Whipping sentences must be dealt out consecutively, apex court rules

PUTRAJAYA: The Federal Court ruled in a majority decision that whipping sentences should be imposed consecutively on offenders convicted of multiple offences.

The decision was delivered Friday (Oct 4) by a three-judge panel comprising Justices Datuk Nallini Pathmanathan, Datuk Rhodzariah Bujang, and Court of Appeal judge Datuk Abu Bakar Jais in the case of lorry attendant M. Santanasamy, convicted on three counts of drug possession.

Justices Abu Bakar and Rhodzariah formed the majority, while Justice Nallini dissented.

As a result, Santanasamy, 47, will receive 20 strokes of the cane instead of 10.

In delivering the majority decision, Justice Abu Bakar said there are no statutory provisions in Malaysia indicating whether whipping sentences should be carried out concurrently or consecutively.

He added that Section 288(5) of the Criminal Procedure Code merely specifies that adults can only receive a maximum of 24 strokes, while young offenders are limited to 10.

He clarified, however, that whipping sentences should not be carried out concurrently, as established legal authorities clearly prohibit it.

He said there were also sufficient legal precedents in Malaysia and Singapore providing reasons as to why whipping should not be executed concurrently.

If Parliament had intended for whipping sentences to be served concurrently, it would have enacted legislation to that effect, he added.

“This indicates quite clearly that whipping should be meted out consecutively and not concurrently,” he said.

Justice Abu Bakar said the legislature has chosen not to allow concurrent whipping and it would not be appropriate for the court to encroach on its power and order such sentences to be served concurrently.

In dissenting, Justice Nallini emphasised the importance of fairness and proportionality in determining whether whipping should be imposed concurrently or consecutively.

She said the absence of express statutory provisions specifying whether whipping sentences should be served concurrently or consecutively does not automatically mean that the courts cannot exercise their discretion.

“If indeed it was Parliament’s intention to provide no room for concurrent sentencing with regard to whipping, it should have been expressly provided for.

“The court should retain its powers of sentencing so as to ensure that punishment meted out is commensurate with the offence,” she added.

Santanasamy was initially sentenced to death in 2020 by the Shah Alam High Court on a charge of trafficking 83.03g of methamphetamine.

He was also sentenced to 11 years’ jail and 10 strokes of the cane for possessing 10.13g of heroin and two years’ imprisonment for possessing 7.48g of cannabis.

The offences were committed in a house in Taman Sri Rampai, in Wangsa Maju, Kuala Lumpur on Feb 14, 2018. His appeals were dismissed by the Court of Appeal in July 2022.

On July 1 this year, the Federal Court amended his trafficking charge to one of possession, resulting in a sentence of nine years’ jail and 10 strokes of the cane, the imprisonment to be served concurrently for a total of 11 years in prison.

Santanasamy was represented by Muhammad Amirrul Jamaluddin and Afifuddin Ahmad Hafifi, while DPPs Datuk Mohd Dusuki Mokhtar, Mohd Fairuz Johari and Noorhisham Mohd Jaafar appeared for the prosecution.

Lawyer Wan Mohammad Arfan Wan Othman appeared for lawyer Tan Sri Muhammad Shafee Abdullah, who took part in the proceedings as amicus curiae (friend of the court). – Bernama