Thursday, November 23, 2017

MADPET - JUDGE’S DISCRETION TO NOT IMPOSE DEATH PENALTY ONLY IF PUBLIC PROSECUTOR GIVES CERTIFICATION IS WRONG



Media Statement – 24/11/2017

JUDGE’S DISCRETION TO NOT IMPOSE DEATH PENALTY ONLY IF PUBLIC PROSECUTOR GIVES CERTIFICATION IS WRONG

Dangerous Drugs (Amendment) Act 2017 Meant To Abolish Mandatory Death Penalty And Return Sentencing Discretion To Judges Has Too Many Flaws

MADPET(Malaysians Against Death Penalty and Torture) welcomes the fact that the Bill to amend Section 39B of the Dangerous Drugs Act 1952, which has the mandatory death penalty, to now give judges discretion in sentencing, that will allow the imposition of life imprisonment instead of the death penalty has finally been tabled in Dewan Rakyat(House of Representatives). The said Bill, the Dangerous Drugs (Amendment) Act 2017, which has taken a long time, was finally tabled in Parliament on 23/11/2017 for the first reading. 

SENTENCING DISCRETION TO JUDGES ONLY WHEN THE PUBLIC PROSECUTOR ALLOWS IT

MADPET is disappointed that discretion when it comes to sentencing those convicted for the offence drug trafficking (Section 39B) is not going to be given to judges in all cases.  Judges will only get the discretion to impose a sentence other than the death penalty, only if and when the ‘Public Prosecutor certifies in writing to the Court, that in his determination, the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia.’(Section 2(b) of the Amending Act)
 
Rightly, it must be Judges and the courts that consider and decide whether one has ‘assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia’. 

Before sentencing, judges will usually hear and consider submissions of both the prosecution and the convicted person, and then impose an appropriate sentence. Thus, the question, of whether there was assistance or not could be included as one of the listed matters that should be considered by the Judge before he decides and pronounce the sentence. Some may have no information or very little information, or maybe that information and/or assistance will not help disrupt drug trafficking activities. As, such this really should be for the judge to decide, and maybe should be a point to be considered before sentencing. There may be also other relevant considerations of safety of oneself and/or family as many of these drug kingpins may threaten to cause harm, and Malaysia may not yet be ready to provide the requisite protection to the accused family and loved ones. 

It is wrong to give the Public Prosecutor the power to decide who dies and who may live. Remember, that he is also responsible for prosecution in a criminal trial, and the power to the Public Prosecutor to give or not give the written certification is most dangerous. It may also undermine the right to a fair trial.

Now, according to the proposed amending Act, if the Public Prosecutor does not provide this ‘certification’, judges would have no choice but to impose the death penalty. This mandatory requirement for such a ‘certification’ by the Public Prosecutor must be deleted.

NO REVIEW OF DISCRETION OF PUBLIC PROSECUTOR TO PROVIDE CERTIFICATION

Further, it is stated in the proposed amendments that, ‘The determination of whether or not any person has assisted an enforcement agency in disrupting drug trafficking activities shall be at the sole discretion of the Public Prosecutor and no action or proceeding shall lie against the Public Prosecutor in relation to any such determination done by him in good faith, in such capacity’. 

Well, that suggests that no one may be able to question or challenge the correctness of the Public Prosecutor’s decision – not even the courts by way of Judicial Review. This invites the possibility of miscarriage of justice, because if there is no required ‘certification’ by the Public Prosecutor, then the said convict will be sentenced to death.

Judicial Review is an essential ‘check and balance’ especially in a Democracy. One should be able to move the court to review even the decisions of the Public Prosecutor. Further, as it is Public Prosecutor, who decides whether to prosecute or not, this issuance or issuance of this ‘certification’ maybe for the wrong reasons, possibly even to ensure that the prosecution wins the case.

The power and discretion when it comes to sentencing must always rest with Judges alone. The existence of appeals to higher courts, helps ensure that there be no errors.

