Monday, August 20, 2007

Death Row prisoner files appeal (NST)

Death Row prisoner files appeal
By : V. Anbalagan

A Death Row prisoner demands the court hears his appeal or lets him walk.
He has been languishing and forgotten in jail for too long — nine years and three months. Baha Jambol, 45, says he had also written 11 appeal letters seeking the grounds of judgment. He claims that this delay is prejudicial against him and a miscarriage of justice.

PUTRAJAYA: The absence of a written judgment for nine years has prompted a Death Row prisoner to file an application to the Court of Appeal to be freed.

In his application, Baha Jambol, 45, who is in solitary confinement at the Pengakalan Chepa prison in Kelantan, said that the trial judge failed to provide the written grounds of judgment despite repeated reminders.

In the alternative, Baha wants the court to go through the notes of proceedings in the appeal record and set aside the death sentence.

Baha, a former fish and vegetable vendor at the Pasir Mas market, filed the action through his lawyers at the court registry yesterday afternoon.
There is no record of a condemned person urging an appellate court to allow his appeal by way of notice of motion.

Baha, who named the public prosecutor as respondent, also filed a certificate of urgency for the Court of Appeal to expeditiously hear the case.

He said the incarceration in prison for nine years and three months pending appeal had caused him prejudice and miscarriage of justice.

Baha, before his conviction, was remanded for two years in prison, bringing the total number of years behind bars to 11.

He said the appellate court should allow his appeal on grounds that there had been serious denial of due process and there had been an inordinate and unexplained delay by the trial judge, Tengku Baharuddin Shah Tengku Mahmud.

Tengku Baharuddin is now a judge in the Court of Appeal.

Baha, together with Azman Ahmad, was charged with trafficking in about 50kg of ganja in front of the Gua Musang police station on Dec 31, 1996.

On April 26, 1998, Tengku Baharuddin, who was then posted to the High Court in Kota Baru, found him guilty of the offence and sentenced him to death.

Azman was acquitted without his defence being called.

Baha had filed the notice of appeal against the conviction and sentence with the assistance of prison authorities the day after his sentencing.

A letter was written to the registrar of the High Court on May 29, 1998, requesting that the record of appeal be supplied, but there was no response. Since then, 10 letters, the last one on April 4, were sent to the Court of Appeal, which fixed the appeal date on June 18.

However, the appeal was taken off the list and the written grounds were still not made available.

Karpal Singh, who represents Baha, affirmed an affidavit on behalf of Baha.

He said under the Court of Appeal Rules 1994, a trial judge was required to supply the grounds to be included in the record of appeal as soon as "practicable".

Record of appeal consist of notes of proceedings, written judgment and exhibits.

He said in criminal appeals, an appellate court cannot hear a case without written grounds .

Karpal said the failure to provide the grounds after a long time amounted to a serious denial of due process of law which required immediate appellate court interference.

"The inordinate and unexplained long delay in delivering the grounds of judgment has occasioned a miscarriage of justice as the appellant (Baha) has been languishing on Death Row for more than nine years awaiting hearing of his appeal."

He said the principle of fair trial should be applied even more rigorously where the excessive delay was not caused by the prosecution but the court itself.

Karpal said the long delay in providing the grounds would have prejudiced Baha because the trial judge’s assessment of witnesses would have been blurred.

"The delay would have increased the chances of omission on the part of the trial judge to deal with material facts and issues which ought to have been favourable to the appellant," he said.

In the alternative, he urged the Court of Appeal to go through the notes of proceedings and rule that the trial judge was wrong in finding Baha guilty because he was a driver of the car where the drugs were found while the owner of the vehicle, Azman, was freed.

He said the prosecution had failed to prove actual trafficking of the drug.

On Aug 16, the New Straits Times highlighted the plight of two persons, convicted and sentenced to death, who were languishing on Death Row for five years because another trial judge did not provide the written grounds.

Friday, August 17, 2007

DEATH PENALTY - MALAYSIA : Sources & Figures Known


4/8/2006 - Mohd Amin Mohd Razali, the Al-Ma’unah movement leader who was sentenced to death for treason (Source: Star 5/8/2006, “Al-Ma’unah leader Mohd Amin hanged”)

*the week before - Zahid Muslim, Jemari Jusoh and Jamaludin Darus (Source: Star 5/8/2006, “Al-Ma’unah leader Mohd Amin hanged”)

Last December[2005], Deputy Internal Security Minister Chia Kwang Chye said that from 1960 through last October, 434 convicts were hanged while 172 cases were pending appeal.”

