Malaysia – 40 Groups Media Statement – 10 SENTENCED TO DEATH BECAUSE DELAY OF COMING INTO FORCE LAW THAT ABOLISHES MANDATORY DEATH PENALTY FOR DRUG TRAFFICKING – Abolish Death Penalty

Media Statement-14/2/2018

10 SENTENCED TO DEATH BECAUSE DELAY OF COMING INTO FORCE LAW THAT ABOLISHES MANDATORY DEATH PENALTY FOR DRUG TRAFFICKING

Abolish Death Penalty

We, the 40 undersigned organisations, groups and trade unions are most disturbed and saddened that at least  10 persons, as reported in the media, have been been victims of the mandatory death penalty for drug trafficking  despite the fact that Parliament had already passed the law abolishing mandatory death penalty and returning sentencing discretion to judges vide the Dangerous Drugs Amendment Act 2017.

This Act, which was passed by Parliament and received royal assent on 27/12/2017, cannot now be used by judges to consider alternatives to the death penalty sentence until the Minister do the needful that will enable this life saving law to come into force. A perusal of the Malaysia’s Federal Gazatte website will disclose that many other laws that have obtained royal assent at the same time as the Dangerous Drugs Amendment Act 2017(DDAA 2017), or later, are already in force.

Section 3(2) of Dangerous Drugs (Amendment) Act 2017 states, ‘ (2) Any proceedings against any person who has been charged, whether  or  not  trial  has  commenced  or  has  been  completed,  and has  not  been  convicted  under  section  39b  of  the  principal  Act  by  a  competent  Court  before  the  appointed  date,  shall  on  the  appointed  date  be  dealt  with  by  the  competent  Court  and  be  continued  under  the  provisions  of  the  principal  Act  as  amended  by this Act.’

This DDAA 2017, when it comes to force, will only be applicable for cases where the accused person is not yet convicted. As such, if the court convicts before the new law comes into force, then the Judge is left with no choice but to impose the mandatory death penalty.

To date, based on media reports only, there are at least 10 persons, 5 Malaysians and 5 foreign nationals, who have suffered grave injustice by being convicted and sentenced to death simply because of the Minister’s delay in doing the needful:-

  • Pragasam(30) – Ipoh High Court(Malay Mail, 9/2/2018)
  • Ong Cheng Yaw(33) and San Kim Huat(38) – Kuala Lumpur High Court (Malaysian Insight, 8/2/2018)
  • Jonas Chihurumnanya(Nigerian) – Kuching High Court (The Borneo Post, 30/1/2018)
  • Gopi Kumar(33) – KL High Court( (The Sun Daily, 24/1/2018)
  • Sargunan(42), and four Indian nationals, namely Sumesh Sudhakaran(30), Alex Aby Jacob Alexander(37), Renjith Raveendran(28), and Sajith Sadanandan(29) – Shah Alam High Court (The Sun Daily, 22/1/2018)

A perusal of the website of the Malaysian e-Federal Gazette, discloses that several other Acts that also received royal assent on 27/12/2017, came into force on 30/12/2017. Some Acts that received royal assent on 29/12/2018 also came into force on 11/1/2018. Now, if the Dangerous Drugs Amendment Act 2017, had come into force fast, then these 10 persons, now on death row, may not even have been sentenced to death.

The new law, when it finally comes into force, does not provide the Courts, including the Appellate courts, the power to vary the death sentence of those already convicted by the High Court to imprisonment, unless the conviction itself is set aside on appeal.

In an ordinary criminal appeal, the convicted has the right to appeal against the conviction, and also appeal against the sentence. However, when the law provides for a mandatory sentence, in this case the death penalty, when the accused person fails in his/her appeal against conviction, then the courts cannot even review the appropriateness of the sentence as the law only provides for only one sentence is available – the death penalty for drug trafficking.

