Tuesday, February 14, 2017

MADPET - JUDGES SHOULD DECIDE ON BAIL, NOT THE PUBLIC PROCECUTOR -Access to Bail Must Not Be Denied To The Poor Or By Law –(15/2/2017)

See related post:- Judges should decide on Bail - not the Public Prosecutor?

Media Statement:- 15/2/2017

JUDGES SHOULD DECIDE ON BAIL, NOT THE PUBLIC PROCECUTOR

-Access to Bail Must Not Be Denied To The Poor Or By Law –

MADPET(Malaysians Against Death Penalty and Torture) is shocked that the Public Prosecutor maybe considering the proposal  to deny bail for repeat offenders of small drug-related crimes that carries the penalty of 5 years or less. This was reportedly disclosed by Perak Narcotic Criminal Investigation Department head ACP V R Ravi Chandran  who said there was a need to do so ‘… due to the increase of 12.2%, or 2,220 people, who were arrested for various drug-related offences last year..’.(FMT News, 2/2/2017 ‘Perak mulls denying bail for repeat drug offenders’)/and  Star 3/2/1017).

We recall the legal principle that every accused shall be presumed innocent until proven guilty, that is proven guilty after a fair trial.

The purpose of bail is simply that the accused person be released on condition that he turns up in court on the dates fixed for his/her case. Judges do consider all relevant factors, before deciding on the question of bail, which also may be granted on many other conditions, if needed.   

As it is now, section 41B of the Dangerous Drugs Act 1952 already denies bail for persons charged with offences under the Act that carries the death sentences or sentences of more than 5 years imprisonment. Section 41B 1(c), however, states as follows, ‘where the offence is punishable with imprisonment for five years or less and the Public Prosecutor certifies in writing that it is not in the public interest to grant bail to the accused person. That means the Public Prosecutor will decide, and the accused has to stay in detention until the trial is over and the court decides whether he/she is guilty or not. This is unacceptable.

Judges should decide whether bail is to be granted or denied to an accused in any particular case. In bail applications, judges do consider all the arguments of the prosecutor and also the accused persons. Judges, after taking into account all relevant facts and the law, decides whether bail be granted or not, and if granted on what conditions. It is wrong for Parliament through laws to oust this discretion of judges and/or courts. It is even more unjust, if that decision rests just in the hands of the Public Prosecutor.

What the Perak police is allegedly asking for is even more draconian, they want bail to be denied to all ‘repeat offenders’. It must be noted that some, especially the poor, even when innocent, do plead guilty especially for offences that carry lesser sentences.

Section 41B(1)(c) give the power of denial of bail to the Public Prosecutor, who simply has to certify ‘… in writing that it is not in the public interest to grant bail to the accused person…’Judges and courts power to decide on bail is simply ousted.

Worse still, the application seems to be for a blanket denial of bail for all persons charged with a drug related offence is unacceptable.  This would include even persons allegedly with a very small amounts of drugs, possibly simply for personal usage. Every person’s application for bail should be considered individually.

Great injustice when an innocent person is deprived of his liberty for so many months or years, and then found to be not guilty. As it is, trials in Malaysia can take a very long time, and it is possible some may have been detained for periods that are even longer than the maximum imprisonment sentence they would have faced if found guilty by court.

Denial of bail means not just the loss of liberty. It will also affect a person’s employment and income, a person’s business and other income generating activities. The impact will be also be felt by the family and dependants. Now, that Malaysia is a signatory of the United Nations Convention on the Rights of the Child, and by reason of the values Malaysians hold, we have to ask whether it is in the best interest of the child if her/his parent, brother or sister, is kept in detention even before the court finds/him/her guilty.

What is worse, is the greater injustice that befalls a person and also his/her family, if the courts finally determines that he/she is not guilty. Harm cause by this denial of bail can never be erased, and in Malaysia, at present there is still no law that provides for just compensation for those victims, whose freedom and liberty have been denied for so long. It is thus important, that we, at the very least, have a law to provide for just compensation and/or damages to such persons, found to be innocent, for the time they had already spent in detention by reason of denial of bail, poverty, wrong court decisions that are overturned by higher courts, and even unnecessary detention by police for remand. In some case, where there may have been justification to keep a person in detention and that person is finally acquitted and set free, he/she also needs to be compensation for the loss of liberty and freedoms, he/she had to suffer by reason of the said detentions.

