Whippings must be delivered consecutively, the Supreme Court rules

The Federal Court ruled that S Santhanasamy should receive 20 lashes of the rattan after he was sentenced to 10 lashes for each of the two drug trafficking charges for which he was convicted.

PUTRAJAYA: The Federal Court has ruled in a majority decision that whipping cannot be imposed simultaneously on persons convicted of multiple offences.

Judge Abu Bakar Jais said there are no legal provisions in Malaysia that suggest flogging can be carried out simultaneously or consecutively.

He said Section 288(5) of the Criminal Procedure Code only stipulates that adults can receive a maximum of 24 adult strokes, while young offenders can only receive 10.

Abu Bakar said a number of cases, including those decided in Singapore, indicate that lashes should be administered consecutively.

“It cannot be done simultaneously because clear authorities say it cannot be done.

“If Parliament had intended that lashes could be imposed simultaneously, like the punishment for imprisonment, that August House would have passed legislation to that effect,” he said while dismissing an appeal by former truck driver Santanasamy.

Abu Bakar said he was aware of the separation of powers between the executive, the legislature and the judiciary.

“As a member of the judiciary and confining myself to the issue in this case, I do not think it would be appropriate to infringe on the power of the legislature.”

Judge Rhodzariah Bujang agreed with Abu Bakar.

Justice Nallini Pathmanathan, chairman of the bench, disagreed.

She said the CPC must be interpreted in accordance with the spirit and intent of Articles 5 and 8 of the Federal Constitution.

“In determining whether lashes should be imposed simultaneously or consecutively, the elements of fairness and proportionality must be taken into consideration,” she said.

Nallini said lashes can be imposed simultaneously as there is no express legal provision governing the matter.

If Parliament indeed intended not to allow for concurrent sentencing, it should have said so explicitly.

“The correct statutory interpretation to be applied is for the court to retain its sentencing power to ensure that the sentence imposed is proportionate to the offence,” she added.

This issue arose when the bench invited the parties to consider whether it could impose concurrent lashes on Santanasamy, who had been convicted of two counts of drug possession under the Dangerous Drugs Act 1952.

In 2020, the Shah Alam High Court sentenced him to death after finding him guilty of trafficking 83.03 grams of methamphetamine.

He was also sentenced to 11 years in prison and ordered to receive 10 lashes for a separate offense of possessing 7.48 grams of cannabis.

Santanamsamy committed the crimes on February 14, 2018 at a house in Taman Sri Rampai in Wangsa Maju, Kuala Lumpur.

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 prosecutor agreed to change his human trafficking charge to a possession charge after filing a protest on his behalf.

He was also ordered to receive another 10 blows from the rattan.

The court ordered that the prison sentences run concurrently, meaning the suspect will serve eleven years from the date of his arrest.

However, it has postponed its decision on whether the whips can also run simultaneously.

After the majority decision, Santanasamy will now receive twenty blows from the rattan.

Deputy public prosecutors Dusuki Moktar, Fairuz Johari and Noorhisham Jaafar appeared for the prosecution, while Amirrul Jamaluddin represented Santanasamy.

Lawyers Shafee Abdullah and Wan Mohamad Arfan Wan Othman participated in the proceedings as amicus curiae (friends of the court).