The dilemma facing judges, who are still denied discretion when it comes to sentencing until the new law is in force, is reflected by words of the judge that sentenced 5 persons to death -“Since there is only one sentence provided for under Section 39B of the Act, the court hereby sentences all the accused to death,” he [Judge Datuk Ghazali Cha] said.’. (The Sun Daily, 22/1/2018)

When the new law finally do come into force, the judge will have an option other than the death sentence, being life imprisonment with whipping of not less than 15 strokes.

Existing Inadequacies No Reason For Delay

There are still many flaws in the new Dangerous Drugs Amendment Act 2017, including the limitations imposed as to the matters that the judge can or should consider when deciding on an appropriate sentence, which goes against normal practice in other criminal trials where there are almost no restrictions as to the matters that can be considered by the judge in the exercise of his sentencing discretion. There have also been criticisms about the limited options that will be available, as it would certainly be more just for judges to be able to sentence persons to a lower prison sentence in appropriate cases and not just to life imprisonment only.

The new law, sadly, do not provide any remedy to those already convicted and/or for the 800 or more currently on death row by reason of having been convicted for drug trafficking.

Be that as it may, the new law does abolish the mandatory death penalty, and many who will be convicted after the law is in force, may end up not being sentenced to death.

There is always the option to amend laws later to correct any existing defects, and that certainly is no excuse for delaying the coming into force the DDAA 2017.

It is most disturbing that no reasons seem to have been given by the government and/or the Minister for this delay, which adversely affects persons like the 10, who now are facing the hangman’s noose.

Many of the persons convicted for this offence may even be first time offenders, young people, and /or persons forced into crime by reasons of poverty. As such, government may also bear some responsibility in allowing a situation where the poor are left with no option but crime just for the wellbeing of themselves and their family.

Some of those convicted and sentenced to death may also be parents and/or siblings of children, and most certainly death sentence can never be said to be in the best interest of the child. Malaysia, being a signatory of the Child Rights Convention(CRC), has an obligation to  ensure also that no parent, sibling or relatives of children are sentenced to death.

Abolition of Death Penalty and Mandatory Death Penalty

Minister in the Prime Minister’s Department Datuk Seri Azalina Othman, the new de facto Law Minister, during the Parliamentary session on 2/11/2016 clarified that Malaysia was not just looking at the mandatory death penalty, but all death penalty.( “(The Sun Daily, 3/11/2016)

Currently in Malaysia, even after the mandatory death penalty is abolished for drug trafficking, there still remains about 11 other offences that provide for the mandatory death penalty, while about 20 other offences are punishable by a discretionary death penalty. Some of these mandatory death penalty offences are offences that do not even cause the loss of life or grievous bodily harm.

Malaysia must expedite the abolition of the death penalty, especially the mandatory death penalty.

THEREFORE, we

  1. a) Call on Malaysia to immediately put into force the Dangerous Drugs Amendment Act 2017, which to date the delay has already caused at least 10 persons to be sentenced to death because drug trafficking is still a mandatory death penalty offence until the new law is in force;
  2. b) Call on Malaysia to immediately cause to stay criminal trials of alleged drug traffickers until the new law is in force, which would give judges discretion to impose a sentence other than the death penalty;
  3. c) Call on Malaysia to expedite the abolition of death penalty, especially the mandatory for all remaining death penalty offences;
  4. d) Call on Malaysia to impose a moratorium on executions, pending abolition of the death penalty.

 

Charles Hector

Ngeow Chow Ying

 

For and on behalf of the 40 groups and organisations listed below

 

ALIRAN (Persatuan Aliran Kesedaran Negara)

ADPAN (Anti Death Penalty Asia Network)

Australians Against Capital Punishment (AACP)

ECPM (Together against the Death Penalty [Ensemble contre la peine de mort])

Center for Prisoners’ Rights Japan

Center for Alliance of Labor and Human Rights (CENTRAL) Cambodia

Democratic Commission for Human Development, Pakistan

FIDH – International Federation for Human Rights

Hands off Cain

Japan Innocence and Death Penalty Information Center

KLSCAH-Civil Rights Committee

Global Women’s Strike, UK

Legal Action for Women, UK

Liberia Coalition of Human Rights Defenders (LICHRD)

