Media Statement –25/1/2018
Malaysian Gopi Kumar is 6th victims of Minister’s Delay bringing into
force law that abolishes mandatory death penalty for drug trafficking
MADPET(Malaysians Against Death
Penalty and Torture) notes that despite the fact that the Dangerous Drugs
(Amendment) Act 2017 receiving royal assent on 27/12/2017, that effectively abolishes
the mandatory death penalty for drug trafficking, the failure of the Minister
to do the needful to bring the law into force has resulted in Malaysian judges
still having no choice but to sentence convicted drug traffickers to death.
‘…"Since there is only one
sentence provided for under Section 39B of the Act, the court hereby sentences
all the accused to death," he [Judge Datuk Ghazali Cha] said….’(The Sun Daily,22/1/2018). Until the new
Dangerous Drugs (Amendment) Act 2017 comes into force, Judges continues to have
no discretion but to sentence those convicted to death.
The most recent victim was
Malaysian lorry driver S. Gopi Kumar, 33, who was sentenced to death(The Sun Daily, 24/1/2018). Earlier, on
17/1/2018, it was reported that 5 others, Malaysian A. Sargunan, 42, and four
Indian nationals(Sumesh Sudhakaran, Alex Aby Jacob Alexander, Renjith
Raveendran and Sajith Sadanandan ) were convicted and sentenced to death by the
Shah Alam High Court on Wednesday (Jan 17) for drug trafficking under Section
39B (1)(a) Dangerous Drugs Act 1952(Star,
17/1/2018). As not all cases get reported by the media, there may be
many others that have been sentenced to death, who may not have been if not for
this Ministerial delay.
A perusal of the Malaysian
official e-Federal Gazette website on 25/1/2018, shows that the Dangerous Drugs
(Amendment) Act 2017, that received royal assent on 27/12/2017, has still not
come into force. In comparison, other laws that received royal assent on the
same day like the Income Tax(Amendment) Act 2017, came into force on
30/12/2017. Even some laws that received royal assent later on 29/12/2018, like
the Malaysian Maritime Enforcement Agency (Amendment) Act 2018 has already come
into force since 11/1/2018.
When the Dangerous Drugs (Amendment)
Act 2017 comes into force, it will finally abolish mandatory death penalty for
drug trafficking that have existed since 1983. Judges, will thereafter, have the discretion
to impose a sentence for drug trafficking other than the death penalty, being
life imprisonment with whipping of not less than 15 strokes, for the offence of
drug trafficking.
Section 3(2) of Dangerous Drugs
(Amendment) Act 2017 states, ‘ (2) Any proceedings against any person who has
been charged, whether or not
trial has commenced
or has been
completed, and has not
been convicted under
section 39b of
the principal Act by
a competent Court
before the appointed
date, shall on the appointed
date be dealt
with by the
competent Court and
be continued under
the provisions of
the principal Act
as amended by this Act.’
This means that any person even
already on trial for drug trafficking(section 39B), so long as they have yet to
be convicted, can still enjoy the benefits of Dangerous Drugs (Amendment) Act
2017. But, until the Minister do the needful, to ensure this law comes into
force, judges will continue to have no discretion but to impose the mandatory
death penalty on those convicted before the new law applies.
The new law, sadly, do not
provide any remedy to those already convicted and/or for the 800 or more
currently on death row by reason of having been convicted for drug trafficking.
Hence, as of today, Malaysian
Gopi Kumar and possibly 5 or more that have already been convicted by the High
Court before the new law come into force, are victims of a great injustice and may
be hanged to death.
As it stands now, under even the
new law, after conviction and being
sentenced to death by the High Court, the Appellate Courts also will not have
the capacity to change the death sentence to imprisonment, unless they choose
to acquit them of drug trafficking, or
possibly elect to convict for for a lesser offence that does not carry the
mandatory death penalty.
In light of the adequacies of the
new upcoming drug law, Malaysia must really table another new law that will result in the commuting of
sentence of all those currently on death row by reason of being convicted of
the offence of drug trafficking, and even other offences that carries the
mandatory death penalty. This will be just for 2 Malaysians and 4 foreigners
sentenced in 2018.
