Authored By: MUNJID BIN MUHAMMAD
INTERNATIONAL ISLAMIC UNIVERSITY OF MALAYSIA
Abstract
The enactment of the Abolition of Mandatory Death Penalty Act 2023 marks a significant shift in Malaysia’s capital punishment framework, transforming the death penalty from a mandatory to a discretionary sentence. This article critically examines how Malaysian courts have begun to exercise sentencing discretion in capital cases following the 2023 reforms, focusing on the judicial factors considered in determining whether to impose the death penalty or alternative punishments such as long-term imprisonment. Particular attention is given to the balancing of aggravating and mitigating circumstances, judicial reasoning, and emerging sentencing trends. It concludes that although the 2023 Act represents a progressive move towards humanising justice, the true measure of reform lies in judicial application and the development of coherent sentencing guidelines.
Introduction
The death penalty has long been one of the most contested forms of punishment in modern criminal justice systems, often situated at the intersection of deterrence, retribution, and human rights concerns. While some jurisdictions such as the United Kingdom and most of Europe have abolished capital punishment altogether, others in Asia, including Malaysia and Singapore, have retained it, historically with mandatory application for certain serious offences. Until recently, Malaysia was among the countries where the death penalty was imposed as a mandatory sentence for offences such as murder, drug trafficking, and the use of firearms, leaving judges with no discretion to consider mitigating circumstances.1
A landmark development occurred with the enactment of the Abolition of Mandatory Death Penalty Act 2023 (Act 846), which came into force on 4 July 2023.2 The Act abolished the mandatory nature of the death penalty, granting judges discretion to choose between death and alternative sentences such as long-term imprisonment of 30 to 40 years, often accompanied by whipping.3Importantly, the reform was made retrospective, enabling individuals previously sentenced under the mandatory regime to apply for resentencing before the Federal Court.4 This legislative shift reflects Malaysia’s attempt to balance public calls for deterrence with growing domestic and international pressure to humanise sentencing practices and move closer to global human rights standards.5
This article examines how Malaysian courts have begun to exercise their discretion in imposing the death penalty after the 2023 reform, focusing on the legal principles and judicial reasoning that guide sentencing decisions. Particular attention is given to the treatment of aggravating and mitigating factors, the emerging trends in resentencing applications, and the challenges of ensuring consistency in judicial decision-making.
Background and Legal Framework in Malaysia
Pre abolition of mandatory death penalty act 2023
The death penalty has been introduced in the Malaysian Criminal Justice System since the British Colonial Administration when it was originally enforced for the offence of murder. In 1975, death penalty was introduced as a discretionary penalty for drug trafficking and it was made mandatory in 1983. According to official data, some 1,318 prisoners were hanged between 1992 and 2023 in Malaysia.
In Malaysia, death sentence is divided into two categories namely mandatory death sentence and discretionary death sentence.6
As discussed above, if an accused is convicted for the offences which provide the sentence of mandatory death sentence, the court has no discretion despite the circumstances and mitigating factors presented by the accused.
This includes from the penal code such as section 121A which is an offence against the yang di-pertuan agong, offences relating to terrorist and organised crimes such as section 130C, 130I, 130N, 130O, 130QA, 130ZB as well as the firearms act 1971 such as section 3 relating to penalty for discharging a firearm in the commission of a scheduled offence and lastly section 3A of the act relating to accomplices of discharge of firearms
After the enactment of the abolition of mandatory death penalty act 2023, the penalty under the penal code such as section 302 changed from mandatory death penalty to a discretionary death penalty which is death or imprisonment for a term not less than 30 years but not exceeding 40 years and if not sentenced by death shall be sentenced with whipping of not less than 12 strokes7
Apart from the above amendment, the Bill also proposed transitional measure whereby the amended punishment will be applicable to those who are undergoing trials or have already been convicted and reviewing their cases from at the higher courts. It is noteworthy that the prisoners have the right by virtue of the transitional measure to file review of their sentences but not their convictions. According to Ramkarpal Singh, the transitional measure will affect 476 prisoners who has not completed the proceedings or appeals at the Court of Appeal and Federal Court and 842 prisoners who have exhausted all the legal avenues.8
Judicial Evaluation of Death Penalty in Malaysia Post-2023
Since the enactment of the Abolition of Mandatory Death Penalty Act 2023 (Act 846), Malaysian courts have demonstrated a clear judicial trend of treating the death penalty as an exceptional punishment rather than the norm. The legislative intent, as reflected in the Parliamentary Debates of 3 April 2023 and affirmed in Md Masud Rana v Public Prosecutor [2024] 2 MLJ 447 (CA), is that sentencing should focus on rehabilitation, allowing offenders the chance to reintegrate into society. The mandatory nature of the death penalty was removed precisely to give judges discretion to weigh the degree of culpability and the manner of the crime before imposing the ultimate sentence.9
This discretion has resulted in a more nuanced judicial approach. In Mohd Hafiz bin Mohamad v Public Prosecutor [2024] 2 MLJ 441 (CA), the Court of Appeal substituted imprisonment for death even though the deceased suffered multiple stab wounds. The court placed emphasis on the fact that the incident arose from a quarrel without premeditation, and the appellant did not deliberately lure or force the deceased into the fatal situation.10 This case illustrates that where the killing stems from provocation or sudden quarrel, imprisonment is deemed the proportionate punishment.