800 OR MORE ALREADY CONVICTED ON DEATH ROW WILL STILL BE EXECUTED?

In March, Minister Azalina said that according to Prison Department statistics, there are almost 800 prisoners on death row for drug trafficking offences under Section 39(B) (Star, 24/3/2017). These would all be persons already convicted. 

The new proposed amendments, however, will not help any of these persons, whose trial is over and they have been convicted and sentenced. 

The proposed amendment, in Section 3(2) of the proposed Amending Act, states very clearly that new amendments, when it comes into force, will only be used for persons who ‘…has not been convicted under section 39B…’. This means that all 800 or more on death row for drug trafficking will still be executed, unless they are pardoned by the King and/or rulers.

As such, MADPET urges that the sentence of all 800 or more persons currently convicted and on death row be immediately commuted to imprisonment.

MANDATORY SENTENCES CONTINUE TO EXIST

Even with the amendment, there still will be mandatory sentences – Death(if the Public Prosecutor Does Not Certify), and when there is certification, then judges can impose either Death or Imprisonment for Life(plus whipping of not less than 15 strokes). There is no discretion given to judges to impose a lower prison term, but judges seem to have the discretion to order whipping of more than 15 strokes.

With regard persons being tried under Section 39B Drug Trafficking, we know that many of them may have had the drugs for various different reason, knowingly or unknowingly, and some maybe out of desperation because of poverty. 

We know that section 37(da) Dangerous Drugs Act states that “…any person who is found in possession of-(i) 15 grammes or more in weight of heroin;(ii)… otherwise than in accordance with the authority of this Act or any other written law, shall be presumed, until the contrary is proved, to be trafficking in the said drug.” This and other similar legal presumptions shift the burden of proof to the accused person, and it is most difficult for an accused person, more so if he/she is poor, to prove that the drugs found did not belong to him/her.

Should a ‘fool’ who made one mistake be sentenced to death or life in prison. A mandatory life sentence is also grossly unjust. Judges should be given real discretion even with regard to the length of imprisonment, and as such a mandatory life sentence also needs to be reviewed, and judges should have the discretion to impose lower sentence. There should be lower prison sentences for first time offenders, and higher for repeat offenders. We should be emphasizing rehabilitation rather than a ‘lock them up and throw away the key’ policy. 

WHAT ABOUT OTHER MANDATORY DEATH PENALTY OFFENCES?

Malaysia have been studying the abolition of the death penalty, and to date we are only seeing action with regard the drug trafficking. There are so many other offences that provide for mandatory death penalty including crimes that do not result death and/or grievous hurt to victims.

Malaysia needs to speed up at least the abolition of the mandatory death penalty for all offences, and returning sentencing discretion to judges.

MADPET calls


a)    That discretion when it comes to sentencing should be with judges. The proposed pre-condition before a judge can exercise judicial discretion in sentencing, being the written certification by the Public Prosecutor that the convicted  has ‘assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia’ should be deleted. Such conditions are unacceptable;

b)    That the death sentence of the 800 or over persons on death row for drug trafficking(section 39B) be forthwith commuted to imprisonment;

c)    That Malaysia speed up its efforts towards the abolition of the death penalty, especially the mandatory death penalty for all offences;

d)    That Malaysia impose a moratorium on executions pending abolition of the death penalty.


Charles Hector
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)

Thursday, November 16, 2017

Abolish POCA and detention without trial laws


Abolish POCA and detention without trial laws

Published:     Modified:

LETTER | We, the 36 undersigned civil society organisations, trade unions and groups are perturbed to hear that 142 juveniles have been arrested under the Prevention of Crime Act (POCA), a law that allows the detention of people without trial as revealed by Deputy Prime Minister Ahmad Zahid Hamidi in a written Parliamentary reply.

We are shocked about the continued existence of detention without trial (DWT) laws in Malaysia, including the Prevention of Crimes Act 1959 (POCA), Prevention of Terrorism Act 2015 (POTA) and the Dangerous Drugs (Special Preventive Measures) Act 1985 that allows for persons to be arrested, detained and/or restricted without the rights to challenge the reasons of their incarceration and/or restriction in court. The fundamental right to a fair trial is denied.

