LNS 179; [1965] 2 MLJ 272 who held as follows (at p. 272):
The appellant was a seamstress when she was convicted, and a
maidservant earning $50 per month when her appeal was heard. The fine
of $3,000 seemed to me to be manifestly excessive. It appeared to have C
been imposed with a view to punishing the promoters of the public lottery
in question. A fine should always be related to the means of the offender. The
imposition of a fine beyond the appellant's means or six months' imprisonment in
default of payment was tantamount to sentencing the appellant to six months'
imprisonment without the option of a fine. The point to be considered was
D
whether upon the facts of the present case such a sentence was
appropriate. The appellant was a first offender and seventeen years old at the time
of her conviction. It is desirable that, as far as possible, a first offender under the age
of twenty-one years should be kept out of prison, unless the offence is so serious
that a sentence of imprisonment has to be imposed. (emphasis added)
[61] True, it could be argued that the accused could pay the fine through E
someone else. But on this point, the High Court of Singapore held that a fine
must not be imposed “with an eye on the existence of a gang of wealthy
allies”. See: Rex v. Ong Chwee Poh [1933] 1 LNS 84; [1933] MLJ 39, at
p. 40.
F
[62] Prior to the above judgment, Murison CJ had already held as follows
in Rex v. Teo Woo Tin [1932] 1 LNS 71; [1933] 1 MLJ 124b, at p. 126:
[T]he learned magistrate has not, I think, appreciated the points that can
properly be considered in determining the quantum of fine to be imposed.
These are … fourthly, the financial position of the offender (Gour Vol. I, p. 345-
6). Previous convictions or unusual prevalence of this particular type of G
crime might, if proved, be further grounds for enhancing the punishment
by fine. But the fact that an offender has wealthy allies is not such a ground
(Ratanlal 556 and Mayne 4th edition, page 28). The magistrate has not dealt
with these details, though he may have had them in mind … and that
the appellant is an ordinary small Chinese shop-keeper. (emphasis added)
H
[63] In my considered opinion, there is sound reasoning as to why the
wealth of the accused is relevant while the wealth of those associated with
him is not. This is because a fine ought to operate as a lesson to the accused.
Not to his family members or to any “wealthy allies”.
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 [2019] 9 CLJ PP v. Muhammad Asyraf Ayut 581

A [64] So, had I imposed a fine simply to sustain a punishment under s. 6 of

the DDA, there could have been two hopeless eventualities.
[65] For one, the accused might not have been able to pay the fine and
hence, would have ended up in prison. As already explained in extenso, this
would be an undesirable result. Alternatively, the accused might have had
B the fine paid for him by some other person and may have merrily walked
away not having learned anything from this episode.
[66] Certainly these eventualities could not have been something our
criminal justice system envisioned. And accordingly, like imprisonment, I
did not think fine suited the factual matrix of this case. This convinced me
C
that a CSO was the more appropriate punishment.
Inadequacy Of A Compulsory Attendance Order
[67] This is something I note for completeness. Prior to s. 293(1)(e)(i) of
the CPC, there was and still is in place the Offenders Compulsory Attendance
D Act 1954 (Act 461).
[68] Section 5 thereof enables the court to commit an offender to a
Compulsory Attendance Centre essentially in cases where the court is of the
view that a sentence of imprisonment or committal to imprisonment for
failure to pay a debt or fine could be better served by through compulsory
E
attendance.
[69] I did not think this punishment is appropriate. Section 3 of the said
Act stipulates that there shall be established in and for the States of
Peninsular Malaysia, under the direction and control of the Director
F General, at such places as the Minister may from time to time direct,
Compulsory Attendance Centres.
[70] To the best of my research, the said Minister designated Centres in all
Peninsular States except in the Federal Territory of Putrajaya. This is
manifest in a letter dated 11 August 2010. See: <http://library.kehakiman.
G gov.my/digital Surat%20Penting%20CR%20Dan%20Pendaftar/2010/
Status%20Terkini%20Pelaksanaan%20Community%20Sentencing%
20Di%20Bawah%20Offenders%20Compulsory%20Attendance%20Act%201954
%20[Act%20461]%20(Akta%20Kehadiran%20Wajib%20Pesalah-
esalah%201954).pdf>.
H [71] In the absence of a designated Centre, I could not have sentenced the
accused to compulsory attendance even if I wanted to. Now, assuming I
erred on this point, I remain of the view that nonetheless, a CSO is a better
option than a compulsory attendance order.