On the other hand, the courts have remained firm that the death penalty still has a place where the crime demonstrates pre-planned execution coupled with extreme cruelty. In Robin Radjaini Saih @ Amjan Patta v Public Prosecutor [2024] 6 MLJ 773 (CA),11the appellant’s conduct slashing the deceased’s throat twice with a parang and then attacking a 12-year-old child witness was so savage and shocking to society’s conscience that the case squarely fell within the guidelines laid down in Alowonle Oluwajuwon Gilbert v Public Prosecutor [2023] MLJU 2628,12 Justice Vazeer Alam Mydin Meera JCA in that case stressed that the death penalty is justified in murders that are heinous, gruesome, or cold-bloodedly planned. Robin Radjaini is therefore an example of the courts reserving the death sentence for the most egregious cases.
Taken together, these cases show a discernible trend: Malaysian courts now balance between rehabilitation and retribution, only turning to the death penalty when two aggravating factors are present (i) evidence of premeditation or a deliberate plan to kill, and (ii) killings carried out in a cruel, savage, or shocking manner. Where such elements are absent, courts increasingly favour long-term imprisonment in line with Parliament’s rehabilitative vision
Following the enactment of the Abolition of Mandatory Death Penalty Act 2023 (Act 846), Malaysian courts have placed increasing emphasis on the role of mitigating factors when determining an appropriate sentence. The rigid approach of automatically imposing death for certain offences has been replaced with a more discretionary framework, allowing judges to weigh the offender’s personal circumstances, antecedents, and rehabilitative potential.
In Public Prosecutor v Kammoon Wannga & Anor [2009] 8 MLJ 430, the High Court considered the fact that both accused were first offenders, had shown remorse, and had family responsibilities.13 These mitigating factors persuaded the court to impose custodial sentences rather than the maximum penalty. Similarly, in Winston Rajah v Public Prosecutor [1999] 1 CLJ 315, the Court of Appeal held that the offender’s antecedent, his involvement in healthy activities, and his pursuit of education were significant mitigating elements. The court observed that these factors reflected the appellant’s character and potential for reform, and therefore an immediate custodial sentence was not appropriate.14
These cases illustrate a consistent judicial principle: being a first offender, showing remorse, having family or community responsibilities, and demonstrating rehabilitative potential are weighty mitigating factors that the courts will consider seriously. This principle is further supported by sections 173A and 294(1) of the Criminal Procedure Code, which expressly recognise antecedents and first-offender status as grounds for mitigation.15
Taken together, the trend shows that Malaysian courts are now more inclined to temper justice with mercy in light of personal circumstances. While the death penalty is still retained for the most heinous and premeditated crimes, where cruelty and brutality shock the conscience of society, offenders who present strong mitigating factors are increasingly spared from the ultimate penalty. Instead, imprisonment is seen as a more proportionate sentence that balances deterrence with the possibility of rehabilitation.
The Future of Malaysia
The enactment of the Abolition of Mandatory Death Penalty Act 2023 represents a watershed in Malaysia’s criminal justice system. By conferring discretion upon judges, the law dismantles the rigid sentencing framework which previously compelled the imposition of death for certain offences. Ten years on, Malaysia will likely be characterised by a system in which the death penalty remains available but is sparingly imposed, while most capital offences attract custodial terms ranging between thirty and forty years, often supplemented with whipping for male offenders.16 Such an approach not only allows courts to consider aggravating and mitigating circumstances but also restores the principle of proportionality in sentencing.
Already, the resentencing initiative has produced a marked decline in the number of inmates on death row, with official figures indicating a reduction of almost 87 per cent by early 2025.17 Over the next decade, this trend is expected to consolidate, with appellate courts providing clearer tariff guidance for serious offences such as murder, terrorism, and drug trafficking. In practice, prosecutors are likely to refine their charging strategies, distinguishing between principal offenders and low-level couriers in drug cases, thereby ensuring greater consistency in sentencing outcomes.
Concerns that the abolition of the mandatory regime may embolden criminal activity appear unfounded. Extensive empirical evidence, including studies by the US National Research Council, demonstrates no conclusive deterrent effect of capital punishment over lengthy terms of imprisonment.18 Malaysia is therefore unlikely to experience any measurable increase in violent crime rates attributable to the reform, especially if the state simultaneously invests in investigative quality, rehabilitation, and re-entry programmes for offenders. In this respect, the reform aligns Malaysia with global best practice in balancing deterrence, retribution, and rehabilitation.
