PUTRAJAYA: The Federal Court, in a majority ruling, has determined that whipping sentences cannot be served concurrently for individuals convicted of multiple offences.
Justice Abu Bakar Jais stated that there were no statutory provisions in Malaysia that allowed for whipping to be carried out concurrently.
He pointed out that Section 288(5) of the Criminal Procedure Code (CPC) only specifies the maximum number of strokes, which is 24 for adults and 10 for young offenders.
Abu Bakar further noted that certain cases, including some from Singapore, suggest that whipping must be carried out consecutively. He added that no authority permits the whippings to be executed concurrently.
"If the Parliament had intended for whipping sentences to run concurrently, as with imprisonment, it would have passed the necessary legislation," he said while rejecting an appeal by former lorry attendant M. Santanasamy.
Justice Abu Bakar also emphasised the importance of respecting the separation of powers between the executive, legislative and judicial branches.
"As a member of the judiciary, I must limit my role to the issue before me. It would not be appropriate to overstep the legislative branch's authority."
Justice Rhodzariah Bujang agreed with Justice Abu Bakar's ruling. However, Justice Nallini Pathmanathan, who chaired the bench, dissented.
In her dissent, Justice Nallini argued that the CPC should be interpreted in line with the spirit and intent of Articles 5 and 8 of the Federal Constitution.
She suggested that fairness and proportionality should guide the decision on whether whipping sentences are served consecutively or concurrently.
Justice Nallini mentioned that since no specific law dictates whether whipping must be consecutive, courts should retain the discretion to impose concurrent sentences.
"If Parliament intended to disallow concurrent sentences for whipping, it would have stated so explicitly," she said, adding that courts must ensure the punishment fits the crime.
This issue was brought up when the court invited submissions on whether it could order concurrent whipping sentences for Santanasamy, who was convicted of two counts of drug possession under the Dangerous Drugs Act 1952.
In 2020, the Shah Alam High Court sentenced Santanasamy to death for trafficking 83.03 grams of methamphetamine. He was also sentenced to 11 years in prison and 10 strokes of the rotan for another offence of possessing 7.48 grams of cannabis.
Santanasamy committed the offences at a house in Taman Sri Rampai, 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 in prison after the prosecution amended his trafficking charge to one of possession after representations were made on his behalf. He was also ordered to receive 10 additional strokes of the rotan.
The court ruled that his jail sentence would run concurrently, meaning he would serve a total of 11 years from the date of his arrest. However, the court deferred its decision on whether the whipping sentences could also run concurrently.
Following the majority ruling, Santanasamy will now receive 20 strokes of the rotan.
Deputy public prosecutors Dusuki Moktar, Fairuz Johari and Noorhisham Jaafar represented the prosecution, while Amirrul Jamaluddin acted for Santanasamy.
Lawyers Shafee Abdullah and Wan Mohamad Arfan Wan Othman participated as amicus curiae (friends of the court).