If 142 juveniles were victims of DWT laws, then one wonders whether thousands of individuals are currently detained/restricted under POCA and other DWT laws.

The fundamental problem with these DWT laws in Malaysia is that the victim cannot even challenge even the reasons for his arrest, detention and/or restriction in a court of law.

Without the ability to go for a judicial review challenging the reasons used for the detention/restriction, the judiciary is effectively barred from ensuring that the executive is not abusing its power and/or that no innocent person is being unjustly denied his constitutionally guaranteed rights and liberties.

DWT laws allow for an individual to be detained and/or restricted indefinitely according to the whims and fancies of the government, be it a minister or an appointed board.

A person who has been arrested, detained and/or restricted under these draconian laws are also denied their fundamental rights to a fair trial. The state could then also deny rights and liberties of the innocent. The principle that everyone should be presumed innocent until proven guilty in a court of law must be respected.



When Malaysia finally got rid of its infamous Internal Security Act 1960 (ISA) and the Emergency (Public Order and Prevention of Crime) Ordinance 1969, there was hope that all other laws that allow for DWT would also be repealed.

Amendments to POCA 

However, the opposite happened and the ability of the state to continue using DWT laws were enhanced by the amendments of the Prevention of Crimes Act 1959 (POCA), and the introduction of the new Prevention of Terrorism Act 2012.

Further, an amendment to POCA came into effect in 2014 introduced a new Part IVA that allowed DWT as well. 

The Board could now issue a ‘detention order for a period not exceeding two years, and may renew any such detention order for a further period not exceeding two years at a time if it is satisfied that such detention is necessary in the interest of public order, public security or prevention of crime.’

Previously, when POCA was used, within 24 hours after arrest when the victim is brought before the Magistrate for a remand application, a statement in writing signed by a police officer not below the rank of assistant superintendent stating that there are grounds for believing that the name of that person should be entered on the register was required before a Magistrate granted a 14 day remand.

However, after April 2014, all that is required is a statement of a police officer of the rank of inspector. Rather than having greater safeguards against possible abuse, it was made easier by requiring just an inspector’s statement. The remand period was also extended to 21 days.

POCA was originally enacted to be used for organised crime members, triads or gangs involved in crimes involving ‘violence or extortion’ was amended to cover all offences in the Penal Code.

Originally it was to be used for gangs of 5 or more persons, but that was amended to 2 or more persons. That means that POCA can now be used for even a person who committed a crime with another, even if the crime was theft or some other lesser crime. The right to a fair trial could now be easily denied for many more persons.



The POCA amendment that came into force in May 2014 allowed for POCA to be used for an even wider range of persons including drug traffickers, and persons living on the proceeds of drug trafficking; human traffickers, and persons living on the proceeds of human trafficking; persons involved in unlawful gaming; smugglers of migrants, and persons living on proceeds of migrant smuggling; recruiters of members of gangs or persons who participated in some crime. A subsequent amendment in 2015 added ‘Persons who engage in the commission or support of terrorist acts under the Penal Code’.

An interesting amendment to POCA that came into effect on 1/9/2015 was section 4(2A) which stated that 
 “No person shall be arrested and detained under this section solely for his political belief or political activity. The new Section 4(5) goes on to explain "political belief or political activity" as meaning ‘engaging in a lawful activity through; 

 (a) the expression of an opinion or the pursuit of a course of action made according to the tenets of a political party that is at the relevant time registered under the Societies Act 1966 [Act 335] as evidenced by

 (i) membership of or contribution to that party; or

 (ii) open and active participation in the affairs of that party;

(b) the expression of an opinion directed towards any government in Malaysia; or

(c) the pursuit of a course of action directed towards any government in Malaysia.".

This may give the impression that POCA will not be used against politicians (and possibly civil society personalities) for actions directed against the government.

