Wednesday, March 30, 2016

Malaysia - 829 sentenced to death since 2010, 12 executed (Star, 30/3/2016)

Zahid: 829 sentenced to death since 2010

KUALA LUMPUR: Of the 829 prisoners convicted and sentenced to death between 2010 and 2016, Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi said that 95 were pardoned or given reprieves, while 12 were executed.

“Statistics from the Prisons Department show that between 2010 and February 22, 2016, the courts sentenced 829 prisoners to death for various crimes, including murder, drug trafficking, firearms trafficking and kidnapping,” said Ahmad Zahid, who is also the Home Minister.

This was said in a written response to Gobind Singh Deo (DAP-Puchong). 

“The 95 received pardons or a reprieve after submitting appeals to the Yang di-Pertuan Agong, rulers or state governors,” Zahid added.

Since 2010, the government has said that it is willing to review the mandatory death penalty, with a view to its possible abolition. 

The Malaysian Bar has urged for a moratorium on executions pending this review. - Star, 30/3/2016,

Tuesday, March 29, 2016

SUHAKAM: The Death Penalty Violates the Right to Life and is the Ultimate Cruel, Inhuman and Degrading Punishment


See earlier relevant post:- 

MADPET calls for stop of possible ‘Good Friday’ execution of Gunasegar Pitchaymuthu

3 men were executed on Good Friday(25/3/2016)? Most disappointing when Malaysia on verge of abolishing mandatory death penalty?

Stop possible ‘Good Friday’ execution of Gunasegar Pitchaymuthu (Malaysiakini)

Stop the hanging to death of Gunasegar Pitchaymuthu, victim of MANDATORY Death Penalty?



The Death Penalty Violates the Right to Life and is the Ultimate Cruel, Inhuman and Degrading Punishment 
Tuesday, 29 March 2016 07:51pm 


Image 
KUALA LUMPUR (29 March 2016) - The Human Rights Commission of Malaysia (“the Commission”) notes the execution of Gunasegar Pitchaymuthu, Ramesh Jayakumar and Sasivarnam Jayakumar on 25 March 2016 under section 302 of the Penal Code, read together with section 34 of the same Code. 
The Commission expresses regret in this regard as only recently in November 2015, Minister in the Prime Minister’s Department, YB Hajah Nancy Shukri announced that the Government was in the midst of finalising amendments to remove the mandatory death penalty in relevant laws. The Bill was expected to be tabled at the current (March 2016) Parliamentary session. Today, over two thirds of the world’s nations have abolished the death penalty in law or practice. 
The Commission is concerned because the mandatory imposition of the death penalty violates the basic right to life, as enshrined in international human rights laws as it constitutes an arbitrary deprivation of life, as well as denies judges the possibility of taking into account the facts of the offence or the characteristics of each individual offender. Instead, each offender is sentenced to death regardless of any mitigating circumstances that may apply. 
While discussions on abolishing the mandatory death penalty in the country continue, the Commission cautions that any miscarriage or failure of justice in the implementation of the death penalty is irreversible and irreparable. Further, the rationale that the death penalty acts as a deterrent has been discredited and dismissed on several occasions. 
The Commission therefore recommends that a moratorium on the use of the death penalty be put in place that will at the very least, contribute to the respect for human dignity and to the enhancement and progressive development of human rights in Malaysia.
TAN SRI HASMY AGAM
Chairman
The Human Rights Commission of Malaysia (SUHAKAM)
29 March 2016
Source: Malaysian Bar Website

Malaysia hangs three men for murder in 'secretive' execution (Guardian, 25/3/2016)

It is shocking that Malaysia executes 3 persons, victims of the mandatory death penalty - when Malaysia may be about to abolish the MANDATORY death penalty.
 Malaysia

Malaysia hangs three men for murder in 'secretive' execution

Rights groups criticise government for giving the men’s families only two days notice of the hangings
Gunasegar Pitchaymuthu, one of the men hanged on Friday in an execution condemned by Amnesty International.
Gunasegar Pitchaymuthu, one of the men hanged on Friday in an execution condemned by Amnesty International. Photograph: Handout
Malaysia has executed three men for murder, their lawyer said, in what rights groups called a “secretive” hanging in which the men’s families were given only two days notice.

“The execution was done between 4:30 and 5:30 this morning,” lawyer Palaya Rengaiah told the Guardian. “They were hanged to death.”

Rengaiah said the families received a letter two days before the execution, advising them to make a last visit to the men and funeral arrangements. He said the men were told on Thursday that they would be hanged on Friday.

Gunasegar Pitchaymuthu, 35, Ramesh Jayakumar, 34, and his brother Sasivarnam Jayakumar, 37, were sentenced to the gallows after they were found guilty by the high court of murdering a 25-year-old man in a playground in 2005.

The trio claimed during court sessions that they were acting in self-defence after being attacked by a group that included the victim.

The Malaysian prison’s department said there were currently more than 1,000 inmates awaiting execution, although none had been killed since 2013, according to Death Penalty Worldwide.

Amnesty International has condemned what it called a “last-minute” execution of the men accused of murder, an offence that carries a mandatory death sentence.

In Malaysia, information on scheduled hangings are not made public before, or sometimes after, they are carried out – a practice Amnesty said was “secretive” and contrary to international standards on the use of the death penalty.

Several high-level officials have spoken against mandatory death sentences in Malaysia, a decades-old law that is also imposed on serious drug, treason and firearms offences. 

These voices include the attorney-general, Apandi Ali, who said in November that he would propose to the cabinet that the penalty be scrapped, calling it a “paradox” as it robbed judges of their discretion to impose sentences on convicted criminals.

“If I had my way, I would introduce the option for the judge in cases where it involves capital punishment. Give the option to the judge either to hang him or send him to prison,” he said.

Days after, government minister Nancy Shukri, said she hoped to amend the penal code to abolish the death sentence.

“It is not easy to amend, but we are working on it. I hope to table it next year in March,” Shukri told reporters, adding that the punishment had done little to reduce the number of crimes committed. The motion has not been put to parliament.

Charles Hector, coordinator for Malaysians Against Death Penalty and Torture, on Thursday called for the Sultan of Kedah and the Sultan of Perak, state royalty in the two regions where the men were on death row, to use their power to stop the hangings.

He also urged Skukri, who is the de facto law minister, and the attorney-general, to obtain a stay of execution.

The Guardian was unable immediately to reach the government for comment.

Josef Benedict, Amnesty International’s deputy campaign director for south-east Asia and the Pacific, said ahead of the execution that “as discussions on abolishing the mandatory death penalty in Malaysia continue, the Malaysian government must immediately put in place a moratorium on all executions as a first step towards full abolition of the death penalty”.- The Guardian, 25/3/2016


Press Release | Halt the Execution of Gunasegar s/o Pitchaymuthu, J Ramesh s/o Jayakumar, and Sasivarnam s/o Jayakumar, and Abolish the Mandatory Death Penalty PDF Print E-mail
Thursday, 24 March 2016 03:58pm
ImageThe Malaysian Bar is extremely troubled over the reports of the imminent carrying out of the death sentence upon Gunasegar s/o Pitchaymuthu, J Ramesh s/o Jayakumar, and Sasivarnam s/o Jayakumar.  Their next-of-kin have been informed to schedule their final visit with them today, and to discuss the arrangements for burial.  The executions could be carried out as early as tomorrow, possibly at Taiping Prison.  This appears to be consistent with the practice of executing death row inmates early on a Friday morning.  