“The majority of the death sentences meted out are for drug trafficking. Out of 52 people sentenced to death from 2004 until July 2005, 36 were convicted for drug offences....Last December, Deputy Internal Security Minister Chia Kwang Chye said that from 1960 through last October, 434 convicts were hanged while 172 cases were pending appeal.”
(Source: IPS, 8/5/2006 : “DEATH PENALTY:Death to Malaysian Water Contaminators?”)

Since 1970, Malaysia has hanged 359 people, 40 of them in the last 10 years. Most were convicted of drug trafficking. There are 159 prisoners on death row. (Source: , 21/3/2006 “MALAYSIA
Justice Minister backs abolition of death penalty”)

WHEREAS Malaysia has hanged at least 358 persons between 1981 and 2005;...WHEREAS about 173 persons are on death row as at December 2005; (Malaysian Bar Resolution - 18/3/2006)

“On 6 December 2005, the Deputy Internal Security Minister disclosed in Parliament that 52 people were sentenced to death from 2004 until July. Of these, 36 were convicted for drug offences and 16 for murders. This disclosure brings the number of persons on death row to approximately 173. In November 2003, it was said that there were 121 persons, including 4 women, on the death row. It was disclosed in February 2005 that over the past 24 years 358 persons have been hanged in Malaysia. (MADPET 9/2/2006:-THE DEATH PENALTY MUST BE ABOLISHED, Malaysia Must Respect the Right To Life)



MADPET (Malaysians Against Death Penalty and Torture) is disappointed and shocked by the revelation that two men are languishing on Death Row because the judge who convicted them at the Seremban High Court five years ago has not provided the grounds of judgment. (New Straits Times 17/8/2007, “Two languish on Death Row as judge fails to do his job”).

If languishing on death row waiting to be deprived of one’s life is already recognized as being “a cruel and unusual punishment”, how much more worse is it for a person who spend the last five years without even having the opportunity to appeal against his death sentence just because some judge was too lazy to write out his grounds of judgment. The torture that this victim, his family and friends have had to undergo for the last five years would have been intolerable and would never be justified.

Let us not forget that it is very possible that this judge who sentenced them to death may have erred in law and in fact, and the Court of Appeal may have put things right by acquitting him, maybe 5 years ago.

It is also a concern whether a judge, now writing his ‘grounds of judgment’ after the matter has been raised in the media is able to do so without being affected by irrelevant external factors. One also wonders whether he can even remember why he convicted those persons more than 5 years ago and sentenced them to death.

In criminal cases, especially those when the accused person is found guilty and sentenced to incarceration and/or death, the grounds of judgment must be immediately prepared and made available to the convicted person no later that three days. This will allow for immediate access to the right to a speedy appeal – more important when there was a miscarriage of justice at the court of first instance.

According to the New Straits Times report, this judge now sits in the Federal Court, and this is just another reason why there must be a new process put in place in deciding who is to be appointed judges and elevated to the Higher Courts. Lets us expose this judge and demand his immediate resignation – or at least a public apology for the great injustice that he has caused to these 2 persons.

Malaysia must also consider putting in place a compensation scheme to compensate victims of the criminal justice system who have had to unnecessarily languish in remand prisons and prisons only to be acquitted or discharged some time later. Time spend must be factor in the computation of the sum for compensation. The fact that one was sitting with a death penalty hanging over one’s head must surely mean a higher sum.

This compensation scheme is important now looking at the current state of police investigation, prosecution and even judges, which interestingly have received a lot of media attention over the past couple of months. Too many persons have ended up spending time incarcerated waiting for their trial only to be released later without being convicted. It is for this loss of liberty and movement that persons must be compensated.

MADPET also reiterates its call for an immediate moratorium on all executions pending abolition, and the abolition of the death penalty in Malaysia.

Charles Hector

N. Surendran

for Malaysians Against Death Penalty and Torture (MADPET)

17th August 2007

(For further information, contact N. Surendran (012-3207066) or Charles Hector (019-2371100)

Two languish on Death Row as judge fails to do his job

Two languish on Death Row as judge fails to do his job
KUALA LUMPUR: Two men are languishing on Death Row because the judge who convicted them at the Seremban High Court five years ago has not provided the grounds of judgment.
Another man was ordered by the same judge to be held at the Sungai Buloh prison at the pleasure of the Yang di-Pertuan Besar of Negri Sembilan on grounds of insanity.