It, however, does not protect civil society or human rights defenders if their actions and/or expression of opinion are directed against some our perpetrator of injustice, and not being ‘any government’, or if they are alleged of committing some other crime. It must be recalled that POCA was used in July 2016 in the case of R. Sri Sanjeevan, the Malaysian Crime Watch Task Force (MyWatch) chairperson – a civil society organisation.

This amendment, however, may have the effect of reducing the interest or concern of political parties about POCA and such DWT laws. 

The effect of DWT laws

The victims of these laws may now be mostly common people who are being detained and restricted for years without being accorded a fair trial.

The number of victims of such DWT laws are also unknown as most such information in Malaysia are usually known when the government makes a reply to a Parliamentary Question. The recent information about the number of juvenile victims of POCA was because of such questions was raised by an opposition parliamentarian.

Now whenever a person is suspected of a crime involving 2 or more persons, POCA can simply be used as it is so much easier and requires no comprehensive investigation or gathering of evidence that would have been required if one was to be charged and tried in court.

In a fair trial, the prosecution needs to prove that a person is guilty beyond reasonable doubt.

The guilt or innocence of a person must be determined by an independent judge in court, and the belief of the police, prosecution or government that a person is guilty is inadequate. A trial also gives a right to the accused persons to defend themselves, and the courts will decide after considering all evidence and facts of the case.

Therefore, we the undersigned, call for the following;

1. the immediate repeal of all DWT laws, including the Prevention of Crimes Act 1959, Prevention of Terrorism Act 2015 and the Dangerous Drugs (Special Preventive Measures) Act 1985;

2. the immediate and unconditional release of all persons now currently being detained and/or restricted under these draconian laws;

3. the immediate disclosure of the numbers of persons being detained under these laws, and the reasons used to justify their detention;

4. that compensation and damages be paid to all victims of DWT laws for their loss of rights and liberties. 
signed,

Charles Hector  

ALIRAN
Association of Human Rights Defenders and Promoters- HRDP, Myanmar
Asia Pacific Solidarity Coalition. (APSOC)
ATRAHDOM Guatemala.
AWAM
Australians Against Capital Punishment(AACP)
BERSIH 2.0
Center for Prisoners' Rights Japan
Christian Development Alternative (CDA), Bangladesh
Civil Rights Committee of KLSCAH
Democratic Commission for Human Development, Pakistan
Indonesian Legal Roundtable
Institute for development of Alternative Living (IDEAL)
Japan Innocence and Death Penalty Information Center
Legal Awareness Watch (LAW), Pakistan
MADPET(Malaysians Against Death Penalty and Torture)
Malaysian Physicians for Social Responsibility
Malaysia Youth & Student Democratic Movement (DEMA)
National Union of Transport Equipment & Allied Industries Workers (NUTEAIW)
North South Initiative
NUFAM(National Union of Flight Attendants Malaysia)
Odhikar, Bangladesh
Parti Rakyat Malaysia (PRM)
Persatuan Komuniti Prihatin Selangor & KL
Philippine Alliance of Human Rights Advocates
PROHAM (Society for the Promotion of Human Rights, Malaysia)
Sahabat Rakyat 人民之友
Sawit Watch, Indonesian Social NGO
Saya Anak Bangsa Malaysia (SABM)
Sosialis Alternatif (Committee for Workers International-Malaysia)
Suara Rakyat Malaysia (SUARAM)
Teoh Beng Hock Trust for Democracy
Think Centre, Singapore
Workers Assistance Center, Inc., Philippines
WH4C (Workers Hub For Change)
Yaung Chi Oo Workers Association (YCOWA)


Read more at https://www.malaysiakini.com/letters/402191#uuLKGpU4pWu4GxCW.99

Additional Endorsements:-
Asia Centre
Human Rights & Democracy Media Center SHAMS”

Sunday, November 12, 2017

Judges to get discretionary powers over death sentence, says Apandi (Malaysian Insight)

Judges to get discretionary powers over death sentence, says Apandi


Judges to get discretionary powers over death sentence, says Apandi
Attorney-General Mohamed Apandi Ali says the draft bill to amend the law for mandatory capital punishment is drawn up based on his experience as a judge. – The Malaysian Insight file pic, October 31, 2017.
The Attorney-General’s Chambers is ready to present to Parliament the draft bill to amend the Dangerous Drug (Bill) 2017 prescribing mandatory capital punishment for drug traffickers.