All three of these death row prisoners were convicted under section 302, read with section 34, of the Penal Code, and their convictions were upheld by the Federal Court on 19 February 2014.  At the time of writing, we have no information as to whether applications for pardon were made for them or on their behalf.
Since 2010, the Malaysian Government has announced its willingness to review the mandatory death penalty, with a view to its possible abolition or the reintroduction of a discretionary death penalty. More recently, in 2015, both the Minister in the Prime Minister’s Department in charge of law and the Attorney General have spoken of the Government’s intention to introduce legislation in Parliament to cease the use of the mandatory death penalty. While this laudable initiative appears to have been in the context of the mandatory death sentence for those convicted of drug-related offences, the Malaysian Bar is of the view that the death penalty should be abolished irrespective of the crime that may have been committed.  

The decision on the punishment for offences should be left to the discretion of the Judiciary.  The death penalty has no place in a society that values human life, justice and mercy.  Persons sentenced with the mandatory death penalty should be resentenced to imprisonment. 

In light of the impending review of the mandatory death penalty, the Government should, in the interest of justice, declare and implement an immediate official moratorium on any and all executions. All death sentences should be stayed pending the results of the review.  It is unfair and unjust to carry out the death sentence when there is currently a possibility of reform which, if put into effect, should apply retrospectively.

The Malaysian Bar therefore calls on the Malaysian Government to immediately halt the impending execution of Gunasegar s/o Pitchaymuthu, J Ramesh s/o Jayakumar, and Sasivarnam s/o Jayakumar.  

Steven Thiru
President
Malaysian Bar

24 March 2016

Media Statement – 24/3/2016

MADPET calls for stop of possible ‘Good Friday’ execution of  Gunasegar Pitchaymuthu

MADPET (Malaysians Against Death Penalty and Torture) is shocked to hear that Malaysia may be executing 34 year old Gunasegar Pitchaymuthu, possibly on Good Friday(25/3/2016). In a letter from the from the Taiping Prison’s Department, received by the family on Wednesday, it was stated that that they should visit him for the last time as he would be executed “soon”. The family was also advised to discuss arrangements to claim Gunasegar’s body for his funeral. (Star, 24/3/2016). The letter provided no date or time for execution, but it was reported that executions in Malaysia usually happen on Friday morning.

Malaysia is in the process of considering the abolition of the death penalty, starting possibly with the abolition of the mandatory death penalty. Nancy Shukri, Minister in the Prime Minister’s Department and also the de facto Law Minister, was reported stating that the proposal to amend laws to abolish the mandatory death sentence may be tabled in Parliament as early as March next year[2016].(Malay Mail, 17/11/2015).

Attorney-General Tan Sri Apandi Ali also did commit to propose to the Cabinet that the mandatory death penalty be scrapped (Malaysian Insider, 13/11/2015). Appandi Ali, who is also the Public Prosecutor, said that ‘…mandatory death sentences were a "paradox", as it robbed judges of their discretion to impose sentences on convicted criminals….’ “If I had my way, I would introduce the option for the judge in cases where it involves capital punishment. Give the option to the judge either to hang him or send him to prison. “Then we’re working towards a good administration of criminal justice,”.

As such, Malaysia should not be executing anyone at this time, especially persons who are victims of the Mandatory Death Penalty. Gunasegar was convicted of murder, and that carries the mandatory death penalty. He was on death row for his role in the murder of B. Venukumar on April 4, 2005, which means that he was merely 23 years old when the alleged crime was committed.

It must be noted that ‘…In court documents sighted by The Star, Gunasegar  was charged, together with J. Ramesh and J. Sasivarnam, with murdering Venukumar at a playground in Taman Ria Raya, Sungai Petani,Kedah. Though the trio claimed during the trial that they had been attacked by a group, which included Venukumar and only defended themselves, the High Court found them guilty in 2011...’(Star, 24/3/2016).

It must be noted that even if one is represented by a lawyer, lawyer errors at the court of first instance, can lead to injustice being done, and the possibility that an innocent man be send to his death. If evidence was not challenged, or not adduced at the court of first instance, it is extremely difficult to introduce relevant evidence later at the appellate stage.

We recall also the case where an innocent man was wrongly executed, whereby in January 2011, Taiwan’s Ministry of Justice admitted that Chiang Kuo-ching, a private in the Air Force, had been executed in error in 1997 for a murder committed 15 years previously. We recall the words of Former Court of Appeal Judge Datuk K.C. Vohrah who said,  “The law is the law but I wish Parliament would abolish the death sentence because if a mistake is made, it would be irreversible. There are other ways of dealing with heinous crimes.”

MADPET calls on  Duli Yang Maha Mulia Sultan of Kedah and/or Duli Yang Maha Mulia Sultan of Perak, to intervene and stopped this hanging, as was done by Duli Yang Maha Mulia Sultan of Johor in 2014 who saved Chandran s/o Paskaran from being hanged. The crime was committed in Kedah, whilst Gunasegar is being imprisoned in Perak, and in all likelihood execution will be carried out also in Perak.

MADPET also calls Nancy Shukri, the de facto law Minister, and  the Attorney General, to act and obtain  a stay of execution as they did before in the case of. Osariakhi Ernest Obayangbon (aka Philip Michael)in 2014.

On December 18, 2014, the UN General Assembly (UNGA) reaffirmed for the fifth time since 2007 the call for a stop of all executions. In 2014, 117 nation States voted in favour, 38 against, 34 abstention with  4 absentees. Every time the said resolution had been adopted, the number of votes in favour has been increasing. The global trend continues to be for abolition.

The call for the abolition of the death penalty in Malaysia has been made by many individuals, bodies and civil society organisations including Malaysian Human Rights Commission (SUHAKAM), Malaysian Bar and MADPET.

MADPET prays the  planned execution of  Gunasegar Pitchaymuthu be stopped, and that his sentence be commuted.

MADPET also calls for a moratorium on all executions pending abolition, and also for the commutation of sentence of all persons on death row, whereby in October 2015, the number on death row as disclosed was about 1,022.

MADPET also calls on Malaysia to abolish the death penalty.

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

Thursday, March 24, 2016

MADPET calls for stop of possible ‘Good Friday’ execution of Gunasegar Pitchaymuthu



Media Statement – 24/3/2016

MADPET calls for stop of possible ‘Good Friday’ execution of  Gunasegar Pitchaymuthu

MADPET (Malaysians Against Death Penalty and Torture) is shocked to hear that Malaysia may be executing 34 year old Gunasegar Pitchaymuthu, possibly on Good Friday(25/3/2016). In a letter from the from the Taiping Prison’s Department, received by the family on Wednesday, it was stated that that they should visit him for the last time as he would be executed “soon”. The family was also advised to discuss arrangements to claim Gunasegar’s body for his funeral. (Star, 24/3/2016). The letter provided no date or time for execution, but it was reported that executions in Malaysia usually happen on Friday morning. 

