Yap Kak Min v Public Prosecutor

Appellant(s): Yap Kak Min

Respondent(s):

• Pendakwa Raya
• [Pendakwa Raya]

• YA Dato' Paduka Azman Bin Abdullah
• YA Dato' Azmi Bin Ariffin
• YA Datuk Dr Lim Hock Leng

• The appellant was convicted by the High Court at Miri of the murder of a 12-year-old victim under Section 302 of the Penal Code and sentenced to death, based on circumstantial evidence including DNA linking him to the crime scene and medical evidence confirming the injuries were not self-inflicted.
• The appellant's defence at trial was a bare denial coupled with an assertion that he was not present when the fatal injuries were inflicted, and that forensic evidence was contaminated or inconclusive.
• On the hearing date of the appeal, the appellant withdrew his appeal against conviction and elected to pursue only an appeal against the death sentence, in light of the intervening Abolition of Mandatory Death Penalty Act 2023.

• Whether the withdrawal of the appeal against conviction operated to affirm the conviction, and whether the conviction was in any event safe on the merits.
• Whether, following the Abolition of Mandatory Death Penalty Act 2023, the Court should exercise its newly conferred discretion to substitute the mandatory death sentence with an alternative sentence.
• What principles govern the exercise of sentencing discretion under the amended law, including when the death penalty remains appropriate as opposed to a lengthy term of imprisonment with whipping.

• The Court affirmed the conviction, both by reason of the withdrawal of the appeal against conviction and on an independent review finding the circumstantial, forensic and medical evidence sufficient to sustain guilt beyond reasonable doubt.
• The Court held that the death penalty is reserved for the "rarest of rare" cases, and having regard to mitigating factors and the statutory shift away from mandatory capital punishment, declined to impose it despite the heinous nature of the offence.
• The death sentence was set aside and substituted with 30 years' imprisonment (from the date of arrest) and 12 strokes of whipping, allowing the sentence appeal in part.