ON HUMAN RIGHTS, JUSTICE AND PEACE ISSUES, LABOUR RIGHTS, MIGRANT RIGHTS, FOR THE ABOLITION OF THE DEATH PENALTY, TOWARDS AN END OF TORTURE, POLICE ABUSES, DISCRIMINATION...
Presumption of Innocence Until Proven Guilty and the Right to Bail Must
Be Recognized and Respected
MADPET (Malaysians Against Death
Penalty and Torture) is appalled by the denial of bail to Gadek assemblyman G.
Saminathan who is facing two charges for alleged terrorism activities linked to
the Liberation Tigers of Tamil Eelam (LTTE). He is charged for committing the
offence of ‘Soliciting or giving support to terrorist groups or for the
commission of terrorist acts’ (Section 130J Penal Code).(New Straits Times 29/1/2020; Star 29/1/2020)
Article 11(1) of the Universal
Declaration of Human Rights states that, ‘Everyone charged with a penal offence
has the right to be presumed innocent until proved guilty according to law in a
public trial at which he has had all the guarantees necessary for his defence.’
It is only just and right that
anyone charged with any offence is presumed to be innocent until proven guilty,
and as such should be granted bail.
It is a gross injustice to deny
bail, simply because the offence one is charged with carries the death
sentence, life imprisonment and/or a long prison term.
In this particular case, if
convicted, the sentence for committing the section 130J Penal Code offence, as
it is now, is ‘…shall be punished with imprisonment for life or imprisonment for a term not
exceeding thirty years, or
with fine, and shall also be liable to forfeiture of any property used or
intended to be used in connection with the commission of the offence.’ There
may be a drafting error in this law. At present, our reading says that if
convicted, the sentence could be just a fine, any period of imprisonment but
not more than 30 years plus forfeiture.
From media reports, the learned
Judicial Commissioner was quoted saying, “The court usually cannot grant bail
for offences which carries life imprisonment or the death penalty,…” He seems
to have only considered the maximum sentence being life imprisonment, which
today in Malaysia is 30 years in prison.
MADPET is of the opinion, based
on media reports, that the judge erred, as even for murder, which carries the
mandatory death penalty, bail has been granted in the past in Malaysia. Thus,
even for offences that carries the sentence of life imprisonment, bail can and
ought to be granted. In the case of the late Datuk Balwant Singh, and the case Samirah
Muzaffar, both who were charged with murder that carries the mandatory death
penalty if convicted, bail was granted.
Bail, after all, is merely to ensure
that a person turns up for trial. In this modern age, where there is also the
possibility of electronic tracking device which makes it very difficult for anyone
to abscond. Passports can also be retained preventing accused persons from
leaving Malaysia or Peninsular Malaysia.
Even for the more serious offence
of committing a terrorist act, where death does not result, the sentence
prescribed in section 130C(1)(b) ‘…(b) in any other case, with imprisonment for
a term of not less than seven years but not exceeding thirty years, and shall
also be liable to fine….’. Where death is caused, the sentence is death.
MADPET is against the imposition
of any mandatory sentence, including the death penalty, life imprisonment
and/or one fixed prison term that removes judicial sentencing discretion.
Pakatan Harapan Must Repeal Draconian Provisions in Laws as Promised
Several prominent politicians
including DAP stalwart Lim Kit Siang, Penang Deputy Chief Minister II Dr P
Ramasamy, and DAP central executive committee member Ronnie Liu were also
present at the court to show support. Questions arise as to why other Pakatan
Harapan leaders were absent, for after all G. Saminathan is a Pakatan Harapan
State Assemblyperson.
MADPET also draws the attention
to the fact that Pakatan Harapan did promise in its 2018 Election Manifesto to
abolish draconian provisions in the Security Offences (Special Measures) Act
2012 (SOSMA), which it has failed to do until now.
Now, we already have a High Court
decision on 29 Now 2019, that declared that Section 13 of SOSMA, which denies
bail to SOSMA listed security offences, was ultra vires to Articles 8 and 121
of the Federal Constitution.
A grave injustice is committed to
any person denied bail, who is charged with an offence but is later found not
guilty by the court. It affects not just the accused person but also his/her
family and dependents.
It is unjust when many,
especially the poor, languish in detention until their trial is over simply
because they simply cannot afford to furnish bail. This raises the possibility
that many innocent persons will simply opt to plead guilty and serve out definite
prison terms, rather than languish in detention for an indefinite period whilst
their trial proceeds. Malaysia may want to consider what neighboring Thailand
does through its Criminal Justice Fund that helps the poor be out on bail,
amongst others, during their trial. The money can also used for criminal
defence.
SOSMA also have draconian
provisions that allows the use of evidence not admissible under our Evidence
Act in trials, and for the use of ‘special’
unfair Criminal Procedures to be used during trial.
SOSMA allows to be by-passed
the scrutiny of the Magistrate by the requirement of remand hearing and remand
orders before the police can further detain a suspect for more than 24 hours.
Essential (Security Cases)
Regulations 1975 (ESCAR), which was similar to SOSMA today, saw the Malaysian
Bar and lawyers in the name of justice protesting and even calling for boycott
of cases that used ESCAR. SOSMA ought to be repealed, not simply amended if we
believe in fair trial.
MADPET reiterates our call for
the immediate repeal of the Security Offences (Special Measures) Act 2012
(SOSMA). If a longer remand period, more than 14 days is required for certain serious
offences, the maximum remand period for the purpose of investigations could be extended
to 28 days provided the requirement for further remand orders by Magistrates after
hearing both parties is maintained.
MADPET also calls for the
abolition of all those ‘detrimental to parliamentary democracy’ offences that
was introduced by the Barisan Nasional government also be repealed.
MADPET also calls for the Pakatan
Harapan government to review and consider the repeal of terrorist offences,
noting that our laws already criminalizes all such actions. Malaysia must also
review the list of current listed terrorist or criminal organizations, and
publish it.
MADPET urges Malaysia to ensure
the right to a fair trial, which includes the right to bail. The presumption of
innocence until proven guilty must be put in practice.
Charles Hector
For and on behalf of MADPET(Malaysians
Against Death Penalty and Torture)
High Court denies bail for Gadek rep over LTTE-related charges
Nation
Wednesday, 29 Jan 2020 4:41 PM MYT
By NURBAITI HAMDAN
KUALA
LUMPUR: The High Court here has dismissed an application for bail filed
by Gadek assemblyman G. Saminathan who is facing two charges for
alleged terrorism activities linked to the Liberation Tigers of Tamil
Eelam (LTTE).
In his decision here on Wednesday (Jan
29), Judicial Commissioner Ahmad Shahrir Mohd Salleh said that Section
13 of the Security Offences (Special Measures) Act 2012 (Sosma) was still in the statute books
despite being declared unconstitutional by High Court judge Justice Mohd
Nazlan Mohd Ghazali.
JC
Ahmad Shahrir said although he was bound by Justice Nazlan's ruling, he
had to consider that Section 13 of Sosma was still in effect.
He added that LTTE had been classified a terror group by the government and the Home Minister had yet to de-gazette this.
“The
LTTE is gazetted as a terrorist group and supporting it is an offence
and punishable under Section 130J of Penal Code, which carries life
imprisonment.
“The court usually cannot grant bail for offences which carries life imprisonment or the death penalty, ” he added.
On
Nov 29 last year, Justice Nazlan declared that Section 13 of Sosma was
ultra vires to Articles 8 and 121 of the Federal Constitution.
A woman, believed to be Saminathan's wife, was seen sobbing when proceedings ended.
Lawyer Ramkarpal Singh, who represented the accused, told reporters that they accepted the decision.
“We accept the decision although we are disappointed. We will consider our options and our next step, ” he added.
On
Jan 20, Saminathan, who is also a Melaka exco member, claimed trial to
supporting the LTTE at a function held at Dewan Kasturi Ayer Keroh,
Jalan Utama, Taman Ayer Keroh Heights in Melaka, from 8.30pm to 10.50pm
on Nov 28,2018.
He
was charged with possession of items with elements of terrorism or
related to the LTTE in a mobile phone at the office of the Unity, Human
Resources and Consumer Affairs executive councillor at the Chief
Minister's Department at Kompleks Seri Negeri, in Melaka, at 10.25am on
Oct 10,2019. - Star, 29/1/2020
Gadek assemblyman facing LTTE charges has to remain in jail, bail refused
G. Saminathan will remain in prison as the High Court dismissed his bail application. - NSTP/File pic
KUALA
LUMPUR: Gadek assemblyman G. Saminathan who was charged with supporting
terror group Liberation Tigers of Tamil Eelam (LTTE) has to remain in
prison as the High Court dismissed his bail application today.
A
woman believed to be the accused’s wife could not hold back her tears
after Judicial Commissioner Datuk Ahmad Shahrir Mohd Salleh delivered
his decision in a packed courtroom.
The woman, who was pregnant, cried and hugged Saminathan after the proceedings before she was calmed by her family and friends.
Ahmad
Shahrir in his judgment said that Section 13 of the Security Offences
(Special Measures) Act 2012 (Sosma) was still in the statute even though
it was declared unconstitutional by High Court judge Mohd Nazlan Mohd
Ghazali.
“I am bound by Nazlan’s declaration but I have to consider that Section 13 of Sosma is still in the statue,” he said.
On Nov 29, Nazlan declared that Section 13 of Sosma was ultra vires Articles 8 and 121 of the Federal Constitution.
Nazlan
in his judgment said the judicial powers or the power to adjudicate in
civil or criminal matters were exclusive of the courts.
Lawyer Ramkarpal Sing with DAP stalwart Lim Kit Siang seen at the Kuala Lumpur High Court. - NSTP/Mohamad Shahril Badri SaaliAhmad
Shahril said LTTE was still gazetted as a terrorist group by the Home
Ministry, even though there were claims that it has been disbanded in
its origin country, Sri Lanka.
“Our country still gazettes LTTE as
a terrorist group and offence of supporting it is punishable under
Section 130J of Penal Code which carries life imprisonment.
“The court usually cannot grant bail for offences which carries life imprisonment or death penalty,” he added.
Counsel
Ramkarpal Singh who represented the accused, when met after the
proceedings, said they would consider filing an appeal against Ahmad
Shahrir’s decision.
“We accept the decision although we are disappointed (with the ruling)… we will consider our next options,” he said.
Deputy public prosecutors Rohaiza Abd Rahman and Mohd Firdaus Abu Hanipah prosecuted.
Several
prominent politicians including DAP stalwart Lim Kit Siang, Penang
Deputy Chief Minister II Dr P Ramasamy, and DAP central executive
committee member Ronnie Liu were also present at the court to show
support.
Saminathan was charged with supporting the LTTE at a
function held at Dewan Kasturi Ayer Keroh, Jalan Utama, Taman Ayer Keroh
Heights here from 8.30 pm to 10.50 pm on Nov 28, 2018.
He was
also charged with possessing items with elements of terrorism or related
to the LTTE in a mobile phone at the office of the Unity, Human
Resources and Consumer Affairs executive councillor at the Chief
Minister's Department at Kompleks Seri Negeri here at 10.25 am on Oct 10
last year.
On Nov 1, Sessions Court Judge Rozina Ayob ruled that
there was merit in the application made by the defence under Section
13(2) of SOSMA to refer constitutional matters concerning bail to the
High Court.
The court allowed the applications of Saminathan and 11 other men to refer constitutional issues on bail to the High Court.
Besides
Saminathan, the others are Seremban Jaya assemblyman P. Gunasekaran,
60; taxi driver V. Balamurugan, 37; postman S. Teeran, 38; scrap metal
trader A. Kalaimughilan, 28; chief executive officer of a corporation S.
Chandru, 38; technician S. Arivainthan, 27; storekeeper S.Thanagaraj,
26; security guard M. Pumugan, 29; a national secondary school teacher
in Telok Panglima Garang, Selangor, Sundram Renggan @ Rengasamy, 52; DAP
member V. Suresh Kumar, 43, and businessman B. Subramaniam, 57.
They were charged in separate Sessions Courts here and several states on Oct 29 and 31 with allegedly having links with LTTE. - New Straits Times, 29/1/2020
Singapore's POFMA (Protection from Online Falsehoods and Manipulation Act 2019) is a draconian piece of legislation...
It allows the government to issue notices to organisations, media and individuals to FORCE them to 'admit" that their writing, views, media statements, media report are FALSE or contain falsehood.
11(4) A
person who communicated a false statement of fact in Singapore may be
issued a Correction Direction even if the person does not know or has no
reason to believe that the statement is false.
CREDIBILITY is important for HR Defenders, including media - Hence, the insertion of a notice admitting that the allegations are false or contain falsehood is most detrimental...more since a non-compliance can result in imprisonment an/or large fines up to SGD500,000.
It is not that the government(or the court or an independent tribunal) had conducted a comprehensive investigations, after also considering the available evidence of the HR Defender and according a right to be heard.
In the case of the Lawyers For Liberty, their statement merely highlights allegations based on information that they received from whom they believe is a credible witness or source. They previously informed the government about this including their willingness to forward relevant evidence - All that they wanted is for the government to investigate and act upon these allegations.
Media merely reports the statement of groups and individuals - they are obliged to TRY and get a response from the alleged perpetrator and/or other wrongdoers - but if no immediate response is given, Media cannot be faulted for publishing the report.