Malaysia is in the process of considering the abolition of the death penalty, starting possibly with the abolition of the mandatory death penalty. Nancy Shukri, Minister in the Prime Minister’s Department and also the de facto Law Minister, was reported stating that the proposal to amend laws to abolish the mandatory death sentence may be tabled in Parliament as early as March next year[2016].(Malay Mail, 17/11/2015).

Attorney-General Tan Sri Apandi Ali also did commit to propose to the Cabinet that the mandatory death penalty be scrapped (Malaysian Insider, 13/11/2015). Appandi Ali, who is also the Public Prosecutor, said that ‘…mandatory death sentences were a "paradox", as it robbed judges of their discretion to impose sentences on convicted criminals….’ “If I had my way, I would introduce the option for the judge in cases where it involves capital punishment. Give the option to the judge either to hang him or send him to prison. “Then we’re working towards a good administration of criminal justice,”.

As such, Malaysia should not be executing anyone at this time, especially persons who are victims of the Mandatory Death Penalty. Gunasegar was convicted of murder, and that carries the mandatory death penalty. He was on death row for his role in the murder of B. Venukumar on April 4, 2005, which means that he was merely 23 years old when the alleged crime was committed. 

It must be noted that ‘…In court documents sighted by The Star, Gunasegar  was charged, together with J. Ramesh and J. Sasivarnam, with murdering Venukumar at a playground in Taman Ria Raya, Sungai Petani,Kedah. Though the trio claimed during the trial that they had been attacked by a group, which included Venukumar and only defended themselves, the High Court found them guilty in 2011...’(Star, 24/3/2016).

It must be noted that even if one is represented by a lawyer, lawyer errors at the court of first instance, can lead to injustice being done, and the possibility that an innocent man be send to his death. If evidence was not challenged, or not adduced at the court of first instance, it is extremely difficult to introduce relevant evidence later at the appellate stage.

We recall also the case where an innocent man was wrongly executed, whereby in January 2011, Taiwan’s Ministry of Justice admitted that Chiang Kuo-ching, a private in the Air Force, had been executed in error in 1997 for a murder committed 15 years previously. We recall the words of Former Court of Appeal Judge Datuk K.C. Vohrah who said,  “The law is the law but I wish Parliament would abolish the death sentence because if a mistake is made, it would be irreversible. There are other ways of dealing with heinous crimes.”

MADPET calls on  Duli Yang Maha Mulia Sultan of Kedah and/or Duli Yang Maha Mulia Sultan of Perak, to intervene and stopped this hanging, as was done by Duli Yang Maha Mulia Sultan of Johor in 2014 who saved Chandran s/o Paskaran from being hanged. The crime was committed in Kedah, whilst Gunasegar is being imprisoned in Perak, and in all likelihood execution will be carried out also in Perak.

MADPET also calls Nancy Shukri, the de facto law Minister, and  the Attorney General, to act and obtain  a stay of execution as they did before in the case of. Osariakhi Ernest Obayangbon (aka Philip Michael)in 2014. 

On December 18, 2014, the UN General Assembly (UNGA) reaffirmed for the fifth time since 2007 the call for a stop of all executions. In 2014, 117 nation States voted in favour, 38 against, 34 abstention with  4 absentees. Every time the said resolution had been adopted, the number of votes in favour has been increasing. The global trend continues to be for abolition.

The call for the abolition of the death penalty in Malaysia has been made by many individuals, bodies and civil society organisations including Malaysian Human Rights Commission (SUHAKAM), Malaysian Bar and MADPET.

MADPET prays the  planned execution of  Gunasegar Pitchaymuthu be stopped, and that his sentence be commuted.

MADPET also calls for a moratorium on all executions pending abolition, and also for the commutation of sentence of all persons on death row, whereby in October 2015, the number on death row as disclosed was about 1,022.

MADPET also calls on Malaysia to abolish the death penalty.

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

Gunasegar Pitchaymuthu may be hanged on Good Friday(25/3/2016) - Save Him From the Gallows

Malaysia must stop plans to hang 34 year old Gunasegar Pitchaymuthu. He was convicted of murder, and that carries a MANDATORY death penalty. Now, that Malaysia is in the process of abolishing the death penalty, starting with the Mandatory Death Penalty... 

Both our de factor law Minister, Nacy Shukri, and the Attorney General has expressed their position against the MANDATORY death penalty - and the Minister even said that the proposed amendments to the law may be tabled in this March session of Parliament. As such, logically and reasonably, there must be no hangings carried out at this time.

We recall also the efforts of our royalty, and the government in recent times that have successfully stopped executions, and urge that the same be done...again - Let's save the life of Gunasegar Pitchaymuthu
 
 We recall the case of Chandran s/o Paskaran, who was convicted for a murder in 2003 and sentenced to death by the Johor Baru High Court in 2008.  His execution scheduled for 7/2/2014 was known a few days before that date. This knowledge moved concerned persons and groups including the Malaysian Bar to do the needful to try safe a life. At the eleventh hour, compassion moved the Duli Yang Maha Mulia Sultan of Johore, who intervened and stopped the hanging of Chandran s/o Paskaran.

Then, in March 2014, we have  the  case of  Osariakhi Ernest Obayangbon (aka Philip Michael), who was convicted of murder, and was alleged to have been on death row for 18 years, who was scheduled to hang on 14/3/2014.

Yet again, prior notice of impending execution moved people to action. The Government of Malaysia, and in particular Nancy Shukri, the de facto law Minister, and Tan Sri Abdul Ghani Patail, the then Attorney General,  then acted to obtain a stay of execution.  -MADPET:- WHEN PENDING EXECUTION IS NOT A ‘SECRET’, WE ACT TO SAVE LIVES – MINISTER INFORMS OF 2 WHO WERE HANGED IN 2014, WHICH WE DID NOT KNOW ABOUT.(1/12/2015)
 
Duli Yang Maha Mulia Sultan of Kedah (or Perak), can intervene and stop the hanging of Gunasegar Pitchaymuthu [since, the alleged murder happened in Kedah, it is more likely that it is the Kedah Sultan that have the power to stop the hanging. But, then since the hanging may be carried out in Taiping, then the Sultan of Perak certainly may have the power to stop this hanging happening in Perak, in my opinion]
 
Given AG Apandi Ali's position against Mandatory Death Penalty, I do hope that he intervenes to do the needful. He believes that the discretion when it comes to sentencing should rest with the judiciary - and as such, he objects to MANDATORY death penalty. [In fact, after our Malaysian laws are amended, and mandatory death penalty is removed - returning sentencing discretion to Judges, it is only proper that all mandatory death penalty sentences be reviewed by the Judiciary, and hopefully will be commutted.]
 