The poor suffer the greatest when courts set bail at an amount, which is too high and/or affordable to them and/or their family/friends. In Malaysia, where the bail is set at RM10,000, then the surety is expected to have that RM10,000 and be willing to part with it for the necessary duration. A poor man earning RM1,000 per month, which is used to support himself and his family, when asked to post bail of even RM2,000 may find it almost impossible. A poor man’s family and friends also may not be able to afford to come up with that much. End result is that even if bail is granted, but is unaffordable, a person may end up in detention until the trial is over.

Worse still is the situation when a person, who has been in detention by reason of denial of bail or being unable to afford bail, is finally found guilty for an offence where the maximum sentence is much less than the time actually spend in detention awaiting the end of trial. There is still no compensation for the extra unnecessary time spend in detention. Some judges, do consider the period the convicted has spend in detention when handing out sentence, and sentence them to the time spend already in detention which enables the convicted to immediately go free. But the doubt arises whether the same judge would have given a much lesser sentence if the same accussed had been out on bail pending conviction.

This bleak reality also results in many persons who may be actually innocent pleading guilty at the onset, because by so doing, they will just simply have to spend time in prison for a shorter defined period, and thereafter resume their ordinary life as soon as they get released. A great injustice happens.

Now, if bail is denied for minor drug related crimes, that carry sentences, if convicted, of imprisonment of five years or less, the naturally we may find many of these persons who are innocent or will never be found guilty, simply pleading guilty at the very start of the trial. It may good for the government, the police/enforcement officers and the prosecution to show effective law enforcement, but in actual fact it may not be true and a great injustice would occur.

As such, MADPET calls for

a)      That the question of bail must be always determined by the Judges and/or Courts, and certainly never the Public Prosecutor;

b)      That all laws and/or provisions of law that deny the right to apply for bail, including section 41B Dangerous Drugs Act 1952 be immediately repealed;

c)       That right to bail is exercisable by all who are entitled, especially the poor. Bail amounts should be set taking into account the income of the accused and/or his immediate family;

d)      That trials, where the accused are not out on bail, be expedited, and completed preferably not later than six(6) months;

e)      That Malaysia enacts a law that will properly compensate the loss of liberty, freedoms and rights for those who have spend time in detention who is ultimately found not guilty and/or are acquitted. This compensation should also probably compensate the expenses incurred by the said accused (or even initially convicted) in his/her struggle than ended up in court finding him not guilty and/or acquitting him;

f)       That Malaysia promotes and respects the human rights and freedom of all, including the right to a fair trial and the right to bail.

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

Sunday, February 12, 2017

S. Bala Murugan(8/2/2017) - Another Death In Police Custody?

Thursday February 9, 2017
09:28 AM GMT+8

S. Bala Murugan died in custody at the North Klang police station yesterday.— AFP picS. Bala Murugan died in custody at the North Klang police station yesterday.— AFP pic KUALA LUMPUR, Feb 9 ― A man died at the North Klang police station yesterday, just a few weeks after a detainee died in police custody in Pahang.

However, this time, according to The Star, the police allegedly defied court orders to release S. Bala Murugan, 44, and to bring him to a hospital, as they brought him back to custody instead.

The news report said the magistrate ordered Tuesday Bala’s release so he could seek medical attention after he was seen bleeding severely from the mouth when he was brought in to be remanded at the Klang court.

“At 6am (Wednesday), we received confirmation that Bala had died in police custody. There was no report of a re-arrest, which means Bala was held illegally after the magistrate ordered for him to be released, and he died in custody,” lawyer Gerard Lazarus was quoted as saying.

Based on claims by family members, the report said Bala was wrongfully arrested by the North Klang district police officers on Monday after he happened to be with two other men, one of whom was wanted by the police.

Gerard, in the news report, claimed that Bala was beaten while in detention and brought to the court that day.

“When I tried to clean him (Bala) up and asked him to drink some water, he ended up vomiting blood, and the magistrate saw all of this.

“That was when he (the magistrate) called the investigating officer of the case and asked for Bala to be released or taken to the hospital immediately.

“The investigating officer agreed and said he would do so. However, police officers later told the family that they needed to take Bala to the police station first before releasing him,” he was quoted as saying.

Gerard then claimed that he was told that the police refused to release Bala and that the next news they received was of the latter’s death.

He also reportedly said that Bala's family members were unhappy with the post mortem and wanted another to be conducted.

The news report, however, did not state the post mortem findings.

On January 18, Soh Kai Chiok, 49, reportedly died from inflammation of the intestine while under police custody in Bera after he was brought in for allegedly stealing bananas at a plantation.

Following this, the Enforcement Agency Integrity Commission (EAIC) announced a special task force to investigate Soh's death to identify if the police had mishandled the detention procedure.