Haszaidi Hasan was sent to the gallows after he was found guilty of trafficking in dadah while Abdul Aziz Mohd Sharif was convicted of murdering his girlfriend’s father.

Their lawyers filed the notice of appeal soon after the judge, who now sits in the Federal Court, delivered oral decisions in 2002.

Both are in the Kajang prison.
Haszaidi’s counsel, Rusli Husin, said he filed an appeal sometime back but the written judgment had not been issued.

A check with the Attorney-General’s Chambers showed that Haszaidi was convicted on Feb 7, 2002 but the grounds of judgment is still not available.

Counsel Harbhajan Singh, who is representing Aziz, said he had sent five reminders to the High Court in Seremban for the grounds of the decision.

"Sad to say, they did not have the decency to reply to the letters."

He said even the Kajang prison authorities sent a letter to the judiciary to expedite Aziz’s appeal but did not receive any response either.

Harbhajan said when Aziz’s mother asked why the appeal was delayed, he told her the appeal could not be heard unless the trial judge provided the written judgment.

He said Aziz’s parents were concerned about his deteriorating health as Aziz, in his late 20s, had been kept in solitary confinement since July 8, 2002.

Omar Mohd Bashri was charged with murder of a teenager but was acquitted on grounds of insanity by the same judge on July 27, 2002.

The judge ordered Omar to be held at the Sungai Buloh prison at the pleasure of the Negri Sembilan ruler.

His counsel had also filed an appeal against the decision while the public prosecutor had filed a cross-appeal in 2002.

The lawyer and the Attorney-General’s Chambers are waiting for the judge to provide the grounds of decision.

Lawyer Haresh Mahadevan said he was appealing that Omar be acquitted since there was no eyewitness to the crime.

The prosecution said the accused should be sentenced to death on grounds that Omar was aware of his act.

The judge, however, ruled that the accused was under delusion when the crime was committed.

Haresh said he had written to the Sungai Buloh prison director two years ago asking that a doctor examine Omar again for the purpose of obtaining a pardon.

"Unfortunately, there was no reply and I am in the dark about the health of the accused."

He said he would be writing next week to the court to find out if the judge had completed the grounds for the decision.

In criminal cases, the Court of Appeal cannot hear appeals without written judgments.

On July 23, the New Straits Times featured a story on the consequences of judicial officers not writing judgments and has also referred that this judge has not provided written grounds or deliver decisions in at least 30 criminal and civil cases.

What happens when judgments are delayed

What happens when judgments are delayed

A CASE of justice delayed, justice denied? Examples of what happens when written judgments are not provided.

Case No 1:

A man was convicted of dadah trafficking in the late 1980s and sentenced to death but the trial judge took a long time in providing the written judgment.

Lawyer Karpal Singh, who appeared for the man, argued before the Supreme Court that the delay had led to manifest injustice.

The late Tan Sri Hashim Yeop Sani, who led the bench, substituted the death penalty with life imprisonment of 20 years. The accused was freed because of the long remand period and later stay on death row.

Case No 2:

Two years ago, former national athletics coach C. Ramanathan won an appeal to clear his name on two molest charges.

One of the grounds cited was the delay of close to five years for the Sessions Court judge to provide a written judgment.

He had been charged in October 1994 on two counts of outraging the modesty of two underage girls in 1992 and convicted on Nov 8, 1996. But the grounds of judgment were only made available on Oct 26, 2001.

Case No 3:

A desperate housewife wrote to Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim seeking his help to expedite her husband’s appeal over his conviction on a kidnapping charge.

The High Court in Shah Alam found the husband guilty of the offence on May 16, 2005. She wrote to the top judge in August last year and sent another letter in January this year.

As a result, the Court of Appeal Registrar sent a letter to the Shah Alam High Court Deputy Registrar in February to prepare the record of appeals, which included the judgment. But there was no reply.

Counsel Gurbachan Singh, who appeared for the man, sent another letter last week enquiring if the judgment was ready.

Meanwhile, the judge who heard the case has been promoted. It may now be up to the Chief Justice to decide on the next course of action.

Case No 4:

In 2000, the High Court in Penang found a man guilty of dadah trafficking and sentenced him to 12 years’ jail and 10 strokes of the rotan.

An appeal could not be heard as the judge did not make the judgment available.

The long stay in prison soon came to an end after the deduction of one-third of the sentence on remission.

His counsel, R.S.N. Rayer, advised his client, who wanted badly to be a free man, to withdraw the appeal. The man took the 10 strokes at one go before his release in 2002.

