4 July 2025 marked two years since the Abolition of Mandatory Death Penalty Act 2023 (Act 846) came into force, repealing the mandatory death penalty for eleven offences and replacing the previous mandatory sentence with judicial discretion. The implementation period has produced the most significant criminal-justice reform in Malaysia in decades. This is where things stand at the two-year mark.
The Federal Court\’s review jurisdiction
The Federal Court\’s temporary review jurisdiction — established to re-sentence prisoners already on death row at the time of the abolition — concluded on 29 October 2024. By that date the Court had reviewed 936 cases. The outcome was substantial commutation: by 1 January 2025 the total death-row population had dropped to 140, an 87% decline from before the review.
The Court of Appeal commuted a further 116 death sentences in 2024 alone. Together, the Federal Court and Court of Appeal have commuted at least 1,016 death sentences since the Act came into force.
Drug trafficking — the discontinuity
One pattern in the review data is striking. None of the 43 death sentences upheld by the Federal Court following the review of 860 applications under the temporary jurisdiction were for drug-related offences. The Federal Court\’s settled view, post-Alma Nudo, treats drug trafficking sentences with greater discretion than the pre-Act 846 regime allowed.
However, an alarming 38% of newly imposed death sentences by the High Courts in 2024 were for drug-related offences. This means: while the Federal Court reduces drug-related death sentences on review, the High Courts continue to impose them at trial. Practitioners should expect the appellate path to be the most reliable route to avoid the death sentence in drug trafficking matters.
What sentencing now looks like under Act 846
- For previously-mandatory-death offences (including s.39B Dangerous Drugs Act 1952), the court can now impose: (a) the death sentence, or (b) imprisonment of 30 to 40 years plus 12 strokes of whipping
- Mitigation factors are explicitly relevant — age, role in the offence, cooperation under s.40 DDA, time on remand, prospect of rehabilitation
- The court must give reasons for choosing death over the alternative; this is appealable
Practitioner implications
For defence counsel in s.39B cases
Sentencing mitigation now matters at trial in a way it did not before 2023. Counsel should marshal: the accused\’s age and antecedents; the role-in-chain analysis (mule vs principal); medical and psychological evidence; cooperation history; impact on dependants; prospect of rehabilitation. Prepare a sentencing affidavit, not just a plea in mitigation.
For prosecution
The Public Prosecutor must now make a sentencing recommendation that is consistent with the Act 846 framework. Death sentence recommendations require articulated reasoning grounded in the gravity of the offence and the absence of mitigation. The “automatic death” practice no longer applies.
For families and accused
The most important practical reality: a death sentence imposed by the High Court is no longer the end. The Court of Appeal and Federal Court routinely commute. Counsel should plan the appellate strategy from day one of trial.
See also: Drug Trafficking Defence under the DDA 1952 | Yong Vui Kong / Alma Nudo case comment | Criminal Defence Lawyer in Malaysia
About the author
Dr Chee Hui Bing is a Malaysian Advocate & Solicitor and former medical doctor. Principal of 克里斯和伙伴律师事务所, Batu Pahat, Johor. Read full profile.