This new law could be tabled in
the up-coming Parliamentary session this March 2018. This is the most
reasonable approach, considering that there are more than 800 on death row, and
judicial review of the sentence of so many may really be a difficult or near impossible
task.
It must also be reminded, that
Malaysia was looking at abolishing the death penalty, especially the mandatory
death penalty. While the new Dangerous Drugs (Amendment) Act 2017 will do away
with the mandatory death penalty for just one offence - drug trafficking,
mandatory death penalty still exist for murder and so many other offences, some
of which are offences that do not result in any grievous injury and/or death to
victims.
As such, Malaysia need to
speedily table new laws, which will at the very least abolish the mandatory
death penalty – returning discretion to judges to mete out appropriate just
sentences based on the facts and circumstances of each and every case.
In the meantime, while Malaysia works
towards abolition, there must justly be a moratorium on executions.
MADPET reiterates its call on the
Minister to do the needful to ensure that Dangerous Drugs (Amendment) Act 2017
comes into force immediately without any further delay;
MADPET also calls for all trials
of persons charged under section 39B(drug trafficking) be stayed, or where
trial is almost over, that courts do not proceed to convict until after Dangerous
Drugs (Amendment) Act 2017 comes into force. This will prevent any further injustice on any
other person, as had embarrassingly happened to Gopi Kumar and 5 or more, who have
in 2018 sentenced to death just because of the delay of the law that abolishes
mandatory death penalty coming into force;
MADPET reiterates the call for
Malaysia to speedily abolish all other remaining mandatory death penalty
offences, other than drug trafficking, and returning sentencing discretion to
judges; and
MADPET also reiterated the call
for a moratorium on all executions, pending the abolition of the death penalty
in Malaysia.
Charles Hector
For and on behalf of MADPET(Malaysians Against Death Penalty and
Torture)
Note:-
The Official E-Federal Gazette Website
Refer also the earlier MADPET Statement related to this
issue dated 19/1/2018. - Minister’s Delay Resulted in Judge Having No Choice but to Sentence A. Sargunan and 4 others to Death
Earlier related post:-
Don’t let delay in applying new dangerous drugs law take more lives(FMT)
Lorry driver to hang for trafficking over 45kg of drugs
Posted on 24 January 2018 - 11:23pm
Last updated on 25 January 2018 - 10:57am
Last updated on 25 January 2018 - 10:57am
Picture for representational purpose only. — AFPJudicial Commissioner Datuk Mohamad Shariff Abu Samah meted out the sentence against S. Gopi Kumar, 33, after finding that the prosecution had succeeded in raising reasonable doubt at the end of the defence's case.
Mohamad Shariff said the court found that the accused had control, possession and knowledge of the drugs found in his Proton Perdana car and at his rented house, which he moved into in 2015.
"I do not believe the excuses given by the accused that he did not know about the drugs found in the car and at the house on grounds that they (car and house) were accessible to the public," he said.
Gopi Kumar committed the offence in his car at Jalan 10/18A, Taman Mastiara, Batu 5, Jalan Ipoh, Sentul here at 12.45am on June 22, 2016, and at his home on Jalan 15/18A in the same area at 1.45am on the same date.
For that, he was charged under Section 39B of the Dangerous Drugs Act 1952, which carries a mandatory death penalty upon conviction.
The court also sentenced the man to four years' jail and five strokes of the cane for another charge of being in possession of 16.2 gm of methamphetamine in the same house at the same time and date.
He was ordered to serve the jail sentence from the date of his arrest on June 22, 2016.
A total of 11 prosecution witnesses and one defence witness – the accused himself, were called to testify in the trial which began on June 14, 2017.
DPP Ahmad Nazneed Zulkifli prosecuted, while Gopi Kumar was represented by counsel New Sin Yew. — Bernama - The Sun Daily, 24/1/2018
Malaysian, four Indian nationals to hang for drug trafficking
Posted on 22 January 2018 - 05:21pm
Last updated on 22 January 2018 - 05:35pm
Last updated on 22 January 2018 - 05:35pm
Picture for representational purpose only. — AFPJudge Datuk Ghazali Cha handed down the sentence to A. Sargunan, 42, and four Indian nationals, namely Sumesh Sudhakaran, 30, Alex Aby Jacob Alexander, 37, Renjith Raveendran, 28, and Sajith Sadanandan, 29, after finding that the defence had failed to raise reasonable doubts against the prosecution's case.
