JUDGMENT
Introduction
[1] Of importance to note in this case is the sole issue of whether sentences of whipping could be executed concurrently or only consecutively in the event such sentences are given in respect of more than one.
Relevant Facts
[2] When the appellant appeared before us for the appeal, the prosecution informed that they would not proceed with the charge on trafficking of drugs under s 39B(1)(a) of the Dangerous Drugs Act 1952 ('DDA'). The appellant had been convicted by the High Court for this charge and sentenced to death. Subsequently, the Court of Appeal had dismissed the appellant's appeal for this conviction. Instead, the prosecution informed us that they would offer the appellant the lesser charge of possession of the drug on two separate charges. First, under s 12(2) of the DDA punishable under s 39A of the DDA and the other under s 6 of the DDA with common intention under s 34 of the Penal Code.
[3] The appellant then pleaded guilty to the charge for possession of the drug. We then ordered that the conviction under s 39B(1)(a) of the DDA be set aside and substituted with a conviction under s 12(2) of the DDA punishable under s 39A of the DDA. We then imposed a sentence of 9 years imprisonment from the date of arrest, to run concurrently with the sentence for the second and third charges, and as mandatorily required, 10 strokes of the cane in respect of the two charges for possession.
[4] The appellant's counsel then urged this court to order that the sentences of whipping for the first charge and the second charge to run concurrently. The learned Deputy Public Prosecutor objected, submitting it is long established that whipping could not be executed concurrently.
No Statutory Provisions
[5] First, there are no statutory provisions in Malaysia that indicate whether the sentences of whipping should be carried out concurrently or consecutively. However, several points are stipulated with regard to the sentence of whipping in the Criminal Procedure Code ("CPC"). For example, s 286 of the CPC speaks of the designated place for execution of the same, timing (s 287 CPC), method (s 288 CPC), prohibitions in certain cases (s 289 CPC), requirement of a medical officer's certificate (s 290 CPC), and procedures when whipping cannot be inflicted (s 291 CPC).