Media Statement – 13/6/2021
Drug Trafficking Still ‘Mandatory’ Death Penalty, Unjust Conditions For Alternative Sentence Violates Rights Of Fair Trial And Justice
BN, PH Plus and Perikatan Nasional-BN Plus for abolition
MADPET(Malaysians Against Death Penalty and Torture) is appalled that yet another person is sentenced to death for drug trafficking despite the perception that Malaysia has amended the law on drug trafficking abolishing death penalty especially for minor offenders or ‘drug mules’, other than the kingpins of drug trafficking.
In April 2021, Shahfary Sabri, a widower was sentenced to death by the High Court here after he was found guilty of trafficking 149.5 grams of methamphetamine three years ago. (Malay Mail 22/4/2021, also Utusan Malaysia).
Does mere passion of more than 50 grams of Methamphetamine justify death?
In Malaysia, if one is found in possession of 50 grammes or more in weight of Methamphetamine, he will be presumed under section 37 DDA to be a drug trafficker, under the contrary is proved. If less, he would not be presumed to be a drug trafficker.
Dangerous Drugs (Amendment) Act 2017, which provided the new possibility of a sentence other than death for drug trafficking was gazetted in December 2017, and came into force on 15/3/2018. There is no justification for the 3 months delay in coming into force, as all those who committed the offence before that date will still be subject to the MANDATORY death penalty.
In this case, Shafary was charged with trafficking the drugs in a hotel room here on October 19, 2018, which means that now, there was the possibility of him not being sentenced to death. Sadly, media reports did not mention whether the alternative sentence to death was even considered by the Courts.
To satisfy conditions for alternative sentence means abandonment of right to fair trial
Section 39B(2A) of the amended DDA, now states that ‘…the Court in imposing the sentence of imprisonment for life and whipping of not less than fifteen strokes, may have regard only to the following circumstances: (a) there was no evidence of buying and selling of a dangerous drug at the time when the person convicted was arrested; (b) there was no involvement of agent provocateur; or (c) the involvement of the person convicted is restricted to transporting, carrying, sending or delivering a dangerous drug; and (d) that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia.
The amended law is unjust as it undermines the right to a fair trial, as one of the rights of any accused person is the right to remain silent – being the right not to take the stand and deliver evidence themselves, which, if he or she does so, that accused shall be subject to cross examination by the prosecution. In most criminal trials, the best advice is for the accused not to personally take the stand as a witness, and to call other defence witnesses. Remember that even in the infamous Anwar Ibrahim trial, he elected not to take the stand as a witness – but elected to just make a statement, whereby in such a situation, there will be no cross-examination by the prosecution. However, in this case, Shahfary Sabri took the stand as the only defence witness.
It also undermines the Right to a Fair Trial, because after conviction and sentencing at the Court of first instance, one has the right to appeal – 2 rights of Appeal. If the Court of 1st Instance is the High Court, which is the case when one is charged with a capital offence (death penalty), the right to appeal lies to the Court of Appeal, and thereafter to the Federal Court. It will be unjust for the convicted, to prejudice this rights of appeal simply to ‘admit’ and assist enforcement agencies simply to save himself from death penalty, and hope that he will be sentenced to imprisonment.
At the end of the day, the amendments may have brought about the possibility of an alternative to death sentence, being imprisonment for life with whipping of not less than fifteen strokes. MADPET advocates different sentences depending on the amount of drugs involved, or even what exactly was done. Possession only may attract a lighter sentence, compared to selling or distributing or smuggling into Malaysia the drugs.
Given the conditions imposed, the mandatory death sentence may be abolished, but practically it can be said that we still have the mandatory death penalty for drug trafficking.
Judges Sentencing powers must not be inhibited by Parliament
Section 39B(2A) is also wrong, because it prevents judges from considering any or all mitigation and aggravation factors before deciding on a just sentence for each case.
Worse, is that apparently mandatory requirement that ‘…the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia…’. Note an actually innocent person certainly cannot satisfy this condition.
Abolish presumptions, restore onus on Prosecution to prove all elements of crime
The section 37 presumptions is remains an affront to justice and a fair trial, especially for death penalty offences.
In normal criminal cases, it is the duty of the prosecution to prove every element of the crime.
With these presumptions in the DDA, the finding of a person with drugs in their possession presumes that he/she is a drug trafficker or an offender, and the accused person has the duty to prove that the drugs were not his/hers, and he did not commit the offence which is a very onerous duty, for which the lay person, especially the poor, does have the needed skills, capacity or resources.
For death penalty cases especially, the burden of proof of all elements of the crime must always rest with the prosecution.