MADPET (Malaysians Against Death Penalty and Torture)

Malaysian Physicians for Social Responsibility

MARUAH, Singapore

Migrant Care

Odhikar, Bangladesh

Parliamentarians For Global Action

Paris Bar (Barreau de Paris)

Parti Sosialis Malaysia (PSM)

Payday Men’s Network, UK

Payday Men’s Network – US

Persatuan Komuniti Prihatin Selangor & KL

PROHAM(Society for the Promotion of Human Rights, Malaysia)

Refusing to Kill, UK

Rescue Alternatives Liberia (RAL)

SMU Human Rights Program, Dallas, Texas, USA

Suara Rakyat Malaysia (SUARAM)

Teoh Beng Hock Trust for Democracy

Terai Human Rights Defenders Alliance (THRD Alliance), Nepal

The Julian Wagner Memorial Fund (JWMF)

The Rights Practice

Think Centre, Singapore

We Believe in Second Chances, Singapore

WH4C (Workers Hub For Change)

Women of Colour in the Global Women’s Strike, UK

Women’s Rights and Democracy Centre (WORD Centre), Liberia

World Coalition Against the Death Penalty

 

 

Note: – A check of the website of Malaysian e-Federal Gazette confirms that the Dangerous Drugs Amendment Act 2017 is still not in force

http://www.federalgazette.agc.gov.my/eng_main/main_akta.php?jenis_akta=Pindaan

 

Malaysia – Delay in Coming Into Force Law That Abolishes Death Penalty for Drug Trafficking results in 10 unnessarily sentenced to death

Another 3 sentenced to death since MADPET’s last statement –

Lorry attendant to hang for drug trafficking two years ago- Malay Mail Online, 9/2/2018
2 friends to hang for trafficking drugs. – The Malaysian Insight, 8/2/2018

 

MADPET – Malaysian Gopi Kumar is 6th victims of Minister’s Delay bringing into force law that abolishes mandatory death penalty for drug trafficking

Media Statement –25/1/2018

Malaysian Gopi Kumar is 6th victims of Minister’s Delay bringing into force law that abolishes mandatory death penalty for drug trafficking

MADPET(Malaysians Against Death Penalty and Torture) notes that despite the fact that the Dangerous Drugs (Amendment) Act 2017 receiving royal assent on 27/12/2017, that effectively abolishes the mandatory death penalty for drug trafficking, the failure of the Minister to do the needful to bring the law into force has resulted in Malaysian judges still having no choice but to sentence convicted drug traffickers to death.

‘…”Since there is only one sentence provided for under Section 39B of the Act, the court hereby sentences all the accused to death,” he [Judge Datuk Ghazali Cha] said….’(The Sun Daily,22/1/2018). Until the new Dangerous Drugs (Amendment) Act 2017 comes into force, Judges continues to have no discretion but to sentence those convicted to death.

The most recent victim was Malaysian lorry driver S. Gopi Kumar, 33, who was sentenced to death(The Sun Daily, 24/1/2018). Earlier, on 17/1/2018, it was reported that 5 others, Malaysian A. Sargunan, 42, and four Indian nationals(Sumesh Sudhakaran, Alex Aby Jacob Alexander, Renjith Raveendran and Sajith Sadanandan ) were convicted and sentenced to death by the Shah Alam High Court on Wednesday (Jan 17) for drug trafficking under Section 39B (1)(a) Dangerous Drugs Act 1952(Star, 17/1/2018). As not all cases get reported by the media, there may be many others that have been sentenced to death, who may not have been if not for this Ministerial delay.

A perusal of the Malaysian official e-Federal Gazette website on 25/1/2018, shows that the Dangerous Drugs (Amendment) Act 2017, that received royal assent on 27/12/2017, has still not come into force. In comparison, other laws that received royal assent on the same day like the Income Tax(Amendment) Act 2017, came into force on 30/12/2017. Even some laws that received royal assent later on 29/12/2018, like the Malaysian Maritime Enforcement Agency (Amendment) Act 2018 has already come into force since 11/1/2018.