On the international front, the 2023 Act enhances Malaysia’s human rights standing. By retaining the death penalty only as a discretionary measure, Malaysia has improved its position in extradition negotiations with abolitionist states, where executions were previously a barrier to cooperation.19 The reform has also attracted praise from international organisations and may serve as a model for moderate penal reform in Southeast Asia, a region where neighbouring states such as Singapore and Vietnam continue to apply mandatory death sentences in drug-related cases.20 Within the next decade, Malaysia may therefore occupy a distinctive role as a regional advocate of proportionality in sentencing, without abandoning its sovereign right to retain capital punishment in exceptional cases.
Conclusion
The abolition of the mandatory death penalty in Malaysia through the 2023 Act has ushered in a more balanced and principled approach to capital sentencing, shifting the focus from automatic punishment to judicial discretion. Malaysian courts are now tasked with weighing aggravating and mitigating factors to determine whether death is truly warranted, and early decisions suggest that the penalty is increasingly reserved for the most heinous and premeditated crimes while long-term imprisonment is imposed in the majority of cases. This shift not only restores proportionality and fairness in sentencing but also strengthens Malaysia’s standing in the international community, reduces reliance on executions without undermining public safety, and positions the country as a regional example of how to humanise justice while retaining capital punishment as a measure of last resort.
Reference(S):
Table of Cases
Alowonle Oluwajuwon Gilbert v Public Prosecutor [2023] MLJU 2628
Bachan Singh v State of Punjab [1980] 2 SCC 684 (SC, India)
Md Masud Rana v Public Prosecutor [2024] 2 MLJ 447 (CA)
Mohd Hafiz bin Mohamad v Public Prosecutor [2024] 2 MLJ 441 (CA)
Public Prosecutor v Kammoon Wannga & Anor [2009] 8 MLJ 430
Robin Radjaini Saih @ Amjan Patta v Public Prosecutor [2024] 6 MLJ 773 (CA) Winston Rajah v Public Prosecutor [1999] 1 CLJ 315
Table of Legislation
Abolition of Mandatory Death Penalty Act 2023 (Act 846), Federal Gazette of Malaysia, in force 4 July 2023
Criminal Procedure Code (Malaysia), ss 173A and 294(1)
Hansard
Malaysia, House of Representatives, Parliamentary Debates, Hansard, vol 30, 3 April 2023, 105
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Amnesty International, Two Years Since Reforms: Death Sentences and Executions in Malaysia (2025) https://www.amnesty.org/en/wp-content/uploads/2025/07/ACT5095572025ENGLISH.pdf accessed 23 August 2025
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1 Amnesty International, Abolition of the Mandatory Death Penalty Act 2023: First Six Months of Sentencing Discretion (2024) https://www.amnesty.org/en/wp-content/uploads/2024/02/ACT5077502024ENGLISH.pdf accessed 23 August 2025.
2 Abolition of Mandatory Death Penalty Act 2023 (Act 846), Federal Gazette of Malaysia, came into force 4 July 2023.
3 Parliamentarians for Global Action, ‘Malaysia and the Death Penalty’ (PGA, 2023) https://www.pgaction.org/ilhr/adp/mys.html accessed 23 August 2025.
4 Amnesty International, Two Years Since Reforms: Death Sentences and Executions in Malaysia (2025) https://www.amnesty.org/en/wp-content/uploads/2025/07/ACT5095572025ENGLISH.pdf accessed 23 August 2025.
5 Human Rights Watch, ‘Malaysia Repeals Mandatory Death Penalty’ (11 April 2023) https://www.hrw.org/news/2023/04/11/malaysia-repeals-mandatory-death-penalty accessed 23 August 2025.
6 Nicholas Yong. (2023, April 3). Malaysia ends mandatory death penalty for serious crimes. BBC.
7 Azmi & Associates, ‘Abolishment of Mandatory Death Penalty in Malaysia’ (Azmilaw, 17 July 2023) https://www.azmilaw.com/insights/abolishment-of-mandatory-death-penalty-in-malaysia/ accessed 24 August 2025.
8 Malaysia, House of Representatives, Parliamentary Debates, Hansard, vol 30, 3 April 2023, 105.
9 Md Masud Rana v Public Prosecutor [2024] 2 MLJ 447 (CA),
10 Mohd Hafiz bin Mohamad v Public Prosecutor [2024] 2 MLJ 441 (CA),
11 Robin Radjaini Saih @ Amjan Patta v Public Prosecutor [2024] 6 MLJ 773 (CA)
12 Alowonle Oluwajuwon Gilbert v Public Prosecutor [2023] MLJU 2628
13 Public Prosecutor v Kammoon Wannga & Anor [2009] 8 MLJ 430
14 Winston Rajah v Public Prosecutor [1999] 1 CLJ 315
15 Criminal Procedure Code (Malaysia), ss 173A and 294(1).
16 Amnesty International, ‘Malaysia: End of the mandatory death penalty’ (2023).
17 Free Malaysia Today, ‘87% drop in death row inmates after review’ (8 January 2025).
18 National Research Council, Deterrence and the Death Penalty (National Academies Press 2012).
19 Human Rights Watch, ‘Malaysia’s Death Penalty Reform Praised’ (2023).
20 International Commission of Jurists, ‘Abolition of Mandatory Death Penalty Act 2023’ (2023).
