Has the death penalty been abolished?

Since the Abolition of Mandatory Death Penalty Act 2023 came into effect, many members of the public have questioned why some accused persons—who were charged with murder under Section 302 of the Penal Code or drug trafficking under Section 39B of the Dangerous Drugs Act 1952—were still sentenced to death by the court after a full trial and conviction.

Has the death penalty not been abolished after the Act came into effect?

Before answering this question, it is necessary to examine the Act. Prior to its implementation, there were 11 criminal offenses—including murder under Section 302 of the Penal Code and drug trafficking under Section 39B of the Dangerous Drugs Act—where a conviction meant the accused faced death by hanging, leaving the court with no choice unless the accused was pregnant or a minor.

Following the enactment of the Act, the word "mandatory" was removed, meaning that the death penalty is no longer mandatory. In other words, the court now has judicial discretion to sentence the accused to either the death penalty or imprisonment along with whipping, based on the severity of the offense and the facts of the case.

Furthermore, the Act abolished the death penalty option for seven other criminal offenses, including attempted murder and kidnapping, meaning that courts no longer have the authority to impose the death sentence for these crimes.

In short, what was abolished was the word "mandatory," making the death penalty no longer a compulsory punishment for the 11 offenses, such as murder and drug trafficking. The death penalty itself has not been completely abolished.

Taking a drug trafficking case handled by the Court of Appeal as an example—specifically, Loo Yong Heng v PP [2024] 3 MLJ 359: The accused was initially sentenced to death by the Muar High Court. Upon appeal to the Court of Appeal, although our counsel, Mr. Lim Choon Siang, did not make submissions regarding the sentence imposed by the High Court, the Court of Appeal exercised its discretion to substitute the death sentence with 30 years' imprisonment and 12 strokes of the cane. Subsequently, the accused appealed to the Federal Court, where the sentence was further reduced to 12 years' imprisonment and 10 strokes of the cane.