When the Dangerous Drugs (Amendment) Act 2017 comes into force, it will finally abolish mandatory death penalty for drug trafficking that have existed since 1983. Judges, will thereafter, have the discretion to impose a sentence for drug trafficking other than the death penalty, being life imprisonment with whipping of not less than 15 strokes, for the offence of drug trafficking.

Section 3(2) of Dangerous Drugs (Amendment) Act 2017 states, ‘ (2) Any proceedings against any person who has been charged, whether or not trial has commenced or has been completed, and has not been convicted under section 39b of the principal Act by a competent Court before the appointed date, shall on the appointed date be dealt with by the competent Court and be continued under the provisions of the principal Act as amended by this Act.’

This means that any person even already on trial for drug trafficking(section 39B), so long as they have yet to be convicted, can still enjoy the benefits of Dangerous Drugs (Amendment) Act 2017. But, until the Minister do the needful, to ensure this law comes into force, judges will continue to have no discretion but to impose the mandatory death penalty on those convicted before the new law applies.

The new law, sadly, do not provide any remedy to those already convicted and/or for the 800 or more currently on death row by reason of having been convicted for drug trafficking.

Hence, as of today, Malaysian Gopi Kumar and possibly 5 or more that have already been convicted by the High Court before the new law come into force, are victims of a great injustice and may be hanged to death.

As it stands now, under even the new law, after conviction and being sentenced to death by the High Court, the Appellate Courts also will not have the capacity to change the death sentence to imprisonment, unless they choose to acquit them of drug trafficking, or possibly elect to convict for for a lesser offence that does not carry the mandatory death penalty.

In light of the adequacies of the new upcoming drug law, Malaysia must really table another new law that will result in the commuting of sentence of all those currently on death row by reason of being convicted of the offence of drug trafficking, and even other offences that carries the mandatory death penalty. This will be just for 2 Malaysians and 4 foreigners sentenced in 2018.

This new law could be tabled in the up-coming Parliamentary session this March 2018. This is the most reasonable approach, considering that there are more than 800 on death row, and judicial review of the sentence of so many may really be a difficult or near impossible task.

It must also be reminded, that Malaysia was looking at abolishing the death penalty, especially the mandatory death penalty. While the new Dangerous Drugs (Amendment) Act 2017 will do away with the mandatory death penalty for just one offence – drug trafficking, mandatory death penalty still exist for murder and so many other offences, some of which are offences that do not result in any grievous injury and/or death to victims.

As such, Malaysia need to speedily table new laws, which will at the very least abolish the mandatory death penalty – returning discretion to judges to mete out appropriate just sentences based on the facts and circumstances of each and every case.

In the meantime, while Malaysia works towards abolition, there must justly be a moratorium on executions.

MADPET reiterates its call on the Minister to do the needful to ensure that Dangerous Drugs (Amendment) Act 2017 comes into force immediately without any further delay;

MADPET also calls for all trials of persons charged under section 39B(drug trafficking) be stayed, or where trial is almost over, that courts do not proceed to convict until after Dangerous Drugs (Amendment) Act 2017 comes into force. This will prevent any further injustice on any other person, as had embarrassingly happened to Gopi Kumar and 5 or more, who have in 2018 sentenced to death just because of the delay of the law that abolishes mandatory death penalty coming into force;

MADPET reiterates the call for Malaysia to speedily abolish all other remaining mandatory death penalty offences, other than drug trafficking, and returning sentencing discretion to judges; and

MADPET also reiterated the call for a moratorium on all executions, pending the abolition of the death penalty in Malaysia.

Charles Hector

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

Note:-

The Official E-Federal Gazette Website

http://www.federalgazette.agc.gov.my/eng_main/main_akta.php?jenis_akta=Pindaan

Refer also the earlier MADPET Statement related to this issue dated 19/1/2018. – Minister’s Delay Resulted in Judge Having No Choice but to Sentence A. Sargunan and 4 others to Death

Lorry driver to hang for trafficking over 45kg of drugs

Posted on 24 January 2018 – 11:23pm
Last updated on 25 January 2018 – 10:57am

 

Picture for representational purpose only. — AFP

KUALA LUMPUR: A lorry driver was sent to the gallows by the High Court here today after being found guilty of two counts of trafficking over 45 kg of drugs, two years ago.

