The court affirmed that under the Dangerous Drugs Act, the abolition of the mandatory death penalty permits discretion in sentencing, balancing aggravating and mitigating factors.

Sentence

[1] On 5 April 2023 this Court convicted the Accused of drug trafficking 1,108.79 grams of 3,4-methylenedioxymethamphetamine (MDMA) under s 39B(1)(a) Dangerous Drugs Act 1952 DDA . The offence was committed on 8 January 2020 at the main entrance of Pejabat Pos Laju Segambut Kuala Lumpur. The sentencing was deferred to this date as the abolition of the mandatory death penalty was in the process of being passed at the time of conviction that would affect the Accused.

[2] Today, the law under s 39B(2) DDA does away with the mandatory death penalty. The Courts now are given the discretion to sentence the accused as follows:

"Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence against this Act and shall be punished on conviction with death or imprisonment for life and shall, if he is not sentenced to death, be punished with whipping of not less than twelve strokes."

[3] This provision documents the intention of Parliament to vest the Courts with the discretion to consider the principles of sentencing and apply all the mitigating and aggravating factors before imposing a sentence within the band legally prescribed. The death penalty is no longer mandatory or in other words automatic, it speaks volumes about the separation of powers. The judiciary now has the power to consider the respective accused and the facts and circumstances of the case, as well as the background of the accused.

[4] The amendment to the penalty provision of s 39B(2) DDA clearly conveys two matters - the death penalty although no longer mandatory ought to be considered first by the Courts prior to life imprisonment, and a jail term of thirty years is sufficient enough as punishment together with whipping of a minimum of twelve strokes. There is no insertion/amendment to the law to state that life imprisonment is for the natural life of an accused. Thus, s 3 Criminal Justice Act 1953 applies which defines life sentences as:

"Where any person is treated as having been sentenced or is hereafter sentenced to imprisonment for life, such sentence shall be deemed for all purposes to be a sentence of imprisonment for life, such sentence shall be deemed for all purposes to be a sentence of imprisonment of thirty years. "

[5] This Court invited the Counsel for the Accused to submit considerations for this Court to exercise its discretion to pass sentence for the crime of drug trafficking the Accused was convicted of. The Federal Court's decision in Loh Hock Seng & Anor v. PP [1979] 1 MLRA 264; was cited. That was a case of trafficking 1,550.1 grams of heroin which the Federal Court opined that a sentence of life imprisonment was wholly inadequate and substituted it with the death penalty. The following excerpt of the decision was cited:

"We would like to take this occasion to reaffirm expressly, unequivocably and unanimously that where the case justifies it, Judges should not develop a phobia against inflicting the death penalty."

[6] This Court's attention was then invited to the article written by Hisyam Teh Poh Teik and NS Guok published in the Malayan Law Journal [2023] 3 MLJ i-lxxvii on the Abolition of Mandatory Death Penalty Bill 2023 and Revision of Sentence of Death and Imprisonment for natural life (Temporary Jurisdiction of the Federal Court) Bill 2023. The studies of cross-jurisdiction were captured that proved to help pave the way for the amendment to s 39B(2) DDA that did away with the mandatory death penalty, allowing the Courts to mete out life imprisonment when the facts of the case including aggravating factors and mitigation attract such.

[7] In response, the Deputy Public Prosecutor was clear of the Prosecution's stand. She ha