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582 Current Law Journal [2019] 9 CLJ

[72] This is because a CSO as compared to a compulsory attendance order A

is housed in a specific section. Referring generally to the legislative intent to
s. 293(1)(e)(i), Parliament crafted this provision specifically with the
rehabilitation of “youthful offenders” in mind.
[73] In this sense, I think the age-old Latin maxim generalia specialibus non
derogant (the provisions of a general statute must yield to those of a special B
one) applies rendering s. 293(1)(e)(i) the applicable provision and not the
provisions of the Offenders Compulsory Attendance Act 1954.
The Terms of the CSO In The Present Case
[74] The final matter I think I need to address is the terms I imposed under C
the CSO.
[75] I imposed 100 hours in aggregate. It is to be noted that s. 293(1)(e)(i)
does not indicate a minimum. It does however indicate a maximum of 240
hours. In the Singaporean cases aforementioned, said courts imposed the
Singaporean maximum of 240 hours in hard-core drug trafficking cases D
(along with other drug-related charges). There is not for all intents and
purposes a benchmark outside those perimeters.
[76] However, having considered that the offence herein is a relatively
serious one, and one pernicious in our society, I arrived at the view that 100
E
hours would be sufficiently punitive.
[77] Section 293(1)(e)(i) also requires the court to determine (i) the nature
of the community service; as well as (ii) the time and place and subject to
such conditions the court may determine for its performance.
[78] As for the nature of service, “community service” as defined in F
s. 293(1)(e)(ii) means any work, service or course of instruction for the
betterment of the public at large and including any work performed which
involves payment to the prison or local authority. In my oral grounds, I only
required the accused to perform any work, service or course of instruction
for the betterment of the public at large. As explained, I thought it would be G
better to keep the accused away from prisons. Hence, I considered it fit not
to extend his CSO to the second portion of the nature of work.
[79] As for the time and conditions, in my CSO, I allowed the time and
conditions to be ascertained by JKM. In other words, it was my considered
view that the time and place fixed by the court would be the one fixed by H
JKM.

I
 [2019] 9 CLJ PP v. Muhammad Asyraf Ayut 583

A [80] I did not consider it appropriate for the court itself to fix a specific
time and date. And, this is where I think there is a systemic issue within the
CSO mechanism. This very issue has also received comment from at least
one expert on criminal procedure. According to Baljit Singh Sindhu,
‘Amendments To The Criminal Procedure Code: Radical Or Piecemeal Legislation?’
B [2007] 7 MLJ liii, at p. lxviii:
The section empowers the court to attach such conditions as it may
specify when imposing an order for community service. The powers are very
wide in nature and there is a fear that the powers would not be exercised properly
by the judicial officers. There is suggestion that a proper guideline is
formatted for the success of the program. The fact that the Community Service
C
Order is something new in Malaysia, it is suggested that a proper outline is provided
to the Magistrate to exercise such power. (emphasis added)
[81] As it stands, there is no such direction given to Magistrates on how
to exercise such powers. Judges and judicial officers cannot proclaim
D
themselves to be experts on this subject.
[82] Thus, I referred to s. 293(e)(iii) of the CPC which stipulates that the
community service under this s. 293(e) shall be under the Minister charged
with the responsibility for women, family and community. The section itself
recognises that JKM (which falls within the purview of that Ministry), is
E better placed to determine performance of the community service.
[83] The above also resonates with Parliament’s intention. At para. [41] of
this judgment, I highlighted how during the reading of the Bill, the then
Minister of Home Affairs noted that “pelaksanaan Perintah Khidmat
Masyarakat itu dipertanggungjawabkan kepada Menteri Pembangunan
F Wanita, Keluarga dan Masyarakat”.
[84] In short, having determined the nature of the service the accused is to
perform, the nitty-gritty details on the execution of the CSO, in my opinion
is better determined by JKM. This is all the more considering that nowhere
in s. 293 of the CPC does it require me to first call upon JKM to be present
G at court nor does it require me to first seek a probation report. This is unlike
the provisions of s. 90(13) of the Child Act 2001 requiring a Court for
Children to first obtain a probation report prior to sentencing. This court did
not sit as a Court for Children. The accused is not below the age of 18, and
hence, is not a “child” as defined in s. 2 of the Child Act 2001.
H
Conclusion
[85] In sum, it is my firm view, after analysing all the authorities on point
that it would be better in the interest of the public that the accused serve a
rehabilitative sentence manifesting in a CSO.
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584 Current Law Journal [2019] 9 CLJ

[86] In any case, the CSO I issued contains a provision that in the event A
JKM finds that the accused fails to comply with the terms of the CSO, it
remains open to JKM to apply to this court to have the accused perform the
remaining aggregate hours. Alternatively, the CSO is worded broadly enough
that should the accused breach the CSO, he may still be punished under
s. 6 of the DDA. B
[87] I would tend to agree that our CSO provision in s. 293 is far from
perfect. But, that does not mean that our courts should shy away from
enforcing it in appropriate cases. Any flaws and kinks in the works make for
adequate calls for Parliament to improve the provision. In any case, the
provision exists as a flexible sentencing option geared towards rehabilitation. C

[88] I concluded my oral grounds by admonishing the accused. I told him

that he had better find something better to do with his time and that the court
would not be as lenient the next time around. In saying that, I had in mind
the wise words of Sundaresh Menon CJ who in Adith (supra) said “I urged
(the accused) to make the best of this opportunity and to turn over a new D
leaf.”