The entire POFMA (Protection from Online Falsehoods and Manipulation Act 2019) is defective because it is based on an administrative(Minister's) decision - not a Judicial decision. After all, the government can go to court and get a relevant order - even an interim order - pending the full hearing involving the alleged perpetrator who government claims is disseminating falsehood...What happens if it is the government that may be disseminating falsehood...??
Now, the Singapore government publicly came out and says that all that has been alleged by Lawyers For Liberty are FALSE - But then, did they even consider the evidence in the hands of Lawyers For Liberty and the relevant witnesses - being a person who was involved in the actual execution. No - apparently they did not? [So should this claim by Singapore also contain a 'notice' stating that this assertion by Singapore also may contain 'falsehood'?
Who should be determining whether a statement is 'FAKE News' or contains falsehood? It should be the Judiciary, after according the right to be heard and a fair trial.
Non-placement of the 'Notice' is made a crime - this is totally unjust. The crime should be propagation of false or fake news, and the onus of proof should be with the prosecution.
HR Defenders, including media, should only have the duty of HIGHLIGHTING wrongdoings or really alleged wrongdoings. In fact, it is a DUTY of any person. TRUTH or FALSEHOOD is then to be determined by the relevant authorities and government.
NOW, the POFMA also gives the government power to block internet access to the relevant websites....Should it not at worst be blocking of internet access to the relevant article/statement/report not the entire website? In the past, government tend to black out certain reports in newspapers...but the rest of the newspapers can still be sold or disemminated.
(2) The
Minister may direct the IMDA to order the internet access service
provider to take reasonable steps to disable access by end‑users in
Singapore to the online location (called in this section an access
blocking order), and the IMDA must give the internet access service
provider an access blocking order.
What about COMPENSATION if later the report is proven to contain no falsehood?
Latest news - the Government orders that Lawyers for Liberty's website be blocked in Singapore(see media report below)
Protection from Online Falsehoods and Manipulation Act 2019
PART 3
DIRECTIONS DEALING WITH COMMUNICATION IN SINGAPORE OF FALSE STATEMENTS OF FACT
Conditions for issue of Part 3 Directions
10.—(1) Any
Minister may instruct the Competent Authority to issue a Part 3
Direction if all of the following conditions are satisfied:
(a)
a false statement of fact (called in this Part the subject statement) has been or is being communicated in Singapore;
(b)
the Minister is of the opinion that it is in the public interest to issue the Direction.
(2) Any
Minister may instruct the Competent Authority to issue a Part 3
Direction in relation to the subject statement even if it has been
amended or has ceased to be communicated in Singapore.
Correction Direction
11.—(1) A
Correction Direction is one issued to a person who communicated the
subject statement in Singapore, requiring the person to communicate in
Singapore in the specified form and manner, to a specified person or
description of persons (if any), and by the specified time, a notice
(called in this Part a correction notice) that contains one or both of
the following:
(a)
a
statement, in such terms as may be specified, that the subject
statement is false, or that the specified material contains a false
statement of fact;
(b)
a
specified statement of fact, or a reference to a specified location
where the specified statement of fact may be found, or both.
(2) A
Correction Direction may require the person to whom it is issued to
communicate in Singapore a correction notice in a specified online
location.
(3) A Correction Direction may also require the person to whom it is issued to do one or both of the following:
(a)
to
communicate in Singapore the correction notice by placing it in the
specified proximity to every copy of the following that is communicated
by the person in Singapore:
(i)
the false statement of fact;
(ii)
a substantially similar statement;
(b)
to publish the correction notice in the specified manner in a specified newspaper or other printed publication of Singapore.
(4) A
person who communicated a false statement of fact in Singapore may be
issued a Correction Direction even if the person does not know or has no
reason to believe that the statement is false.
(5) In this section —
(a)
“specified” means specified in the Correction Direction; and
(b)
a
person does not communicate a statement in Singapore merely by doing
any act for the purpose of, or that is incidental to, the provision of —
(i)
an internet intermediary service;
(ii)
a telecommunication service;
(iii)
a service of giving the public access to the internet; or
(iv)
a computing resource service.
Stop Communication Direction
12.—(1) A
Stop Communication Direction is one issued to a person who communicated
the subject statement in Singapore, requiring the person to stop
communicating in Singapore the subject statement by the specified time.
(2) A
Stop Communication Direction may also require the person to whom it is
issued to stop communicating any statement that is substantially similar
to the subject statement.
(3) A Stop Communication Direction may also require the person to whom it is issued to do one or both of the following:
(a)
to
communicate in Singapore a correction notice in the specified form and
manner, to a specified person or description of persons (if any), and by
the specified time;
(b)
to publish a correction notice in the specified manner in a specified newspaper or other printed publication of Singapore.
(4) A
person who communicated a false statement of fact in Singapore may be
issued a Stop Communication Direction even if the person does not know
or has no reason to believe that the statement is false.
(5) Once a Stop Communication Direction has been issued, the Competent Authority must publish a notice of that fact in the Gazette as soon as possible.
(6) However, a failure to publish the notice of the issue of the Stop Communication Direction in the Gazette does not invalidate the Direction.
Non-compliance with Part 3 Direction an offence
15.—(1) A
person to whom a Part 3 Direction is issued and served and who, without
reasonable excuse, fails to comply with the Direction whether in or
outside Singapore, shall be guilty of an offence and shall be liable on
conviction —
(a)
in
the case of an individual, to a fine not exceeding $20,000 or to
imprisonment for a term not exceeding 12 months or to both; or
(b)
in any other case, to a fine not exceeding $500,000.
(2) It is not a defence to a charge under subsection (1) that —
(a)
the
person is subject to a duty under any written law, any rule of law, any
contract or any rule of professional conduct, that prevents the person
from complying with any part of a Part 3 Direction or restricts the
person in such compliance; or
(b)
the
person has applied under section 19 to vary or cancel the Part 3
Direction or has appealed to the High Court against the Direction.
Access blocking order
16.—(1) This section applies where —
(a)
a person fails to comply with a Part 3 Direction;
(b)
the subject statement is being communicated in Singapore by the person on an online location; and
(c)
the
Minister is satisfied that one or more end‑users in Singapore have used
or are using the services of an internet access service provider to
access that online location.
(2) The
Minister may direct the IMDA to order the internet access service
provider to take reasonable steps to disable access by end‑users in
Singapore to the online location (called in this section an access
blocking order), and the IMDA must give the internet access service
provider an access blocking order.
Appeals to High Court17.—(1) A person to whom a Part 3 Direction is issued may appeal to the High Court against the Direction.
(2) No
appeal may be made to the High Court by any person unless the person
has first applied to the Minister mentioned in section 19 to vary or
cancel the Part 3 Direction under that section, and the Minister refused
the application whether in whole or in part.
(3) An appeal may only be made to the High Court within such period as may be prescribed by Rules of Court.
(4) The High Court must hear and determine any such appeal and may either confirm the Part 3 Direction or set it aside.
(5) The High Court may only set aside a Part 3 Direction on any of the following grounds on an appeal:
(a)
the person did not communicate in Singapore the subject statement;
(b)
the subject statement is not a statement of fact, or is a true statement of fact;
(c)
it is not technically possible to comply with the Direction.
(6) A
Part 3 Direction that is the subject of an appeal under subsection (1)
remains in effect despite the appeal, and only ceases to have effect if
it is set aside by the High Court or the Court of Appeal on appeal from
the High Court, or if it expires or is cancelled under section 19.
(7) Despite
subsection (6), if the appellant establishes a prima facie case that it
is technically impossible to comply with the Part 3 Direction, the High
Court may direct that the Direction be stayed pending determination of
the appeal.
Government orders that Lawyers for Liberty's website be blocked in Singapore
File photo of a mobile phone user. (Photo: Xabryna Kek)
(Updated: )
SINGAPORE: Singapore has ordered that the website for a Malaysian human rights group be blocked in the country.
The
Infocomm Media Development Authority (IMDA) has been directed to issue
access blocking orders for the website of Lawyers for Liberty.
The orders mean Internet access service providers will have to disable access for users in Singapore to Lawyers for Liberty's website.
IMDA was directed to issue the orders by the Minister for Communications and Information, the ministry announced on Thursday (Jan 23).
This comes after Lawyers for Liberty's "non-compliance" with a correction direction issued against a statement on its website, said the ministry.
On Jan 16, Lawyers for Liberty released a press statement alleging brutal execution methods at Singapore's Changi Prison.
In its statement, it alleged that prison officers were instructed to "pull the rope around the neck of the prisoner towards him" and "kick the back of the neck of the prisoner with great force in order to break it", whenever the rope broke during a hanging.
The group was subsequently issued a correction direction by the Protection From Online Falsehoods and Manipulation Act (POFMA) office, along with three other parties for spreading the allegations.
However, Lawyers for Liberty said it would not comply with the correction direction, saying it stood by its claims that prisoners on death row at Singapore's Changi Prison are executed brutally.
In its statement on Thursday, the Ministry for Communications and Information (MCI) said the correction direction had "required the facts to be juxtaposed against the falsehoods, so that end-users in Singapore can read both versions and draw their own conclusions".
"LFL (Lawyers for Liberty) chose not to comply," said the ministry. "The access blocking orders will ensure that the falsehoods do not continue to be communicated in Singapore without the facts placed alongside them."
It added the access blocking orders would be cancelled should Lawyers for Liberty subsequently carry the correction notice required by the correction direction.
Lawyers for Liberty's website was still accessible as of 11.30am, Singapore time. Source: CNA/nc
A few days ago, Lawyers For Liberty issued a statement highlighting shocking manner in which persons were hanged in Singapore - they also stated that they raised this issue with Singapore since November but did not get any response leading to the issuance of a media statement on 16/1/2020 ...the media statement by Lawyers For Liberty and related media reports can be seen at.
'...This officer is prepared to come forward and testify at the appropriate forum. His evidence follows below:
He and other prison officers were instructed to carry out the
following brutal procedure whenever the rope breaks during a hanging,
which happens from time to time.
a) The prison officer is instructed to pull the rope around the neck of the prisoner towards him.
b) Meanwhile, another prison officer will apply pressure by pulling the body in the opposite direction.
c) The first officer must then kick the back of the neck of the prisoner with great force in order to break it.
d) The officers are told to kick the back of the neck because that would be consistent with death by hanging.
e) The officers are told not to kick more than 2 times, so that there will be no tell-tale marks in case there is an autopsy.
f) Strict orders are also given not to divulge the above to other prison staff not involved in executions....
Now Singapore refutes the allegations...and have invoked the Protection from Online Falsehoods and Manipulation Act (Pofma) and ordered the LFL and three parties that have shared the allegations - Singaporean activist Kirsten Han, The Online Citizen website and Yahoo Singapore - to correct the false statements....
Should not these allegations that is coming allegedly from '... received this information from a Singapore Prison Services (SPS)
officer who had served at the execution chamber in Changi prison, and
himself carried out hangings...' , hence a credible source, ought to INVESTIGATED FIRST by Singapore to determine whether it is TRUE or not.
Using POFMA gives the impression that Singapore is taking it as 'FALSE' without even conducting an independent investigation...Remember, an investigation may reveal that this was the practice of 'few', who maybe wrongly believed this was government policy and direction...When highlighted, it gives the opportunity to Singapore government to investigate and make clear its policy and directions to ALL persons that carry out the hangings...
According the LFL statement, they '...had also written to the Singapore authorities and informed them
that we are prepared to meet them and handover the evidence in our
possession. However, the Singapore government has met our disclosures with
deafening silence. Significantly, they have also not denied our
allegation of brutality in carrying out hangings, which has been widely
reported....'
MHA refutes Malaysia NGO's claims against S'pore's execution method, issues Pofma correction orders against parties
The
Malaysia-based LFL said in a statement that the Singapore Government
approved of the "unlawful methods" that are used to cover up an
execution if the rope breaks during the execution.PHOTO: GOV.SG
Published 9 hours ago
Updated 1 hour ago
SINGAPORE - The Ministry of Home Affairs (MHA) has slammed
Malaysia-based non-governmental organisation Lawyers for Liberty's (LFL)
allegations about Singapore's execution method as "untrue, baseless and
preposterous".
It has also invoked the Protection from Online Falsehoods and
Manipulation Act (Pofma) and ordered the LFL and three parties that have
shared the allegations - Singaporean activist Kirsten Han,
The Online
Citizen website and Yahoo Singapore - to correct the false statements.
This is the fifth case where Pofma has been invoked since it came into effect on Oct 2 last year.
On Jan 16, LFL said in a statement that prison officers in Singapore
were instructed to kick the back of the neck of a prisoner with great
force to break it if the rope breaks during a hanging and that the
Singapore Government approved of "unlawful methods" that are used to
cover up an execution if the rope breaks.
"These allegations are entirely unfounded," MHA said on Wednesday (Jan 22).
Singapore executes its condemned prisoners by hanging.
The ministry said that all judicial executions in Singapore are carried out in strict compliance with the law.
"All
judicial executions are conducted in the presence of the Superintendent
of the Prison and a medical doctor, among others. The law also requires a
coroner (who is a judicial officer of the State Courts) to conduct an
inquiry within 24 hours of the execution to satisfy himself that the
execution was carried out duly and properly," MHA said.
It added: "For the record, the rope used for judicial executions has
never broken before, and prison officers certainly do not receive any
'special training to carry out the brutal execution method' as alleged.