Attorney-General Tan Sri Apandi Ali said he will propose to the Cabinet that the mandatory death penalty be scrapped, so that judges are given the option to choose between sentencing a person to jail or the gallows. He said mandatory death sentences were a "paradox", as it robbed judges of their discretion to impose sentences on convicted criminals.

"If I had my way, I would introduce the option for the judge in cases where it involves capital punishment. Give the option to the judge either to hang him or send him to prison. "Then we're working towards a good administration of criminal justice," Apandi told The Malaysian Insider in an exclusive interview. -A-G seeking to abolish mandatory death penalty
 
 
Press Release
 
March 23, 2016

Malaysia: Stop execution of prisoner due to be hanged on Friday

The Malaysian government must halt the execution of a 34-year-old man due to be hanged this Friday for murder, said Amnesty International.

Gunasegar Pitchaymuthu’s mother was today advised by officials at Taiping Prison, northern Malaysia, to visit her son for the “last time” and make arrangements for his funeral. Gunasegar Pitchaymuthu was convicted of murder, an offence which attracts the mandatory death penalty in Malaysia.

“Executing Gunasegar Pitchaymuthu would be a regressive step for human rights in Malaysia,” said Josef Benedict, Amnesty International’s Deputy Campaign Director for South-East Asia and the Pacific.

“The mandatory death penalty is a clear breach of human rights regardless of the crime committed. The authorities must step in to prevent this brutal act taking place before it is too late, and instead commute Gunasegar’s death sentence.”

Amnesty International has consistently criticized Malaysia’s practice of “secretive” executions. Information on scheduled hangings is not made public before, or even after, they are carried out - contrary to international standards on the use of the death penalty.

Instead, Gunasegar Pitchaymuthu’s mother Nagarani Sandasamy today received a letter from Taiping Prison officials informing her that he will be executed “soon” and advising her to visit him tomorrow morning. The family was also advised to discuss arrangements to claim the prisoner’s body for his funeral.

Nagarani Sandasamy last visited her son a week ago, when neither were aware that the 34-year-old was scheduled to be hanged just a week later.

Gunasegar Pitchaymuthu was sentenced to death for the fatal stabbing of a man in Sungai Petani, Kedah state, on 16 April 2005.

“As discussions on abolishing the mandatory death penalty in Malaysia continue, the Malaysian government must immediately put in place a moratorium on all executions as a first step towards full abolition of the death penalty,” said Josef Benedict.

Background

No information is made publicly available on individual death penalty cases in Malaysia, while families are often informed at the last minute that their loved ones will be executed.

Senior government officials recently said Malaysia was considering abolishing the mandatory death penalty, which is currently the punishment for crimes including murder and drug-related offenses.

Amnesty International opposes the death penalty in all cases without exception regardless of the nature or circumstances of the crime, the guilt, innocence or other characteristics of the individual, or the method used by the state to carry out the execution.

The death penalty violates the right to life and is the ultimate cruel, inhuman and degrading punishment.

International law and standards prohibit the mandatory imposition of the death penalty as constituting arbitrary deprivation of life, as it denies judges the possibility of taking into account the defendant’s personal circumstances or the circumstances of the particular offense. - Amnesty International


Thursday, 24 March 2016 | MYT 11:36 AM

Convict's family distraught over last-minute notice of execution

PETALING JAYA: Amnesty International Malaysia has come out strongly against what it calls the Prisons Department’s practice of “secretive” executions, in the latest case informing a family of the execution of their son at the last minute. 

Its executive director Shamini Darshni said that the family of convict P. Gunasegar (pic), 35, was only informed on Wednesday that they should visit him for the last time as he would be executed "soon".

In the letter by the Taiping Prison’s Department, the family was also advised to discuss arrangements to claim Gunasegar’s body for his funeral.

"The mother, Nagarani Sandasamy had visited Gunasegar last week, and both were unaware that the 34-year-old was scheduled to hang just a week later,” Shamini said.

She added though no date was given, convicts were usually executed on Fridays after morning prayers.

She told The Star that it was common for families not to be given a date, calling the practice "heartless".

Gunasegar was on death row for his role in the murder of B. Venukumar, then 24, on April 4, 2005.

Amnesty International stated its concern on Malaysia’s practice of “secretive” executions, saying transparency on the use of the death penalty was an essential safeguard in such cases, as it allowed for greater scrutiny and meaningful debate on the issue.

Shamini called on the authorities to stop of the execution and commute the death sentence to life imprisonment, saying that executing Gunasegar would be an enormous step backwards on human rights for Malaysia.

As discussions on abolishing the mandatory death penalty in Malaysia continue, the Malaysian government must immediately put in place a moratorium on all executions as a first step towards full abolition of the death penalty.”

In court documents sighted by The Star, Gunasegar  was charged, together with J. Ramesh and J. Sasivarnam, with murdering Venukumar at a playground in Taman Ria Raya, Sungai Petani, Kedah.

Though the trio claimed during the trial that they had been attacked by a group, which included Venukumar and only defended themselves, the High Court found them guilty in 2011.

The decision was later affirmed by the Court of Appeal and Federal Court.

Amnesty International opposes the death penalty in all cases regardless of the nature or circumstances of the crime, the guilt or innocence of the individual, or the method used to carry out the execution.- Star, 24/3/2016

Amnesty International pleads lifetime jail instead of gallows for Taiping convict

Wednesday March 23, 2016
11:09 PM GMT+8

Amnesty International Malaysia has condemned the impending ‘last minute’ execution of Gunasegar Pitchaymuthu scheduled for March 25, 2016. — File pic


KUALA LUMPUR, March 23 — Amnesty International Malaysia condemned today the “last minute” execution of Gunasegar Pitchaymuthu scheduled for this Friday, calling it a violation of human rights.

The human rights watchdog claimed that the prisoner’s family was notified only this week that he is to be hanged on Friday and was unaware of it a week ago, which was a violation of human rights.

“The mother, Nagarani Sandasamy, had visited Gunasegar last week, and both were unaware that the 34-year-old was scheduled to hang just a week later,” the body’s executive director Shamini Darshini said in a statement today.

The group also alleged that the “secretive” execution was not in line with international standards on the use of the death penalty and pleaded with Putrajaya to commute the execution.

“We call upon the Malaysian government to immediately halt all plans to execute Gunasegar, and to commute existing death sentences to life imprisonment.

“As discussions on abolishing the mandatory death penalty in Malaysia continue, the Malaysian government must immediately put in place a moratorium on all executions as a first step towards full abolition of the death penalty,” Shamini added.

The group also reiterated its stand that it was against the mandatory death penalty as it “violates the right to life and is the ultimate cruel, inhuman and degrading punishment.”

