Kamaruddin Bin Abd Rahim v Pendakwa Raya [Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara]

Case Significance

Illustrates the post-reform sentencing discretion for murder under section 302 of the Penal Code, the Court of Appeal upholding conviction but setting aside a death sentence for a term of thirty years' imprisonment and caning where the offence was not of the rarest of the rare kind.

This Court of Appeal decision concerns an appeal against conviction and sentence for murder, and the exercise of the sentencing discretion that followed the abolition of the mandatory death penalty for that offence. The appellant had been convicted in the High Court at Ipoh of murder under seksyen 302 Kanun Keseksaan (section 302 of the Penal Code), the charge alleging that he caused the death of the victim; the prosecution's case rested on a combination of direct and circumstantial evidence, including post-mortem findings of blunt-force trauma to the head with a fractured and depressed skull, together with forensic comparison evidence, against a background said to involve a debt problem. At first instance the High Court found a prima facie case established, rejected the defence and convicted the appellant, imposing the sentence of death by hanging. On appeal the Court examined both conviction and sentence. It found no merit in the challenge to the conviction, but held that there was merit in the appeal against sentence. Applying the principles governing the reformed sentencing regime, the Court considered that the prosecution had not shown the appellant's offence to be one of the "rarest of the rare" such as would justify maintaining the death sentence. It therefore allowed the appeal against sentence, set aside the hukuman gantung sampai mati (sentence of death by hanging) imposed by the High Court, and substituted a sentence of penjara selama tempoh tiga puluh (30) tahun berkuatkuasa dari tarikh tangkap (imprisonment for a term of thirty years with effect from the date of arrest), together with twelve strokes of the cane. The decision illustrates how, following the removal of the mandatory death penalty for murder, an appellate court reviews sentence and reserves capital punishment for the most exceptional cases. The decision also reflects that the reform of the sentencing regime for murder did not disturb the conviction or the gravity of the offence, but conferred on the courts a graduated choice of sentence, so that the assessment turns on whether the particular facts place the case among the most extreme, and where they do not, a lengthy determinate term coupled with caning may be the proportionate response.