Attorney-General Mohamed Apandi Ali said the amendment would allow the judges to exercise discretion in meting out the mandatory death sentence.

He said the proposed amendments were drafted based on his experience as a judge.

"The amendments are from me and are based on my experience as a High Court and Appeals Court judge.

"Many judges find it difficult to pass the death sentence on offenders whom they feel do not deserve the punishment.

"But they have no choice because it is mandatory. Therefore, I propose that the government be more flexible and do not  discriminate against the offenders, "he told a press conference in Putrajaya today.

Minister in the Prime Minister's Department, Azalina Othman had revealed during a question-and-answer session in Parliament that the AGC was in discussions with various government agencies to amend the act for mandatory capital punishment.

Azalina revealed this when replying to a question from Puchong MP Gobind Singh Deo, who had wanted to know whether the government was abolishing the death sentence and would postpone all executions during the moratorium.

Apandi said the draft amendments also included guidelines for the judge to identify which offender should or should not be granted the privilege of the judge’s discretionary powers over the death sentence

"In putting forward the idea (of letting the judge decide), we have also identified the offenders who deserve the death sentence and those who do not.

"People reading news reports about drug arrests assume that all who are caught are sentenced to death.

"But it is only those who are distributing and making a profit from drugs who will get the death sentence," he said.

Earlier, Apandi presented a donation of RM34,500 to the families of 23 victims of the Darul Quran Ittifaqiyah fire. – October 22, 2017. - The Malaysian Insight, 31/10/2017

AI - Abolish automatic presumptions of drug possession and trafficking in the Dangerous Drugs Act.

Friday November 3, 2017
05:34 PM GMT+8

NOVEMBER 3 — Amnesty International Malaysia welcomes the statement by the Malaysian government outlining its efforts  to amend Section 39B of the Dangerous Drugs Act 1952 and to provide courts with the discretion to spare lives when imposing the death penalty. The organisation encourages the Government of Malaysia to ensure that the proposed amendments will fully remove the mandatory death penalty and establish a moratorium on all executions as first critical steps towards abolition of the death penalty.

The announcement comes after a parliamentary reply by Law Minister Datuk Seri Azalina Othman Said on 30 October 2017,  stating that the first draft of the amendment has been completed by the Attorney General’s Chambers and is awaiting the approval of the cabinet.

The organisation also welcomes the support of the Attorney General, Tan Sri Mohamed Apandi Ali  in giving the discretionary power to the judiciary in drug-related offences in a statement made on 31 October.

While Amnesty International believes that these amendments is a step in the right direction, the organisation hopes that these amendments will be implemented in a manner that is effective and far-reaching.

The organisation renews its call on the Malaysian authorities to abolish the mandatory death penalty for all offences and restrict the scope of the death penalty to the “most serious crimes”, which do not include drug-related offences. International law prohibits the use of the mandatory death penalty and restricts the use of the ultimate punishment, in countries where it has not yet been abolished, to intentional killing.

Amnesty International Malaysia is in fact concerned that the statement of the Attorney General suggested that the death penalty legislative amendments, as currently drafted, would introduce limited sentencing discretion only for those found guilty of transporting prohibited substances. Amnesty International’s analysis of the impact of similar reforms implemented in Singapore since 2013 indicate that the introduction of limited sentencing discretion that fell short of fully abolishing the mandatory death penalty has done little to improve the protection of human rights.

In its report  Cooperate or Die; Singapore’s Flawed Reforms to the Mandatory Death Penalty, Amnesty International found that  the mandatory death penalty continues to be extensively imposed in Singapore, and that drug trafficking continues to involve the great majority of the death sentences imposed in the country. In cases where information is available, the burden of the death penalty once again appears to fall on those with less advantaged socioeconomic backgrounds and convicted of importing relatively small amounts of controlled substances.