Any acts such as those described in the LFL statement would have been
thoroughly investigated and dealt with."
The ministry said that the LFL has a history of publishing
sensational and untrue stories to seek attention in the hope of getting
Malaysian prisoners who have been convicted of drug trafficking and
sentenced to death in Singapore off the death penalty.
"Those who traffic drugs in Singapore harm and destroy the lives of
countless Singaporeans. These traffickers must be prepared to face the
consequences of their actions," MHA said.
In November 2019, convicted Malaysian drug trafficker Abd Helmi Ab Halim had his death sentence carried out after an unsuccessful petition to Singapore's President for clemency.
In May 2019, Law and Home Affairs Minister K. Shanmugam said that
almost 30 per cent of drug traffickers caught in Singapore in 2018 were
Malaysians, and nearly 30 per cent of the heroin seized, by weight, was
brought in by Malaysians. He added that one in five traffickers who
brought in drugs above the threshold that brings the death penalty was
also a Malaysian.
On Wednesday, MHA also said that it has instructed the Pofma office
to issue corrections against the LFL as well as three other parties: Ms
Han's Facebook post that shared LFL's statement; The Online Citizen,
which has an article that contained the falsehoods; and Yahoo
Singapore's Facebook post which shared an article that contained the
falsehoods.
"They will be required to carry a correction notice alongside their
posts or articles stating that their posts or articles contain
falsehoods," MHA said.
Ms Han said in a Facebook post on Wednesday that she had sent
questions to the Singapore Prison Service about the claims made by LFL
but did not receive a response. She appended the correction notice to
her post on Wednesday afternoon, adding: “I originally shared this post
because the allegations that were made by Lawyers for Liberty,
concerning a process about which very little information is publicly
available, were extremely serious and disturbing.”
She also raised concerns over how this affects the ability of
journalists, activists and ordinary citizens to follow up on
allegations. “In the interests of dealing with ‘fake news’, I hope that
government and public agencies can be more responsive to queries from
journalists and/or civil society groups when they are seeking
information that can clarify matters,” she said.
Separately, The Online Citizen said it has filed an application to the minister to cancel the Correction Direction it received.
Meanwhile, Lawyers for Liberty said that it will not comply with the
correction notice and demanded that the notice be “unconditionally
withdrawn with immediate effect”.
The group says it stands by its original statement, which is based on
evidence from “former and current Singapore prison officers... with
impeccable service records”. It added that it is “outrageous and
unacceptable” for Singapore to issue such a notice to a Malaysian
organisation. - Straits Times, 22/1/2020
Singapore denies Malaysian legal group’s ‘preposterous’ claim of brutal hangings in Changi Prison
Wednesday, 22 Jan 2020 10:40 AM MYT
BY IDA LIM
Singapore’s Home Affairs Ministry
today refuted rights group Lawyers for Liberty’s recent allegations of
Singapore officials using unlawful methods to carry out executions. —
iStock.com pic via AFP
KUALA LUMPUR, Jan 22 — Malaysia’s rights group Lawyers for Liberty’s
(LFL) recent allegations of Singapore officials using unlawful methods
to carry out executions on prisoners is “untrue”, Singapore’s Home
Affairs Ministry (MHA) said today.
The Singapore MHA said LFL’s January 16 statement had “untrue,
baseless and preposterous allegations about the use of unlawful methods
in judicial executions conducted in Changi Prison”.
The MHA also said LFL’s claims that prison officers
were given “special training to carry out the brutal execution method”
and allegations of the Singapore government’s approval of such unlawful
methods and alleged cover-up measures are all “entirely unfounded”.
It said “no effort is spared to ensure that all judicial executions
in Singapore are carried out in strict compliance with the law”.
“All judicial executions are conducted in the presence of the Superintendent of the Prison and a medical doctor, among others.
“The law also requires a Coroner (who is a Judicial Officer of the
State Courts) to conduct an inquiry within 24 hours of the execution to
satisfy himself that the execution was carried out duly and properly,”
the Singapore MHA said in a statement on its official website.
“For the record, the rope used for judicial executions has never
broken before, and prison officers certainly do not receive any “special
training to carry out the brutal execution method” as alleged. Any acts
such as those described in the LFL statement would have been thoroughly
investigated and dealt with,” it added.
The ministry claimed LFL had been publishing “sensational and untrue
stories” to seek attention in the hopes of getting Malaysian prisoners —
who have been convicted of drug trafficking and sentenced to death in
Singapore — off the death penalty.
The Singapore ministry said drug traffickers in Singapore must be
prepared to face the consequences as they “harm and destroy the lives of
countless Singaporeans”.
It added that its minister has instructed Singapore’s Protection from
Online Falsehoods and Manipulation Act Office to issue a Correction
Direction for several Singapore-based entities to publish a correction
notice on their content which had featured LFL’s claims.
These include Kirsten Han’s Facebook post which had shared LFL’s statement, online portal The Online Citizen’s post, Yahoo Singapore’s Facebook post which shared an article by Yahoo Malaysia that featured the claims, the ministry said.
The ministry said that they will have to carry a correction notice
along their posts or articles to state that these “contain falsehoods”. - Malay Mail, 22/1/2020
Pekerja - Kementerian Sumber Manusia dan kerajaan Malaysia sekali lagi didapati gagal memastikan hak pekerja dijaga - Bagaimana sebuah syarikat boleh mempunyai 1,178 pekerja asing tidak berdaftar - mereka sebenar pekerja yang didaftar sebagai pekerja syarikat lain yang sudah 'bungkus'...
Isu pekerja dan pencabulan hak pekerja di WRP Asia telah dihebohkan sejak awal tahun 2019...di mana Menteri kita mengatakan bahawa kementerian akan memantau WRP Asia dengan dekat untuk memastikan pematuhan undang-undang Malaysia...Isu bermula dendan 'mogok' 3 hari pekerja pada bulan Januari 2019...
In January 2019, WRP Asia Pacific workers held a three-day strike demanding their wages.
In
October last year, the US Customs and Borders banned WRP Asia Pacific
from exporting its products to the United States over suspicion of
forced labour.
Human Resources Minister M Kulasegaran previously said the ministry is closely monitoring developments at WRP Asia, including to ensure compliance with all requirements under the employment laws.
Apakah tindakan Menteri dan Kementerian? Mengapa tindakan tidak diambil terhadap syarikat WRP Asia?
Pekerja asing yang didaftar sebagai pekerja syarikat lain - kerajaan boleh memastikan visa/pas kerja dipinda supaya pekerja asing ini secara sah menjadi pekerja asing WRP Asia...kenapa tak buat?
Jika majikan kecil, saperti kedai kopi...selalu kita dengar penguatkuasaan undang-undang - JUSTERU isu kini bagaimana tak ada tindakan penguatkuasaan terhadap syarikat besar saperti WRP Asia? Adakah berlaku korupsi? Mungkin MACC perlu siasat...
Majikan tak bayar gaji pada masa yang ditetapkan undang-undang - Jika lewat gaji dibayar, MAJIKAN HARUS JUGA BAYAR FAEDAH LEWAT BAYAR GAJI - Undang-undang buruh harus dipinda...supaya jika majikan lewat bayar gaji, faedah harian untuk kelewatan harus juga dibayar oleh majikan kepada pekerja..
Pekerja bergantung kepada gaji untuk hidup - bayar sewa dan belanja kehidupan...bayar hutang bank berkenaan pinjaman beli rumah, kereta, perkakas rumah, dan lain-lain...Jika gaji tak dibayar tepat pada masanya, pekerja mungkin terpaksa PINJAM duit ...dimana kena juga bayar faedah untuk pinjaman ini...
SECARA ADIL, JIKA MAJIKAN TAK BAYAR GAJI PADA ATAU SEBELUM HARI YANG DITETAPKAN UNDANG-UNDANG, Majikan secara adil harus membayar faedah kelewatan bayar gaji...Mungkin faedah 10-14% setahun kiraan harian..
Undang-undang juga harus memastikan bahawa kelewatan membayar gaji hanya dibenarkan untuk 30% jumlah gaji....
Jika majikan syarikat, mungkin juga undang-undang juga mesti memerlukan pengarah syarikat memberikan jaminan peribadi berkenaan gaji/elaun pekerja. Kini bila syarikat buat pinjaman bank, bank perlukan jaminan peribadi pengarah - JUSTERU munahsabah bahawa jaminan peribadi pengarah diperlukan untuk obligasi majikan berkenaan gaji, OT, dan lain-lain bayaran kepada pekerja..
Pekerja asing senang ditindas --- bila habis pekerjaan, mereka dihantar pulang ke negara mereka - Keupayaan mengadu dan meneruskan tuntutan hak pekerja di Malaysia sama ada di Kementerian atau Mahkamah Buruh atau Mahkamah tidak ada ...sebab semua proses memerlukan kehadiran fizikal pekerja ditindas di Malaysia - tetapi pekerja asing bila habis pekerjaan tak ada visa/pas untuk terus tinggal di Malaysia sehingga tuntutan mereka diputuskan Kementerian atau Mahkamah...
Kini, 1,178 pekerja asing ini berasaskan dokumen dan permit bukan pun pekerja di WRP ASIA secara sah...walaupun mereka telah bekerja di WRP Asia...
Bila sebuah syarikat majikan bungkus atau digulungkan - wang yang diperolehi dari penjualan aset dan lain-lain harus mula-mula digunakan untuk membayar keberhutangan kepada pekerja ...Adakah ini berlaku? Mana pergi duit daripada syarikat yang sudah dilikuidasi(dibubarkan digulungkan ini?
Di manakah MTUC dan Union berkenaan? Kenapa tak berjuang untuk pekerja ini?
JABATAN BURUH DAN MAHKAMAH BURUH adalah tempat dimana pekerja pergi untuk menuntut keadilan ...MENTERI harus memastikan bahawa semua lapuran kes Mahkamah Buruh dipaparkan dalam laman web Kementerian..
MENGAPA? Ini bukan sahaja akan menyedarkan pekerja tentang hak mereka tetapi juga akan menyakinkan pekerja bahawa KEMENTERIAN dan Mahkamah Buruh berkesan dan pekerja boleh berjaya...
DALAM isu WRP Asia, Menteri dan Kementerian, isu penindasan pekerja telah dihebohkan tahun lepas...dan menteri dan Kementerian menyatakan akan 'monitor'(memantau) - justeru bagaimana dengan pemantauan kementerian, penindasan dan pencabulan hak pekerja masih boleh berlaku?
Kerajaan PH yang baru - kita perlukan polisi dan undang-undang yang akan menjaga hak pekerja dengan lebih baik...Pemantauan kerap di syarikat majikan besar saperti WRP Asia sangat penting...kalau tidak pekerja yang jadi mangsa...
MACC kena siasat - mungkin juga Parlimen kena siasat...Kesatuan kena siasat...MTUC kena siasat...KEBENARAN PERLU DIDEDAHKAN...
The management of glove maker WRP Asia
Pacific Sdn Bhd today revealed that among its staff include 1,178
migrant workers whose permits were in the name of liquidated companies
affiliated to a former company board member.
Despite the workers'
irregular status, lawyers acting on behalf of the current management
confirmed that all claims for outstanding wages will be fully paid by
next week.
"With this quick action to start making payments to the workers, we are walking the talk on reviving WRP.
"This
includes settling the outstanding salaries due to over 1,178 foreign
workers who had been irregularly employed (by WRP)...," said Mathew
Thomas Philip, founder and manager of Thomas Philip Advocates and
Solicitors, in a statement today.
Sources
said the workers were originally employed by two companies and their
permits have remained in the name of the two liquidated companies,
resulting in their current limbo and irregular employment status with
WRP Asia.
Contrary to its statement today, Malaysiakini understands that an independent audit commissioned by WRP Asia last year recorded 1,603 migrant workers in its employment.
From
the figure, Bangladesh and Nepali citizens make up 75 percent of the
workers, according to a copy of the audit report sighted by Malaysiakini.
The
audit report also stated that 1,066 of the workers were supplied to WRP
Asia by two contractors, which sources said, were the same liquidated
companies referred to in the lawyer's statement.
International
migrant worker rights specialist Andy Hall, who has been closely
monitoring developments at WRP Asia, said the revelation today has
raised even bigger questions that must be answered as part over labour
law reforms.
"Finally it has been admitted that 1,178 irregular workers are currently employed at WRP.
"Now the questions have to be asked of those in power, how has this been allowed to happen? he said.
"The government were clearly aware, and the auditors were also aware.
"These workers are at high risk of forced labour," he added.
Many outstanding issues
Meanwhile,
Thomas Philip reiterated the management's commitment to revive its
operations which has been temporarily suspended since Dec 30.
"While
all parties want matters sorted urgently, there are many outstanding
issues created by the previous management that will take time to uncover
and resolve.
"This is to be expected during such corporate
exercises and we will not let the numerous rumours and resistance
distract us from the real work.
"We have to be focused on the future now that we have begun the challenging task of rebuilding the company," Thomas Philip said.
He
added that WRP's management is also in talks to resolve matters
including payment of utilities due, renegotiating payment terms with
creditors and rescheduling deliverables to existing customers.
Sources told Malaysiakini that the outstanding electricity bill due on Tuesday stands at RM4.1 million.
