JAPAN – Will new ‘plea bargaining’ result in greater miscarriage of justice and even death penalty?

 

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Japanese-style plea bargaining debuts but authorities fear spread of false testimony

by Sakura Murakami

Staff Writer

Japan on Friday introduced a bargaining system as part of an overhaul of its criminal investigation and trial systems, while battling concerns the new practice could encourage suspects or defendants to make false statements that lead to miscarriages of justice.

The new bargaining system, which resembles what is known as plea bargaining in the West, allows criminal suspects to negotiate deals with prosecutors in exchange for information on another criminal.

Prosecutors can reward informants who snitch with a variety of benefits, such as a recommendation for a lighter sentence or a promise to drop his or her case altogether.

Unlike the U.S. plea bargaining system, admitting to a crime does not warrant a deal with prosecutors in Japan. The new system, introduced in a revision to the criminal procedure law, allows suspects in such crimes as bribery, embezzlement, tax fraud and drug smuggling to negotiate with prosecutors. The bargaining only applies to crimes listed in the law, with murder and assault off-limits.

Prosecutors hold most of the bargaining power, barring some specific cases that involve the police, and deals can be made before or after prosecutors file formal charges.

The Japanese bargaining system is unique in that it permits deals only when the accused snitches, said Kana Sasakura, a professor at Konan University who specializes in criminal law.

“Bargaining systems around the world are usually based on rewarding suspects who confess” to a crime, but the revised Japanese law lacks that system and instead focuses entirely on deals between prosecutors and informants to aid investigations, she said.

Prosecutors had been advocating for the introduction of a bargaining system, claiming that changes in criminal procedure law, including a new rule obligating the recording of interrogations in certain investigations, required new and “diverse” ways to obtain evidence.

Yet critics are worried that pressure from prosecutors to cut deals will only reinforce the weaknesses of Japan’s current criminal justice system, which is largely dependent on confessions, unless proper measures are put in place to prevent false testimony and miscarriages of justice.

There will be “a strong incentive to “implicate others to get away with their own crimes or receive a lighter sentence,” said Sasakura. “That does lead to the possibility of wrongful accusations and convictions.”

Indeed, a 2005 report by the Center on Wrongful Convictions at Northwestern University School of Law (now Pritzker School of Law) found that, since 1973, more than 45 percent of the wrongful convictions involving men on death row in the United States who were later exonerated were obtained in part through such arrangements.

Also, out of 330 DNA exoneration cases in the U.S., 22 percent involved informant testimony that was used as evidence to convict, according to Brandon L. Garrett, a professor at the University of Virginia School of Law.

To prevent suspects or the accused from lying to get a deal, Japan’s revised law penalizes false depositions and obliges defense lawyers to be involved in the bargaining process. If depositions are found to be false, those giving them will face up to five years in jail.

But critics are skeptical these measures would be enough to prevent fabrications.

Penalizing false depositions could “make it harder for informants to retract what they said,” Sasakura pointed out. Instead of discouraging false statements, the penalty may instead push informants to stick with their story even if it’s false, she explained.

Getting lawyers involved doesn’t guarantee false statements won’t be made, either.

Defense lawyers might find themselves in an ethical dilemma — whether to fight for their client’s best interests by making a deal or to see justice served, said Yuji Shiratori, a professor at Kanagawa University who specializes in criminal procedure law.

The lawyer of the informant “won’t have access to the information needed to make a justified decision about the ‘other case’ (involving an accomplice) and decide what is best for the client” when considering whether to bargain with prosecutors, he added.

“There are measures to deal with individual issues arising from the introduction of the bargaining system. But upon closer examination of such steps, it’s hard to say they would do enough” to prevent miscarriages of justice, Sasakura said.

Nobuo Gohara, a former prosecutor and current lawyer at Gohara Compliance and Law Office in Tokyo, insisted it is necessary to record people’s statements to detect the false ones.

Fabricated statements usually change over time to fit objective facts, so “it’s very important to know whether any ex post facto tweaks to the story have been made” to assess whether the informant’s account is false, he said.

However, given that the bargaining process won’t be recorded, it will be hard to judge whether a statement is false, he added.

Since informants, defense lawyers and prosecutors all have a stake in ensuring the depositions of suspects or defendants are true, it may make the Japanese criminal justice system more prone to wrongful convictions, Gohara also said.

Sasakura, the professor at Konan University, pointed out that the reliance on confessions and statements is a distinct aspect of the Japanese criminal justice system.

Behind Japan’s wrongful convictions is an “underlying mentality that confessions and statements are the most reliable piece of information,” sometimes more so than scientific and objective evidence, she said.

In the past, Japanese investigators “forced suspects to confess by applying pressure and conducting torturous interviews,” said Gohara. With the new system, the prosecutors will try to make them speak up in return for benefits.

“The way prosecutors try to make suspects or defendants speak may change, but the reality (of the confession-based justice system) won’t,” he added. – Japan Times, 31/5/2018

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