The amendments also introduced a new section in the Singaporean Misuse of Drugs Act, giving courts discretion to sentence persons to life imprisonment, if found guilty of drug trafficking or importing prohibited substances over certain amounts if they can prove their involvement in the offence was restricted to that of a “courier”; and if the Public Prosecutor issues a “certificate of substantive assistance”, confirming that the convicted person has substantively assisted in disrupting drug trafficking activities.

This not only narrows the court’s discretionary powers considerably, it violates the right to a fair trial as it places life and death decisions in the hands of an official who is neither a judge nor a neutral party in the trial and should not have such powers.

It is our hope that the Malaysian authorities will make the ongoing legislative reforms on the death penalty a meaningful opportunity to improve the protection of human rights and adopt a comprehensive approach on its policies on the death penalty.

Pending abolition of the death penalty, Amnesty International Malaysia renews our call on the authorities to establish a moratorium on all executions. The government had stated that as of April 30, 2016, 1,042 people comprising 629 Malaysians and 413 foreign nationals were sentenced to death due to murder, drug trafficking, firearms trafficking or kidnapping; Sixteen (16) death row inmates have been executed since 2010 in Malaysia.

Even with plans to amend laws and rulers granting pardon to death row inmates, Amnesty International Malaysia still calls for the total abolition of the death penalty as it is proven multiple times not to have a unique deterrent effect on crimes, and violates the Universal Declaration of Human rights, including the right to life and the right to live free from torture.

It is in this context that Amnesty International Malaysia welcomes the pardon by the Sultan of Perak on November 1 of  two prisoners, who have been imprisoned for more than 16 years. Death row prisoners are usually kept in solitary confinement once their sentence has been imposed.

In a country where information on the use of the death penalty is not publicly available, the announcement of the pardon is a positive development which the organisation hopes it can be replicated to allow for greater transparency and more commutations of death sentences.
 
Background

Mandatory death sentences leave courts no option but to condemn drug  offenders and those convicted of murder to the gallows. Drug trafficking does not meet the threshold of the “most serious crimes” to which the use of the death penalty must be restricted under international human rights law.

Amnesty International opposes the death penalty in all cases and under any circumstances, regardless of the nature of the crime, the characteristics of the offender, or the method used by the state to carry out the execution. The organisation considers the death penalty a violation of the right to life as recognised in the Universal Declaration of Human Rights and the ultimate cruel, inhuman and degrading punishment.

Pending full abolition of the death penalty, Amnesty International calls for the government’s urgent intervention to halt all executions and to broaden the scope of the proposed reforms to encompass all capital offences; and to abolish the automatic presumptions of drug possession and trafficking allowed under Section 37 of the Dangerous Drugs Act, 1952 as initial steps.

Amnesty International has ranked Malaysia tenth in the use of the death penalty among 23 countries that carried out capital punishment last year.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.

Tuesday, November 07, 2017

MADPET - Name the 4 Unidentified Individuals in the Kim Jong Nam Murder Charge to ensure fair trial for Siti Aisyah and Hong Song Hac



Media Statement – 8/11/2017

Name the 4 Unidentified Individuals in the Kim Jong Nam Murder Charge to ensure fair trial for Siti Aisyah and Hong Song Hac

Accused persons have a right to know all material particulars of the criminal charge

MADPET(Malaysians Against Death Penalty and Torture) states that since the 4 other suspects in the murder of Kim Jong Nam have now been revealed in court, the charges against the 2 women on trial for murder Kim Jong Nam must be amended to include the names of these alleged co-accused to ensure a fair trial.(BBC News, 6/11/2017). Being made liable for actions of 4 unknown persons, when names are not known, is grossly unjust especially in a trial for murder that carries the mandatory death penalty. 

