WONG SOON HENG v Pendakwa Raya (05(RJ)-5-03/2025(J))

05 (RJ)-5-03/2025 (J) Kand. 56 29/04/2026 16:12:05 IN THE FEDERAL COURT OF MALAYSIA (CRIMINAL JURISDICTION) CRIMINAL APPLICATION NO: 05(RJ)-1-03/2025(A) NOMALAN A/L RAMAYAH CRIMINAL APPLICATION NO: 05 (RJ)-2-03/2025(N) MUHAMAD HAFIZUL HAZIQ BIN MASRI CRIMINAL APPLICATION NO: 05 (RJ)-3-03/2025(J) HARICHANDRAN A/L S. NADARAJAN CRIMINAL APPLICATION NO: 05 (RJ)-4-03/2025(J) LEONG SOON LONG CRIMINAL APPLICATION NO: 05 (RJ)-5-03/2025(J) WONG SOON HENG CRIMINAL APPLICATION NO: 05 (RJ)-6-03/2025(J) NGUYEN DOAN NHAN CRIMINAL APPLICATION NO: 05 (RJ)-7-03/2025(J) MOHAMAD AIMAN AL-RASHID BIN YAACOB CORAM WAN AHMAD FARID BIN WAN SALLEH, CJ AZIZAH BINTI HAJI NAWAWI, CJSS RHODZARIAH BINTI BUJANG, FCJ CHE MOHD RUZIMA BIN GHAZALI, FCJ COLLIN LAWRENCE SEQUERAH, FCJ GROUNDS OF JUDGEMENT A) INTRODUCTION [1] There are altogether seven (7) applications made by way of Notices of Motions for reliefs under Rule 137 of the Rules of the Federal Court 1995. All the applications involve seven (7) Applicants who were at the time of the commission of the offences all under the age of eighteen