Prior to this, in 2013, the EAIC found police misconduct in the case of N. Dharmendran, 32, who died in detention.

According to the EAIC report, four policemen in charge of questioning Dharmendran had beaten up the victim, causing massive bleeding from blunt force trauma leading to his death. Evidence showed he even had staple wounds to his ears.

The EAIC found the police later fabricated evidence to cover up the violent interrogation and recommended disciplinary action.

The policemen were charged but acquitted at the High Court last year.

However, the victim’s widow won a separate civil lawsuit to claim damages for Dharmendran’s death from the policemen.

Judges should decide on Bail - not the Public Prosecutor?

Judges should be deciding whether bail is granted or not. This power should most definitely not be given to the Public Prosecutor. 

Neither should laws take away the judges discretionary powers when it comes to bail.

Remember that one is presumed innocent until proven guilty after a fair trial.

 

Perak mulls denying bail for repeat drug offenders

Bernama
 | February 2, 2017 
A proposal to deny bail has been sent to the Attorney-General's Chambers in December last year.

ravichandran 

IPOH: Perak will be the first state in the country to apply Section 41(B) of the Dangerous Drugs Act to deny bail for repeat offenders of drug addiction and traffickers if its proposal to do so is approved by the Attorney-General’s Chambers.

Perak Narcotic Criminal Investigation Department head ACP V R Ravi Chandran said a proposal to that effect was sent to the Attorney-General’s Chambers in December last year.

“The Attorney-General’s Chambers has asked us (police) to discuss implementation of the section with the Perak prosecution unit chief.

“If the proposal is accepted, we will apply the provision in the section this year,” he told a media conference at the Perak police contingent headquarters here today.

Ravi Chandran said there was a need to implement the provision in the law due to the increase of 12.2%, or 2,220 people, who were arrested for various drug-related offences last year.

They included 539 people who were arrested under Section 39B of the law which provides the mandatory death sentence upon conviction, he added.

He said 139 people were arrested under the Dangerous Drugs (Special Preventive Measures) Act 1985 where most of them were the masterminds or financiers of drug syndicates.

The number of people arrested for drug possession also increased by 13.2% last year, involving 4,622 people, from 4,083 people in 2015.

He said a total of 13,458 people were arrested for drug-related offences in the state last year, with drugs worth RM8.8 million seized and property worth RM8.4 million sealed. - FMT News, 2/2/2017

Friday, 3 February 2017

Perak seeks to deny bail to all repeat drug offenders


IPOH: Perak may become the first state to deny bail to all repeat drug offenders when they are charged in court.

State Narcotics Criminal Investigations Depart­ment chief Asst Comm R. Ravi Chandran said a provision under Section 41B of the Dangerous Drugs Act 1952 allowed the prosecution to request the court to deny bail for repeat offenders.

The department had forwarded the suggestion to the Attorney-General’s Chambers in December and was then told to put in the request to the Perak prosecution unit, which it has done.

“If the request is granted, our department will be the first in the country to successfully push for the provision to be implemented,” said ACP Ravi.

The move, he argued, would be a useful deterrent. He said repeat offenders are usually allowed bail when charged, and would often take advantage of this.

“Most are given bail amounts between RM2,000 and RM3,000, and after settling the amount, they are back on the streets again.

“We hope to apply the section this year if the prosecution unit gives the green light,” said ACP Ravi.

The section states that no bail is to be granted in respect of certain offences, where the public prosecutor could argue in court that it is not in the public’s interest to grant bail to the accused person.

A total of 13,548 people were arrested in Perak last year for drug-related offences in­­clu­­ding possession, trafficking and opera­ting drug processing labs, said ACP Ravi.

In another development, police detained a labourer for drug possession during a raid in Simpang, Taiping, at 11pm on Jan 31.

ACP Ravi said police seized 1.4kg of heroin in three plastic packets from the man, who was nabbed following a tip-off.

He tested positive for methamphetamine, and would be remanded until Feb 7.

ACP Ravi said the drugs confiscated are worth about RM35,000. - Star, 3/2/2017

Dangerous Drugs Act 1952

Section  41B  No bail to be granted in respect of certain offences

(1) Bail shall not be granted to an accused person charged with an offence under this Act-
(a) where the offence is punishable with death; or
(b) where the offence is punishable with imprisonment for more than five years; or
(c) where the offence is punishable with imprisonment for five years or less and the Public Prosecutor certifies in writing that it is not in the public interest to grant bail to the accused person.
(2) Subsection (1) shall have effect notwithstanding any other written law or any rule of law to the contrary.