Note that besides the weightage presumptions, there are many other presumptions like ‘if any dangerous drug is found to be concealed in any premises, it shall be presumed, until the contrary is proved, that the said drug is so concealed with the knowledge of the occupier of the premises..’[S.37(g)]. How exactly can you prove that someone else may have hidden the drugs, possibly without your knowledge, in your room, house or car?
Lawyers generally may also lack the skills and capacity of conducting investigations needed to secure needed evidence and additional witnesses to rebut presumptions. Many criminal practitioners also do not even visit the site the alleged offences is said to have been committed. The requirement for pre-trial disclosure by the prosecution is also much lacking, in terms of the needed material that need to be provided to the accused, and the time that it has to be provided.
Hundreds in death row despite changed position for minor drug traffickers.
Sadly, the Dangerous Drugs Act 1952, as amended today, still does not deal with the hundreds still languishing on death row. There must be an Act of Parliament that will commute the death sentences to imprisonment, or even provide for a re-sentencing of those on death row.
The amended law will also not apply for those who allegedly committed the offence before 15/3/2018, as all of them will still be subject to mandatory death penalty.
In August 2020, the de facto Law Minister Datuk Takiyuddin Hassan said that, as of Aug 11, a total 918 prisoners have been sentenced to death under Section 39B of which 472 are Malaysians and 446 are non-citizens. (Malaysian Reserve, 14/8/2020)
Report of the Special Committee To Review Alternative Sentences To The Mandatory Death Penalty
The special committee to review alternative sentences to the mandatory death penalty, made up of former Federal Court judges, former Attorney General’s Chambers officers, former Prisons Department senior officers, the Bar Council, Human Rights Commission of Malaysia, academics, criminologists and civil society organisations submitted their report to the government on July 17, 2020 but sadly to date the report is still not made available to the public.
Failure in amending law to abolish death penalty
The previous Barisan Nasional government and the Pakatan Harapan Plus government were already on the way towards the abolition of the death penalty, starting with the mandatory death penalty. The Perikatan Nasional-BN Plus government is also of like mind.
With reference to the report of special committee on alternative sentences, the de facto law Minister also said that “The findings are expected to answer the debate on whether the government will propose amending the punishment for drug trafficking to a minimum jail sentence so that punishments will be given based on the facts of each case,”. MADPET hopes that the government will not confine itself to drug trafficking, but will do the needed for all death penalty offences.
Despite Malaysia’s representation for the abolition of the death penalty, especially the mandatory death penalty, little has been done to amend necessary laws. Death penalty still even exists for offences where there are no victims who suffered bodily harm or death during the commission of the offence.
The possibility of miscarriage of justice, where an innocent person may be wrongly sentenced to death or even hanged is very real – noting that human beings are not infallible. Mistakes can happen on the part of the police, enforcement officers, prosecutors, lawyers and even judges. Once dead, nothing can be done to correct such mistakes justly.
MADPET calls for the removal of current restriction in the Dangerous Drugs Act 1952 on factors that can be considered by judges before the imposition of a just sentence;
MADPET calls for the abolition of legal presumption in the Dangerous Drugs Act 1952, and place on the prosecutors the burden of proving all elements of the crime, as is the norm in most criminal cases;
MADPET calls for enactment of law that will enable the commutation of death sentence, or the provision of the ability for courts to review death sentence of drug traffickers as even the amended law, does not address offences committed before 15/3/2018 or the many hundreds that are still languishing on death row;
MADPET calls on the government to immediately disclose the findings and report of the Special Committee To Review Alternative Sentences To The Mandatory Death Penalty for we also ought to be given the right to know or even make further inputs;
MADPET also calls for a review of the offence of drug trafficking, and the introduction of different alternative more just sentences depending on the facts of each case, emphasizing also on the principle of rehabilitation and second chances;
MADPET reiterates its call for the abolition of the death penalty, and the imposition of a moratorium on executions pending abolitions; and
MADPET calls on Malaysia to respect the Right To Fair Trial, and remove provisions in law that unjustly compels one to abandon one’s fair trial rights simply to avoid the death penalty.
Charles Hector
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)
Kuala Lumpur High Court sentences widower to death for drug trafficking
KUALA LUMPUR, April 22 — A widower was sent to the gallows by the High Court here today after he was found guilty of trafficking 149.5 grams of methamphetamine three years ago.
Judicial Commissioner Datuk Azhar Abdul Hamid handed down the sentence to Shahfary Sabri, 47, after finding that the defence had failed to raise reasonable doubts against the prosecution case.
The father of six was charged with trafficking the drugs in a hotel room here on October 19, 2018, under Section 38B(1)(a) of the Dangerous Drugs Act 1952 and punishable under Section 39B(2) of the same law, which provides the mandatory death sentence upon conviction.
The prosecution called a total of five witnesses while the accused was the sole defence witness who testified at the trial which began on September 3, 2020.
