The court affirmed that under the Abolition of Mandatory Death Penalty Act, the death penalty is discretionary and must consider public interest and the severity of the crime.

JUDGMENT

Wong Kian Kheong JCA:

A. Introduction

[1] This judgment discusses the exercise of the Court of Appeal's discretion pursuant to ss 34 and 39 of the Abolition of Mandatory Death Penalty Act 2023 (AMDP) to-

(1) maintain a death sentence imposed by the High Court (before the enforcement of the AMDP); or

(2) reduce the death sentence to an imprisonment term from 30 to 40 years and whipping of not less than 12 strokes

- for a murder offence under s 302 of the Penal Code ( PC ).

In this regard, whether a death sentence can only be imposed by the Court under s 302 PC read with ss 34 and 39 AMDP-

(a) in the "rarest of the rare" case as expounded in cases decided by the Indian Supreme Court; or

(b) after the Court has taken into account all the relevant facts, circumstances and considerations regarding the case in question with public interest as the primary consideration.

B. Proceedings In The High Court

[2] The above-named appellant (Appellant) was charged by the Public Prosecutor (PP) with one count of murder under s 302 PC . We reproduce below the charge against the Appellant in our National Language (Charge):

"Bahawa kamu pada 24 April 2018 jam di antara 1.20 petang hingga 1.40 petang, di simpang masuk Taman Warisan 4, dalam daerah Lahad Datu, dalam Negeri Sabah, telah membunuh Fazrin bin Ibrahim, No KP: 880229-12-5011 dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah s 302 Kanun Keseksaan.

Hukuman: Hendaklah dihukum mati.".

B(1). The Prosecution's Case

[3] The prosecution called 10 witnesses to prove the Charge. We shall refer to the evidence of the following four prosecution witnesses:

(1) Encik Ibrahim bin Intong (PW5);

(2) Inspector Muhammad Nur Faez Hazreeq Abdullah (PW7);

(3) Dr Jessie Hiu @ Jessie Dorey Hiu Chen Chen (PW8); and

(4) Hardisyam bin Saparuddin (PW9).

[4] PW5 is the father of the late Fazrin bin Ibrahim (Deceased), the person alleged in the Charge to have been murdered by the Appellant, while PW9 is Deceased's brother-in-law.

[5] On 24 April 2018, PW9 was 12 years old. When PW9 testified in this case, he was almost 15 years old. With regard to PW9's evidence-

(1) the learned High Court Judge questioned PW9 in Court and found that PW9 understood the nature and solemnity of the oath. This means that the High Court was satisfied that PW9 was competent to testify as understood in s 118 of the Evidence Act 1950 ( EA ). Section 118 provides as follows-

" Section 118 .

All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind."

[Emphasis Added]; and

(2) as PW9 was a "child witness" (below the age of 18 years old) within the meaning of s 3 of the Evidence of Child Witness Act 2007 (ECWA), he gave evidence in this case according to ss 3(1)(a) and 4(1) EWCA, namely, there was a screen placed in the Court room which separated him from the Appellant. Consequently (except for the occasion wherein PW9 identified the Appellant in Court), at all times during PW9's testimony in Court, PW9 could not see the Appellant and nor could the Appellant see PW9.

[6] PW9 gave the following evidence in Court, among others:

(1) on 24 April 2018-

(a) at about 6.20 am, the Deceased had sent PW9 to PW9's school at Sekolah Kebangsaan Batu 6½ Lahad Datu (School) in the Deceased's car bearing the registration No SD 3801L (Car). PW9 had asked the Deceased to fetch him from the School at 1 pm on the same day;

(b) at about 1 pm, 24 April 2018, the Deceased drove the Car and fetched PW9 from the School. PW9 sat in the front passenger seat. Inside the Car, the Deceased informed PW9 that the Deceased had to collect RM300 from a person in Taman Warisan. PW9 did not know who was this person. The Deceased then drove the Car from the School to Taman Warisan;

(c) on the way to Taman Warisan, PW9 heard