(18) years and by definition under Section 2 of the Child Act 2001 were all children ("child"). [2] They were all charged with various offences and sentenced accordingly. Their respective backgrounds such as are relevant to the present applications are reflected as follows: Nomalan A/L Ramayah i) The Applicant was arrested on 12.12.2009 and charged under Section 302 of the Penal Code ("PC") for murder. ii) The Applicant was convicted by the High Court under Section 304(b) of the PC and on appeal the Court of Appeal allowed the Public Prosecutor's appeal and the Applicant was found guilty under Section 302 of the PC on 5.5.2015. As the Applicant was a minor at the time of the offence, the Court of Appeal ordered that he be detained in prison at the pleasure of the Yang di-Pertuan Agong (YDPA) in accordance with Section 97(2) of the Child Act 2001. iii) The Applicant's appeal to the Federal Court was dismissed, thereby affirming his conviction and sentence. iv) The Applicant has now been in custody for approximately 15 years from the date of arrest, 11 years since his conviction at the High Court. i) The Applicant was arrested on 12.5.2011 and charged under Section 302 of the Penal Code ("PC") for murder. ii) The Applicant was convicted by the High Court on 14.6.2012 and as the Applicant was a minor at the time of the offence, the High Court ordered that he be detained in prison at the pleasure of the Yang diPertuan Agong (YDPA) in accordance with Section 97(2) of the Child Act 2001. iii) The Applicant's appeals to both the Court of Appeal and the Federal Court were dismissed, thereby affirming his conviction and sentence. iv) The Applicant has now been in custody for approximately 13 years from the date of his conviction at the High Court. Harichandran A/L S. Nadarajan i) The Applicant was arrested on 16.2.2012 and charged under Section 302 of the Penal Code ("PC") for murder. ii) The Applicant was convicted by the High Court on 14.3.2017 and as the Applicant was a minor at the time of the offence, the High Court ordered that he be detained in prison at the pleasure of the Yang diPertuan Agong (YDPA) in accordance with Section 97(2) of the Child Act 2001. iii) The Applicant's appeals to both the Court of Appeal and the Federal Court were dismissed, thereby affirming his conviction and sentence. iv) The Applicant has now been in custody for approximately 13 years at from the date of arrest, 8 years since his conviction at the High Court. Leong Soon Long i) The Applicant was arrested on 15.9.2008 and charged under Section 302 of the Penal Code and Section 3(1) of the Kidnapping Act 1961 for kidnapping and murder. ii) The Applicant was convicted by the High Court on 31.3.2011 and as the Applicant was a minor at the time of the offence, the High Court ordered that he be detained in prison at the pleasure of the Yang diPertuan Agong (YDPA) in accordance with Section 97(2) of the Child Act 2001. iii) The Applicant's appeals to both the Court of Appeal and the Federal Court were dismissed, thereby affirming his conviction and sentence. iv) The Applicant has now been in custody for approximately 16 years from the date of arrest, 14 years since his conviction at the High Court. i) The Applicant was arrested on 15.9.2008 and charged under Section 302 of the Penal Code and Section 3(1) of the Kidnapping Act 1961 for kidnapping and murder. ii) The Applicant was convicted by the High Court on 31.3.2011 and as the Applicant was a minor at the time of the offence, the High Court ordered that he be detained in prison at the pleasure of the Yang diPertuan Agong (YDPA) in accordance with Section 97(2) of the Child Act 2001. iii) The Applicant's appeals to both the Court of Appeal and the Federal Court were dismissed, thereby affirming his conviction and sentence. iv) The Applicant has now been in custody for approximately 16 years from the date of arrest, 14 years since his conviction at the High Court. Nguyen Doan Nhan i) The Applicant was arrested on 20.2.2015 and charged under Section 302 of the Penal Code ("PC") for murder. ii) The Applicant was convicted by the High Court on 23.7.2017 and as the applicant was a minor at the time of the offence, the High Court ordered that he be detained in prison at the pleasure of the Yang di-Pertuan Agong (YDPA) in accordance with Section 97(2) of the Child Act 2001. iii) The Applicant's appeals to both the Court of Appeal and the Federal Court were dismissed, thereby affirming his conviction and sentence. iv) The Applicant has now been in custody for approximately 9 years from the date of arrest, 8 years since his conviction at the High Court. Mohamad Aiman Al-Rashid bin Yaakob i) The Applicant was arrested on 4.1.2006 and charged under Section 39B(1)(a) of the Dangerous Drugs Act 1952 ("DDA") for a drug trafficking offence. ii) The Applicant was convicted by the High Court on 25.3.2009 and as the Applicant was a minor at the time of the offence, the High Court ordered that he be detained in prison at the pleasure of the Yang diPertuan Agong (YDPA) in accordance with Section 97(2) of the Child Act 2001. iii) The Applicant's appeals to both the Court of Appeal and the Federal Court were dismissed, thereby affirming his conviction and sentence. iv) The Applicant has now been in custody for approximately 18 years and 11 months from the date of arrest, 16 years since his conviction at the High Court. [3] All the Applicants seek a review of the sentences of the Federal Court affirming the sentence that the Applicant be detained in a prison for an indefinite period in accordance with Section 97(2) of the Child Act 2001 which is at the pleasure of the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri following their respective convictions. [4] The main premise of the review is that the passing of the Abolition of Mandatory Death Penalty Act 2023 (Act 846) and the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023 (Act 847) which provides for determinate sentences for adults is incompatible with the indefinite detention for juveniles sentenced under section 97(2) of the Child Act 2001. B) SUBMISSIONS OF PARTIES Applicants [5] The Applicants' submission which is summarised here, comprises two parts. [6] Part A relates to the history of death penalty reforms and children's rights framework that allegedly renders indefinite detention incompatible with Malaysia's current legal landscape. [7] Part B concerns the Applicant's Rule 137 Application and the alleged specific constitutional violations arising from the Applicant's indefinite detention. Note : （"All references to the Applicant includes all the Applicants herein"） Part A Malaysia's Death Penalty Policy [8] The first part traces the evolution of Malaysia's death penalty policy since 2012. Learned counsel for the Applicants submitted that the mandatory death penalty has been part of the Malaysian criminal justice system since the British colonial administration as a punishment for murder under Section 302 of the Penal Code which discussions for reform must necessarily also include offences under section 39B of the Dangerous Drugs Act 1952. [9] It was then submitted that there was a watershed moment which made a significant change to Malaysia's legal landscape with the introduction of Section 39B into the DDA, which provided for discretionary death sentences in cases of drug trafficking. [10] The year 2012 marked a turning point when the Malaysian government undertook a comprehensive series of studies and discussions aimed at reforming its death penalty policy, with particular focus on abolishing mandatory death sentences. [11] This reform process culminated in 2017, when Section 39B was amended to introduce "limited discretion" in sentencing drug trafficking offences which represented a crucial intermediate step between mandatory and fully discretionary sentencing. [12] As part of the reform process, a Special Committee on the Study of Alternative Punishments to Mandatory Death Sentences was established on 20 September 2019, following a Cabinet decision on 29 August 2019. [13] This committee was chaired by the former Chief Justice of Malaysia, Tun Richard Malanjum and comprised legal experts including the former Chief Judge of Malaya, a former Attorney General, legal practitioners, law lecturers and criminologists from public institutions. [14] On 11 February 2020, Tun Richard Malanjum presented a comprehensive 128-page report known as the "Malanjum Report" to the then Minister in the Prime Minister's Department. [15] The Malanjum Report proposed a new sentencing policy based on three fundamental principles: i) For offences resulting in death, the death penalty at the discretion of the Court is retained; ii) For other offences not resulting in death, the Court should not impose the death penalty; and iii) If the death penalty is not imposed by the Court, the offender may be subject to alternative punishments, including whipping. Reforms to the Dangerous Drugs Act 1952 ("DDA") [16] The DDA was originally introduced by the colonial government to combat escalating drug-trafficking crimes, forming an integral part of British law during the preindependence era in Malaysia. [17] In 1975, Section 39B was incorporated into the DDA, establishing the discretionary death sentence for drug trafficking offences which granted courts the discretion to impose either the death penalty or life imprisonment with whipping. [18] In 2017, there was an amendment introduced to Section 39B(2A), which allowed courts to consider specific circumstances (as below) in deciding whether to impose the death penalty or a custodial sentence: i) no evidence of buying and selling drugs at arrest; ii) no involvement of agent provocateur; iii) limited involvement (transport, carry, send or deliver); iv) Public Prosecutor's certification of assistance to enforcement agencies. [19] It was submitted however, that this "limited discretion" proved problematic with its arbitrary application and different enforcement agencies adopting varying approaches to investigating information provided by accused individuals. [20] It was also asserted that retention of the word "only" in Section 39B(2A) constrained judicial discretion and violated the separation of powers. The Abolition of the Mandatory Death Penalty [21] It was submitted that the steady progress made in this country towards the abolition of the mandatory death penalty, the presumption in favour of life and the transformative vision resulted in the passing of The Abolition Act 2023 which was expressed to have retrospective effect. [22] The Applicants submitted that the Revision of Death Sentences and Life Imprisonment (Federal Court's Temporary Jurisdiction Act) 2023 ("Re-sentencing Act 2023") represents a progressive shift in Malaysia's criminal justice approach, granting the Federal Court temporary revisionary jurisdiction to review death sentences and imprisonment for natural life. [23] The Re-sentencing Act 2023 came into force on 12 September 2023, passed concurrently with the Abolition of Mandatory Death Penalty Act 2023. [24] The Re-sentencing Act 2023 enables review of death sentences notwithstanding pending pardon applications under Article 42 and imprisonment for natural life for those whose pardon has been determined. [25] The scope of review is limited to sentences and not convictions and each person may only make one application within 90 days which is extendable for good reason. [26] The Re-sentencing Act 2023 enables all death row prisoners and those serving the sentence of natural life previously deprived of presenting mitigating circumstances under the mandatory regime to have their individual circumstances considered. [27] Learned counsel submitted that this approach is consistent with Malaysia's broader objectives of promoting fairness, justice, and humane sentencing, especially for death penalty and natural life imprisonment cases. The Effect of the Abolition Act 2023 on section 