Justice Wong Kian Kheong said Parliament has conferred wide discretion on the courts to mete out the appropriate punishment on a person convicted of murder under Section 302 of the Penal Code.
The judge said the provision, read with Sections 34 and 39 of the Abolition of Mandatory Death Penalty Act 2023, gives judges the discretion to impose either capital punishment, or, in the alternative a jail term of up to 40 years and a minimum of 12 strokes of the rotan.
However, whipping is only allowed on males below 50 years of age.
“Our legislature did not impose any restriction or condition to curtail the wide judicial discretion.
“If we apply the ‘rarest of the rare’ doctrine, this will be tantamount to an unlawful curtailment of the wide judicial discretion (conferred under Section 302 of the Penal Code),” he said in a 35-page judgment released on Monday.
In March, the appeals court affirmed a High Court’s decision to impose the death penalty on 52-year-old Filipino Robin Radjaini Saih @ Amjan Patta, for the murder of an acquaintance in Lahad Datu, Sabah over six years ago.
Also on the bench hearing the appeal were Justices Supang Lian, who chaired the bench, and Collin Lawrence Sequerah.
Wong said public interest should be the primary consideration when the court exercises its discretion.
He also said the application of the doctrine in India was justified as Section 354(3) of the Indian Criminal Procedure Code (CPC) requires the courts there to state “special reasons” for imposing a death sentence.
“Our CPC has no provision which is equivalent to Section 354(3) of the Indian CPC,” he added.
A sentence meted out by a court in a particular case, Wong said, will depend on the particular facts and circumstances of that case.
“A sentence imposed by a court provides a useful ‘sentencing guideline’ for other courts in the future,” he added.
Wong said the death penalty as imposed by the High Court against Robin should be maintained as the murder was premeditated.
On April 28, 2021, the Tawau High Court sentenced Robin to death, after finding him guilty of killing Fazrin Ibrahim, 30, with a machete at an entrance leading to a residential area in Lahad Datu on April 24, 2018.
Robin, who was represented by counsel Darmin Achok, has filed an appeal to the Federal Court from the appeals court’s decision.
In her submissions before the Court of Appeal, deputy public prosecutor P Sarulatha had relied on the “rarest of rare” doctrine established in the case of Bachan Singh v State of Punjab (1980).
Delivering the 4-1 majority decision of the Indian Supreme Court, Justice RS Sarkaria held that in view of Section 354(3) of the Indian CPC, the death penalty “can be inflicted only in gravest cases of extreme culpability”.