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

    No comments: