Justice Abu Bakar Jais said there are no statutory provisions in Malaysia which suggest that whipping can be carried out either concurrently or consecutively.
He said Section 288(5) of the Criminal Procedure Code merely prescribes that adults can only receive a maximum of 24 strokes for adults, while young offenders can only be given 10.
Abu Bakar said a number of cases, including those decided in Singapore, suggest that whippings have to be executed consecutively.
“It cannot be executed concurrently because clear authorities are saying this cannot be done.
“If Parliament intended that whipping sentences could be ordered concurrently, like the punishment for imprisonment, that august house would have passed the legislation to that effect,” he said in dismissing an appeal by former lorry attendant M Santanasamy.
Abu Bakar said he was mindful of the separation of powers among the executive, legislature and the judiciary.
“Being a member of the judiciary and confining myself only to the issue in this case, I do not think it would be appropriate to encroach on the power of the legislature.”
Justice Rhodzariah Bujang concurred with Abu Bakar.
Justice Nallini Pathmanathan, who chaired the bench, dissented.
She said the CPC should be construed in accordance with the spirit and intent of Articles 5 and 8 of the Federal Constitution.
“In determining whether whipping should be imposed concurrently or consecutively, the elements of fairness and proportionality should be considered,” she said.
Nallini said whipping sentences may be imposed concurrently as there is no express statutory provision governing the matter.
If indeed Parliament intended not to provide room for concurrent sentencing, it should have said so expressly.
“The correct statutory interpretation to be applied is that the court retains its powers of sentencing to ensure the punishment meted out is commensurate with the offence,” she added.
This issue arose when the bench invited parties to submit 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 him 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 at a house in 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.
Following the majority ruling, Santanasamy will now receive 20 strokes of the rotan.
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 took part in the proceedings as amicus curiae (friends of the court).