39B DDA, section 302 Penal Code and other offences [28] Next, it was submitted that Section 54 of the Abolition Act 2023 amended Section 39B of the DDA by reducing whipping from 15 to 12 strokes minimum, deleting subsections (2A) and (2B) and granting courts absolute discretion without previously imposed conditions. [29] The effect of this is that a person shall now be punished on conviction with death or imprisonment for life and shall, if not sentenced to death, be punished with whipping of not less than twelve strokes. [30] The term "imprisonment for life" according to Section 3 of the Criminal Justice Act 1953 means "a sentence of imprisonment for 30 years". [31] Section 34 of the Abolition Act 2023 amended Section 302 Penal Code and now gives the court the discretion to either impose death sentence or a term of imprisonment of not less than 30 years but not exceeding 40 years. In addition to the term of imprisonment of the convicted person, an order of mandatory whipping of not less than 12 strokes would be imposed. [32] Section 3(1) of the Kidnapping Act 1961 was also amended by Section 52 of the Abolition Act 2023 by removing the sentence of death and substituting the sentence of death or imprisonment for life and shall, if he is not sentenced to death, also be liable to whipping and imprisonment for a term of not less than thirty years but not exceeding forty years and with whipping. [33] The death penalty was also abolished for some other offences. Summary of Legislative intent in Abolishing the Mandatory Death Sentence and Natural Life Imprisonment [34] Learned counsel then submitted that the broad legislative intent can be summarised in nine fundamental principles which he listed as follows: First Alternative Sentencing Approach - The shift towards flexible and nuanced sentencing, granting courts discretion between death penalty, 30-40 years' imprisonment, and minimum 12 strokes whipping. Second - Elimination of Natural Life - No prisoners in Malaysia shall be detained for an indefinite period. Third - Respect for the Right to Life - Unequivocal respect for every individual's right to life, recognising death penalty's irreversibility and the need for utmost care in its imposition. Fourth - Rehabilitation and Reintegration - Focus on providing offenders opportunities for personal growth and societal reintegration through counselling, education, and vocational training. Fifth - Strengthening Human Rights - Commitment to protect and uphold rights of all individuals, including those accused or convicted of serious offences. Sixth Adaptation to Current Needs - Recognition that criminal justice legislation must evolve with contemporary challenges and societal dynamics. Seventh - Right to Individualised Sentencing - The Resentencing Act 2023 provides opportunity for all prisoners serving the death sentence or natural life to have mitigating circumstances reviewed. Eighth - International Precedents and Comparative Analysis - Courts encouraged to draw insights from nations like India that abolished mandatory death penalties, making informed decisions aligned with international standards. Ninth - Maximum Imprisonment of 30 Years for Section 39B and 40 Years for Section 302 and Section 3(1) - "Imprisonment for life" defined as 30 years, allowing courts discretion to commute death sentences accordingly for Section 39B. The Court has the discretion to commute a prisoner's death sentence and replace it with a term of imprisonment between 30 to 40 years and whipping of not less than twelve strokes for Section 302 and Section 3(1). The Outcome of Review Cases under the Re-Sentencing Act 2023 [35] Learned counsel submitted that pursuant to the Federal Court's undertaking of the comprehensive review of death sentences which resulted in a substantial number of successful applications, there arise 3 fundamental legal principles that support the case for the Applicants. [36] These are firstly, the presumption in favour of life, secondly, the burden on the prosecution to establish that death is the only appropriate sentence and thirdly, the "Rarest of rare" cases where no other sentence would meet the ends of justice other than death. [37] The third principle was anchored on the Privy Council case of Trimmingham v The Queen [2009] UKPC 25 which distilled this into two requirements as follows: i) The case must be most extreme and exceptional; ii) There must be no reasonable prospect of reform and punishment objectives cannot be achieved by any other means. History of Children and Capital Offences [38] It was submitted that the Indian Penal Code of 1860 was the first to formally differentiate between children and adults. It treated children below the age of seven (7) as doli incapax and recognised a rebuttable presumption of incapacity for those aged 7 to 12. [39] The British influence in Malaya saw the introduction of the Penal Code based upon the Indian equivalent which underwent several historical legislative amendments until present times. [40] The Juvenile Courts Act 1947 established the first court specifically to cater for children, the Juvenile Court which is currently known as the Court for Children under the Child Act 2001. [41] Section 16 of the Juvenile Courts Act 1947 (repealed by the Child Act 2001) forbids the sentence of death on a juvenile. [42] Instead, the Court shall order the juvenile offender to be detained during the pleasure of the Yang di-Pertuan Agong (for offences committed in federal territories) or the Ruler/Yang di-Pertua Negeri (for offences committed in states). [43] It was submitted by learned counsel that the phrase "during the pleasure of" in Section 97(2)(b) was an archaic formulation incorporated from English law as a mechanism to avoid imposing the death penalty on juvenile offenders while still recognising the seriousness of their offences. [44] In reality however, it was submitted, the sentence of detention "during the pleasure of" removed the death penalty without providing a fixed term of imprisonment or any statutory review mechanism. [45] It was submitted that when Malaysia acceded to the Convention on the Rights of the Child ("CRC") on 17 February 1995, this marked a significant commitment by the Malaysian government to uphold and protect the rights of children within the country although it had some reservations to the convention which allowed the government to disagree with certain provisions of the CRC. [46] It was submitted that Malaysia has since withdrawn some of these reservations which demonstrated a progressive approach towards aligning with international standards on children's rights. [47] The passing of the Child Act 2001 was enacted to fulfil Malaysia's commitment to the CRC and are based on the four core principles of the CRC that is, non-discrimination, best interest of the child, the right to life, survival and development and respect for the views of the child. [48] It was further submitted that while the Child Act 2001 represented a major step forward in aligning domestic law with CRC standards, Section 97(2) retains a colonial-era approach to sentencing children convicted of capital offences. [49] It was asserted that its indeterminate and executive-controlled nature sits in contradiction alongside the Act's otherwise rehabilitative and reintegrative approach. [50] It was submitted that Section 97(2) violates Article 37 of the CRC which prohibits capital punishment and life imprisonment without the possibility of release for persons under 18, mandates detention as a last resort and for the shortest appropriate period. [51] It was contended by learned counsel that although the Federal Court in Public Prosecutor v Kok Wah Kuan [2008] 1 MLJ 1 by a majority upheld the constitutionality of Section 97 of the Child Act 2001, it was time to revisit the subject. Comparative jurisdictions [52] Learned counsel submitted that courts in other jurisdictions have progressively moved towards a more rights-oriented approach, recognising that indeterminate juvenile detention, especially where the executive determines the length of detention, violates fundamental guarantees of fairness, separation of powers, proportionality and children's rights. [53] The sentencing regime for juveniles in the United Kingdom, Kenya, Barbados and South Africa were cited as progressive examples. [54] The comparative jurisprudence, it was submitted, reflected clear and consistent trend rejecting indeterminate, executive-controlled or non-reviewable juvenile detention. [55] It was asserted that modern constitutional democracies require that a child's sentence be judicially determined subject to regular review and tailored to the child's evolving development and circumstances in accordance with the principle that detention must be a measure of last resort and imposed only for the shortest appropriate period. [56] It was finally submitted in conclusion to Part A that the current sentencing landscape reveals a fundamental anomaly in that every category of serious offender, adults convicted under Section 302 and Section 3(1), drug traffickers convicted under Section 39B, those previously sentenced to death or natural life imprisonment, has received or has access to determinate sentences while those detained under Section 97(2) of the Child Act 2001 remain subject to indefinite detention without review. Part B [57] In this part, the submission of the Applicant addresses the application under Rule 137, and challenges the constitutionality of his continued indefinite detention, which is in alleged violation of Article 5(1) and Article 8(1) of the Federal Constitution. [58] Learned counsel for the Applicant submits that exceptional circumstances exist in this case for the exercise of the review jurisdiction of this court. The reason is that the sentencing framework under which the Applicant was sentenced has now been fundamentally altered by Parliament and the Applicant's sentence is now incompatible with the current statutory framework. Breach of Article 5(1) [59] This has resulted in injustice arising from a constitutional and statutory misalignment between the sentence imposed and the law as it stands. It is submitted that the Applicant's continued indefinite detention violates Article 5(1) since the Abolition Act 2023 that removed the punishment of natural life imprisonment is no longer "in accordance with law". [60] Learned counsel cited the Federal Court decision in Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301 which established that the term "law" in Article 5(1) encompasses not merely validly enacted legislation but requires substantive fairness. Deprivation of liberty thus, must be in accordance with law that is reasonable, fair, and just in both procedure and substance. [61] It was submitted that it is the duty of a court to adopt a "prismatic approach" when interpreting the fundamental rights guaranteed under Part II of the Federal Constitution. [62] It was contended that the rights encompassed in Article 5(1), including the right to proportionate punishment, the right to certainty in sentencing, and the right to rehabilitation were inherent in the language employed in the said Article. [63] The prismatic interpretation of the Constitution, it was argued, gives life to abstract concepts such as "life" and "personal liberty" in Article 5(1) and inherent in the concept of due process or natural justice is that an accused has a right to a fair trial and absent that, no deprivation of life is lawful. A fair trial includes a fair sentencing hearing. [64] It was argued that the continued detention under a provision, namely s.97(2) of the Child Act 2001, that operates as a substitute for punishments that Parliament has abolished (mandatory death) cannot satisfy the requirement that deprivation of liberty be "in accordance with law" within the meaning of Article 5(1). [65] It was still further argued that a law providing for disproportionate sentences violates Article 5(1) as it cannot be considered "in accordance with law" in the substantive sense required by the Constitution citing Alma Nudo Atenza v Public Prosecutor [2019] 5 CLJ 780 as authority. [66] It was argued thus that the Applicant's indefinite detention is manifestly disproportionate as compared to adult offenders convicted of murder face maximum sentences of 40 years. [67] It was contended that this also violated the certainty principle. [68] Unlike those serving the death sentences and natural life prior to the Abolition Act 2023 and Re-sentencing Act 2023, the Applicant has no statutory right to review where there is no defined criteria for the Applicant's release, and no certainty regarding when his detention will end. [69] The continued detention of the Applicant's therefore defeats the rehabilitation objectives meant for these offenders. [70] Article 8(1), it was argued, demands that transformative legislation must be applied equally to all individuals without arbitrary discrimination and the exclusion of any class of offenders from its benefits must satisfy strict constitutional scrutiny. [71] Learned counsel submitted that the Federal Court in the case of Alma Nudo Atenza v PP & Another Appeal (supra) held that Article 8(1) imports the principle of substantive proportionality i.e., not only must the legislative or executive response to a state of affairs be objectively fair, it must also be proportionate to the object sought to be achieved. [72] The language of the Federal Court in so espousing this principle was expressed in the following manner: "[118] In other words, art 8(1) imports the principle of substantive proportionality. 