In January 2019, WRP Asia Pacific workers held a three-day strike demanding their wages.
In
October last year, the US Customs and Borders banned WRP Asia Pacific
from exporting its products to the United States over suspicion of
forced labour.
Human Resources Minister M Kulasegaran previously said the ministry is closely monitoring developments at WRP Asia, including to ensure compliance with all requirements under the employment laws. - Malaysiakini, 12/1/2020
LET US NOT FORGET BILL KAYONG - LET HIM MOTIVATE US TO FIGHT FOR JUSTICE WITHOUT FEAR OR FAVOUR
Bill Kayong was a Human Rights Defender that was shot and killed in
Sarawak. Long before he was a politician, he was a human rights
defender. He was with the people finding for land rights against a
Cooperations and Companies.
4 persons were arrested
and charged in court - 1 for murder and 3 for abetting murder.
At the
close of the prosecution case, the 3 were acquitted by the High Court
without their defence being called - see the High Court Judgment below.
Questions arise about the prosecution and police when the 3 were
ACQUITTED...Read the full judgment of the High Court below - extracts below show how prosecution failed to successfully adduce evidence against the 3 ---to support the abetment charge - the company ownership details was also not tendered...WHY? That is the question? Why charge a person when you do not have ANY evidence OR you did not tender any EVIDENCE during trial to prove their connection to the murder?
Was there earlier witnesses - that 'changed their mind'? Was there evidence that 'disappeared"?
REMEMBER that one a person is charged and then acquitted - he/she cannot again in the future be charged again for the same offense? That is why prosecution, if they find that they do not have sufficient evidence will elect to apply for a DNAA (Discharge not amounting to an acquittal) - which means that LATER when the prosecution gets sufficient evidence, that person can be charged again...So, the question that arises is WHY did the prosecution charge the 3 in the first place? WHY did the prosecution in mid-trial when they discovered they did not have sufficient evidence to prove abutment to murder simply not apply for a DNAA ...?
Let's look briefly at some of the comments made in the High Court judgment (but please the full judgment below)-
'...The prosecution should tender
evidence to prove that the abettors had either instigated the 1st
accused or had commanded him or had conspired with him or aided him in
the murder of the deceased. However, during the trial sufficiently
cogent circumstantial evidence was not given to support the abetments
charges against all the said three accused persons........The 2nd
accused was only mentioned by the prosecution witnesses in relation to
his arrest by the police, his identification by the investigating
officer in court and the testing of his blood sample for the purpose of
developing a DNA profile. It goes without saying that this type of
evidence cannot by any stretch of the imagination connect him to the
murder of the deceased...The 3rd
accused was also mentioned by prosecution witnesses during the trial
for the same reasons, i.e. he was arrested, a blood specimen was taken
from him and he was identified in court. Apart from that, the only
mention of the 3rd accused was made by P.W. 20 (Jambali anak
Jali). I had referred to his evidence earlier when dealing with the
circumstantial evidence against the 1st accused. P.W. 20 said that the 1st accused and 3rd accused had entered their land to threaten the longhouse residents. No other evidence linking the 3rd accused to the crime of abetting the murder of the deceased was adduced....The 4th
accused was mentioned by three witnesses in this trial, P.W. 19, P.W.
20 and the investigating officer, P.W. 28. However, none of the
witnesses who mentioned him gave an iota of evidence to connect him to
the crime in question. The prosecution did not tender any forensic
evidence either to support the charge of abetment. P.W. 19 had given evidence that the deceased had been threatened. However, he never said that the 4th
accused had threatened the deceased. He only said the deceased was
threatened in relation to his work of defending the interests of the
longhouse residents in a land dispute with the Tung Huat Plantation
Company. The prosecution did not tender any evidence in respect of the
ownership of this company.
In short, it looks like the prosecution FAILED to tender any evidence connecting to the offence. Normally, judges will seriously evaluate evidence ...but here we find a judge struggling hard to find evidence to evaluate to determine whether the prosecution has managed to prove their case as required in a criminal trial...
What happened? Must there be an investigation of the prosecution officer? Must there be an investigation of the police?
Do we need to have SUHAKAM conduct an inquiry into this? A Royal Commission of Inquiry? Maybe the Attorney General need to look into this? Parliament Select Committee?
MOHAMAD FITRI PAUZI - well, he was subsequently convicted and sentenced to death. But why did this man kill Bill Kayong? Was it because he was paid to kill by another? Was he ordered by some 'boss' to kill? Or did he simply kill for some 'personal reason'?
Mohd Fitri faces the mandatory death penalty - will he now reveal the TRUTH that will expose the guilt of others who ordered the killing of Bill Kayong? If the provision of such assistance that will lead to the identification and maybe prosecution of those who paid for the killing, ordered the killing or were involved in the killing will lead to a reduction of sentence ...but mandatory death penalty cannot be reduced unlike a prison sentence. So really no motivation for Mohd Fitri to expose the truth, is there...Remember that the 'bosses' who paid for the killing or ordered the killing could still be threatening Mohd Fitri with death/injury to himself...his family members...Well, this is all THEORY...possibilities...nothing more..
The same also with the Altantuya case - are we sure that we have arrested, tried and c onvicted ALL that brought about the MURDER of that woman?
Like Bill Kayong, many human rights defenders face threat and even death as they struggle to uphold the cause of justice without fear or favour ...How many human rights defenders have been killed or shot in Malaysia - some say that in Sarawak, there has been about 10 such cases - time for us to REMEMBER these human rights defenders who gave their life in the struggle for Human Rights...
Supporters of Bill Kayong outside the court at the trial of three men charged in his murder. Binsar Bakkara for Yale e360
Murder in Malaysia
How Protecting Native Forests Cost a Southeast Asian Activist His Life
Malaysian activist Bill Kayong fought to save native forest lands
from logging and oil palm development. Like a troubling number of
environmental campaigners around the world, he paid for it with his
life. Second in a series.
It was 8:20 a.m. on June 21, 2016. Bill Kayong, an up-and-coming
political activist in Miri, a coastal oil town in the Malaysian state of
Sarawak, was 15 minutes into his morning commute, waiting in his pickup
truck at a traffic light across from a shopping mall. Suddenly, two
bullets shattered the side window and struck him in the head, killing
him instantly.
Kayong was one of dozens of people killed while defending
environmental and human rights causes in 2016. His life was taken just
one day after a report from the human rights group Global Witness
revealed that the previous year had been “the worst on record for
killings of land and environmental defenders,” with 185 people around
the world killed while taking a stand against development projects
ranging from dams, to mines, to logging, to agricultural plantations.
Five months later, in November 2016, three Miri men were in the
city’s magistrates’ court charged with Kayong’s murder: a nightclub
bouncer, a karaoke bar operator, and a man described as the personal
assistant of Stephen Lee, the head of a Malaysian palm oil company
called Tung Huat.
A photo memorializing Bill Kayong by the road where he was killed.Binsar Bakkara for Yale e360
Kayong had come into increasing conflict with the company, owned by
Lee and his father, who are members of the large, ethnically Chinese
business community in the city. By the time of the court hearing, Lee
was on the run himself in connection with Kayong’s murder, the subject
of a global manhunt that began in Singapore, moved to Melbourne, and
finally tracked him down in January in the Chinese province of Fujian.
Lee and the three others have all pleaded not guilty. Their trial was
scheduled to begin later this month. Police believe Lee and his
assistant hired the other two to carry out the killing, and the
authorities have proudly boasted that with Lee behind bars, they have
caught the “mastermind.” Company representatives at Tung Huat have not
replied to a request for comment.
Kayong, age 43, had left his family that morning in the fetid
tropical heat to go and work for his boss, the energetic local
parliamentarian and medical doctor Michael Teo, a leader of the main
Sarawak opposition party, the Peoples Justice Party (PKR).
Bill Kayong was no political visionary with a radical manifesto. But
he was a political activist dedicated to protecting native communities
in Sarawak, known as Dayak, from growing incursions on their traditional
lands by logging and palm oil companies.
Increasingly, Kayong’s work had been concentrated on helping one
community about 60 kilometers south of Miri, at Sungai Bekelit, a
traditional longhouse. Longhouses are large wooden buildings raised on
stilts and often up to 100 meters in length that have a line of
apartments off a wide, covered communal area. They are also social units
with a chief and communal lands controlled under customary law that
dates back many centuries. The people of Sungai Bekelit had for eight
years been fighting Lee’s state-supported takeover of their land to grow
oil palm.
The dispute had become increasingly confrontational and, on the
company’s part, violent. Lee and his father said they had duly issued
licenses to farm the land; the community said their customary rights
were paramount.
Environmentalists see Sarawak’s longhouse communities and their defenders as the last hope for the state’s dwindling forests.
Some in the media described Kayong after his death as a “dedicated
environmentalist.” That’s not quite right. Above all, he was defending
the rights of Sungai Bekelit, rather than nature. But after his death,
Sarawak’s environmentalists joined land-rights campaigners to voice
their outrage. Environmentalists see longhouse communities and their
defenders as the last hope for the state’s dwindling forests, as loggers
complete their destruction and trees are replaced by oil palm, one of
the world’s most ubiquitous – and profitable – plantation crops.
“In the last few years, we have seen a spate of killings [of
activists] throughout Sarawak, with the same modus operandi: drive-by
shooting by criminals,” a group of local environmental activists headed
by Peter Kallang of the Save Sarawak Rivers Network said in a joint
statement. The group blamed the deaths on “companies that employ thugs
in the guide of security personnel to look after the plantation
estates.”
There were no international headlines when Kayong was shot. He was
buried in a modest Muslim cemetery outside Miri. There are no public
shrines to his life, and the tiny commemorative photograph of him,
shrouded in plastic and pinned to a pole on the roadside where died, is
now frayed, overgrown with grass, and largely forgotten.
But at the preliminary court appearances in November – beginning a
process that could lead to a mandatory death penalty for the alleged
shooter, nightclub bouncer Mohamed Fitri Pauzi, 29 – the new Dayak
grassroots membership organization Kayong helped found had turned out.
PEDAS, the Sarawak Dayak Association, alerts the police to attacks on
their members, pays hospital bills for those who are assaulted, and
gives rural longhouse people a political presence they have lacked.
A dozen or so of its young members sat on benches in the court
wearing black t-shirts in Kayong’s memory. They included his three
brothers. And outside in the corridor, his wife was comforted by their
two teenage children. “I didn’t know about any threat to him,” she told
me. “He kept it to himself. He didn’t want us to be worried.”
Longhouse
headman Jambai anak Jali was slashed with a samurai sword and had his
house set fire with a Molotov cocktail and his car torched because of
his opposition to oil palm plantation development.Binsar Bakkara for Yale e360
That afternoon, by chance, another related court case got under way.
The nightclub bouncer Fitri was back in the dock, this time accused with
two others of an attack several months earlier on Sungai Bekelit
longhouse headman Jambai anak Jali, who had been working with Kayong.
To the hushed court, Jambai, a mild-mannered, neatly dressed man in
late middle age, described in painstaking detail how in November 2015,
his car was followed, rammed, forced off the road, and turned over by
two assailants. As he and his wife and niece lay stranded inside, the
men beat their windshield with baseball bats and slashed him in the arm
with a samurai sword.
It was the latest in a string of assaults since 2008, when Jambai
went to court to contest a provisional license granted to Tung Huat by
the state government to cultivate 3,361 hectares of forestland around
five longhouses. Jambai had also had his house set on fire with a
Molotov cocktail and his car torched. As in the morning hearing, the
shaven-headed Fitri and his compatriots looked on impassively from the
dock and pleaded not guilty. “We can prove it is our land. We have been
there since 1934,” Jambai told me outside the courtroom. “But the
company hired security guards to prevent us going to our land.” Tung
Huat even took over the community’s own fields of oil palm. “They just
harvest our ripe fruit,” he said. “Now all we have left is 380 hectares.
Bill came to help us in 2014.”
Sarawak has an odd history, separated from the rest of Malaysia
by the South China Sea. Dominated historically by the sultan of
neighboring Brunei, it was run for decades by the Brookes, a family of
British adventurers also known as the “white rajahs.” After World War
II, it was briefly incorporated into the British Empire before being
bundled up into independent Malaysia when the British finally left in
1957.
In recent times, Malaysia has been one of the booming “tiger
economies” of Southeast Asia. But the province of Sarawak has for
decades been a byword for the corrupt plunder of its rich rainforests –
first for timber, and now for conversion to oil palm.
Some people have gotten very rich in this process. “And government
politicians made millions selling the land,” Teo, the PKR leader, told
me. Some who tried to protect the forests have been killed – most
notoriously, the Swiss environmentalist Bruno Manser, who disappeared in
the jungle in 2000 and was never seen again. But now, with most of the
rich pickings of land taken by large companies, small-time racketeers,
with more guns than sense, scrap for what remains.
Two women in the communal area inside the Sungai Buri longhouse. Binsar Bakkari for Yale e360
Many in Sarawak have always wanted to be a separate state, and some
still do. Many people in the longhouses say they yearn for the days of
the white rajahs, who established village boundaries that included most
of the areas that communities claim today as their traditional land.
Many have ancient pictures of the Brookes on their walls.
“The British colonial authorities recognized the Dayak land rights,”
said Nicholas Mujah, a former senior civil servant who now gives
evidence in court for communities making land claims, emphasizing the
long-standing nature of their customary land rights. But after
independence, the new government began to claim that all forestland
belonged to the state. Natives were left only with the land on which
they grew crops close to their longhouses.