Help busy judges to speed up work

Help busy judges to speed up work

KUALA LUMPUR: Judges presiding over lengthy criminal trials should be excused from hearing other cases to allow them time to complete their written judgment.

Lawyer M. Kulasegaran said this would give judges sufficient time and peace of mind for the task at hand.

"In the meantime, a relief judge could be sent to hear cases in that court," he said.

Kulasegaran said some judges were so meticulous in arriving at decisions that they did their own research before arriving at conclusions.

"They may do so as submissions by parties are sometimes inadequate and incomplete. However, by going the extra mile, they may delay the writing of judgments."
He also suggested that judges be given the freedom to hand-pick competent research officers and stenographers to assist them.

"These people can help the judge in writing judgments in the shortest time possible."

Lawyer Hisham Teh Poh Teik suggested that court rules be amended to allow appellants in criminal cases to submit appeals using notes of evidence and reasons in point form.

"But for the time being, it is still better for a judge to give reasons for his decision. He could elaborate later in the event of an appeal."

Hisham said this was important as it would enable the losing party to decide on what grounds they could lodge an appeal.

"Should the parties appeal and there are no written grounds, the appellate court could hear the appeals by relying on the summarised points when the decision was handed down."

Unwritten judgments delay justice unduly, says Sri Ram

Unwritten judgments delay justice unduly, says Sri Ram
By : V. Anbalagan

PUTRAJAYA: First, it was the absence of judgments in criminal cases. Now, it is civil court judges not putting their judgments down on paper which unduly delays justice.

Court of Appeal judge Datuk Gopal Sri Ram, the most senior judicial officer of the appellate court, made the observation in two separate civil cases, which the appellate court dismissed with costs.

In the first case, Sri Ram said the High Court had made an order for sale on a property on Feb 22, 1999. The notice of appeal was lodged on Nov 2 that year, but no grounds were written by the judge.

Sri Ram said it took the appellate court time to go through the notes of evidence. "This court was put to the trouble of trawling through the appeal record to appreciate the respective parties’ cases in the court below."

(Unlike criminal cases, civil appeals can be heard by an appellate court by relying on the trial judge’s notes of evidence, pleadings of parties and affidavits).
Sri Ram said the court could do no better than to quote from a judgment of former Lord President of the Supreme Court, Tun Salleh Abas.

"We hope that judges should endeavour to write their grounds of decision and take delight in this aspect of judicial work as a matter of personal pride and satisfaction and not as a burdensome task.

"Failure on the part of judges to write their grounds of decision will certainly undermine their authority to insist upon magistrates and president of Sessions Court (now Sessions Court judges) to write theirs.

"If the practice of not writing written grounds of judgment is widespread, the system of administration of justice will tumble down."

In this case, the Court of Appeal gave its decision on May 28, 2004 but the written grounds were only delivered on Wednesday.

Both judges who sat with Sri Ram to hear the appeal had also retired, leaving him the task of writing the grounds as the appellant, Hongkew Holdings (M) Sdn Bhd, had filed an appeal to the Federal Court.

The other case, one of medical negligence, took 23 years for it to reach the appellate court.

"If the law is to be castigated for its delays, then this case surely proves the rule," said Sri Ram.

On April 3, 1984, lawyer K. Thayalan died at the neurology department in the Kuala Lumpur Hospital.

His personal representative filed a medical negligence suit against Dr Goon Siew Fong, the physician who attended to him. The government was also included as a party to the action, which was filed sometime in 1986.

After a lengthy trial, the High Court delivered its oral decision, dismissing the claim of Thayalan’s personal representative in 1992.

An appeal was filed. However, the trial judge, who subsequently retired, did not provide the grounds of decision.

Once again, the Court of Appeal had to rely on the notes of evidence in deciding the outcome of the appeal.

Earlier this year, Sri Ram together with judges Datuk Suriyadi Halim Omar and Datuk Hasan Lah heard submissions from the parties.

The written grounds were also made available on Wednesday.

In an immediate response, lawyer Amer Hamzah Arshad said the hallmark of a judge was his ability to justify a decision with legal arguments.

"A written decision is a summarised version of the grounds of judgment. It greatly facilitates the appeal court to know how the trial judge arrived at a particular decision by applying the law to the facts of the case," he said.

Lawyer M. Manoharan said judges should make it a point to provide the grounds of decision, irrespective of whether parties appealed.