'Not only must the legislative or executive response to a state of affairs be objectively fair, it must also be proportionate to the object sought to be achieved" [73] Learned counsel submitted that the Federal Court case of Ketheeswaran a/l Kanagaratnam & Anor v Public Prosecutor [2024] 1 MLJ 851 crystallised the test under Article 8(1) into two essential elements, the first of which is that there must be intelligible differentia between the classes of persons who are treated differently and secondly, there must be a rational nexus between the differentiation and a legitimate legislative objective. [74] The current sentencing framework creates an irrational classification system that places the Applicant in a fundamentally disadvantaged position compared to all other categories of serious offenders. This classification fails both limbs of the Article 8(1) test and violates the principle of substantive equality. [75] It was argued that legislative reforms have created distinct classes of offenders with markedly different treatment as follows: i) Adults convicted under Section 39B DDA, Section 302 Penal Code and Section 3(1) Kidnapping Act 1961 after July 2023 receive determinate sentences with maximum terms of 30 years and 40 years respectively; ii) Adults convicted under Section 39B, Section 302 and Section 3(1) previously sentenced to death or life imprisonment have access to review under the Resentencing Act 2023 and are receiving determinate sentences; iii) Drug traffickers under Section 39B of the Dangerous Drugs Act 1952, once subject to mandatory death, now face maximum determinate sentences of 30 years; and iv) The Applicant, as a juvenile sentenced under Section 97(2), faces indefinite detention with no maximum limit and potentially for periods exceeding the new statutory maximum. [76] This classification system therefore places the Applicant, a child offender with inherently reduced culpability, in a worse position than adult offenders who committed identical or more serious crimes. This inversion of expected sentencing outcomes violates the fundamental principle recognised globally that juvenile offenders should receive more lenient, not harsher, treatment than adults. [77] It was argued that the situation faced by the Applicant's fails the two-stage test enunciated in the case of Ketheeswaran. [78] At the first stage, no intelligible differentia exists to justify treating the Applicant worse than adult murderers, death row prisoners, or current juvenile offenders. The only distinction is that the Applicant was sentenced under Section 97(2) of the Child Act 2001, which is a procedural accident of timing rather than a substantive difference relating to culpability, dangerousness, or any other legitimate sentencing consideration. [79] At the second stage, no rational nexus exists between the differential treatment and any legitimate legislative objective. Public protection does not require indefinite detention when determinate sentences of 30 years for Section 39B and 30-40 years for Section 302 and Section 3(1) are deemed sufficient for adult offenders. [80] As there must be a reasonable nexus between the discrimination and that legislative aim, denying the Applicant's the opportunity for their sentences to be reviewed in light of the Abolition Act 2023 violates their right to equal protection of the laws. [81] The indefinite detention of a juvenile offender while adult offenders receive determinate sentences is grossly disproportionate to any conceivable legitimate objective. [82] Learned counsel for the Applicant's said that the disproportionality was heightened by the complete absence of review mechanisms for Section 97(2) detainees. [83] It was submitted that the Applicant's have exhausted all ordinary judicial remedies through trial, appeal to the Court of Appeal, and appeal to the Federal Court and that no further appellate remedies exist. [84] Rule 137 is therefore, the only available judicial remedy capable of addressing the continued constitutional breach. [85] The Re-sentencing Act 2023 provides for review of death sentences and natural life imprisonment but does not expressly cover detention under Section 97(2) of the Child Act 2001 which creates a legislative gap that leaves the Applicant without any statutory mechanism for review. [86] Learned counsel said that the pardon process under Article 42 of the Federal Constitution, the child report under Section 97(4)(a) and (b) of the Child Act 2001 and the quadrennial report and petition under Regulations 54 and 113 of the Prison Regulations 2000, although running in parallel, do not constitute an alternative remedy to Rule 137. [87] It was argued that the doctrine of separation of powers means that pardon is an executive act while sentencing and review of sentence are judicial functions. [88] The case of Public Prosecutor v Dato' Yap Peng [1987] 2 MLJ 311 was cited as authority for this proposition. [89] It was additionally submitted that judicial power of the Court resides in the judiciary and no other. The Federal Court case of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2017] 3 MLJ 561 was cited in support. [90] It was finally submitted that these multiple factors create special circumstances justifying this Court's intervention under Rule 137. Respondent Rule 137 of the Rules of Federal Court 1995 [91] It is argued by the Respondent that this application has not passed the threshold for leave for review based upon the contents of the Notice of Motion and the Affidavits of all Applicants filed herein. [92] The Respondent submitted that according to the case of Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia) Bhd [2008] 6 CLJ 1, which laid down the criteria for review of cases, the Applicants have raised no exceptional or special circumstances that justify a review. [93] It was submitted that the doctrine of finality must be strictly observed as otherwise the opening of doors for a further review upon a review would be opening the floodgates and would cause more uncertainty in the law. The case of Harcharan Singh Piara Singh v PP [2011] 6 CLJ 625 was cited in support. [94] The Respondent in their written submissions displayed in tabulated form, the process of review carried out by the Board of Visiting Justices under section 97(4) (a) and (b) of the Child Act 2001, Quadrennial Report on prisoners under Regulation 54 and petition by prisoners under Regulation 113 of the Prison Regulations 2000 by the Secretariat for the Pardons Board Perak, Johor, Negeri Sembilan and Selangor where each Applicants applications were to be presented to the Pardons Board in the respective states for deliberation by the DYMM Paduka Seri Sultan Perak, DYMM Sultan Johor, DYMM Yang di-Pertuan Besar Negeri Sembilan and DYMM Sultan Selangor according to Article 42 of the Federal Constitution. [95] The Respondents submitted therefore that there are already alternative remedies provided for under the law for the Applicants to be dealt with according to Section 97(4) of the Child Act 2001, Regulation 54 and 113 of the Prison Regulations 2000 read together with power of pardon under Article 42 of the Federal Constitution respectively. [96] It was submitted that whether these available alternative remedies would be successful or not are matters to be dealt with according to the existing legal framework and the contention that the Applicants have no effective alternative remedy and that the only remedy available is under Rule 137 does not constitute limited and exceptional case for leave for review to be granted based on the established principles of law relating to Rule 137. [97] The Respondent further submitted that Rule 137 cannot be invoked when there is an alternative remedy provided by law. The remedy provided for under section 97(4) of the Child Act 2001, Regulations 54 and 113 of the Prison Regulations 2000 and Article 42 of the Federal Constitution have not been exhausted by all the Applicants and using Rule 137 is a backdoor step tantamount to abuse of the process of court. [98] It was argued that the Applicants are currently pursuing all remedies under the existing legal framework. It was submitted that according to the respective Secretariat of the Pardons Board, they have received all the relevant papers from all Applicants and these are to be presented to the Pardons Board for deliberation by the DYMM Paduka Seri Sultan Perak, DYMM Sultan Johor, DYMM Yang di-Pertuan Besar Negeri Sembilan and DYMM Sultan Selangor. Resort therefore to Rule 137 of the Rules of the Federal Court 1995 has no legal basis. [99] The remedies sought for is within the royal prerogative of the respective DYMM Paduka Seri Sultan Perak, DYMM Sultan Johor, DYMM Yang di-Pertuan Besar Negeri Sembilan and DYMM Sultan Selangor as the case may be. [100] As these Applicants have an avenue for release pursuant to section 97(4) of the Child Act 2001, Regulation 54 and Regulation 113 of the Prison Regulations 2000, their applications have no merit and are not reviewable under Rule 137. [101] The Respondent argues that the nub of the Applicants case is whether Abolition of Mandatory Death Penalty Act 2023 (Act 846) and Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023 (Act 847), which introduced changes to the sentencing framework of mandatory death sentences and natural life imprisonment which have now have been abolished and replaced with imprisonment of not less than 30 years and not more than 40 years or, at the Court's discretion, the death penalty, constitute a fundamental change in circumstances. [102] The Respondent argued that Act 847 established a temporary jurisdiction for the Federal Court to review and revise sentences of death and imprisonment for natural life. [103] This law allows individuals previously sentenced to mandatory death or natural life imprisonment to apply for a review of their sentences in the Federal Court. [104] After drawing our attention to the wording of section 2 of Act 847, the Hansard reports explaining the Bill concerned, and the Explanatory Statement to the said Bill, the Respondent submitted that the manifest intention of Parliament under Act 847 was to grant temporary jurisdiction to the Federal Court to review death sentences or life imprisonment in the following circumstances:

(ii) When an application for pardon under Article 42 of the Federal Constitution to substitute the death sentence with another sentence was rejected by the Pardons Board;

(iii) When a prisoner is serving a life imprisonment sentence and has exhausted all judicial proceedings before Act 847 came into force;

(iv) When an application for pardon under Article 42 of the Federal Constitution to substitute the life imprisonment sentence with another sentence was rejected by the Pardons Board; and

1. Lye Thai Sang & Anor v. Faber Merlin (M) Sdn. Bhd. [1985] 2 CLJ 423; [1985] CLJ (Rep) 196.

2. Adorna Properties Sdn. Bhd. v. Kobchai Sosothikul [2005] 1 CLJ 565.

3. Allied Capital Sdn. Bhd. v. Mohd. Latiff Bin Shah Mohd. & Another Application [2004] 4 CLJ 350, in particular the dissenting judgment of Abdul Hamid Mohamad, FCJ.

4. Tai Chai Yu v. The Chief Registrar of the Federal Court [1998] 2 CLJ 358.

5. Chan Yock Cher v. Chan Teong Peng [2005] 4 CLJ 29.

6. Chu Tak Fai v. Public Prosecutor [2006] 4 CLJ 931. [5] Coming back to r.137 of the RFC 1995, I have dealt at length on the effect of the rule in Abdul Ghaffar Md. Amin v. Ibrahim Yusoff & Anor [2008] 5 CLJ 1 and in Sia Cheng Soon & Anor v. Tengku Ismail Tengku Ibrahim [2008] 5 CLJ 201. In the former case I concluded: In other words, rule 137 cannot be construed as to confer any new jurisdiction to the existing jurisdiction of the Federal Court as spelt out under the Federal Constitution, the Courts of Judicature Act and other statutes. [6] However, I accept that, in very limited and exceptional cases, this court does have the inherent jurisdiction to review its own decision. I must stress again that this jurisdiction is very limited in its scope and must not be abused. have no difficulty in accepting that inherent jurisdiction may be exercised in the following instances: [7] First, where there is a lack of quorum as in Chia Yan Tek & Anor v. Ng Swee Kiat & Anor [2001] 4 CLJ 61 where two of the presiding judges had retired at the time when the judgment was delivered and only one judge remaining who was capable of exercising his functions as a judge of that court. [8] Secondly, where the decision had been obtained by fraud or suppression of material evidence as in MGG Pillai v. Tan Sri Dato' Vincent Tan Chee Yioun [2002] 3 CLJ 577. [9] Thirdly, where there is a clear infringement of statutory law. In this respect, a clear example would be where the court has mistakenly applied a repealed law. But, where it is a matter of interpretation or application of the law, it is in my view not a suitable case for a review. The judgment of this court is Adorna Properties Sdn. Bhd. v. Kobchai Sosothikul [2005] 1 CLJ 565 does throw some light in this respect. [10] Fourthly, where application for review has not been heard by this court but, through no fault of the applicant, an order was inadvertently made as if he has been heard as in Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai and others AIR (1941). [11] Fifthly, where bias has been established as in Taylor & Anor v. Lawrence & Anor [2002] 2 All ER 353. [12] Of course, there may be other circumstances. But, the review jurisdiction should never be allowed to be used to question a finding of this court in an appeal on question of facts...". (emphasis added) [132] The court had occasion again to examine the powers of review in Dato' Seri Anwar Bin Ibrahim v Public Prosecutor [2017] 1 MLJ 273, where it was held as follows: [47] We are of the considered view that the scope and application of r 137 of the RFC is well settled. Rule 137 is merely a restatement of the fact that this Court has an inherent power to prevent injustice or to prevent an abuse of the process of the court and that nothing in the RFC limits or affects that power. It does not confer upon the Federal Court a statutory jurisdiction or a new jurisdiction to hear any application to review its own decision. It does not provide for a means of an appeal to the Federal Court against its own decision (Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia) Bhd [2008] MLJU 1090; [2008] 6 CLJ 1; Sia Cheng Soon & Anor v Tengku Ismail bin Tengku Ibrahim [2008] 3 MLJ 753; [2008] 4 AMR 583; Dato' Seri Anwar bin Ibrahim v Public Prosecutor [2016] 3 MLJ 277; [2016] 4 AMR 213)...". (emphasis added) [133] Similar sentiments were expressed in Badan Peguam Malaysia v Kerajaan Malaysia [2009] 1 CLJ 833 and Harcharan Singh Piara Singh v PP [2011] 6 CLJ 625. [134] The principles that can be distilled from all these cases are the following:

34. Section 302 of the Code is amended by inserting after the words "with death" the words "or imprisonment for a term of not less than thirty years but not exceeding forty years and if not sentenced to death, shall also be punished with whipping of not less than twelve strokes." [149] Arising from the amendment to Section 34 of the Abolition Act 2023, Section 302 of the Penal Code is amended to read as follows: "Punishment for murder

302. Whoever commits murder shall be punished with death or imprisonment for a term of not less than thirty years but not exceeding forty years and if not sentenced to death, shall also be punished with whipping of not less than twelve strokes." [150] The sum results of all of this, as submitted by learned counsel for the Applicants, is that the courts now possess the discretion to commute the death sentence and replace it with a term of 30 years for offences under Section 39B with whipping of not less than 12 strokes and imprisonment between 30 to 40 years and whipping of not less than twelve strokes for offences under Section 302. [151] Learned counsel also makes mention of amendments to other statutes that he claims altered the legal landscape with regards to the sentencing regime in this country, including the Kidnapping Act 1961, Arms Act 1960, Firearms (Increased Penalty) Act 1971 and Section 307(2) of the Penal Code for attempted murder. [152] The unfairness argument manifests itself in this manner. While adult offenders are entitled to a finite duration of incarceration, such a position is not available to child offenders. [153] Child offenders are instead subject to the indefinite incarceration period as stipulated under s. 97 of the Child Act 2001 reproduced as follows: - "(1) A sentence of death shall not be pronounced or recorded against a person convicted of an offence if it appears to the Court that at the time when the offence was committed he was a child.

(2) In lieu of a sentence of death, the Court shall order a person convicted of an offence to be detained in a prison during the pleasure of—

(3) If the Court makes an order under subsection (2), that person shall, notwithstanding anything in this Act—

(4) If a person is ordered to be detained at a prison under subsection (2), the Board of Visiting Justices for that prison—