The result has been rampant corporate takeover of the country’s
forestlands and endless disputes with native communities. International
norms that give indigenous communities the right to give or withhold
their “free, prior, and informed consent” for economic activities on
their traditional lands fall on deaf ears in Sarawak. “When I raised
this right to consent with the forest director here, he said he had
never heard of it,” said Kallang, of the Save Sarawak Rivers Network.
The Sarawak government cares little for the land rights of its
citizens, says lawyer and parliamentarian Baru Bian, and ignores its
role in creating and failing to resolve land disputes.
According to the
government, any conflicts between the “provisional” licenses it grants
to companies and the customary land rights of communities should be
resolved by the companies themselves. That is a breach of
responsibility, says Baru, who maintains that the government “should
establish the customary rights before issuing licenses to companies.”
When native communities refuse to concede to the wishes of companies arriving in their midst, the result is conflict.
In theory, there are native land dispute courts to settle such
matters. But, says Teo, in practice these courts rarely sit. “Cases go
on for 20 years or more,” he notes, “so even if the communities do
eventually get their land back, it has been destroyed.”
Instead, when communities refuse to concede to the wishes of
companies arriving in their midst, the result is conflict. At Sungai
Bekelit, the three longhouses that held out against Tung Huat blockaded
roads onto their land. The police moved in to break the blockades, says
Teo, “and when Bill complained to the police department, the company
started getting violent.”
Longhouse living is hardly idyllic. In remote upcountry regions
reachable only by boat, life is still primitive. But nearer to roads,
the residents may have pickup trucks parked outside, satellite TV dishes
on the roofs, and cell phones in their hands. Some people with jobs in
the cities only come home on weekends.
Bill Kayong.
But the longhouses are a remnant of communal living, and they retain
fierce loyalty among those who live or were raised there, especially
when the government tries to sell off their traditional lands.
At Sungai Bekelit, the touchstone for Kayong’s slaying, the longhouse
held 300 people in 63 families. When I visited, Jambai was still in
court in Miri, but his mother-in-law, greeted us. Down a dirt track, we
visited the blockade that the longhouse residents manned 24 hours a day
to prevent the company from annexing more of their land.
“They were very scared of Bill,” said one of the women manning the
wooden platform beside the barricade. “Everyone knew him. He was
becoming powerful, and they wanted to silence him.” She passed around
tea and biscuits. “They offered to pay him to control us,” said a man
from a neighboring longhouse. “And when he recorded the conversation and
played it to us, they accused him of treachery, and it got ugly.”
I asked about the company’s operation. “We never see them,” the woman
said. “We think they have about ten Indonesian workers picking the
fruit.”
The woman, Kudut Anak Tunku, was a palm oil entrepreneur herself,
selling roughly 40 tons of fruit a month, worth $5,000 – half of it
clear profit, she told me – and determined to defend her patch from
takeover. She too employed Indonesians to harvest her crop. Out of the
profits, she was building her own big new concrete house next to the
longhouse.
An oil palm plantation that replaced a forest in the state of Sarawak, Malaysia.Binsar Bakkara for Yale e360
Twenty-five years before, on a previous visit to Sarawak, I had
flown from Miri to Marudi, a tiny inland town 20 minutes away by
20-seater plane that had been the front line of deforestation.
I took the flight again. There I met Jok Jau Evong, long-standing
boss of the local environmental NGO called Sahabat Alam Malaysia (SAM).
The local chapter of Friends of the Earth, it has been helping
communities fight deforestation here for decades by mapping and
documenting their lands and going to court to secure their rights. “To
win, they have to prove they have been there for many generations,” Jok
said, “that their land rights extend far beyond the areas they directly
cultivate.”
On the roads around Marudi, we drove through a landscape of plantations and smashed-up forest fragments.
It has been a long, losing battle. On that first visit, the flight
was still largely over forests. Now, the forests are gone. The
deforested hillsides are covered in oil palm plantations. On the roads
around Marudi, we drove through a landscape of plantations, smashed-up
forest fragments and abandoned logging equipment.
During most of that time, Sarawak was run as a fiefdom by one man,
chief minister Abdul Taib Mahmud. Under his rule, most of its
rainforests were turned into logs by a handful of giant timber
companies; much of the cleared land was converted to oil palm; and
several rivers were dammed in an abortive effort to kick-start
industrialization with cheap hydroelectricity.
Communities remain hunkered down amid the flattened remains of their
old forests. But the economic whirlwind that has rushed through their
forests does not seem to have left them any richer. The jobs are few,
and the profits are all long gone.
Environmentalist
Jok Jau Evong (far right) and headman Gasah Anak Tadong (right, in
chair) meet with community members in the Sungai Buri longhouse.Binsar Bakkara for Yale e360
Jok took me to see the longhouse at Sungai Buri, a 200-year-old
village that has recently been reforesting part of its lands with
saplings provided by SAM. On a short tour of the new forest, I saw some
500 different trees. It is a small gesture of defiance for a community
that has lost most of its forests and most of its source of livelihoods.
“Before the logging company came, life was easy because we had the
forest,” Gasah Anak Tadong, the longhouse headman, told me proudly. “We
used to hunt wild animals; the water was completely clean. But it’s more
difficult to feed our families now.”
Going back to a remembered past is clearly impossible. But there is a
growing movement in Sarawak for independence, stirred by other
independence movements in the region, such as in East Timor, but also by
the belief that the state has never felt truly part of Malaysia, and
never properly consented to join.
More and more opposition politicians, feeding on the discontent over
land rights and the environmental destruction, discuss independence. “We
say we are a nation, but we are not allowed to discuss it,” Mujah told
me. “We need a referendum to leave. Like Scotland, or East Timor.”
One morning in Miri, I found myself accompanying Teo and others on a
walk through the business district as they handed out leaflets for a
meeting on democracy to be held in the state capital Kuching that
weekend.
“We are like strangers in our own land,” Dennis Along, a secretary of
the PKR party said as we walked. “The government doesn’t recognize our
rights. They chase us away like dogs on our own land. We want to give
back autonomy to traditional rural communities.”
In this claustrophobic political atmosphere, disputes over land are
long-standing, toxic, and unresolved, and the environmental devastation
continues. Bill Kayong may not be the last Malaysian activist to pay
with his life. - Yale Environment360 -
Introduction [1] On 21st June 2016, one Bill anak Kayong
was shot dead at a traffic light intersection in Miri. Four accused
persons were charged in separate cases in connection with the killing.
At the outset of the trial, the prosecution successfully applied for a
joint trial for all the four cases. In Case MYY-45B-3/11-2016, Mohamad
Fitri Pauzi was charged with murdering Bill anak Kayong. The charge reads as follows:
"That
you MOHAMAD FITRI PAUZI (KPT-870604-13-5627) on 21 June 2016 at about
8.20 a.m., at a traffic light intersection near E-Mart supermarket,
Jalan Kuala Baram Bypass, in the district of Miri, in the State of
Sarawak, did commit murder by causing the death of BILL ANAK KAYONG (KPT: 731208-13-5051), and you thereby committed an offence punishable under section 302 of the Penal Code [Act 574]."
[2]
The three other accused persons were charged with abetting Mohamad
Fitri Pauzi to commit the said murder. In Case MYY-45B-4/11-2016, Lie
Chang Loon was charged as follows:
"That you together
with one Stephen Lee Chee Kiang and another person who are still at
large, on 21 June 2016 at about 8.20 a.m., at a traffic light
intersection near E-Mart supermarket, Jalan Kuala Baram Bypass, in the
district of Miri, in the State of Sarawak, abetted one MOHAMAD FITRI PAUZI (KPT: 870604-13-5627), in the commission of murder of BILL ANAK KAYONG
(KPT: 731208-13-5051), which offence was committed in consequence of
your abetment and that you have thereby committed an offence punishable
under section 109 of the Penal Code [Act 574] read together with section 302 of the same Code."
In Case MYY-45B-5/11-2016, Chin Wui Chung was charged as follows:
"That
you together with one Stephen Lee Chee Kiang and another person who are
still at large, on 21 June 2016 at about 8.20 a.m., at a traffic light
intersection near E-Mart supermarket, Jalan Kuala Baram Bypass, in the
district of Miri, in the State of Sarawak, abetted one MOHAMAD FITRI PAUZI (KPT: 870604-13-5627), in the commission of murder of BILL ANAK KAYONG
(KPT: 731208-13-5051), which offence was committed in consequence of
your abetment and that you have thereby committed an offence punishable
under section 109 of the Penal Code [Act 574] read together with section 302 of the same Code."
In Case MYY-45B-1/1-2017, Lee Chee Kiang was charged as follows:
"That
you together with one Lie Chang Loon (NRIC: 790105-13-5729), one Chin
Wui Chung (NRIC: 660411-13-5705) and another person who is still at
large, on 21 June 2016 at about 8.20 a.m., at a traffic light
intersection near E-Mart supermarket, Jalan Kuala Baram Bypass, in the
district of Miri, in the State of Sarawak, abetted one MOHAMAD FITRI
PAUZI (KPT: 870604-13-5627), in the commission of murder of BILL ANAK KAYONG
(KPT: 731208-13-5051), which offence was committed in consequence of
your abetment and that you have thereby committed an offence punishable
under section 109 of the Penal Code [Act 574] read together with section 302 of the same Code."
[3]
All accused person were represented by retained counsel. Initially, Mr.
Ranbir Singh indicated that he and Mr. Arthur Lee would jointly
represent Mohamad Fitri Pauzi and Lie Chang Loon. However, after I
queried whether that arrangement is prudent, Mr. Ranbir Singh said that
he will act for Mohamad Fitri Pauzi and that Mr. Arthur Lee will act for
Lie Chang Loon. Accordingly, I let the record reflect that all accused
persons are separately represented in this trial. For ease of reference,
in the notes of proceedings and in this judgment, Mohamad Fitri Pauzi,
Lie Chang Loon, Chin Wui Chung and Lee Chee Kiang are also referred to
as the 1st accused, 2nd accused, 3rd accused and 4th accused respectively. Finally, I must mention that the 4th
accused, Lee Chee Kiang is also referred to as Stephen Lee Chee Kiang
in some of the documents, including the consent to prosecute.
[4] At the close of the case for the prosecution, learned DPP submitted that it had established a prima facie case against the 1st
accused, Mohamad Fitri Pauzi. He is the principal offender in this
case. The learned DPP did not submit that there was a case to answer by
the other three accused persons who had been charged with abetting the 1st accused to murder Bill anak Kayong
(the deceased). I enquired whether it was an omission but the learned
DPP replied that the evidence pointed to only one accused person. This
is reflected in the notes of proceedings as follows:
Court: At the last page at paragraph 3: offence under section 302 and you referred to the accused person in the singular and no submission on abetment.
DPP: All the accused being charged under section 302. Throughout the evidence adduced, it clearly shows that it points to only one particular accused person.
Nonetheless,
as the case against the alleged abettors has not been discontinued by
the Public Prosecutor, as a matter of law, the court is obliged to
consider all the evidence tendered by the prosecution and rule whether
there is a case to answer by all the accused persons.
Summary of case for prosecution
[5]
The prosecution called a total of 28 witnesses. I shall first summarize
the case of the prosecution before proceeding to consider the evidence
in support of the ingredients of the offence of murder and abetment
against the accused persons.
On 21st June 2016, at
about 8.45 a.m., P.W. 8 was on his way home when he noticed that a
Toyota Hilux bearing registration number QMU 6462 had stopped at the
traffic lights intersection near E-Mart, Jalan Kuala Baram Bypass. It
did not move when the lights changed. He also saw gunshot marks on the
driver's side of the Toyota Hilux. He immediately called the police. The
patrol car officers arrived at the scene at 9.06 a.m. They cordoned off
the area around the Toyota Hilux with traffic cones and yellow police
tape while waiting for an ambulance team and the investigating officer
of the case. The investigating officer of the case, Inspector Lee Chee
Keat (P.W. 28) and the ambulance team arrived soon after. The medical
assistant (P.W. 7) confirmed that the deceased had died and that there
was injury to the right side of the neck.
[6] Inspector Lee
commenced investigations immediately. The body of the deceased was sent
for autopsy. It was identified by the widow of the deceased (P.W. 10).
Witness statements were taken from a number of people. Apart from P.W.
8, another passer-by, i.e. P.W. 9 testified that he was at the traffic
lights in question on that fateful day when he heard a gunshot. He saw
that the glass window of a Toyota Hilux had cracked.
[7] On 30th June 2016, the police arrested Mohamad Fitri Pauzi (1st accused) at the Central Police Station in Miri. On the same day, Lie Chang Loon (2nd accused) was arrested near a restaurant in Miri. On 18th August 2016, Chin Wui Chung (3rd accused) was arrested in front of the Central Police Station by DSP Soliment Nyian (P.W. 24). The 4th accused, Lee Chee Kiang was arrested much later after the 1st to 3rd accused persons were charged in court. He was arrested at the Kuala Lumpur International Airport on 13th
December 2016 by the investigating officer, ASP Lee Chee Kiat (P.W.
28). No reasons for his late arrest were furnished by the investigating
officer.