It was reported that an investigating officer , a prosecution witness, had named Hong Song Hac, 34(who  was known as Mr Chang),  Ri Ji Hyon, 33(who was known as Mr Y),   Ri Jae Nam, 57(who was called Hanamori ),  and  O Jong Gil (who was known as James) as being the until now.(BBC News, 6/11/2017)

The 2 women on trial, being Indonesian Siti Aisyah and Vietnamese Doan Thi Huong, were charged in court on 2/10/2017 for the killing Kim Jong Nam on Feb 13 with nerve agent VX at Kuala Lumpur International Airport.

The charge sheet said that four other individuals still at large are ‘accomplices’ of the said women in the murder of  Kim Jong Nam, but no names were given. 

‘According to the charge sheet, Doan was charged with killing Kim Jong-nam, the estranged half-brother of North Korean leader Kim Jong-un, along with Indonesian Siti Aisyah, 25, and four other unidentified individuals…’(Star, 2/10/2017)

They are being charged with murder (section 302 Penal Code), which carries the mandatory death penalty. In the said charge, section 34 of the Penal Code is said to be part of the charge.  
Section 34 of the Malaysian Penal Code, states that "When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone.

This means, even though Siti Aisyah and/or Doan Thi Huong did not even know who these 4 unidentified individuals are or what they did, they may be made liable for the acts and/or wrongdoings of the unidentified 4 as well.

Hence, the not naming of alleged accomplices in the charge sheet is highly prejudicial to any accused person in any criminal trial, and it seriously undermines the accused person’s ability to defend oneself and enjoy the right to a fair trial. On the other hand, it may give an unfair advantage to the prosecution, who could even change the individuals to improve the chance of winning given the fact that not naming do not restrict the prosecution’s case to just persons named in the charge.

If the charge can specifically state the number of other persons, surely their names would reasonably be known by the prosecution, and therefore should be in the charge. If actual names are not known, nick names or other identifying features could alternatively be included.

A criminal charge, as a matter of principle should be clear and discloses all material particulars to enable the accused to be able to effectively defend oneself and get a fair trial.

In  criminal cases, the prosecution also has the duty for pre trial disclosure as this is critical to the defendant's right to a fair trial. To enable the accused to properly prepare a defence he/she must be made aware of all the evidence against him, including also evidence favourable to him that may have come forward during investigation. Disclosure must be before the trial starts to enable the accused and/or his/her lawyer necessary time to do their own investigation, maybe even interview potential prosecution witnesses or other witnesses identified during the investigation stage.

Hence, the sudden naming of these 4 suspects by a prosecution witness during trial also prejudices the accused person/s.

In a criminal trial, it is never to be competition between the prosecution and the accused, but a quest for truth and justice. No one wants an innocent person to be convicted and sentenced, even in a high profile case like this murder of this North Korean.

We recall the execution of Gunasegar Pitchaymuthu(35), Ramesh Jayakumar(34), and  Sasivarnam Jayakumar(37) in March 2016, and note that this was also another case where they were  charged for murder together with ‘one other still at large’ under section 302 of the Penal Code and read together with Section 34 of the Penal Code. Before even the ‘one other still at large’ was arrested and tried, the 3 of them had been executed defying logic for surely their presence would have been vital when that ‘one other still at large’ was being tried for the same murder.

The charging of persons of committing a crime with unidentified persons must stop. The practice of inserting section 34 of the Penal Code as part of the criminal charge involving more than 1 person must not become a norm, but should be limited to only to cases where there is real evidence of common intention.  

Therefore, MADPET calls for the charges against Siti Aisyah and Doan Thi Huong to be immediately amended to provide names of the ‘four other unidentified individuals’;

MADPET also calls for a stop of the practice of charging persons for criminal acts with unnamed and/or unidentified persons. Charges must contain material particulars including identity of accomplices to ensure that all accused persons have the right to a fair trial.

Charles Hector
For and on behalf of MADPET

(Malaysians Against Death Penalty and Torture)
 


*

Kim Jong-nam murder: North Korea suspects named in court

  • 6 November 2017
  • From the section Asia
A senior police officer has told a trial in Malaysia that four North Korean men were involved in killing the half-brother of North Korea's leader, Kim Jong-un. 