Gunasegar was sentenced in 2011 alongside two others including his brother for murdering a 25-year old man in 2005.- Malay Mail

Saturday, March 05, 2016

More Malaysians want end to mandatory death penalty, online poll shows (Malay Mail)

More Malaysians want end to mandatory death penalty, online poll shows

By Ida Lim


Thursday February 18, 2016
12:05 PM GMT+8
UPDATED:
February 18, 2016
01:17 PM GMT+8

Over half of Malaysians surveyed in an online poll want the government to scrap the mandatory death sentence. — file pictureOver half of Malaysians surveyed in an online poll want the government to scrap the mandatory death sentence. — file picture


KUALA LUMPUR, Feb 18 — Over half of Malaysians surveyed in an online poll want the government to scrap the mandatory death sentence that leaves judges with no discretion to hand down lighter punishments.

Conducted by Barisan Nasional (BN) component party Gerakan, the online poll results showed 838 online respondents were in favour of abolishing the mandatory death sentence while 685 respondents disagreed with judges being given the discretion to decide sentences, the party’s Youth wing leader Chai Ko Thing told a news conference today.

“As you can see from the results of votes garnered, the ratio is those who agreed are 55 per cent and those who disagreed is 45 per cent,” the Gerakan Youth Legal Bureau chief said.

The survey results were collected from 1,523 anonymous Internet users over a three-week period from January 22 and February 15 through Gerakan’s online poll site bettermalaysiapoll.org.

The survey posed just one question: “In your opinion, should Malaysia abolish the mandatory death penalty?” and the results were based on the number of “Yes” or “No” clicks obtained.

According to Chai, the mandatory death penalty in Malaysia applies to various crimes such as murder, firearm possession, kidnapping with ransom, waging war against the King and drug offences.

However, he said the government has currently shown its intention to remove the mandatory death penalty for drug-related offences, a move he said is backed by public sentiments based on the poll results.

He said Gerakan had, in 2013, initiated a petition titled “No to death penalty”, adding however the scrapping of mandatory death sentences may be a good starting point and middle path.

“So the party’s stand on this issue is we are going for total abolishment of death sentence, but as a start from the result of this poll — it seems to be divided, maybe to remove mandatory, then we work towards total abolishment of death sentence,” he said.

Chai said Gerakan will present the poll’s findings to de facto law minister Nancy Shukri who is expected to present legal amendments to scrap the mandatory death sentence in Parliament next month.

Nancy had in a written parliamentary statement last November 3 said there are currently 1,022 convicted inmates awaiting execution pending their appeals against the court’s decision, adding that there were 33 executed during the 1998-Oct 2015 period while 127 others received lighter sentences or clemency due to their pleas to the State Pardons Board.

Attorney-General Tan Sri Mohamed Apandi Ali had last November also said that he wished the courts had discretion on sending convicts to the gallows or otherwise.

Chai said the online #BetterMalaysia poll — which only allows one vote from each device — was created as a platform for the public to express their opinions on topical issues.

The simplified nature of the ongoing polls that does not ask for any details of the respondents is also to cater to Internet-savvy Malaysians especially the youths, Chai said.

He said the third question is now open for voting until March 8, declaring it as: “Does increasing traffic fines serve as an appropriate measure to change the driving attitude of road users and reduce traffic offences?” - Malay Mail, 18/2/2016

Friday, March 04, 2016

SHAHRUL IZANI SUPARMAN Court of Appeal Judgment - An Opinion? Fault of the Lawyer?

MADPET call for the abolition of the Death Penalty. This call have been supported by the Malaysian Bar, Malaysian Human Rights Commission(SUHAKAM) and many other civil society groups, and also prominent individuals. Many nation states have also been pressing Malaysia to abolish the Death Penalty.

Malaysia have been considering the abolition of the death penalty, especially for drug trafficking. The de facto law Minister, and even the Attorney General has taken the position that the Mandatory Death Penalty should be abolished. Amendments that will bring about this is supposed to be tabled in March 2016.

Abolishing of mandatory death penalty hailed(Malaysiakini)

Abolish the mandatory death penalty and restore judicial discretion in sentencing — Bar associations of Malaysia(Malay Mail)

Government should look into fully abolishing death penalty, says Suhakam and MADPET(Rakyat Post)

Timely move to abolish mandatory death penalty – MADPET (Malaysian Insider)

End of Malaysia’s mandatory death sentence on the horizon(Malay Mail, 17/11/2015)

We have highlighted the case of Shahrul Izani, and now we will consider the Judgment of the Court of Appeal. It is sad that law journals do not publish all these death penalty cases, which is a shame...

 “Knowing your son will die is agonising, but not knowing when is torturous,” -Sapenah Nawawi , 58, the mother of Shahrul Izani(on death row)

Amnesty wants moratorium on death penalty(24/2/2016)


Trial at First Instance - MOST Important
The problem with criminal cases, is that trial at first instance, be it at the High Court and/or Sessions/Magistrate's court is extremely important. It is here that evidence need to be adduced, witness need to be called and questioned or cross-examined. Hence, mistakes of lawyers and the accused at this stage can be fatal. Appeal courts will generally only be considering what transpired in the courts of first instance - the ability to adduce new evidence at the appellate court is rather restrictive? Questions not asked, or the consequence of evidence not challenged at the court of first instance are very difficult to be remedied later. 

Lawyer's 'mistake' can be fatal
Whilst lawyers, may have been educated in the law, it does not prepare them sufficiently for 'court craft'. Sadly lawyers, being human make mistakes, some of which they should never have made. Many lawyers just take up too many cases, and as such would not be able to sufficiently focus on cases. Clients sadly look for the 'cheapest', and many legal aid and even court appointed lawyers do not give enough to ensure the the best for their clients. For lawyers, it is not just knowledge that matter, but also values and attitude...

COMMENTS on the Sharul Izani's case based on COURT OF APPEAL JUDGMENT

Looking only at the Court of Appeal judgment, not having access to the High Court Judgment and the Notes of Proceedings(which is a verbatim record of what transpired), I make the following comments..

In Sharul Izani's case, he alleges that the said packages found on the motor-bike, that contained the canabis was not his....

In Sharul Izani Suparman's case, his story as to why he turned and ran when confronted with an a few persons who later identified themselves as police was because he was not wearing a helmet, his motor-bike lights were not working, and because the road tax of his motor-bike had expired. When the police identified themselves(OR did they?), he had already fled abandoning his motor-cycle. Well, for me that is a plausible explanation for his conduct - for after all, the penalty for such traffic offences can be high - now, in Malaysia the minimal fine for any traffic offence is RM300 (whereby Minimum Wage is RM900) - so running away is a common response.

But the court did not accept this explanation because it was not raised earlier - and the prosecution witnesses, especially the police, were not asked these questions during cross examination, and this evidence was only presented during the Defence case. Now, no where was these facts, of the 'expired road tax, not wearing of helmet, that his lights were not working' ever contested or disputed.

The Court's conclusion was that this was an 'afterthought' and so it was rejected. The court were of the view that this question should have been put in questions to the police. 

