The amendment of the death penalty from mandatory to discretionary allows courts to consider mitigating factors, reserving the death sentence for the most heinous cases.

Introduction

[1] The accused, a Nigerian national, was charged with the murder of one Siti Kharina binti Kamarudin ("the deceased") under s 302 of the Penal Code . The Shah Alam High Court found him guilty, convicted him, and sentenced him to death by hanging. He appealed to us against his conviction and sentence.

[2] The charge against him reads:

"Bahawa kamu pada 9 Mei 2019 jam lebih kurang 12.41 pagi hingga 15 Mei 2019 jam lebih kurang 2.30 petang bertempat di Tower 1, 0901, Third Avenue Condominium, Cyberjaya di dalam daerah Sepang dalam negeri Selangor Darul Ehsan, telah melakukan bunuh dengan menyebabkan kematian ke atas Siti Kharina binti Kamarudin (No. K/P: 780919-05-5024). Oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah s 302 Kanun Keseksaan."

[3] On 9 August 2023, we dismissed the appellant's appeal against conviction but allowed his appeal on sentence by commuting his death sentence and substituting it with a sentence of imprisonment for 35 years and 12 strokes of the cane. In this judgment, we are only dealing with the issues relevant to the appropriate sentence.

Relevant Facts

[4] The relevant facts, as found by the trial Judge, can be briefly summarised. The deceased was a nurse. At the material time, she was renting an apartment at Third Avenue Condominium in Cyberjaya. Sometime soon after midnight, to be specific, at about 12.37am on 9 May 2019, she and the appellant got into the lift of the rented apartment to go up to her unit.

[5] The appellant was seen leaving the premises around 7.00am that same morning. The deceased who was supposed to report for work later that evening, did not show up. In fact, no one had seen or heard from her after 12.37am on 9 May 2019.

[6] Some six days later, on 15 May 2019, the naked body of the deceased was found on the bedroom floor of the apartment by her landlady. The deceased was covered in blood and had 17 injuries, namely bruises, cuts and slash wounds to her chest, neck and head. The appellant was arrested and charged with her murder when her blood was found on the shirt he had worn in the early hours of 9 May 2019.

[7] The appellant denied killing her, and his defence at the trial was one of alibi. His defence was rejected and the trial Judge convicted and sentenced him to death as at the material time, the death penalty was the only sentence that could be imposed upon a conviction of an offence of murder under s 302 of the Penal Code .

Sentence

[8] We now give our reasons for commuting the sentence of death imposed on him by the High Court and substituting it with imprisonment for 35 years and 12 strokes of the cane.

[9] Until recently, the death sentence was the mandatory punishment prescribed by law for the offence of murder under s 302 of the Penal Code . Thus, there was one sentence only which could be judicially pronounced upon a person convicted of murder, and that was the sentence of death. It was the only sentence the Court could impose in every conviction of murder, regardless of any mitigating circumstances. The Court was not given any discretion regarding the sentence to be imposed for an offence of murder.

[10] However, on 4 July 2023, the mandatory death penalty for murder under s 302 of the Penal Code was amended when the Abolition of Mandatory Death Penalty Act 2023 (Act 846), came into force. The effect of the amendment was to convert the mandatory death penalty into a discretionary death penalty. This means that it is no longer incumbent