"The facts of a case will be fresh in their mind if they begin to write immediately. Moreover, the credibility and demeanour of witnesses will only be known if there is a written judgment."

He said the judiciary must recognise these shortcomings and should promote those who had the ability to deliver written decisions speedily.
JUDGES FAIL WRITTEN TEST: Just write it, judges
Ragunath Kesavan (left) says the problem could have been arrested if judges were vetted properly. Karpal Singh says judges who accumulated judgments gave up as they could not recollect the facts of the cases
Ragunath Kesavan (left) says the problem could have been arrested if judges were vetted properly. Karpal Singh says judges who accumulated judgments gave up as they could not recollect the facts of the cases

KUALA LUMPUR: Justice is sometimes not done in Malaysian courts even after judgment has been passed.

There are numerous horror stories of how the accused languished in prison just because judges did not provide written judgments.

In one case, a man withdrew an appeal against 12 years’ imprisonment and 10 strokes of the rotan on a dadah trafficking charge as his jail term had come to an end while waiting for the appeal to be heard.

The delay in hearing the appeal had been due to the judge not submitting a written judgment.

The worst cut of all was that the accused took all the strokes of the rotan at once before leaving jail — knowing that his sentence may have been reduced or overturned on appeal.
In another case in 1984, an accused charged with trafficking dadah was found guilty in 1988.

When his case went on appeal to the Supreme Court in December 1993 — a good five years later — the bench substituted the death sentence with 20 years’ imprisonment.

The judges had felt that the long delay in handing down the written judgment had prejudiced the accused.

If one thought that these were the worst case scenarios, there’s more.

A Federal Court judge has at least 30 outstanding judgments accumulated from his High Court days that include dadah trafficking and murder cases.

How he is going to come up with the written judgments is anyone’s guess, especially as he will also have to provide judgments on cases before the Federal Court.

This glaring weakness in the judicial system has irked the legal fraternity to the extent that calls are being made to only appoint judicial officers who can deliver written grounds on time.

One lawyer even suggested that judges who had been issued warnings not to delay written judgments should be hauled up before a tribunal to answer for their recalcitrance.

The Bar Council says the only solution to this vexing problem is the setting up of an independent judicial commission to appoint and promote judges.

Its vice-president, Ragunath Kesavan, said the problem could have been arrested early if candidates had been properly vetted before being appointed judicial commissioners.

"This is why we have been canvassing hard for the need to set up an independent judicial commission to appoint and promote judges," he said.

Ragunath said written judgments were critical in the dispensing of justice.

The council will be sending out a circular soon to get feedback from members on cases where judgments had not been provided.

This will be forwarded to the chief justice for action to be taken so that judges will put their judgments in writing.

"We hope that he will also reveal the number of outstanding judgments," he added.

Lawyer Karpal Singh said existing procedures on delivering decisions and judgments were indefinite with many judges reserving decisions after a trial.

"At the next date, they are still unable to deliver (decisions)," he said, adding that he had at least five cases that could not be appealed as judgments were not ready.

He said some gave decisions without stating reasons.

Karpal said judges who accumulated judgments simply gave up after some time as they could not recollect the facts of the case.

"One has to look into the demeanour of the witnesses to better appreciate the facts of the case.

"This would have been fresh in their mind if judgments were written soon after the trial."

Lawyer Gurbachan Singh said prisoners facing capital punishment would be under even greater pressure if their appeals could not be heard because of delayed written judgments.

He said family members were also left emotionally drained due to the uncertainty.

Relatives of the accused were sometimes not convinced when told that the appeal process had stalled because the trial judge had not provided grounds for his judgment.

Gurbachan has two cases where judges passed the death penalty without written judgments.

"And yet, the two judges who heard the cases, have been promoted to the Court of Appeal," he said.

Kuala Lumpur Bar Criminal Practice Committee chairman N. Sivananthan said some judges were causing grave injustice to convicts and to the Attorney-General’s Chambers.

"One must remember justice is not only for the convicted person but also for the state," he said.

He said failure to write or delay judgments for appeal purposes was tantamount to a denial of justice.

"Whether a judge is brilliant is a secondary point. The primary consideration is that he must provide a judgment for the aggrieved party to enable them to appeal or else the administration of justice is jammed."

He said the accused has the right to finality in his or her case and a chance to exhaust all channels of appeal.

"A person charged with a criminal offence wants his name cleared soon while a party in a civil proceeding wants to enjoy the fruits of the litigation."

He said every judge had an important role in taking legal disputes to their natural conclusion.