5. (1) No person shall be deprived of his life or personal liberty save in accordance with law". [156] Section 97 of the Child Act 2001 is a lawfully enacted piece of legislation designed specifically for a child. Article 5, as can be discerned from a plain reading, is not couched in absolute terms but with the condition that it must be in accordance with law. [157] The expression "law" therefore may be interpreted as "any law enacted or which has been passed by a competent legislature in accordance with the established procedure" or "law that includes within it the fundamental rules of natural justice.". [158] The Federal Court in PP v Kok Wah Kuan [2007] 6 CLJ 341 held as follows: "[33] On plain reading of subsection (2) of s. 97 it is clear that it empowers the court, after convicting a person who was a child at the time of commission of an offence punishable with death, to make an alternative order instead of imposing a sentence of death. In my view the alternative power to make such an order as provided for by the subsection is no less than the power of the court to impose a sentence or punishment on a child convict albeit in a different form, namely, to the care of the Yang di-Pertuan Agong or to the Ruler or to the Yang di-Pertua Negeri depending on where the offence was committed. [34] Hence, with respect I do not think there is anything unconstitutional in the scheme since it is still the court that makes the order consequential to its conviction order. In my view when the court makes the order it is carrying out the process of sentencing which is generally understood to mean a process whereby punishment in accordance with established judicial principles is meted out by the court after a conviction order has been made following a full trial or a guilty plea. (See: Public Prosecutor v. Jafa bin Daud [1981] CLJU 28; [1981] 1 LNS 28; Standard Chartered Bank and Others v. Directorate of Enforcement and Others [2005] AIR SC 2622). Incidentally s.183 of the Criminal Procedure Code provides: 'If the accused is convicted, the Court shall pass sentence according to law'. (emphasis added) [159] Section 97 of the Child Act 2001 stipulates clearly where and how the child offender convicted of murder (or of trafficking under the DDA and Kidnapping) shall be placed, that is, under the direction of the YDPA or the Ruler or the Yang di-Pertua Negeri. The detentions of these child offenders pursuant to the section are to be deemed therefore as being in lawful custody. [160] Similarly, in the case of PP v Bird Dominic Jude [2013] 6 MLJ 785, the Court of Appeal held: "(3) Section 56A of the CJA is a specific and explicit law that authorises the depravation of the personal liberty of the respondent who had been acquitted by the High Court on the drugs trafficking charge against him. As such, s 56A of the CJA did not violate arts 5(1) and 8(1) of the FC. By virtue of s 56A of the CJA read with art 121(1B) of the FC, this court was competent and empowered to cause an accused person to be arrested and committed to prison, or admit him to bail, pending the disposal of the appeal against the order of acquittal. Thus, s 56A of the CJA is valid and binding law and the respondent's attempt to strike down the judicial powers of this court as encapsulated in s 56A of the CJA was without any merit and ought to inevitably fail (see paras 29 & 36)." (emphasis added) [161] The inevitable conclusion in respect of this point therefore, is that the provision "detention at the pleasure..." does not violate Article 5 because the child offender is convicted after the due process of a trial and at its conclusion, the sentence passed is in accordance with a validly passed law enacted by a competent Parliament. Parliament, in its wisdom had seen fit to entrust and to empower the Executive to determine the length of the detention as part of the statutory scheme. [162] The presumption of constitutionality seals this point in favour of the Respondent. [163] Consequently, there is no merit thus to the argument that the fundamental rights of the Applicants have been violated under Article 5 of the Federal Constitution. [164] The Applicants further alleged a breach of Article 8. It was submitted by learned counsel for the Applicants that they are constitutionally entitled to equal protection of the law guaranteed under Article 8(1) of the Federal Constitution. It is argued that this fundamental right requires not merely formal equality but substantive equality in the application of laws, including the benefits conferred by the Abolition Act 2023. [165] Article 8(1) of the Federal Constitution provides as follows: "All persons are equal before the law and entitled to the equal protection of the law". [166] So, the Applicants argues that as the Abolition Act 2023 represents a fundamental shift in Malaysia's sentencing philosophy, establishing determinate sentences is the new constitutional standard. It is contended that Article 8(1) demands that this transformative legislation must be applied equally to all individuals without arbitrary discrimination and any exclusion of any class of offenders from its benefits must satisfy strict constitutional scrutiny. [167] Now, Article 8 comprise two separate and distinct rights which are equality before the law and equal protection of the law. Article 8(1) is an embodiment of A.V.Dicey's rule of law which refers to a system of law that is both fair and just. [168] Nonetheless, when evaluating whether an enacted law is violative of Article 8, two conditions must be considered. The first, is whether a law that discriminates passes the reasonable classification test which is founded on an intelligible differentia and secondly, whether the classification has an intelligible differentia that has a rational relation to the object sought to be achieved by the law in question. [169] The principle of reasonable classification expounded by the Indian courts in Shri Ram Krishna Dalmia v Shri AIR 1958 SC 53, has been accepted by our courts in a number of decisions. See for e.g. PP v Khong Teng Khen [1976] 2 MLJ 166, FC; Datuk Haji Harun bin Haji Idris v PP [1977] 2 MLJ 155; Ahmad Tajudin bin Hj Ishak v Suruhanjaya Pelabuhan Pulau Pinang [1997] 1 MLJ 241, CA; Datuk Yong Teck Lee v PP [1993] 1 MLJ 295 and in Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd (Bar Council Malaysia, Intervener) [2004] 2 MLJ 257. [170] A piece of legislation therefore, even if discriminatory, will be valid if there is reasonable classification in the legislation. It is the court and not the legislature who is to decide whether the classification made by a statute is reasonable or not. [171] It is accepted that there may be situations when a law conferring very broad discretion on an authority may be regarded by the court as discriminatory and thus invalid if the law makes no reasonable classification or fails to provide guidelines for the exercise of the discretion. [172] In summary therefore, a law which discriminates is good law if it satisfies two conditions as follows : Doctrine of reasonable classification

(ii) the differentia has a rational relation to the object sought to be achieved by the law in question. The classification may be founded on different bases such as geographical, or according to objects or occupations and the like. What is necessary is that there must be a nexus between the basis of classification and the object of the law in question. See Halsbury's Laws of Malaysia - Constitutional Law (Volume 3(3)) [100.043] [173] The courts have also held that the equal protection clause in art 8(1) houses the doctrine of proportionality. See Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333, FC and Public Prosecutor v Azmi bin Sharom [2015] 6 MLJ 751, FC. [174] These two cases have also held that proportionality is a test to be used when determining whether any form of State action be it executive, legislative or judicial is arbitrary or excessive when there is an allegation of a breach of a fundamental right. [175] In determining whether a particular law which restricts fundamental liberties passes the doctrine of proportionality, the courts asks itself the following:

(ii) whether the measures designed to meet the legislative objective are rationally connected to it; and

