Deputy public prosecutor Dusuki Mokhtar said there is no law giving judges the discretion to impose concurrent whipping sentences for two or more offences.
He said the Criminal Procedure Code prescribes that male convicts below the age of 50 can, subject to their health condition, be sentenced to a maximum of 24 strokes of the rotan.
However, Dusuki said, the concurrent sentence principle only applies to jail terms.
“The court must adopt the purposive approach to give effect to the intention of Parliament,” he told a three-member bench chaired by Justice Nallini Pathmanathan.
Also on the bench were Justices Rhodzariah Bujang and Abu Bakar Jais.
The bench had invited parties to submit on whether it could order concurrent whipping sentences for a former lorry attendant convicted of two counts of drug possession under the Dangerous Drugs Act 1952.
In 2020, the Shah Alam High Court sentenced M Santanasamy to death after finding him guilty of trafficking in 83.03gm of methamphetamine.
He was also sentenced to 11 years’ jail and ordered to be whipped 10 times for a separate offence of possessing 7.48gm of cannabis.
Santanamsamy committed the offences in a house at Taman Sri Rampai in Wangsa Maju, Kuala Lumpur, on Feb 14, 2018.
The Court of Appeal dismissed his appeal in July 2022.
On July 1 this year, the Federal Court sentenced Santanasamy to 10 years’ jail after the prosecution agreed to amend his trafficking charge to one of possession, following representations made on his behalf.
He was also ordered to be given another 10 strokes of the rotan.
The bench ordered that the jail terms run concurrently, meaning the accused will serve 11 years from the date of his arrest.
However, it deferred its decision on whether the whipping sentences could also be ordered to run concurrently. If so, Santanasamy would receive only 10 strokes of the rotan.
Today, Dusuki, who was assisted by DPPs Fairuz Johari and Noorhisham Jaafar, told the bench the Dangerous Drugs Act specifically provides a mandatory minimum sentence of 10 strokes for each possession offence.
As such, he said, Santanasamy, 47, must be whipped 20 times.
He said the Singapore apex court in Yuen Ye Ming v PP (2020) adopted the consecutive rule on whipping, following the Malaysian cases of PP v Peter Ting Chiong King (1987) and Osman Maimon v PP (2019).
In reply, defence counsel Amirrul Jamaluddin pleaded for his client to be only whipped 10 times, saying both offences were committed in one transaction at the same time and place.
Amirrul urged the bench to follow the practice in Brunei where judges are given the discretion to punish caning consecutively or concurrently.
Lawyer Shafee Abdullah, who took part in the proceedings as amicus curiae (friend of the court), called the decision in Peter Ting’s case “nonsensical”.
“It is not the intention of Parliament to sanction a cruel punishment by allowing consecutive whipping (sentences) for more than one offence,” he said.
He said the court could use its judicial power to allow for whipping sentences to be administered concurrently as the Criminal Procedure Code is silent on the matter.
“This is a rare opportunity for the apex court to put things right as justice must be tempered with mercy,” he said.