In my opinion, the court is wrong. Now, when it comes to a criminal trial, the prosecution has the onus(obligation) to establish a 'prima facie case', failing which the accused will be acquitted. If they succeed, then and then only then will the accused be asked to present his/her Defence. Now, should the accused assist the prosecution in discharging their responsibility at this stage? Well, in some cases, the answer will be in the negative. Should the accused have raised in cross-examination another plausible reason as to why the accussed fled the scene? Well, they could have reaised the possibility of another reason - the expired road tax, the non wearing of a helmet, the non-working lights ... Alternatively, the Defence could have also recalled prosecution witnesses and asked them these relevant questions....or even expanded on it, having raised the possibility of some other reason in cross examination. Here, it would very much depend on the lawyer - It looks here that the lawyer may have made a serious mistake - it may have been best that the lawyer challenged the version of the prosecution case? Did he do that? Did he not challenge the evidence of the prosecution? Should the accused be blamed for the failings of his lawyer? - It should not be.

Well, the duty of the prosecution is to put before the court all material evidence - including evidence that is not favourable to the accused person. Why did the prosecution not adduce this evidence - of expired road tax, not wearing of helmet, motorbike lights not functioning. They should have adduced this evidence, for it explains another reason for running away and abandoning the vehicle.

Now, it looks that he also left behing the packages of canabis - this certainly would have raised the possibility that he did not know what the said packages contained. Note also that the accused alleges that he just borrowed the motor-bike from a friend, so if there were packages in the basket, more likely than not, he would have just abandoned it...On the other hand, if these packages were his, and he knew its contents, would he not have taken these packages with him as he fled. His fleeing the scene, abandoning the packages also makes his running away to avoid 'fines and punishment' relating to traffic offences seems plausible. Or did he even know, these people in the car that collided with him, and the plainclothes men were police? Would you run also if a car collided into you, and strange men tried to grab hold of you???

The judgment also does not disclose that there were any evidence of handling the said packages - did someone see him place the coccaine in the motor-bike? Did someone see him walking with the packages before he went and borrowed the motor-bike? Did anyone see the packages in the motor-bike before the incident - are we to believe the police found this later on the abandoned bike? Did the police plant the 'evidence'?

Now, what car was the police use - a police car or an unmarked vehicle, The police say that they identified themselves by shouting 'Police" - did the accused hear this? Or did he flee(or continue to flee) out of fear not knowing that the people in the car were police, believing that they may be some 'criminal elements' out to cause him harm or steal from him? 

Police allege that they acted on information received - when did they receive the said information? What was the information received? Did it identify the accussed? Did it identify the vehicle the accused was using? Was there some recording of the information received adduced in court? Did the lawyer of the accused even challenge this 'information received'?

The owner of the motor-bike confirmed that he let the accused use the bike? Why did he not give him a helmet. Did he inform the accused that the lights were not working, or that the road tax was expired. Was there any witness to the alleged conversation and/or events? 

Well, there is, based on just the judgment of the Court of Appeal, there seem to be too many factors that makes it dangerous to convict the accused... 

Maybe, the problem was with the lawyer - as  a criminal lawyer, he may have 'slipped up' in challenging the prosecution's evidence, adducing the needed evidence(calling the relevant witnesses), ....many a lawyer, I believe, should not even be handling criminal cases - especially death penalty cases. [Maybe, there should be an evaluation of the performance of lawyer's handling of death penalty cases and other legal aid cases >> the evaluatiuon would help these lawyers improve, or alternatively, such 'incompetent or careless' lawyers could be weeded out...Clients know no better but if it was a court-appointed or legal aid lawyer, then these bodies have the responsibility of ensuring standards...

Courts also tend to too readily believe the testimony of the police and prosecution witness... Judges need to be more critical of prosecution witnesses - let's also not forget that judges too can ask questions as well...

Remember, when a suspect is arrested, the advice of a good lawyer will give is 'shut up' - exercise your right to silence...so, the bringing up matters during a trial should not be taken as an 'afterthought' just because it is raised for the very first time in court. 

Alibi is different - there is a requirement in law to give prior notice of this before the trial commence... but there is no requirement of saying anything else before the start of the trial.

'Afterthought' - because prosecution evidence not challenged?
 
Was the court saying 'afterthought' because the version of the prosecution case was not challenged at the time they presented their case - well, that is more likely than not the fault of the lawyer >> not the accussed. The lawyer should have known better...??

 Accused called as Witness for Defence - An unwise move?

The Defence called the accussed as a witness - generally, in a criminal case, one seldoms calls the accused as a witness. Was there any other witnesses called? Looks like none. 

I would most likely NOT call the accused person as a witness - Why? When faced with cross-examination, there is just too much risk, including also possible damage to credibility based on facts not directly relevant to the case... See, in the Anwar Ibrahim trials, Anwar was never called as a witness... (There are options for the accused including the giving of a statement from the dock[which will not open the accussed to the dangers of cross examination]...which was what Anwar chose to do...).

Further, what ever the accussed says that could not be corroborated by other evidence and/or witnesses has little weight. 

Were there any other Defence witnesses called?
 



The Court of Appeal Judgment, which I found in CLJ (Current Law Journal) 


Bagi pihak perayu - Suzanawati Ismail; T/n Suzana Ismail & Partners
Bagi pihak responden - Tengku Amir Zaki Tengku Hj Abdul Rahman, Timbalan Pendakwa Raya; Jabatan Peguam Negara
DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANGKUASA RAYUAN)
[RAYUAN JENAYAH NO: B-05-337-2009]
ANTARA
SHAHRUL IZANI SUPARMAN
... PERAYU
DAN
PENDAKWA RAYA
... RESPONDEN
[DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM]
PERBICARAAN JENAYAH NO. 45-89-2004
Antara
Pendakwa Raya
Dan
Shahrul Izani bin Suparman
CORAM:
ABDUL MALIK ISHAK, HMR
AZHAR HAJI MA'AH, HMR
MOHTARUDIN BAKI, HMR

ALASAN PENGHAKIMAN

[1] Perayu telah dipertuduhkan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952, iaitu mengedar dadah berbahaya jenis Cannabis seberat 622 gram. Perayu telah didapati bersalah dan dijatuhkan hukuman mati mandatori.

[2] Rayuan Perayu telah didengar dan ditolak sebulat suara. Pada asasnya kami bersetuju dengan keputusan dan alasan-alasan penghakiman Hakim bicara. Berikut diperturunkan alasan penghakiman kami.

Fakta ringkas

[3] Bertindak di atas maklumat, SP6 mengetuai sepasukan polis dari bahagian D9 Ibu Pejabat Kontingen Polis Selangor, telah membuat pemerhatian di kawasan Jalan Haji Othman, Rantau Panjang, Klang. Dalam pemerhatian tersebut, pihak polis telah menahan OKT/Perayu yang pada ketika itu sedang menunggang motosikal jenis Yamaha Sport berwarna merah dengan nombor pendaftaran BDP 8358 yang tidak memasang lampu dalam keadaan mencurigakan yang kemudiannya telah membuat pusingan "U".

[4] Polis (SP6) mengekori motorsikal tersebut dan menghalang penunggangnya dengan kereta dengan cara mengiringkan keretanya, dan dalam masa yang sama SP6 telah menjerit memperkenalkan dirinya "polis". Penunggang motorsikal tersebut iaitu Perayu secara serentak telah melompat dari motorsikalnya lalu motorsikal tersebut terjatuh. Perayu telah melarikan diri sehingga ke selekoh dan telah berjaya ditahan selepas berlaku pergelutan.

