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The court held s.39B(2A)(a)-(d) are circumstances the court may have regard to and are to be read disjunctively rather than as conjunctive mandatory prerequisites; the presence of (d) (assistance to enforcement) is not a mandatory condition for exercising discretion to impose life imprisonment and whipping. Where the prosecution asserts absence of assistance it bears the evidential burden to prove that on a balance of probabilities because the matter is within the knowledge of enforcement agencies; a pre‑sentencing hearing and appropriate evidence are required to determine (d). Applying these principles the minority set aside the death sentences and substituted life imprisonment from date...

Citation
Q-05(M)-364-09/2020 (Mahkamah Rayuan)
Parties
Appellant: Junaidi Berimang; Appellant: Riko Dwi Yanto; Respondent: Public Prosecutor
Court
M
Jurisdiction
Malaysia
Judgment Date
25 October 2021
Case Number
Q-05(M)-364-09/2020 (Mahkamah Rayuan)
Procedural Posture
Criminal Appeal / Court of Appeal Minority Judgment on Sentence
Outcome
Death sentences set aside and substituted with life imprisonment and whipping
Legal Topics
Death Penalty, Discretionary Sentencing, Dangerous Drugs Act S.39 B(2 A), Burden of Proof, Pre‑sentencing Procedure, Assistance to Enforcement Agencies, Comparative Law (singapore)
Source Language
Malay/English
Criminal Law Drug Offences Sentencing Statutory Interpretation Evidence Death Penalty Discretionary Sentencing Dangerous Drugs Act S.39 B(2 A) +4 more

Case Brief

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Parties

Junaidi Berimang

Appellant

Riko Dwi Yanto

Appellant

Public Prosecutor

Respondent

Procedural Posture

Criminal Appeal / Court of Appeal Minority Judgment on Sentence

Legal Issues

  1. 1 Whether s.39B(2A)(a)-(d) are to be read disjunctively or conjunctively
  2. 2 Whether s.39B(2A)(d) is a mandatory prerequisite for imposing life imprisonment
  3. 3 On whom the burden of proof lies regarding the presence or absence of s.39B(2A)(d) assistance

Ratio Decidendi

The court held s.39B(2A)(a)-(d) are circumstances the court may have regard to and are to be read disjunctively rather than as conjunctive mandatory prerequisites; the presence of (d) (assistance to enforcement) is not a mandatory condition for exercising discretion to impose life imprisonment and whipping. Where the prosecution asserts absence of assistance it bears the evidential burden to prove that on a balance of probabilities because the matter is within the knowledge of enforcement agencies; a pre‑sentencing hearing and appropriate evidence are required to determine (d). Applying these principles the minority set aside the death sentences and substituted life imprisonment from date...

Court Disposition

Death sentences set aside and substituted with life imprisonment and whipping

Orders

  • Death sentences of both appellants set aside
  • Each appellant sentenced to life imprisonment from date of arrest (15 February 2018) and to 15 strokes of whipping