Judicial Commissioner Datuk Mohamad Shariff Abu Samah meted out the sentence against S. Gopi Kumar, 33, after finding that the prosecution had succeeded in raising reasonable doubt at the end of the defence’s case.

Mohamad Shariff said the court found that the accused had control, possession and knowledge of the drugs found in his Proton Perdana car and at his rented house, which he moved into in 2015.

“I do not believe the excuses given by the accused that he did not know about the drugs found in the car and at the house on grounds that they (car and house) were accessible to the public,” he said.

Gopi Kumar committed the offence in his car at Jalan 10/18A, Taman Mastiara, Batu 5, Jalan Ipoh, Sentul here at 12.45am on June 22, 2016, and at his home on Jalan 15/18A in the same area at 1.45am on the same date.

For that, he was charged under Section 39B of the Dangerous Drugs Act 1952, which carries a mandatory death penalty upon conviction.

The court also sentenced the man to four years’ jail and five strokes of the cane for another charge of being in possession of 16.2 gm of methamphetamine in the same house at the same time and date.

He was ordered to serve the jail sentence from the date of his arrest on June 22, 2016.

A total of 11 prosecution witnesses and one defence witness – the accused himself, were called to testify in the trial which began on June 14, 2017.

DPP Ahmad Nazneed Zulkifli prosecuted, while Gopi Kumar was represented by counsel New Sin Yew. — Bernama – The Sun Daily, 24/1/2018

Malaysian, four Indian nationals to hang for drug trafficking

Posted on 22 January 2018 – 05:21pm
Last updated on 22 January 2018 – 05:35pm

 

Picture for representational purpose only. — AFP

SHAH ALAM: A local man and four Indian nationals were sent to the gallows by the High Court here on Jan 17 after being found guilty on two counts of trafficking 5.8kg of drugs at a house which doubled as a drug processing laboratory five years ago.

Judge Datuk Ghazali Cha handed down the sentence to A. Sargunan, 42, and four Indian nationals, namely Sumesh Sudhakaran, 30, Alex Aby Jacob Alexander, 37, Renjith Raveendran, 28, and Sajith Sadanandan, 29, after finding that the defence had failed to raise reasonable doubts against the prosecution’s case.

A total of 13 prosecution witnesses and nine defence witnesses were called to testify in the trial which began on March 1, 2016.

All the men were convicted of trafficking in methamphetamine weighing 4.3kg and ketamine weighing 1.5kg at the house in Jalan Sungai Lalang, Semenyih, at around 9am on July 26, 2013.

They were charged under Section 39B(1)(a) of the Dangerous Drugs Act 1952, which carries a mandatory death penalty upon conviction.

In his judgment, judge Ghazali said after hearing the argument from both sides, he found that there was an undisputed fact in the case, namely all the accused were at the scene when arrested.

In addition, he said another undisputed fact was that the premises was indeed used for processing drugs as the methamphetamine was found exposed on the table and the ketamine, under the staircase.

“Based on the evidence, the court also found that all DNA profiles taken at the scene had been linked to all the accused, such as towels, gloves and toothbrushes. which have been proven by the chemist.

“Apart from that, it also cannot be disputed that the premises was always locked and the doors shut tightly with all the accused working only at midnight and early mornings.

“Although the accused said that they were at the premises for cleaning work and had other work shifts, it was supported by other evidence,” he said.

On Sargunan’s defence that he worked as a taxi driver and happened to be at the scene, the judge found his testimony to be a mere fabrication as the man’s DNA profile was found on towels and shirts found at the premises.

He also said that the evidence of all the four Indian nationals were unreliable as it contradicted their previous recorded statements.

“It is impossible that they do not know the house is a drug processing lab. They all had access to the items in the premises including the drugs.