[8] The prosecution's case against the 1st accused is built on circumstantial evidence. Evidence was led that the 1st
accused had asked one Lau Lee Shen (P.W. 25) to keep a shotgun for him.
The prosecution tendered forensic evidence to the effect that the same
shotgun was used to kill the deceased in this case. A face mask was
found inside the shotgun bag and upon DNA analysis it was found to match
the DNA profile of the 1st accused. The prosecution also led evidence through P.W. 20 that the 1st
accused was one of two accused persons who entered the land belonging
to longhouse residents in Bekelit and had threatened them.
[9]
The crime scene investigator (ASP Mohamed Nizam) analyzed the
trajectory of the gunshot that hit the Toyota Hilux driven by the
deceased. He theorized that the fatal gunshot was fired at the deceased
by a shooter who was in a car that is lower in height than the Toyota
Hilux. One Sim Chien Hui (P.W. 27) led the police to the discovery of a
white Proton Wira sedan car bearing registration number MA 8686 Q. A
Science Officer, Farah Ad-Din (P.W. 18) testified that gunshot residue
(GSR) was found inside the car. However, Sim Chien Hui (P.W. 27) was
ultimately of little assistance to the prosecution. He and another
witness (Paul Boniface anak Ampuan, P.W. 26) were impeached by the
prosecution when they departed from their section 112 statement by
saying they had no knowledge at all about the case.
[10] In respect of the prosecution's case against the alleged abettors, i.e. Lie Chang Loon (2nd accused), Chin Wui Chung (3rd accused) and Lee Chee Kiang (4th
accused), very little evidence was tendered by the prosecution
witnesses. No incriminating evidence at all was tendered in respect of
the 2nd accused. In respect of the 3rd accused, P.W. 20 alleged that he had threatened villagers in Bekelit. In respect of the 4th
accused, evidence was led that he had apologized for the behaviour of a
certain "Ah Lek" who had issued threats against the employer of the
deceased.
"..ask
yourself the question: If I now call upon the accused to make his
defence and he elects to remain silent am I prepared to convict him on
the evidence now before me? If the answer to that question is "Yes",
then a prima facie case has been made out and the defence should be called. If the answer is "No" then, a prima facie case has not been made out and the accused should be acquitted".
[12] In the instant joint trial, the charges are in respect of two offences, i.e. the principal charge of murder against the 1st accused and the charge of abetment against the other three accused persons. I shall first consider the case against the 1st accused.
Whoever
causes death by doing an act with the intention of causing death, or
with the intention of causing such bodily injury as is likely to cause
death, or with the knowledge that he is likely by such act to cause
death, commits the offence of culpable homicide.
Except in the cases hereinafter excepted, culpable homicide is murder- (a) if the act by which the death is caused is done with the intention of causing death; (b)
if it is done with the intention of causing such bodily injury as the
offender knows to be likely to cause the death of the person to whom the
harm is caused; (c) if it is done with the intention of
causing bodily injury to any person, and the bodily injury intended to
be inflicted is sufficient in the ordinary course of nature to cause
death, or (d) if the person committing the act knows that
it is imminently dangerous that it must in all probability cause death,
or such bodily injury as is likely to cause death, and commits such act
without any excuse for incurring the risk of causing death, or such
injury as aforesaid.
[14] The learned DPP submitted that he is relying on the third limb i.e. section 300(c) to prove that the 1st
accused murdered the deceased. I pause to note that there is no
requirement in the Criminal Procedure Code to state the limb of section 300
in the murder charge. Therefore, as long as the act of an accused
person falls within any of the four limbs, it would satisfy the offence
of murder as defined in section 300.
[15] Having regard to the charge of murder in this case, the prosecution is obliged to prove the following crucial elements:
(1) That Bill anak Kayong had died as a result of the gunshot wounds he received;
(2) That the 1st accused had inflicted the said gunshot wounds;
(3) That the act of the 1st accused in inflicting the gunshot wounds on Bill anak Kayong came within the ambit of any one of the four circumstances listed in section 300(a) to (d) of the Penal Code.
Cause of death
[16] The widow of Bill anak Kayong
identified the body at the commencement of the autopsy in the presence
of the police. The Forensic Medicine Specialist (Dr Norliza binti
Ibrahim, P.W. 11) told the court that the deceased suffered several
gunshot injuries but the wounds on his neck and head were sufficient in
the ordinary cause of nature to cause death immediately. She opined that
the deceased would have died immediately and that the shot was fired
from close to intermediate range. Dr Norliza binti Ibrahim is a
qualified Forensic Medicine Specialist attached to a government
hospital. She has performed countless autopsies and her previous court
testimonies have been accepted by the court as stated in her curriculum vitae.
No challenge was mounted in respect of her qualification, expertise or
her findings in this case. In the premises, I find that the prosecution
has proved that the cause of death in this case is the gunshot wounds to
the neck and to the head of the deceased.
Whether the 1st accused inflicted the gunshot wounds?
[17] This is the crucial element in this case. The prosecution rested its case against the 1st accused solely on circumstantial evidence. I shall discuss it under the following sub-headings for sake of convenience.
Opening Statement
[18]
I am mindful that in the opening statement, the learned DPP had stated
that the prosecution will prove its case based on circumstantial as well
as direct evidence. Counsel for the 1st accused submitted
that an adverse inference should be drawn for the failure of the
prosecution to call any eye-witness despite the allusion in the opening
statement that they existed. He cited three cases, i.e. PP v. Yong Ngie Ung [2016] 1 LNS 1152, PP v. Gobinath Alfonso A Kuppusamy [2009] 8 CLJ 255 and Mah Hong Ching & Anor v. PP [2007] 2 CLJ 292.
[19]
I am of the view that the failure of the prosecution to call
eye-witnesses despite the proclamation to that effect in the opening
statement is not fatal. I also see no reason to invoke adverse
inference. Firstly, it must be noted that adverse inference should only
be invoked if there is suppression of evidence. There is no reason to
hold that the prosecution had deliberately suppressed evidence by
preventing witnesses from testifying. In fact, two witnesses called by
the prosecution, i.e. P.W. 26 and P.W. 27 were impeached as they denied
knowledge of the case although they gave detailed information in their
section 112 statement.
[20] Secondly, in all the cases cited by counsel for the 1st
accused, the court did not rule that the failure to adhere to the
opening statement alone was fatal to the prosecution's case. In PP v. Yong Ngie Ung (supra ), the trial court only made an observation that the evidence at the trial departed from the opening statement. In PP v. Gobinath Alfonso A Kuppusamy (supra
), the court drew an adverse inference only because the two crucial
witnesses who were named in the opening statement were not called as
prosecution witnesses but were instead offered to the defence. In Mah Hong Ching & Anor v. PP (supra
), the prosecution omitted to make an opening statement and the court
commented adversely on the said omission. In the instant case, the
prosecution did not name any eye-witness to the murder in the opening
statement. In fact if the opening statement is read carefully, the
prosecution did not even say that the "direct evidence" they referred to
was in respect of witnesses who actually saw the shooting. The relevant
portion of the opening statement is paragraph 6 and it reads as
follows:
6. In this trial, the prosecution will rely
on medical evidence, scientific evidence, circumstantial evidence as
well as direct evidence.
Thus, the instant case can be easily distinguished from PP v. Gobinath Alfonso A Kuppusamy (supra ). Therefore, I see no reason to draw an adverse inference against the case for the prosecution for not calling eye-witnesses.
Assessment of Circumstantial evidence
[21]
Before proceeding further, I shall first direct myself on the law in
respect of the assessment of circumstantial evidence in a criminal case.
I shall first refer to the recent Federal Court case cited by the
learned DPP. In the case of Pathmanabhan Nallianen v. PP and other appeals [2017] 4 CLJ 137, the Federal Court referred to several well known authorities on circumstantial evidence. In Chan Chwen Kong v. PP [1962] 1 LNS 22; [1962] MLJ 307, Thomson CJ described the approach in assessing circumstantial evidence as follows:
It
must, however, be borne in mind that in cases like this where the
evidence is wholly circumstantial what has to be considered is not only
the strength of each individual strand of evidence but also the combined
strength of these strands when twisted together to make a rope. The
real question is: is that rope strong enough to hang the prisoner?
[22] The Federal Court also quoted the old case of Belhaven & Stenton Peerage[1875] 1 App Cas 278 at p 279 (cited in Idris v. PP [1960] 1 LNS 40; [1960] X MLJ 296 at p 297). In Belhaven & Stenton Peerage (supra ), Lord Cairns defined the nature of circumstantial evidence in the following memorable passage:
"My
Lords, in dealing with circumstantial evidence we have to consider the
weight which is to be given to the united force of all the circumstances
put together. You may have a ray of light so feeble that by itself it
will do little to elucidate a dark corner. But on the other hand you may
have a number of rays, each of them insufficient, but all converging
and brought to bear upon the same point, and when united, producing a
body of illumination which will clear away the darkness which you are
endeavouring to dispel."
[23] However, the
onus on the prosecution when it relies on circumstantial evidence is
onerous. In the following passage in the above mentioned case of Belhaven & Stenton Peerage (supra ), Lord Cairns cautioned as follows:
In
other words circumstantial evidence consists of this: that when you
look at all the surrounding circumstances, you find such a series of
undesigned, unexpected coincidences that, as a reasonable person, you
find your judgment is compelled to one conclusion. If the circumstantial
evidence is such as to fall short of that standard, if it does not
satisfy that test, if it leaves gaps then it is of no use at all. As I
have stated this case depends entirely upon circumstantial evidence.'
The same view has been echoed in many other cases that dealt with circumstantial evidence. In the Singapore case of Sunny Ang v. PP [1965] 1 LNS 171;
[1966] 2 MLJ 195, it was stated that the circumstantial evidence must
be of the standard that it not only irresistibly, inexorably and
unerringly points to the guilt of the accused but that other co-existing
circumstance must exclude any other explanation.
[24] In Ghambhir v. State of Maharashtra AIR [1982] SC 1157 which was cited by our Court of Appeal in Sukhvinder Singh Naldip Singh v. PP and another appeal [2014] 5 CLJ 574,
Misra J in the Supreme Court of India stated that three tests should be
adopted in dealing with circumstantial evidence which are as follows:
When
a case rests upon the circumstantial evidence, such evidence must
satisfy three tests: (1) the circumstances from which an inference of
guilt is sought to be drawn, must be cogently and firmly established (2)
those circumstances should be of a definite tendency unerringly
pointing towards guilt of the accused; (3) the circumstances, taken
cumulatively, should form a chain so complete that there is no escape
from the conclusion that within all human probability the crime was
committed by the accused and none else. The circumstantial evidence in
order to sustain conviction must be complete and incapable of
explanation of any other hypothesis than that of the guilt of the
accused. The circumstantial evidence should not only be consistent with
the guilt of the accused but should be inconsistent with his innocence.
With
the above directions in mind, I shall now consider whether the
circumstantial evidence tendered in this case is sufficient to establish
a prima facie case against the 1st accused on the charge of murder.
Identification of murder weapon
[25]
Lau Lee Shen (P.W. 25) led police to the discovery of a shotgun which
was hidden below the ceiling of his house. The pellets recovered during
autopsy of the deceased's body were sent to the police ballistics expert
(ASP Nik Mohd Norhsyam Bin Nik Ismail, P.W. 22) for comparison. He said
that in his opinion, the pellets were fired from the same shotgun.
Counsel for the 1st accused challenged his evidence.
[26] The ballistics expert (P.W. 22) outlined the method he employed in his witness statement under section 402B of the Criminal Procedure Code.
He compared the pellets recovered from the body of the deceased with
the markings left behind by the firing pin on the percussion cap of the
three cartridges that were used during the shotgun serviceability test.
He used the computerised Integrated Ballistics Identification System
(IBIS) which records images of markings.
[27] During
cross-examination, his evidence was challenged because he used his naked
eyes to compare the images of the pellets with the unique markings and
the markings on the percussion cap of the said three cartridges. The
exchange between witness and counsel for the 1st accused is as follows:
Q:
Can you explain to us how does this IBIS device allowed you to make this comparison?
A:
I recorded the 3 images of the casing in the said system, then I made the comparison by images
Q:
These images you referred to did you put them side by side each other while making comparison?
A:
Yes.
Q:
In other words, you used your naked eyes to see the images and make the comparison you referred to.
A:
Yes.
Q:
I PUT it to you that is incorrect procedure to make comparison of markings of marks found on percussion caps.
A:
I disagree.
Q:
I
put it to you that the proper and accepted way to make comparison of
markings left behind by firing pins on percussion caps is by recording
images of the markings on the percussion cap and overlapping the same in
the computer system to see if they are match exactly, do you agree?
A:
I disagree.
[28]
During re-examination and further cross-examination, he said that side
by side examination of the images which had been recorded using the IBIS
system is accurate. He said as follows:
Maksud saya
dengan menggunakan mata kasar yang direct memang menghasilkan jawapan
yang tidak tepat. Akan tetapi setelah menggunakan system IBIS, saya
telah merekodkan image ketiga-tiga kelongsong peluru dengan menggunakan
sistem IBIS, saya juga membuat perbandingan menggunakan mata kasar juga.
Akan tetapi ketiga-tiga imej kelongsong peluru tersebut, gambarnya
lebih jelas daripada kita tengok sebelum dimasukkan ke dalam sistem
IBIS.