(iii) whether the means used to impair the right or freedom are no more than is necessary to accomplish the objective. See Halsbury's Laws of Malaysia - Constitutional Law (Volume 3(3)) [100.045] [176] The all-pervading effect of Article 8 has also been held to encompass procedural fairness, substantive fairness and prevention of arbitrary state action. See for e.g. Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261, CA; and Hong Leong Equipment Sdn Bhd v Liew Fook Chuan [1996] 1 MLJ 481, CA. See Halsbury's Laws of Malaysia - Constitutional Law (Volume 3(3)) [100.044] [177] As long ago as 1976 the Federal Court held in Public Prosecutor v Khong Teng Khen & Anor-[1976] 2 MLJ 166, the following: "The principle underlying Article 8 is that a law must operate alike on all persons under like circumstances, not simply that it must operate alike on all persons in any circumstance, nor that it "must be general in character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons ... for the purpose of legislation",Kedar Nath v State of West Bengal AIR 1953 SC 404 406. In my opinion, the law may classify persons into children, juveniles and adults, and provide different criteria for determining their criminal liability or the mode of trying them or punishing them if found guilty; the law may classify persons into women and men, or into wives and husbands, and provide different rights and liabilities attaching to the status of each class; the law may classify offences into different categories and provide that some offences be triable in a Magistrate's court, others in a Sessions Court, and yet others in the High Court; the law may provide that certain offences be triable even in a military court; fiscal law may divide a town into different areas and provide that ratepayers in one area pay a higher or lower rate than those of another area, and in the case of income tax provide that millionaires pay more tax than others; and yet in my judgment in none of these cases can the law be said to violate Article 8. All that Article 8 guarantees is that a person in one class should be treated the same as another person in the same class, so that a juvenile must be tried like another juvenile, a ratepayer in one area should pay the same rate as paid by another ratepayer in the same area, and a millionaire the same income tax as another millionaire, and so on." (emphasis added) [178] The stark relevancy of the above passage by none other a legal luminary as distinguished as Suffian L.P to the present cases cannot be overstated. [179] The Federal Court held in Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd -[2004] 4 MLJ 259: "In order to appreciate our law, it must first be understood that equality does not mean absolute equality of all men, which is a physical impossibility to attain (see Sheoshanker v State of MP AIR 1951 Nag 58). In saying that equality is a legal concept which is easy to state but difficult to apply Suffian LP said in Datuk Haji Harun bin Hj Idris v Public Prosecutor [1977] 2 MLJ 155 at p 165: ... because, first, equality can only apply among equals and in real life there is little equality, and, secondly, while the concept of equality is a fine and noble one it cannot be applied wholesale without regard to the realities of life. While idealists and democrats agree that there should not be one law for the rich and another for the poor nor one for the powerful and another for the weak and that on the contrary the law should be the same for everybody, in practice that is only a theory, for in real life it is generally accepted that the law should protect the poor against the rich and the weak against the strong. Article 8(1) is therefore not intended to make unequals equal. As Chaudhari & Chaturvedi say in their book Law of Fundamental Rights (4th Ed) at p 15: Equality presupposes classes. Therefore, the only application of the equality clause in a society of classes is by creating, abolishing, reconstituting, recognizing or providing for any facility for any class, at any suitable time. It follows that the requirement for equal protection of the law does not mean that all laws passed by a legislature must apply universally to all persons and that the law so passed cannot create differences as to the persons to whom they apply and the territorial limits within which they are in force (see Malaysian Bar & Anor v Government of Malaysia [1987] 2 MLJ 165). In Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ Lord Diplock said at p 72: Equality before the law and equal protection of the law require that like should be compared with like. What art 12(1) (our Article 8(1)) assures to the individual is the right to equal treatment with other individuals in similar circumstances. Similarly, as Hashim Yeop A Sani J (as he then was) said in Public Prosecutor v Su Liang Yu [1976] 2 MLJ 128 at p 129: The dominant idea in both expressions 'equal before the law' and 'equal protection of the law' is that of equal justice. The meaning of these two expressions have been decided in a number of decisions of the US Supreme Court and also the Indian Supreme Courts and certain principles have been settled and accepted. Due to the demands caused by the complexity of modern government the doctrine of classification was evolved by the courts for practical purposes and read into the equality provision. It has been accepted therefore that a legislature for the purpose of dealing with the complex problems arising out of an infinite variety of human relations cannot but proceed upon some sort of selection or classification of persons upon whom the legislation is to operate." (emphasis added) "In the circumstances, in construing art 8 of the Federal Constitution, our hands are tied. The equal protection in cl (1) of art 8 thereof extends only to persons in the same class. It recognises that all [180] The Federal Court in Beatrice a/p AT Fernandez v Sistem Penerbangan Malaysia & Ors [2005] 3 MLJ 681 held: persons by nature, attainment, circumstances and the varying needs of different classes of persons often require separate treatment. Regardless of how we try to interpret art 8 of the Federal Constitution, we could only come to the conclusion that there was obviously no contravention. We are also in agreement with the views expressed by Suffian LP in Datuk Haji Harun bin Haji Idris v Public Prosecutor [1977] 2 MLJ 155 at pp 165 and 166 on this point." (emphasis added) [181] The legal principles outlined in the cases above have more recently been considered by the Federal Court in the case of Ketheeswaran all Kanagaratnam & Anor v Public Prosecutor [2024] 1 MLJ 851, where it was held: " [130] The jurisprudence of art 8(1) is beyond settled. In order to achieve equality in the truest sense of art 8, decided cases have held that discrimination is allowed except in certain cases. In relation to art 8(2), discrimination only on the grounds stated in that article is prohibited against citizens unless expressly authorised by the FC. However, if an argument is made in respect of art 8(1), then the following must be shown. [131] Firstly, there must be an intelligible differentia between the categories of persons (or classes of persons) that are classified within a certain group against persons (or classes of persons) who can be clearly classified outside of that group. In other words, the discrimination must be intelligible and clear not arbitrary or wanton. The first element of art 8(1) looks for a clear distinction between who is discriminated. This assessment ensures that the discrimination is not done arbitrarily. [132] The second element of art 8(1) which is usually the one at issue in most cases, looks at the basis of discrimination. Here, it must be established that the differentiation in the first element was enacted in furtherance of a legitimate legislative aim and that there is a reasonable nexus between the discrimination and that legislative aim. If there is no objective and justifiable reason for the discrimination, then in such a circumstance, the measure will have violated art 8(1). [133] In relation to the second element, more recent cases decided in the past few decades such as Alma Nudo, also emphasise the importance of proportionality in the assessment of the measure. In other words, even if the legislative measure which is discriminatory was pursued for a legitimate aim, the measure may still be violative of art 8(1) if the extent of the measure taken is disproportionate to the legitimate legislative aim it seeks to achieve." (emphasis added) [182] I think by now, it is obvious what adhering to Article 8 entails, which is that the phrase "equal protection of the law" in the article does not mean that all laws passed by a legislature must apply universally to all persons and that the law so passed cannot create differences as to the persons to whom they apply and the territorial limits within which they are in force. [183] The objectives that the Legislature had in mind when in the process of enacting section 97(2) of the Child Act 2001 can be discerned from the Hansard which has been held to be an acceptable form of ascertaining the intention of Parliament. See Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42; [1992] 3 WLR 1032 and Chor Phaik Har v Farlim Properties Sdn Bhd [1994] 3 MLJ 345. [184] The Penyata Dewan Rakyat dated 20 October 1999 at page 28 is reproduced below: "Sebagai ganti hukuman mati mahkamah hendaklah memerintahkan supaya seseorang yang disabitkan atas sesuatu kesalahan ditahan di penjara selama yang diperkenankan oleh Yang di-Pertuan Agong atau raja atau Yang di Pertua Negeri. Jelaslah mahkamah bagi kanak-kanak akan menjalankan perbicaraan kes-kes kanak-kanak yang terlibat dalam aktiviti aktiviti jenayah dan ada juga hukuman yang dikenakan terhadap penjenayah criminal antaranya ditahan di sekolah-sekolah khas dan pusatpusat pemulihan akhlak atau dipenjarakan di penjara biasa.". [185] The Penyata Dewan Rakyat dated 16 October 2000 at page 49 reads: "Fasal 97 rang undang-undang ini juga mencadangkan bahawa hukuman mati tidak boleh dijatuhkan kepada kanak-kanak. Kesemua ini adalah bertujuan memberi peluang kepada kanak-kanak yang terlibat dengan kegiatan jenayah menjalani kehidupan yang baru di bawah bimbingan yang sesuai. Ini adalah satu tanda atau sifat yang perlu pada sebuah masyarakat penyayang.". [186] As can be discerned, the ultimate objective was to place child offenders in a category of their own so as to not suffer the extreme fate of adult offenders with the view to being given an opportunity at rehabilitation and their eventual re-integration back into society. [187] There is therefore a reasonable case of classification based upon clearly identifiable and intelligible differentia. The case for discrimination between an adult offender and a child offender was made clear and manifest and that was to grant the child offender an opportunity to rehabilitate given their tender age and provide them the opportunity to be re-assimilated into society as useful and productive citizens. In other words, the discrimination was intelligible and clear and not arbitrary. [188] Although it might be argued that these same objectives may apply with equal force to adult offenders, the importance on rehabilitation and re-integration does not achieve the same emphasis. [189] Given these objectives, there was also a reasonable nexus that existed between the discrimination and that legislative aim sought to be achieved. [190] The two-stage test for compliance with Article 8 was thus satisfied. The measure taken to achieve the objectives of rehabilitation and re-integration, was also not disproportionate to the legitimate legislative aim it sought to achieve i.e. (detention at the pleasure of the King or the respective rulers of the State), thus also passing the proportionality test. [191] There was thus, no violation or fundamental breach of Article 8. Did the passing of The Abolition of Mandatory Death Penalty Act 2023 [Act 846] and The Revision of Death Sentences and Life Imprisonment Act 2023 [Act 847] alter the situation to the detriment of the Applicants? [192] Section 97(4) of the Child Act 2001 is reproduced again for convenience as follows: "If a person is ordered to be detained at a prison under subsection (2), the Board of Visiting Justices for that prison—

26.10.2022 3.9.2024 17.2.202529.11.2023 12.6.2025Wong Soon Heng16.11.2020 17.8.2021 26.10.10.202220.6.202515.1.2024 27.5.2025Still awaiting [198] Although not exactly uniform for all the Applicants, the table does display that the processes regarding the assessment of the Applicants for eventual release are not static but ongoing. [199] There are therefore alternative remedies provided for under the law for the Applicants to be dealt with according to Section 97(4) of the Child Act 2001, Regulation 54 and 113 of the Prison Regulations 2000 read together with power of pardon under Article 42 of the Federal Constitution, all of which have yet to be exhausted by the respective Applicants. [200] There is therefore no merit to the argument put forth by learned counsel for the Applicants that there is no available review of the duration of sentencing in respect of the Applicants. [201] The remedy afforded exclusively to the Applicants via section 97(4) of the Child Act 2001 provides the opportunity for them to be released earlier from detention, by virtue of the yearly recommendation by the Board of Visiting Justices. This opportunity is not afforded to a convict of the age of majority, who must resort to the avenues available under Regulation 54 and Regulation 113 of the Prison Regulations 2000. [202] The introduction of Act 846 and Act 847 therefore changed nothing with regard to the Applicants' equal rights before the law. [203] Consequently, there is also no merit to the argument that the Applicants positions have been altered to their disadvantage by the passing of The Abolition of Mandatory Death Penalty Act 2023 [Act 846] and The Revision of Death Sentences and Life Imprisonment Act 2023 [Act 847]. Are the decisions of the King (YDPA), the Rulers, the Governors (YDPN) and the Pardons Board under Article 42 of the Federal Constitution justiciable? [204] The power of pardon is a prerogative of the Yang diPertuan Agong (YDPA), the Rulers, and the Yang diPertua Negeri (YDPN) under Article 42 of the Federal Constitution, and is validly exercised on the advice of the Pardons Board (Articles 42(4) to (11)). [205] Article 42 reads: "Power of pardon, etc.