Two women, from Indonesia and Vietnam, are standing trial for the murder of Kim Jong-nam.

He died in February at Kuala Lumpur airport after highly toxic VX nerve agent was rubbed on his face.

The women have pleaded not guilty and say they were tricked.

They say they thought they were taking part in a TV prank. They face death by hanging if convicted.

An investigating officer named four North Korean men in court on Monday, saying they had fled Malaysia after the murder. It is the first time they have been named in court, although their names had previously been known in connection with the investigation.They were known to the two women on trial, he said, but only by pseudonyms:
  • Hong Song Hac, 34, was known as Mr Chang
  • Ri Ji Hyon, 33, was known as Mr Y
  • Ri Jae Nam, 57, was called Hanamori
  • O Jong Gil was known as James
CCTV footage of the men seen around the airport after the incident on the day of the murder was shown in court. They were seen changing their clothes before departing.

They had entered Malaysia between late January and early February and three of the men left Kuala Lumpur for Jakarta, according to the main investigating officer, Wan Azirul Nizam Che Wan Aziz, but he added he could not recall the destination of the fourth.

More CCTV footage showed some of the North Korean suspects meeting a North Korean embassy official and an official from the national airline Air Koryo at the airport's main terminal shortly after the attack. - BBC, 6/11/2017



Jong-nam murder trial: Identities of four other accused not disclosed



  • Nation
  • Monday, 2 Oct 2017
  • Naran Singh (right) and Hisyam Teh Poh Teik (left) lawyers for Vietnam Doan Thi Huong speak to journalists on the first day trial.
    Naran Singh (right) and Hisyam Teh Poh Teik (left) lawyers for Vietnam Doan Thi Huong speak to journalists on the first day trial.


    SHAH ALAM: The defence team of Doan Thi Huong, the Vietnamese woman accused of killing Kim Jong-nam, says that they were kept in the dark over the identities of four other individuals accused of the same crime.

    One of the lawyers for Doan Thi Huong, 29, said it was unfair for the prosecution not to disclose their details as this would create a disadvantage for the defence.

    "Even before this, we requested for their particulars on more than one occasion, but they refused to disclose it. We do not understand why," said lawyer Hisyam Teh Poh Teik at Shah Alam High Court compound when the court was adjourned for recess on Monday.

    According to the charge sheet, Doan was charged with killing Kim Jong-nam, the estranged half-brother of North Korean leader Kim Jong-un, along with Indonesian Siti Aisyah, 25, and four other unidentified individuals.

    Both women were charged separately under Section 302 of the Penal Code, which carries the mandatory death sentence upon conviction.

    Asked if High Court judge Justice Azmi Ariffin deemed the names "irrelevant", defence counsel Salim Bashir said no.

    "He only said that the non-disclosure of the four individuals does not prejudice the defence case," he said.

    Another lawyer, Datuk Naran Singh, said that was raised during their argument in court Monday morning.

    "Our client was charged with four others – sharing common intention to cause the death of the deceased.

    "We are entitled to know their identities, the law says so. But the judge was not persuaded by that," he said.

    Meanwhile, Siti Aisyah's lawyer Gooi Soon Seng said their defence team shared the same concerns.

    "We object to the charges on the grounds of common intention," he said.

    Both Doan and Siti Aisyah were charged with with murdering Jong-nam at KLIA2 on Feb 13 by smearing his face with VX, a chemical the United States describes as a weapon of mass destruction.

    On March 16, the then Inspector-General of Police Tan Sri Khalid Abu Bakar said the police had obtained an Interpol red notice for the arrest of four North Koreans believed to be involved in the killing.

    The four North Koreans sought were Rhi Ji-hyon, 33; Hong Song-hac, 34; O Jong-gil, 55, and Ri Jae-nam, 57.
    They entered the country separately days before the incident and left for Jakarta from KLIA2 just after Jong-nam's assassination. - Star, 2/10/2017