[29] Counsel for the 1st
accused submitted that the comparison of the unique individual markings
on the pellets and percussion cap is inaccurate because P.W. 22 used his
naked eyes. I find no merit in this argument. P.W. 22 had disagreed
with counsel for the 1st accused and said that the images
were produced using the IBIS computer system and he had also compared
the images with his naked eyes by placing the images side by side. P.W.
22's evidence that he has been trained in ballistics analysis was not
credibly challenged. He had worked as a ballistics analyst for more than
ten years at the Royal Malaysia Police Forensics Laboratory in Cheras.
He has worked on about 500 cases and has attended many courses in
ballistics since 2007. In the absence of expert rebuttal evidence, I see
no reason not to accept the disinterested evidence of a police expert
witness.
[30] Counsel for the 1st accused also
submitted that the evidence of P.W. 22 is inadmissible for the reason
that he did not identify two of the three cartridges in court. He also
said that there was "misidentification" of the exhibits as it is stated
in the notes of proceedings "at page 334 that P134 to P149 were
identified as cartridges and the cartridges themselves were marked as
P134A to P149A." I see no merit in the above arguments. The envelopes
containing all the sixteen cartridges tendered in court by the earlier
witness (P.W. 21) were marked with numbers. The cartridges inside the
envelopes were marked with the numbers and the letter "A". Therefore,
even if the notes of proceedings do not reflect the fact that P.W. 22
referred to the correct marking of the exhibit, i.e. with the letter
"A", it does not mean that he did not identify it in court. In any
event, I find it all irrelevant. P.W. 22 affirmatively said that he
examined the three cartridges HK1, HK 2 and HK 3 and compared them with
the pellets recovered from the deceased. It is stated in his report as
well. Therefore, even if he omitted to identify two of the three
cartridges in open court, I cannot fathom how it can detract from his
expert findings after having examined the pellets and cartridges in the
laboratory.
Serviceability of the murder weapon
[31] Counsel for the 1st
accused also challenged the finding of the police ballistics expert
(Inspector Mohd Riyadh, P.W. 21) who tested the shotgun and wrote the
serviceability report (P129). P.W. 21 testified that he examined the
shotgun. He found that the essential component parts were complete i.e.
the shotgun had barrel, trigger, hammer and firing pin. He tested the
shotgun using the Bullet Recovery System and found that the shotgun is
serviceable. The concluding paragraph of his report reads as follows:
2.3
Senjata api barang kes telah dijalankan ujian tembak (serviceability)
di bilik ujian tembak dengan mengunakan Bullet Recovery System pada
11/08/2016 jam 1115 Hrs. Ujian tembak telah dilakukan dengan menggunakan
sebanyak (2) dua butir peluru barang kes yang diambil secara rambang.
Senjatapi barang kes dapat melepaskan tembakan setelah diuji dengan
peluru-peluru barang kes tersebut.
[32] Learned counsel for the 1st
accused put to P.W. 21 that he did not test fire the shotgun with a
live round, i.e. with pellets, wad and gunpowder. P.W. 21 agreed but
said that it will not affect the result of his test. He said as follows:
If
the pellets, the gunpower and the wad removed from the cartridge, it
will not affect the result, because it is sufficient to test because the
percussion cap will trigger gun powder and to blast the wad and pellets
through the barrel.
[33] P.W. 21 also said
that if the barrel is blocked and projectiles cannot pass through, it
would have been considered non serviceable. Counsel for the 1st accused referred to the definition of section 2 of the Arms Act 1960(revised 1978) which reads as follows:
"arm"
means any lethal barrelled weapon of any description from which any
shot, bullet or other missile can be discharged, or which can be adapted
for the discharge of any such shot, bullet or other missile, and any
weapon of whatever description designed or adapted or which can be
adapted for the discharge of any noxious liquid, gas or other thing, and
includes an air gun, air pistol, automatic gun, pistol and any
component parts of any such weapon, and any accessory to those weapons
designed or adapted to diminish the noise or flash caused by firing the
weapon;
"firearm"
means any lethal barrelled weapon of any description from which any
shot, bullet or other missile can be discharged by means of an explosive
charge, and includes a bomb or grenade containing an explosive charge;
[34] Counsel for the 1st
accused submitted that the test performed by P.W. 21 does not fulfil
the requirements of the above mentioned definitions. Be that as it may,
there is no statutory provision that governs the manner of testing the
serviceability of a firearm in the above mentioned legislation. P.W. 21
is in my view an expert. He has attended a course in ballistic armament
and ballistic analysis. He had conducted more than 100 ballistic
analyses and has testified in court more than ten times. He said that to
his knowledge, his expert evidence has yet to be rejected. Although
live rounds were not used by P.W. 21, he has examined all the component
parts before test firing the weapon. In the absence of expert rebuttal
evidence, I see no reason not to accept his evidence that the shotgun in
question is serviceable.
[35] Finally, counsel for the 1st
accused submitted that PW. 21 and P.W. 22 who are both ballistics
experts did not swab the shotgun to detect Gun Shot Residue (GSR) for
signs that it had been fired. P.W. 21 and P.W. 22 agreed that swabs for
GSR were not taken as they were tasked to perform only ballistics
analysis.
[36] However, it must be noted that SJN Jiffen ak
Sotok (P.W. 16) of the Forensics Unit has swabbed the barrel of the
shotgun in question for GSR. It was marked EB6(5)C and labelled "Swab pada hujung laras senapang patah".
Science Officer Farah Ad-Din said that she found GSR residue on
EB6(5)C. Her evidence was seriously challenged on various grounds. She
said that upon analysis she found lead (plumbum) and antimony in the
swab. Counsel for the 1st accused referred to literature on
ballistics and challenged her finding by saying that three elements must
be found in GSR, namely lead, antimony and barium. She disagreed. Again
I see no reason not to accept the finding of a qualified expert in the
absence of expert rebuttal evidence. Counsel for the 1st
accused also put to her that the elements of GSR are also found in brake
lining pads used in bicycles, cars and motorcycles. In the written
submissions, counsel for the 1st accused addressed this point
again. I do not see the relevance of this submission as SJN Jiffen
swabbed the end of a shotgun barrel for GSR tests and not a brake lining
pad.
[37] Counsel for the 1st accused also
questioned the analysis of P.W. 18 for the following reason. During the
course of the cross-examination, counsel requested that P.W. 18 show her
the computerized images taken by the Scanning Electron Microscope
(SEM). They were marked as defence exhibits D4(A) and D4(B). In the
written submissions, counsel for the 1st accused raised the argument that the words " Sample Analysis by Mohamad Firdhaus bin Ramli"
appears at the bottom of the printout of D4(A) and D4(B). In the second
written submission he cited the Court of Appeal case of PP v. Abuchi Ben James [2015] 8 CLJ 1011. Holding (1) of the headnote reads as follows:
(1)
Based on the evidence of SP1, it was clear that two science officers
calibrated the machines used for the GCMS and GCFID tests. They were
given the samples by SP1 for analysis and they operated the machines.
Following that, they gave the printout from the machines to SP1. Hence,
there remained a doubt as to whether the analysis was done by the
science officers or by SP1. If the analysis was done by the science
officers, the evidence of the chemist was vitiated and the ingredients
of the charge had not been proved. (paras 20 & 23)
[38]
In my opinion, the facts of the above mentioned case are
distinguishable from the instant case. It was undisputed in the above
mentioned case that two science officers had calibrated the said
machines and a doubt arose as to who had done the analysis. In the
instant case, throughout the trial, P.W. 18 said that she conducted the
analysis and completed the report. This fact was never disputed during
the trial. Despite being given the computer printout images in D4(A) and
D4(B), counsel for the 1st accused never asked her whether anyone else had done the SEM analysis. Had P.W. 18 been asked by counsel for the 1st
accused, she may have given an explanation. It appears that for some
reason, the name Mohamad Firdhaus bin Ramli had been keyed in at the
bottom of the printout. Whether it was keyed during a preceding analysis
or the instant analysis in question, I should think that it is useless
to hazard a guess now. However, since counsel for the 1st accused never queried P.W. 18 who was on the witness stand, in my view, it is too late to submit in this manner now.
[39] Since P.W. 18 had testified unchallenged that she analysed the GSR swab in question, I shall accept her evidence. From hercurriculum vitae
that was tendered in court, I am satisfied that she is an expert in GSR
analysis. She had attended courses in the subject and has testified
more than ten times in court and her evidence had been accepted. The
evidence of GSR on the shotgun means that it had been fired.
[40]
For all the above reasons, I find that the prosecution has proven that
the shotgun that was used to murder the deceased in this case is the
shotgun that was recovered from the house of Lau Lee Shen (P.W. 25). The
prosecution has also proven that the weapon was functional. I shall now
address the evidence of Lau Lee Shen which is crucial to the case of
the prosecution.
Evidence of Lau Lee Shen
[41] The thickest strand of circumstantial evidence against the 1st
accused was provided by Lau Lee Shen (P.W. 25). He is a furniture shop
owner. He led the police to the discovery of the murder weapon. He
strongly implicated the 1st accused in the killing of the
deceased in this case although his evidence is circumstantial evidence
only. The deceased was murdered on 21st June 2016. Lau Lee Shen could not remember the exact date but he said that he was contacted by the 1st accused whom he knew as "Apek" in the middle of June of the same year. The 1st
accused showed him a photograph of a man and said that he "wanted" the
man without explaining further. However, when shown a photograph by the
prosecution, he was unable to identify the picture of the man in it. Lau
Lee Shen said the 1st accused asked him to keep a shotgun. The 1st
accused then gave Lau Lee Shen a shotgun which had been placed in a
bag. Lau Lee Shen hid the shotgun and the bag under the ceiling of his
house. The 1st accused also asked him to go with him to test fire the shotgun. They pair went to a place in Bakam to test fire the shotgun.
[42] Lau Lee Shen was told that the 1st accused would collect the shotgun the next morning at 5.00 a.m. The following morning, the 1st accused collected the shotgun from Lau Lee Shen around 6.00 a.m. The 1st accused returned the shotgun to Lau Lee Shen's house about three hours later at around 9 a.m. Lau Lee Shen identified the 1st accused in court as "Apek". The only thing that Lau Lee Shen heard after that event about the 1st accused and the shotgun was that a murder had occurred.
[43] In my opinion, the testimony of P.W. 25 constitutes strong circumstantial evidence to implicate the 1st accused in the murder of the deceased. An irresistible inference can be drawn that the 1st accused had a direct role in the death of the deceased. My reasons are as follows.
[44] The 1st
accused not only left the murder weapon with P.W. 25 about a week
before the murder of the deceased but also went to test fire the gun
with him in Bakam. In fact, from the testimony of P.W. 25, it is
apparent that the shotgun was tested with live rounds. Furthermore, the 1st accused made an appointment with P.W. 25 to collect the gun the following morning at 5.00 a.m. The 1st
accused collected the shotgun at 6.00 a.m. but returned it around 9.00
a.m. The charge states that the murder occurred around 8.20 a.m. By 8.45
a.m., P.W. 8 noticed that the Toyota Hilux had stopped at the traffic
lights intersection in question. By 9.00 a.m., the widow of the deceased
heard that something had happened to her husband. In the premises, it
can be reasonably deduced that the deceased was shot at the traffic
lights well before 9.00 a.m. It has been conclusively proven that the
shotgun that the 1st accused had left with P.W. 25 for safekeeping is the murder weapon.
[45] Although P.W. 25 cannot remember the exact date, it is highly probable that the 1st
accused returned to the former's house to collect the gun on the day of
the murder of the deceased. The deceased was murdered on 21st June 2016. P.W. 25 told the court that the 1st
accused contacted him in the middle of June of 2016. Although during
cross-examination, he was not sure about the date, he did say
affirmatively during examination in chief that it was in the middle of
June of 2016. That was about a week before the murder of the deceased.
P.W. 25 later heard that there was a murder. During cross-examination,
P.W. 25 said that he did not make a note as to the date he heard that
there was a murder. The exchange between counsel and P.W. 25 during
cross-examination is as follows:
Q:
Did you make a note as to the date when you allegedly heard that there was a murder?
A:
No.
Q:
In your testimony you merely heard that there was a murder case, am I right?
A:
Yes.
In his written submission, counsel for the 1st accused said that the murder referred to by P.W. 25 did not necessarily occur on the same day that the 1st
accused collected the weapon but could have occurred on any other day.
He also said that P.W. 25 did not refer to a "murder" in Miri and thus
he could have referred to a murder anywhere in the world.
[46]
In my opinion, given the context of the testimony of P.W. 25, he only
referred to a murder that occurred in Miri and that it was related to
the shotgun that the 1st accused had given to him for safekeeping. I reproduce below his exact words during examination in chief by the learned DPP:
Q:
After Apek took the shotgun around 6am, what happened then to Apek and the shotgun?
A:
After that I heard there is a murder case occurred.
Quite obviously, P.W. 25 was responding to the question as to what happened to the 1st
accused and the shotgun. Assuming that the "murder" he referred to had
occurred somewhere else in the world or on some other occasion, it would
have been wholly unnecessary for him to respond to the question of the
learned DPP in the manner he did. In the premises, the evidence of P.W.
25 very strongly suggests that the 1st accused was involved in the murder of the deceased.