42. (1) The Yang di-Pertuan Agong has power to grant pardons, reprieves and respites in respect of all offences which have been tried by court-martial and all offences committed in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya; and the Ruler or Yang di-Pertua Negeri of a State has power to grant pardons, reprieves and respites in respect of all other offences committed in his State.". [206] There are a plethora of authorities that have held that the discretion of the YDPA, or the Ruler or the Yang diPertua Negeri in accordance with Article 42 is non-justiciable. [207] In Sim Kie Chon v Superintendent of Pudu Prison [1985] 2 MLJ 385, the Supreme Court held: "In the present case though the Pardons Board tendered advice to the Yang di-Pertuan Agong but clearly Yang di-Pertuan Agong himself exercised the power in accordance with Art. 42(1) above read together with regulation 29 of the Essential (Security Cases) (Amendment) Regulations, 1975. In our view such power is a power of high prerogative of mercy which is an executive act but by its very nature is not an act susceptible or amenable to judicial review... In the present case the appellant's right ends after his appeal was dismissed by the Supreme Court and the death sentence confirmed. Mercy begins but mercy is not a legal right. In the case of Chiow Thiam Guan v Superintendent of Pudu Prison and the Government of Malaysia (supra), it was held that a decision made pursuant to an exercise of a royal prerogative of mercy cannot be varied or confirmed there being no jurisdiction to do so. In our judgment, proceedings in Court aimed at questioning the propriety or otherwise of such a decision are therefore not justiciable. By the same token a contention of any violation of the fundamental right which rests wholly on or dependent upon such an allegation is also not justiciable. It is our considered view that the power of mercy is a high prerogative exercisable by the Yang di-Pertuan Agong or the Ruler of a State or the Yang di-Pertua Negeri, as the case may be, who acts with the greatest conscience and care and without fear of influence from any quarter. (See Hanratty and Another v Lord Butler of Saffron Walden) (1971) 115 Solicitors Journal p 386." (emphasis added) [208] In Datuk Seri Anwar Ibrahim v Mohd Khairul Azam Abdul Aziz & Anor Appeal [2023] 2 CLJ 236 the Court of Appeal held: [37] The long and consistent established position of the law in Malaysia is that the prerogative power of the YDPA under art. 42 of the Federal Constitution is non-justiciable." [209] In PP v Lim Hiang Seoh [1979] 2 MLJ 170, the Federal Court held that: "We made no order as regards whatever decisions had been made by His Majesty on these sentences. When considering whether to confirm, commute, remit or pardon, His Majesty does not sit as a court, is entitled to take into consideration matters which courts bound by the law of evidence cannot take into account, and decides each case on grounds of public policy; such decisions are a matter solely for the executive. We cannot confirm or vary them; we have no jurisdiction to do so. The royal prerogative of mercy, as is recognised by its inclusion in Chapter 3 of Part IV of the Constitution, is an executive power as in Jamaica, Hinds v The Queen [1976] 1 All ER 353 372. Criminal Application No. 12." (emphasis added) [210] In Superintendent Of Pudu Prison & Ors v Sim Kie Chon [1986] CLJ (Rep) 256 at page 260, the Supreme Court held that: "... Article 42 of our Constitution is a reiteration of the prerogative power of mercy exercisable on the advice of the appropriate Pardons Board. The power of pardon or otherwise to mete out clemency is an executive power, and in our Constitution the royal prerogative of mercy is expressly preserved by Article 42 of the Constitution and is recognised by its inclusion in Chapter 3 of Part IV thereof as an executive power. (cf. Hinds v. The Queen [1977] Ac 195 (at page 228)). The Supreme Court of India has also held in G. Krishta Goud & J. Bhoomaiah v. State of Andra Pradesh & Ors. [1976] 2 SCR 73 (at page 76) that when the Constitution has empowered the nation's highest executive as the repository of the clemency power, the Court cannot intervene and judicial review is excluded by implication...” (emphasis added) [211] In Juraimi Bin Husin v Pardons Board, State Of Pahang & Ors [2002] 4 MLJ 529, the Federal Court held as follows: "In stating that the power under art 42 of the Federal Constitution is not susceptible or amenable to judicial review, our Supreme Court was then relying on Civil Service Unions. Our Supreme Court and the House of Lords in Civil Service Unions had referred to this power under art 42 as the prerogative of mercy. And as pointed out to us by the learned defendants' counsel in the excerpt of Lord Roskill (quoted above) the prerogative of mercy is amongst the powers that Lord Roskill thought not to be susceptible to judicial review because its nature and subject matter is such as not to be amenable to the judicial process." (emphasis added) [212] Consequently, the decisions of the YDPA, the Rulers, the YDPN, and the Pardons Board under Article 42 are rendered non-justiciable and provided they are validly exercised in accordance with the applicable law, such decisions cannot be brought before the courts for judicial review. The Apparent Disconnect between Act 846 and Section 97(2) Child Act 2001 [213] The Applicants submit that Section 97 of the Child Act 2001 was engaged solely because of the mandatory death penalty prescribed by certain offences at the time of the conviction of the Applicants. [214] It was submitted therefore that the trigger for S.97(2) which was the mandatory death sentence, no longer exists as it was designed to operate in a legal landscape where the only available sentence for murder, kidnapping and drug trafficking was death. [215] So, while the Applicants do not challenge the constitutionality of S.97, they assert that the section is no longer engaged because of the change in the legal landscape. [216] The Applicants further submitted that the retrospective nature of sections 39, 53 and 55 of Act 846 which provide that persons convicted of offences under section 302, Section 3(1) and Section 39B under the respective Acts, manifests the clear intention of Parliament that the previous mandatory sentencing regime should no longer apply irrespective of the categories of offenders. [217] A perusal of Section 2 and Section 3 of Act 847 makes in clear that the pre-condition for the application under Section 3 is that the person must be on death row at the date of enforcement of Act 847, and notwithstanding that his application for pardon was rejected. [218] This places the Applicants' squarely outside the purview of Act 847. If Parliament had intended the persons in the category of the Applicants to be included in Act 847, it would have expressly said so. [219] Section 97(2) Child Act 2001 has not been abrogated or repealed. [220] Whatever misgivings the Applicants have including whether Section 97 of the Child Act 2001 is "harsh and unjust" remains a policy consideration exclusively within the domain of the Legislature and any remedy to be made available must be a matter for Legislative intervention. [221] The Courts ought not to embark on a Legislative exercise lest it be chastised in similar terms to what Lord Simonds had occasion to state in the House of Lords in Magor and St Mellons Rural District Council v Newport Corporation [1951] 2 All ER 839 that "It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation" when commenting on too interventionist an approach. [222] The Courts themselves must also be careful not to go where angels fear to tread for that of itself may also transgress the principle of the separation of powers which they have sworn to uphold. [223] Under all the circumstances, the oath of office arguments also taken by the Applicants are unmeritorious. Has the threshold under Rule 137 been met? [224] The rights of the Applicants have not been infringed and the fundamental rights of the Applicants under Article 5 and 8 have not been violated. [225] The contention that the Applicants are doomed to a period of indefinite detention has been also shown to be erroneous. There does not exist any special circumstances warranting a review of the sentences lawfully imposed on the Applicants. [226] Consequently, the Applicants have not managed to traverse the high threshold for leave to review the decision under Rule 137. Decision [227] Based upon the reasons given, all these applications are therefore unanimously dismissed. Dated : 21 April 2026 (COLLIN LAWRENCE SEQUERAH) Judge Federal Court Malaysia Counsel of the Appellant:

1. Abdul Rashid Ismail

2. Khaizan Sharizad Ab Razak

3. Siti Nurani Zahidi

4. Jacqueline Hannah Albert Messrs. Rashid Zulkifli D2-5-5, Block D Solaris Dutamas No.1, Jalan Dutamas 1, 50480 Kuala Lumpur. Counsel of the Respondent :

1. Dato' Sri Saiful Edris Bin Zainuddin

2. Afzainizam Bin Abdul Aziz

3. Noor Farhana Binti Adham

4. Mohamad Arif Aizuddin Bin Masrom Pendakwa Raya, Bahagian Perbicaraan dan Rayuan, Jabatan Peguam Negara, Putrajaya.