Deputy public prosecutor Annur Atiqah Abd Hadi prosecuted, while Shahfary was represented by lawyer Haris Salleh Hamzah. — Bernama - Malay Mail, 22/4/2021
Dadah berbalut plastik ‘Thank You’, ejen hotel digantung
- Oleh NORLIZAH ABAS
- 22 April 2021, 1:10 pm
KUALA LUMPUR: Seorang bapa tunggal kepada enam orang anak dijatuhi hukuman gantung selepas didapati bersalah oleh Mahkamah Tinggi di sini hari ini terhadap tuduhan mengedar dadah Methamphetamine seberat 149.5 gram di sebuah hotel, tiga tahun lalu.
Pesuruhjaya Kehakiman Datuk Azhar Abdul Hamid mensabitkan Shahfary Sabri, 47, terhadap tuduhan itu selepas berpuas hati tiada keraguan munasabah ditimbulkan oleh pihak pembelaan dalam kes itu.
Ejen bebas yang bertugas mendapatkan pelanggan hotel itu didakwa mengedar dadah kira-kira pukul 11 malam, 19 Oktober 2018 di hadapan bilik sebuah hotel di sini.
Dia didakwa mengikut Seksyen 39B(1)(a) Akta Dadah Berbahaya yang boleh dihukum di bawah Seksyen 39B(2) akta sama yang memperuntukkan hukuman mati mandatori.
Pendakwaan dikendalikan oleh Timbalan Pendakwa Raya Annur Atiqah Abd. Hadi manakala tertuduh diwakili oleh peguam Haris Salleh Hamzah.
Perbicaraan terhadapnya bermula pada 3 September tahun lalu dengan lima saksi pendakwaan memberi keterangan manakala tertuduh adalah saksi tunggal pihak pembelaan.
Ketika perbicaraan berlangsung, mahkamah diberitahu bahawa tertuduh ditahan oleh pihak polis di lobi hotel berkenaan sebelum dibawa naik ke salah sebuah bilik hotel itu untuk pemeriksaan lanjut.
Siasatan polis menemukan dadah berbalut plastik hitam bertulis
perkataan ‘Thank You’ dalam seluar di celah pinggangnya. – UTUSAN ONLINE, 22/4/2021
Cabinet to mull scrapping death penalty for drug offences
graphic by MZUKRI
THE Cabinet will review options to abolish capital punishment for drug trafficking offences, de facto Law Minister Datuk Takiyuddin Hassan said.
Following the final report by the special committee to review alternative sentences to the mandatory death penalty, which was submitted to the government on July 17, the minister said discussions will be held before a decision is made on the matter.
“The final report contains recommendations on alternative punishments for 11 offences that carry the mandatory death sentence, offences under the Dangerous Drugs Act 1952 (Act 234), and 21 offences that carry the discretionary death sentence,” he told the August house yesterday.
He was responding to Ramkarpal Singh (Pakatan Harapan [PH]-Bukit Gelugor) who asked the prime minister whether the government would abolish the death sentence for drug trafficking.
Takiyuddin added that the committee had also made recommendations for long-term improvements to the country’s justice system.
“The report is expected to be presented at a Cabinet meeting for consideration and approval.
“The findings are expected to answer the debate on whether the government will propose amending the punishment for drug trafficking to a minimum jail sentence so that punishments will be given based on the facts of each case,” he said.
According to the law minister, as of Aug 11, a total 918 prisoners have been sentenced to death under Section 39B of which 472 are Malaysians and 446 are non-citizens.
Under section 39B of the Dangerous Drugs Act, those in possession of 15g or more heroin and morphine; 1,000g or more opium (raw or prepared); 200g or more cannabis; and 40g or more cocaine will receive the mandatory death sentence.
Last year, a special committee was established to carry out the Compensation Penalty Study on Mandatory Death Penalty within four months from Sept 20, 2019, to Jan 31, 2020.
“The special committee submitted the study on July 17 instead of January as they needed more time.
“Regardless, it is the government’s intention for the changes to be implemented as soon as possible. Malaysia continues to engage in smart partnerships with countries that use their laws to curb drug abuse in addition to other measures used to address drug trafficking,” Takiyuddin said.
He emphasised that the government also takes international conventions into consideration.
“My predecessor has initiated this matter, for the national interest. We have conducted the study and I will evaluate as best as possible which stems from the previous government’s intent to make sure that justice is served.
“I give my assurance that we will fully consider the recommendations that have been set out by the committee,” he added.
The special committee members comprise former Federal
Court judges, former Attorney General’s Chambers officers, former
Prisons Department senior officers, the Bar Council, Human Rights
Commission of Malaysia, academics, criminologists and civil society
organisations. - The Malaysian Reserve, 14/8/2020
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