[5] Pemeriksaan badan dijalankan ke atas Perayu tetapi tidak menemui apa-apa barang salah. Dalam pemeriksaan yang dijalankan pada motorsikal tersebut pula, pihak polis telah menjumpai dua beg plastik berwarna merah di dalam bakul motorsikal. Pemeriksaan lanjut menunjukkan setiap satu beg plastik tersebut mengandungi satu ketulan mampat yang berisi dedaun kering disyaki Cannabis.

[6] Perayu bersama barang-barang kes telah dibawa ke IPD Klang, penandaan barang-barang kes dilakukan.

[7] Pada 18.12.2003 jam 2.28 petang, SP8 telah menyerahkan barang-barang kes kepada Ahli Kimia (SP4) untuk dianalisia. Hasil analisa SP4 ke atas kedua-dua ketulan mampat tersebut, beliau mengesahkannya sebagai Cannabis seperti yang ditakrifkan di bawah s. 2 Akta Dadah Berbahaya 1952 dengan berat bersih 622 gram.

[8] Menurut SP5, motorsikal BDP 8358 adalah kepunyaannya dan telah dipinjamkan kepada Perayu jam 8.00 malam yang sama Perayu ditangkap. SP5 juga mengesahkan barang-barang kes (seperti dalam gambar P4A dan P4B) tiada dalam raga motorsikal tersebut semasa Perayu meminjam motorsikal tersebut.

Kes prima facie.

Possession:
[9] Di akhir kes pendakwaan Hakim bicara telah membuat "affirmative finding" bahawa OKT/Perayu mempunyai "mens rea possession" terhadap dadah Cannabis yang menjadi hal perkara pertuduhan.

[10] Hakim bicara dengan jelas menyatakan di mukasurat 225 perenggan 14 Rekod Rayuan:
"Oleh itu untuk kes ini, berdasarkan maximum evaluation ke atas keterangan-keterangan saksi-saksi pendakwaan keseluruhannya yang didapati "not inherently incredible" dan berpandukan tafsiran "possession" tersebut serta "inferences" yang boleh dibuat berdasarkan keterangan "conduct" Tertuduh apabila ditahan, mahkamah berpuashati bahawa Tertuduh mempunyai "mens rea possession" ke atas ketulan Cannabis tersebut. Oleh kerana berat bersih Cannabis ini melebihi 200 gram, maka berdasarkan s. 37(da)(vi) Akta Dadah Berbahaya 1952, mahkamah memutuskan terdapat kes "prima facie " untuk Tertuduh menjawabnya sebagaimana pertuduhan".
[11] Dari penelitian Rekod Rayuan, fakta-fakta berikut adalah jelas dan nyata:
(a) Perayu dilihat menunggang motorsikal BDP 8358 seorang diri.
(b) Perayu tidak memasang lampu motorsikal serta mencurigakan, kemudiannya telah membuat pusingan "U".
(c) Perayu telah melarikan diri apabila disekat oleh motokar yang dinaiki oleh SP6. Perayu melarikan diri sehingga ke selekoh, selepas pergelutan Perayu berjaya ditangkap.
(d) Dari bakul motorsikal BDP 8358 tersebut, diperolehi dua beg plastik merah, tiap satu berisi satu ketulan mampat dedaun kering yang disyaki Cannabis.
(e) SP5 tuan punya motorsikal tersebut tidak meninggalkan apa-apa barang di dalam bakul motorsikal tersebut.
(f) Perayu ditangkap oleh pihak polis lebih kurang pukul 10.15 malam, bererti motorsikal tersebut berada di bawah kawalan beliau lebih kurang 2 jam sebelum tangkapan.
Conduct.

[12] "Perbuatan Perayu melarikan diri". Hakim bicara sedar bahawa jika terdapat dua versi atau inferens; versi/inferens yang memihak kepada Perayu perlu diterima. Prinsip ini telah diputuskan di dalam kes Abdullah Zawawi bin Yusof v. Public Prosecutor [1993] 4 CLJ 1; [1993] 3 MLJ 1. (Rujuk mukasurat 223 perenggan 11 Rekod Rayuan). Walaubagaimanapun Hakim bicara telah membezakan prinsip tersebut dengan fakta kes dihadapan beliau.

[13] Hakim bicara menyatakan seterusnya di perenggan yang sama:
"... keterangan Tertuduh (Perayu) melarikan diri, menunggang motorsikal tanpa memasang lampu (waktu malam lebih kurang 10.00 malam), serta membuat pusingan "U" perlu dilihat bersama keterangan SP5 (tuan punya motorsikal) bahawa tidak terdapat apa-apa barang di dalam raga motorsikal tersebut semasa Tertuduh mengambil pinjam dari SP5".
[14] Fakta di atas diperkuatkan lagi bahawa motorsikal tersebut berada di dalam kawalan dan jagaan Perayu lebih kurang 2 jam sebelum ditangkap serta kedudukan 2 beg plastik merah (P21 dan P25) di dalam raga motorsikal di hadapan penunggang adalah mudah dilihat. Perayu dilihat menunggang motorsikal tersebut seorang diri sejurus sebelum ditangkap, secara "maximum evaluation" adalah menjurus "irresistible inference" bahawa Perayu tahu mengenai dadah-dadah tersebut.

[15] Adalah jelas Hakim bicara menilai segala keterangan "as a whole" dan secara "maximum evaluation" memutuskan bahawa Perayu mempunyai pengetahuan mengenai dadah-dadah Cannabis yang menjadi hal perkara pertuduhan.