A total of 13 prosecution witnesses and nine defence witnesses were called to testify in the trial which began on March 1, 2016.
All the men were convicted of trafficking in methamphetamine weighing 4.3kg and ketamine weighing 1.5kg at the house in Jalan Sungai Lalang, Semenyih, at around 9am on July 26, 2013.
They were charged under Section 39B(1)(a) of the Dangerous Drugs Act 1952, which carries a mandatory death penalty upon conviction.
In his judgment, judge Ghazali said after hearing the argument from both sides, he found that there was an undisputed fact in the case, namely all the accused were at the scene when arrested.
In addition, he said another undisputed fact was that the premises was indeed used for processing drugs as the methamphetamine was found exposed on the table and the ketamine, under the staircase.
"Based on the evidence, the court also found that all DNA profiles taken at the scene had been linked to all the accused, such as towels, gloves and toothbrushes. which have been proven by the chemist.
"Apart from that, it also cannot be disputed that the premises was always locked and the doors shut tightly with all the accused working only at midnight and early mornings.
"Although the accused said that they were at the premises for cleaning work and had other work shifts, it was supported by other evidence," he said.
On Sargunan's defence that he worked as a taxi driver and happened to be at the scene, the judge found his testimony to be a mere fabrication as the man's DNA profile was found on towels and shirts found at the premises.
He also said that the evidence of all the four Indian nationals were unreliable as it contradicted their previous recorded statements.
"It is impossible that they do not know the house is a drug processing lab. They all had access to the items in the premises including the drugs.
"Since there is only one sentence provided for under Section 39B of the Act, the court hereby sentences all the accused to death," he said.
The prosecution was conducted by deputy public prosecutor Deepa Nair Thevaharan while Sargunan was represented by lawyers Datuk N. Sivananthan and Low Huey Theng.
The four Indian nationals were represented by counsel Jayarubbiny Jayaraj. — Bernama - The Sun Daily, 22/1/2018
The Malaysian E-Federal Gazette Website as seen today
Thu , 25 January 2018
Amending Act
Showing page 1 of 12
| No. | Publication Date | Act No. | Title | Date of Royal Assent | Date of Commencement | Download |
|---|---|---|---|---|---|---|
| 1 | 10-01-2018 | A1563 | ARBITRATION (AMENDMENT) ACT 2018 | 29-12-2017 | NOT YET IN FORCE |  |
| 2 | 10-01-2018 | A1562 | TOURISM INDUSTRY (AMENDMENT) ACT 2018 | 29-12-2017 | NOT YET IN FORCE | |
| 3 | 10-01-2018 | A1561 | MALAYSIAN MARITIME ENFORCEMENT AGENCY (AMENDMENT) ACT 2018 | 29-12-2017 | 11-1-2018 | |
| 4 | 10-01-2018 | A1560 | INTELLECTUAL PROPERTY CORPORATION OF MALAYSIA (AMENDMENT) ACT 2018 | 29-12-2017 | 11-1-2018 | |
| 5 | 10-01-2018 | A1559 | MALAYSIAN AVIATION COMMISSION (AMENDMENT) ACT 2018 | 29-12-2017 | NOT YET IN FORCE | |
| 6 | 29-12-2017 | A1558 | DANGEROUS DRUG (AMENDMENT) ACT 2017 | 27-12-2017 | NOT YET IN FORCE | |
| 7 | 29-12-2017 | A1557 | SUPPLY ACT 2018 | 27-12-2017 | 30-12-2017 | |
| 8 | 29-12-2017 | A1556 | INCOME TAX (AMENDMENT) ACT 2017 | 27-12-2017 | 30-12-2017 | |
| 9 | 29-12-2017 | A1555 | LABUAN BUSINESS ACTIVITY TAX (AMENDMENT) (NO. 2) ACT 2017 | 27-12-2017 | 30-12-2017 | |
| 10 | 30-11-2017 | A1554 | PRIVATE EMPLOYMENT AGENCIES (AMENDMENT) ACT 2017 | 10-11-2017 | NOT YET IN FORCE | |
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