“Since there is only one sentence provided for under Section 39B of the Act, the court hereby sentences all the accused to death,” he said.

The prosecution was conducted by deputy public prosecutor Deepa Nair Thevaharan while Sargunan was represented by lawyers Datuk N. Sivananthan and Low Huey Theng.

The four Indian nationals were represented by counsel Jayarubbiny Jayaraj. — Bernama – The Sun Daily, 22/1/2018

The Malaysian E-Federal Gazette Website as seen today

Thu , 25 January 2018

Amending Act

Showing page 1 of 12

No. Publication Date Act No. Title Date of Royal Assent Date of Commencement Download
1 10-01-2018 A1563 ARBITRATION (AMENDMENT) ACT 2018 29-12-2017 NOT YET IN FORCE
2 10-01-2018 A1562 TOURISM INDUSTRY (AMENDMENT) ACT 2018 29-12-2017 NOT YET IN FORCE
3 10-01-2018 A1561 MALAYSIAN MARITIME ENFORCEMENT AGENCY (AMENDMENT) ACT 2018 29-12-2017 11-1-2018
4 10-01-2018 A1560 INTELLECTUAL PROPERTY CORPORATION OF MALAYSIA (AMENDMENT) ACT 2018 29-12-2017 11-1-2018
5 10-01-2018 A1559 MALAYSIAN AVIATION COMMISSION (AMENDMENT) ACT 2018 29-12-2017 NOT YET IN FORCE
6 29-12-2017 A1558 DANGEROUS DRUG (AMENDMENT) ACT 2017 27-12-2017 NOT YET IN FORCE
7 29-12-2017 A1557 SUPPLY ACT 2018 27-12-2017 30-12-2017
8 29-12-2017 A1556 INCOME TAX (AMENDMENT) ACT 2017 27-12-2017 30-12-2017
9 29-12-2017 A1555 LABUAN BUSINESS ACTIVITY TAX (AMENDMENT) (NO. 2) ACT 2017 27-12-2017 30-12-2017
10 30-11-2017 A1554 PRIVATE EMPLOYMENT AGENCIES (AMENDMENT) ACT 2017 10-11-2017 NOT YET IN FORCE

Vietnam – 2018 – No more death penalty for 5 offences? And those above 75 convicted of corruption who returned 75% of sum embezzled?

* It is 2018 – and the amended 2015 Penal Code of Vietnam  takes effect,  the death penalty will no longer be imposed on those found guilty of five felonies – robbery, manufacturing and trading of fake food and medicine, destroying facilities crucial to national security, surrendering to the enemy, and disobeying orders of commanding officers 

Vietnam to scrap death penalty for 5 felonies under amended Penal Code

Robbery and trading of fake medicine are among the felonies to be exempt from capital punishment

  • By Tuoi Tre News October 25, 2017, 17:52 GMT+7
The death chamber and the steel bars of the viewing room are seen at the state penitentiary in Texas, the U.S. September 29, 2010. Photo: Reuters

The amended 2015 Penal Code of Vietnam, which will take effect at the start of 2018, will no longer impose the death penalty on those found guilty of five felonies.

The code is an amened version of the country’s 2015 Penal Code that has been in place since July 2016.

According to the amended code, five felonies including robbery, manufacturing and trading of fake food and medicine, destroying facilities crucial to national security, surrendering to the enemy, and disobeying orders of commanding officers will no longer be subject to the death penalty.

The last two felonies are applicable to military personnel only.

The highest punishment for these crimes will be reduced to life sentence.

The amended Penal Code will also treat the felony of stockpiling, transporting, trading or appropriating narcotics under different articles.

Currently, those guilty of the crime faces capital punishment as the highest sentence.

Under the amended code, only the crimes of transporting and trading of narcotics are eigible for the death penalty, while those who stockpile or appropriate the illegal drugs will only face life imprisonment at most.

Additionally, criminals older than 75 years of age or those charged with corruption but had voluntarily submitted 75 percent of their embezzled property will be exempt from capital punishment. – Tuoi Tre News Vietnam, 25/10/2017