[16] Di dalam kes Aedy Osman v. PP [2011] 1 CLJ 273 Mahkamah Persekutuan memutuskan:
"The trial judge, after maximum evaluation of the evidence presented by the prosecution, had come to the finding that (i) the appellant had possession and control over the red bag and thus had knowledge of the contents therein and (ii) since the appellant had attempted to escape before he was apprehended, the appellant must have known of the contents in the bag for otherwise there was no reason for him to put up a struggle. There was no error committed by the trial judge in coming to such a decision".
[17] Pengedaran
Selepas membuat "affirmative findings" mengenai "mens res possession", Hakim bicara telah mengambilpakai (invoke) seksyen 37(da)(vi) Akta Dadah Berbahaya 1952 untuk andaian pengedaran. Ini jelas dinyatakan oleh Hakim bicara di mukasurat 225 perenggan 14 Rekod Rayuan. Andaian ini adalah "rebuttable on the balance of probabilities".
[18] Pembelaan.
Pada waktu maghrib 25.9.2003 tersebut, sedang Perayu berada di rumah bersama ibu dan adik beradiknya di Rantau Panjang, Klang, beliau telah mendapat panggilan telefon dari kawannya bernama Zaidi mengajaknya makan. Perayu telah meminta Zaidi mengambilnya di rumah, tetapi Zaidi mengatakan beliau telahpun berada di kedai makan dan akan menunggunya di situ. Perayu telah meminta pinjam motorsikal dari abangnya tetapi abangnya tidak benarkan. Perayu selepas itu telah meminta duit daripada ibunya.
[19] Selepas itu Perayu telah pegi ke rumah jirannya bernama Mohd. Junaidi (SP5) untuk meminjam motorsikal daripadanya. SP5 telah membenarkan Perayu mengambil motorsikal SP5 iaitu Yamaha BDP 8358 yang terletak di garage rumah. SP5 tidak ikut Perayu ke garage kerana kuncinya sememang sentiasa berada di ignition motorsikal tersebut. Perayu mengatakan beliau selalu meminjam motorsikal SP5 sebelum ini. Perayu mengatakan di dalam keadaan garage yang gelap di situ, beliau telah menghidupkan enjin motorsikal SP5 tersebut dan menunggangnya untuk pergi ke kedai makan di mana Zaidi sedang menunggunya yang terletak di dalam jarak 2 km dari rumah SP5. Perayu mendakwa SP5 telah memaklumkannya sebelum itu bahawa motorsikal tersebut tidak mempunyai cukai jalan dan semasa Perayu menunggang pada malam itu, motorsikal tersebut juga tiada lampu dan beliau juga tidak memakai helmet. Oleh itu beliau menunggang motorsikal tersebut berpandukan cahaya lampu kereta yang lalu lalang dan cahaya lampu rumah-rumah yang berdekatan di sepanjang jalanraya.

[20] Adalah tidak dinafikan Perayu meminjam motorsikal BDP 8358 daripada SP5 lebih kurang pukul 8.00 malam hari tersebut. Pembelaan juga tidak mempertikaikan bahawa beliau ditangkap oleh pihak polis lebih kurang pukul 10.15 malam. Ini bererti fakta bahawa Perayu mempunyai kawalan dan jagaan terhadap motosikal tersebut lebih kurang 2 jam.

[21] Mengikut SD1 (Perayu) tujuan meminjam motorsikal tersebut untuk ke kedai makan untuk berjumpa rakannya bernama Zaidi. Perayu sendiri menyatakan untuk ke kedai makan itu hanya mengambil masa lebih kurang 10-15 minit sahaja. Perayu juga menyatakan bahawa beliau ditahan oleh polis semasa beliau di dalam perjalanan ke kedai makan untuk berjumpa Zaidi tanpa pergi atau singgah di mana-mana.

[22] Hakim bicara membuat "observation"; ke manakah Perayu yang mempunyai kawalan dan jagaan motorsikal tersebut dalam tempoh 2 jam walhal beliau hanya memerlukan 10-15 minit untuk ke kedai makan seperti yang dikatakan. Tiada penjelasan dari Perayu.

[23] Hakim bicara sedar bahawa tugas pembelaan hanyalah untuk menimbulkan keraguan yang munasabah. Ini jelas dinyatakan di mukasurat 229 perenggan 23 Rekod Rayuan. Walaubagaimanapun dari segi "trite law" untuk menimbulkan keraguan yang munasabah mestilah "real doubt" bukan "fanciful or imaginary doubt". Adalah jelas dengan kegagalan Perayu untuk menerangkan tempoh 2 jam beliau mempunyai kawalan dan jagaan terhadap motorsikal tersebut, tidak menimbulkan keraguan yang munasabah.

[24] Di dalam pembelaan Perayu menyatakan berlaku perlanggaran di antara motorsikal yang ditungganginya dengan sebuah kereta menyebabkan Perayu jatuh. Beberapa orang berbadan besar telah memegangnya, beliau terkejut dan melarikan diri. Semasa sedang berlari itu dia terdengar jeritan "Polis". Ketika itu baru Perayu teringat motorsikal yang ditungganginya itu tiada cukai jalan dan tidak mempunyai lampu serta dia tidak memakai topi keledar.

[25] Keterangan ini jelas menunjukkan bahawa Perayu melarikan diri bukan disebabkan ketiadaan cukai jalan, lampu dan topi keledar seperti yang dihujahkan.

[26] Mengenai isu motorsikal tersebut tidak mempunyai cukai jalan dan tidak memasang lampu, hanya ditimbulkan semasa pembelaan. Ianya tidak diutarakan semasa menyoal balas saksi-saksi pendakwaan, terutamanya SP6 (Pegawai tangkapan). Hakim bicara memutuskan ianya adalah keterangan fikir semula (afterthought) di perenggan 26 mukasurat 231 Rekod Rayuan. Kami tiada sebab untuk memutuskan sebaliknya.

[27] Di dalam kes Mahkamah Rayuan Megat Halim Megat Omar v. PP [2009] 1 CLJ 154 di mukasurat 167:
"Although in our criminal jurisprudence, there is no burden on an accused person to prove his innocence but merely for him to raise a reasonable doubt as to his guilt, it is trite that his defence should be put to the prosecution at an early stage during the prosecution case. Failure to do so may move the trial court to dismiss a particular line of defence as an afterthought, or a recent invention as happened in this case"
[28] Di dalam kes PP v. Dzul Akmal bin Omar [1999] 1 LNS 399:
"And, more importantly, it shows that the subsequent evidence of the Respondent when the defence is called, raising the different version for the first time, is a story or description of a version of events woven after hearing the prosecution evidence. Such evidence is not bona fide nor can it have much credibility when weighed against the previously unchallenged evidence of SP4. In the end, while all that can be said is that while the defence version is possible, the fact those assertions were not put to SP4 when it could and obviously ought to have been done, must leave it as a possibility not in the least probable in the circumstances of the case".
[29] Pembelaan bukan sahaja penafian fakta yang mengaitkan Perayu dengan dadah-dadah dijumpai malah pembelaan juga merupakan fikir semula (afterthought).

[30] Di dalam kes DA Duncan v. Public Prosecutor [1980] 1 LNS 12; [1980] 2 MLJ 195:
"Now this evidence, if accepted and believed, is clearly sufficient to establish a prima facie case against the Appellant. The High Court at Alor Setar accepted it and called on the defence. The defence was in effect a simple denial of the evidence connecting the Appellant with the four boxes. We cannot see any plausible ground for saying that the four boxes were not his. In the circumstances of the prosecution evidence, the High Court came, in our view, to the correct conclusion that this denial did not cast a doubt on the prosecution case against the Appellant".
[31] Mengenai andaian undang-undang di bawah s. 37(da)(vi) Akta Dadah Berbahaya 1952, pembelaan tidak membawa apa-apa keterangan (any plausible explanations), untuk menyangkal andaian tersebut di atas imbangan kebarangkalian.

[32] Dengan alasan di atas kami sebulat suara memutuskan bahawa sabitan terhadap Perayu adalah selamat; dengan itu rayuan Perayu ditolak. Sabitan dan hukuman disahkan.
(MOHTARUDIN BAKI)
Hakim
Mahkamah Rayuan Malaysia.
Bertarikh: 12 JANUARI 2012