YAP KAK MIN v Pendakwa Raya (Q-05(M)-89-02/2022)

This is an appeal by the Appellant, Yap Kak Min, against the decision of the High Court at Miri delivered on 13 February

The Appellant was charged with the offence of murder under Section 302 of the Penal Code. The charge preferred against him reads as follows: “That you on 9 January 2018, between 8.00 am and 5.50 pm, at Lot 5851 Desa Pujut Lorong 5, Bandar Baru Tudan, Lutong/Kuala Baram, in the district of Miri, in the State of Sarawak, did commit murder of one Nasreen Tan Chai Wei (NRIC.: 050203-13-1234), and thereby committed an offence punishable under Section 302 of the Penal Code.”

At the conclusion of the trial, the learned High Court Judge found that the prosecution had proved its case beyond a reasonable doubt. Consequently, the Appellant was convicted and sentenced to death by hanging.

Aggrieved by the said the learned High Court Judge’s decision, the Appellant, through Penjara Pusat Miri initially filed a notice of appeal to this Court on 28 February 2022, to appeal solely on the sentence. However, in the Petition of Appeal which was filed on 27 February 2025, the Appellant stated that this appeal was made against both conviction and sentence.

However, on the scheduled hearing date of 14 October 2025, when the matter came up before us, the Appellant through his learned counsel informed this Court of his intention to withdraw his appeal against the conviction, electing instead to pursue the appeal solely against the death sentence.

Following the withdrawal of the appeal against conviction, the conviction entered by the High Court was formally affirmed. Consequent to recent legislative changes introduced via the Abolition of Mandatory Death Penalty Act 2023, which vested statutory discretion in the courts regarding sentences for murder, we proceeded to hear mitigation from the Appellant’s counsel and submissions from the Respondent regarding the sentence.

Having fully considered the respective arguments, this Court unanimously (sebulat suara) set aside the death sentence and substituted it with a term of thirty (30) years imprisonment and twelve (12) strokes of whipping, imprisonment to run from the date of arrest, 9 January 2018.

The Appellant, being dissatisfied with the severity of the substitute imprisonment term, has appealed further to the Federal Court. We now set out our grounds of judgment specifically concerning the imprisonment sentence imposed.

We now provide our reasons. B. FACTS OF THE CASE The Prosecution Evidence 9. The prosecution called a total of eighteen (18) witnesses. The core narrative of the prosecution’s case established that the deceased, Nasreen Tan Chai Wei, a 12-year-old child at the material time, was found dead on 9 January 2018 at Lot 5851 Desa Pujut Lorong 5, Bandar Baru Tudan, Miri.

The prosecution relied on a combination of direct, circumstantial, and forensic evidence. Witnesses established that the Appellant was the last person seen with the deceased at the premises during the timeframe stipulated in the charge. The medical evidence presented by the forensic pathologist confirmed that the deceased’s injuries — which included blunt force trauma and fatal asphyxiation, were not self-inflicted and were sufficient in the ordinary course of nature to cause death, satisfying the statutory threshold of murder under Section 300 of the Penal Code. Forensic analysis further linked the DNA found at the crime scene and on the deceased to the Appellant, establishing an unbroken chain of evidence pointing irresistibly to his guilt.

At the close of the prosecution case, the learned trial Judge found that a prima facie case had been established, and the Appellant was called upon to enter his defence. The Defence Evidence 12. The Appellant elected to give evidence under oath. In his defence, the Appellant offered a blanket denial of the crime. He asserted that he had no motive to kill the deceased and claimed that he was not present at the exact location when the fatal injuries were inflicted, attempting to set up a defence of alibi or lack of exclusive opportunity. He further contended that the forensic evidence was contaminated or inconclusive and that the prosecution had failed to exclude the involvement of third parties. C. COURT OF APPEAL; OUR ANALYSIS AND DECISION On Conviction 13. By formally withdrawing the appeal against conviction, the Appellant abandoned his assertions of innocence and accepted his criminal culpability for the murder under Section 302 of the Penal Code. Following the withdrawal of the appeal against conviction, the conviction entered by the High Court was formally affirmed.

We would also like to stress the point that even if the Appellant proceeded with his appeal against conviction before us, we found no such appellate intervention warranted here. From the Records of Appeal, we satisfied that the learned trial Judge properly directed his mind to the strict legal standards governing circumstantial evidence. The prosecution successfully proved that the Appellant was present at the scene, and the forensic DNA results conclusively tied him to the commission of the offence. The medical testimony clearly established that the injuries inflicted on the young victim were of such a nature that death was the natural and probable consequence.

Further, we found that the Appellant’s defence amounted to nothing more than a bare denial and an unsustainable alibi that failed to square with the objective scientific and circumstantial data. We agreed with the learned trial Judge that the prosecution had proved the charge under Section 302 of the Penal Code beyond a reasonable doubt. The conviction is entirely safe. On Sentence 16. We now turned our attention to the appeal against sentence. The High Court had sentenced the Appellant to the mandatory death penalty as prescribed by the law at the time the judgment was delivered. However, following the legislative amendments introduced via the Abolition of Mandatory Death Penalty Act 2023 (Act 846), the mandatory death sentence under Section 302 of the Penal Code has been repealed and replaced with alternative discretionary sentencing options.

Under the current legal framework, the Court is vested with the discretion to either impose the death penalty OR a term of imprisonment of not less than thirty (30) years and not more than forty (40) years, and if not sentenced to death, the offender shall also be punished with whipping of not less than twelve (12) strokes.

In line with prevailing judicial precedents guiding the exercise of this newly minted discretion, the death penalty is reserved for the “rarest of rare” cases or instances where the shock to the public conscience demands ultimate retribution. While we recognized the tragic and heinous nature of the crime involving a young victim, we took into account the mitigating factors, the circumstances of the offender, and the statutory shift away from mandatory capital punishment.

We were of the considered view that a lengthy custodial sentence combined with corporal punishment would satisfy the principles of retributive and deterrent justice. We therefore allowed the appeal against sentence in part. D.

The order of the High Court in respect of the conviction is affirmed. The order in respect of the death sentence is set aside. We substitute the death sentence by hanging with the followings: i) A term of imprisonment for thirty (30) years, to run from the date of arrest, which is 9 January 2018; and ii) Whipping of twelve (12) strokes of the rotan. Dated the 8th day of July 2026 -sgd- (AZMAN BIN ABDULLAH) Judge Court of Appeal Malaysia Putrajaya Counsel For the Appellant : Mr Louis Jarau Patrick [Hani Iryani Ling & Lateng Advocates (Sibu)] For the Respondent : TPR Tuan Abdul Malik bin Ayob [Attorney General’s Chambers]