MOHD HELMI ANUAR MOHD KASSIM v. PP & OTHER APPLICATIONS
FEDERAL COURT, PUTRAJAYA
WAN AHMAD FARID SALLEH CJ 
AZIZAH NAWAWI CJ (SABAH & SARAWAK) 
LEE SWEE SENG FCJ
[APPLICATION NOS: 07-23-11-2024(W), 07-24-11-2024(W) & 05(RJ)-6-11-2024(C)]
22 APRIL 2026
[2026] CLJ JT (8)

Abstract – (i) Where an applicant seeks to challenge the constitutionality of an impugned earlier decision on grounds not previously ventilated, such a challenge remains justiciable in a review application under r. 137 of the Rules of the Federal Court 1995, provided that it is demonstrated that the factual substratum necessary to support the constitutional challenge was not available at the material time; (ii) The mere existence of a remote risk of mortality or an adverse medical outcome incidental to a prescribed punishment, such as whipping, does not render that punishment unconstitutional or an unlawful deprivation of the right to life under art. 5(1) of the Federal Constitution ('FC'). For a punishment to be set aside on medical grounds, there must be clear medical evidence of a direct causal link between the punishment and a specific risk of death for the individual applicant. Where an intervening factor, such as medical mismanagement, exists, it constitutes a novus actus interveniens, severing the causal link between the judicial sentence and the fatality; (iii) International conventions and treaties do not have the force of law in Malaysia unless and until they are expressly incorporated into domestic legislation by Parliament. The ultimate test for the legality and constitutionality of a sentence is the FC itself, not external international standards or instruments.

CONSTITUTIONAL LAW: Fundamental liberties – Right to life and personal liberty – Federal Constitution, art. 5(1) – Sentence of whipping – Challenge against constitutionality of whipping – Death of third-party inmate due to 'septic sequelae' following whipping – Allegation that whipping carries risk of death not authorised by law – Whether punishment of whipping aims to deprive right to life – Whether sentence of whipping contravened art. 5(1)

CONSTITUTIONAL LAW: Fundamental liberties – Equality before law – Federal Constitution, art. 8(1) & (2) – Sentence of whipping – Proportionality test – Exemption of women from whipping – Whether based on valid preferential treatment – Whether mandatory whipping provisions balanced exercise of legislative power – Whether sentence of whipping contravened art. 8(1) & (2)

CONSTITUTIONAL LAW: Fundamental liberties – Right to life and personal liberty – Interpretation – International conventions – 'Acid test' of constitutionality – Federal Constitution as supreme law – Whether international treaty obligations form part of domestic law – Whether international instruments relevant where Parliament has not incorporated same into legislation – Universal Declaration of Human Rights, art. 3 – International Covenant on Civil and Political Rights, art. 9(1)

CRIMINAL PROCEDURE: Sentence – Review – Application to set aside whipping sentences – Death of third-party inmate after whipping – Medical findings of 'septic sequelae due to blunt force trauma' – Whether novus actus interveniens – Whether medical mismanagement severed causal link – Factual substratum not available during earlier re-sentencing – Whether applicants proved unfitness to undergo whipping – Whether sentence of whipping constitutional – Whether 'exceptional case' warranting review – List of exceptional circumstances in Asean Security Paper Mills Sdn Bhd v. Mitsui Sumitomo Insurance (Malaysia) Sdn Bhd – Dangerous Drugs Act 1952, s. 39B(1)(a) – Penal Code, s. 302 – Rules of the Federal Court 1995, r. 137