[47] I shall now consider whether the 1st accused could have dealt with the shotgun for the purpose of game hunting. Counsel for the 1st accused suggested to P.W. 25 that if the shotgun had been given to him at all by the 1st
accused, it was for the purpose of hunting animals. From the
photographs, the place where the shotgun was tested appears to be a
secluded spot in Bakam. I should think that it is unlikely that if one
had intended to go game hunting, one would be seen fit to test fire the
weapon in a secluded spot beforehand. It could have been done at hunt
itself. Therefore, from the evidence of P.W. 25, it is probable that the
1st accused had a more evil purpose in mind than hunting animals.
[48] Counsel for the 1st accused put to P.W. 25 that he had lied in court because he had been detained by the police under the Prevention of Crime Act 1959
(POCA) and he had also been placed under restricted residence. He also
suggested that P.W. 25 had made a bargain with the police to avoid being
charged for a firearm possession offence. P.W. 25 denied the
suggestion. In my view, there is no material to make such a suggestion.
In any event, I found him to be a credible witness. From the answers
that P.W. 25 gave during examination in chief and cross-examination, it
is obvious that he was not eager to overstate the case of the
prosecution in any way by giving exact dates and embellishing details.
It is apparent that he gave answers only insofar as his memory retained
them. If he had been coached as a witness upon the striking of an unholy
bargain with the police, it is likely that he would have given exact
dates and more incriminating particulars. Although, demeanour is no
touchstone of truth, I am satisfied that P.W. 25 is a credible witness.
Therefore, I see no reason to hold that he was an untruthful witness as
submitted by counsel for the 1st accused merely because he
had been detained under POCA or subjected to restricted residence. I
will now consider other strands of circumstantial evidence that point to
the role of the 1st accused in the murder of the deceased.
Face mask
[49]
When the shotgun was recovered from P.W. 25, the police found a face
mask inside the shotgun bag. The face mask was sent for DNA profile
analysis. Zaliha Suadi (P.W. 12), the DNA expert confirmed in court that
she developed a DNA profile from material found on the face mask that
matched the DNA profile developed from the blood specimen of the 1st accused. The face mask was tendered into evidence without any objection by the defence.
[50] However, the identity of the face mask was questioned by counsel for the 1st
accused. The chemist (P.W. 17, Mohd Riduan) received it from the
investigating officer and forwarded it to the DNA expert for analysis.
P.W. 17 said that the said face mask is an "ALPINE" brand face mask.
During the trial, he agreed that the marking "ALPINE" does not appear on
the face mask. However, P.W. 17 explained that he mistook the logo on
the face mask to be of the "ALPINE" brand. He said as follows:
Q:
You
were asked about Alpine or logo by the defence counsel and you said
'no' there was no Alpine logo, you agreed to it and about the brand name
Alpine and you also said 'yes' there is no brand name Alpine that you
could see from the exhibit but you seemed to want to explain something
to this Court?
A:
The Alpine actually I was referring to this face mask and now I am aware that this logo is an Alpinestar logo.
The
investigating officer, P.W. 28 testified that only one face mask was
recovered from the shotgun bag. In the premises, there is no merit in
the suggestion of the defence that it is possible that two face masks
were recovered or there was mix up of exhibits or there was
"misidentification" of exhibits.
[51] Counsel put to the DNA expert witness (P.W. 12) whether she knew that the 1st
accused was forced to wear the face mask while in police custody.
However, this suggestion was never put to the police witnesses including
the investigating officer. Thus, there is no reason to speculate that
the DNA material of the 1st accused got on to the face mask after his arrest.
[52] The fact that the 1st
accused's profile was developed from material found on the face mask
which was recovered from the shotgun bag corroborates the evidence of
P.W. 25. The shotgun was given to P.W. 25 together with the bag. P.W. 25
took it on the day in question together with the bag in which the face
mask was found. Therefore, an inference can be drawn to link the 1st accused to the smoking gun which is the same gun that P.W. 25 said was given to him for safekeeping.
Evidence of P.W. 20 - Jambali anak Jali
[53]
P.W. 20 (Jambali anak Jali) is the former headman of a longhouse in
Sungai Bekelit Bekenu. He was a friend of the deceased. He said the
deceased always supported the longhouse residents in the land dispute
with a plantation company known as Tung Huat Pelita Niah Plantation.
P.W. 20 said that the deceased told him that the "Tung Huat people" want
to give him "bribe money" to persuade the longhouse residents to
surrender their land. However, he said the "company" threatened the
deceased as he had refused the offer. P.W. 20 said that on one occasion
the 1st accused and 3rd accused came to their land to threaten them. He said as follows:
Q:
With regard to you said 'our land problem', can you please elaborate more on that?
A:
Our
land problem with a company called Tung Huat Pelita Niah Plantation. I
myself did not enemy with anybody because these people are the ones who
disturbed Bill Kayong and myself. Every time Bill Kayong
support what am I doing, the people from the Company always threaten us
until Chin and Fitri enter our compound, because this people do not
want to see the late Bill to support the long house folks.
[54] It has been suggested by counsel that the words "until Chin and Fitri enter our compound" in the sentence "the people from the Company always threaten us until Chin and Fitri enter our compound", means that threats ceased after the 1st and 3rd accused entered their land. For good measure, the definition of "until" in the Oxford Learner's Dictionary (9th
Edition) was also cited. With respect, this is not the way to
understand or analyse the meaning of the words that were translated into
English from another language by the court interpreter. P.W. 20
testified in Iban. In the context of his evidence, what he meant was
that the threats received by the longhouse residents culminated in 1st and 3rd accused entering their compound. Otherwise, the entire passage I cited above would not make any sense.
[55] However, P.W. 20 did not say anything else about the details of the threats that the deceased had received.
Q:
About this threat received, can you elaborate more on that?
A:
The Late Bill Kayong did not tell me in details about the threat that he received. He only told me that he received threat from this people.
Nonetheless, the evidence of P.W. 20 links the 1st
accused to the land dispute that the longhouse residents in Bekelit and
the Tung Huat Plantation company were embroiled in. There is no
evidence about the role of the 1st accused in the Tung Huat Plantation company but P.W. 20 said that the 1st
accused actually came to their land to threaten them. P.W. 20 said that
the deceased was also involved in the same dispute as he was helping
the longhouse residents. This strand of circumstantial evidence that
links the 1st accused to the murder of the deceased is a weak
strand but it provides motive and strengthens other strands of
circumstantial evidence to link him to the death of the deceased.
Other issues
[56]
For sake of completeness, I shall also address some other issues that
were raised by the prosecution and the defence in the written
submissions and during oral arguments. I shall discuss these issues
under the following sub-headings.
Identity of Toyota Hilux
[57]
The first information report was taken down by KPL Hairi bin Bain (P.W.
1). He said the informer (P.W. 8) told him that the registration number
of the Toyota Hilux was QMN 6462. In his police report, P.W. 1 stated
it as QMU 6462. He said the registration number was provided by P.W. 8.
The police patrol car with KPL Mohd Firdaus (P.W. 6) and KPL Sandy
arrived at 9.06 a.m. They immediately cordoned off the area around a
Toyota Hilux that had stopped at the traffic lights intersection in
question. The police photographs show that the number of the Toyota
Hilux vehicle was QMU 6462. P.W. 8 was shown a set of 52 photographs
marked as P19(1-52) which showed a Toyota Hilux with a shattered window
on the driver's side. He identified it as the vehicle that had stopped
at the traffic lights. P.W. 7, the medical assistant who arrived at the
scene soon after said as follows:
We arrived at the
place of incident at 9.36 a.m and I noticed that there were police
officers and many public around. I also noticed there was a vehicle on
the road which is Toyota Hilux bearing registration no. QMU 6462.
[58]
P.W. 28, the investigating officer of the case said that when he
arrived at the scene, he noticed that a Toyota Hilux bearing
registration number QMU 6462 had been cordoned off with a yellow police
tape. Thus, none of the witness who were at the scene had said that
there was a second Toyota Hilux bearing registration number QMN 6462. It
is patently clear that P.W. 1 made a mistake when he said QMN instead
of QMU when referring to the registration number.
[59] However, counsel for the 1st
accused submitted there could have been a second Toyota Hilux at the
scene. His reason for this argument is as follows. The investigating
officer (P.W. 28) had said as follows:
Dengan bersama jurufoto L/KPL Mohamad Noorazam bin Bahari dan ASP Zainan Azlili bin Abdul Latiff, saya telah mengambil gambar sekeliling kereta Toyota Hilux.
During cross-examination, counsel for the 1st
accused asked the investigating officer to confirm whether the above
statement is true and the latter answered in the affirmative. Based on
the above answer, counsel for the 1st accused has latched on
to the mistake of P.W. 1 and submitted that the photographs taken by the
investigating officer were not tendered into evidence. He also argued
that if the said photographs were tendered into evidence, it "would show
the existence of a second Hilux". My view on this argument is this. If
the statement of the investigating officer which is in Malay is read in
its proper context, one would realise that it does not say that the
investigating officer took a different set of photographs at the scene.
The investigating officer had said as follows:
"…..dengan bersama jurufoto…. saya telah mengambil gambar".
He
did not say that both he and the photographer took photographs
separately. He did not say that he personally (saya sendiri) took some
photographs. It must be borne in mind that the investigating officer is a
senior officer and that he is assisted by various junior officers in
his work. In any event, counsel for the 1st accused who
conducted a very lengthy cross-examination of the investigating officer
never asked him about the existence of the photographs that the latter
allegedly took at the scene of crime. Therefore, with respect, the
submission of learned counsel for the 1st accused is speculative and even fanciful.
Confession of P.W. 27
[60]
During the trial, evidence was tendered in respect of the police
interrogation of a suspect, one Sim Chien Hui (P.W. 27). According to
DSP Soliment Nyian (P.W.24), the suspect said as follows:
"Apek
telah letak satu senapang panjang dalam bonet belakang kereta saya
jenis proton wira warna putih nombor?? 8686 sebelum hantar sama Ah Seng.
Kereta itu saya letak luar Balai Polis Miri. Kunci kereta ada di Balai
Polis Miri. Saya boleh tunjuk tempat itu sama tuan".
P.W.
24 took down the confession of P.W. 27 by hand. It is signed by both
P.W. 24 and P.W. 27. He also lodged a police report and reproduced the
same statement in it (P158). P.W. 27 subsequently led the police to a
Proton Wira Car bearing registration number MA8686Q which was parked
beside the Miri Central Police Station. The police forensics team
swabbed the car for Gun Shot Residue (GSR). Science Officer, Farah
Ad-Din (P.W. 18) confirmed finding GSR on samples taken from the car.
The learned DPP submitted that it is another piece of circumstantial
evidence. I admitted the police report. I was of the view that it is
admissible as it relates to what P.W. 24 heard from P.W. 27. However,
P.W. 27 was impeached by the prosecution as he repudiated his section
112 statement. In the premises, the police report containing the
confession of P.W. 27 cannot be used to prove the truth of the contents
as it would amount to hearsay. Thus, it has no evidentiary value.
[61] During the trial, the learned DPP submitted that the police report was made pursuant to section 27 of the Evidence Act 1950
as evidence of discovery. In the written submission, the learned DPP
did not address this point again. Nonetheless, I am of the opinion, that
the confession of P.W. 27 which is produced in the police report is not
admissible under section 27 of the Evidence Act 1950. It is trite law that section 27 must be strictly construed as it is an exception to the normal rules of admitting a confession. As stated in Chandrasekaran & Ors v. PP [1970] 1 LNS 11; [1971] 1 MLJ 153, section 27
is a concession to the prosecution. In above mentioned case, Raja Azlan
Shah J (as HRJ then was) explained the underlying principle as follows:
The
reason is that, since the discovery itself provides the acid test, the
truth of the statement that led to the discovery is thereby guaranteed.
27. How much of information received from accused may be proved
(1)
When any fact is deposed to as discovered in consequence of information
received from a person accused of any offence in the custody of a
police officer, so much of that information, whether the information
amounts to a confession or not, as relates distinctly to the fact
thereby discovered may be proved.
[62] The
first condition that must be noted is that the information must come
from "a person accused of any offence". In the case of Chong Soon Koy v. PP [1977] 1 LNS 20;
[1977] 2 MLJ 78, the accused was a mere suspect in the custody of the
police at the time he gave the information in question which led to the
discovery of firearms. He had yet to be accused of any crime but he was
charged later. The former Federal Court held that "a person accused of
any offence" can mean "a person accused at the time or subsequently of
any offence." However, P.W. 27 in the instant case has not been charged
with any offence relating to this case. Therefore the statement cannot
be admitted under section 27 of the Evidence Act 1950.
[63] Even if it were otherwise, as stated in section 27,
only so much of the information as relates distinctly to the fact
thereby discovered may be proved. This condition was elucidated in the
well known Supreme Court case of Wai Chan Leong v. PP [1989] 1 CLJ Rep 171; [1989] 2 CLJ 1168; [1989] 3 MLJ 356. Gunn Chit Tuan SCJ re-stated the requirement pithily as follows:
In
other words the fact must be the consequence and the information the
cause of its discovery. Moreover the information must relate distinctly
to the fact discovered.
The learned Judge also cited an illustration given in the old Privy Council case of Pulukuri Kotayya v. King Emperor 74 IA 65 about how much of the information which led to discovery of a fact can be admitted:
Information
supplied by a person in custody that "I will produce a knife concealed
in the roof of my house" does not lead to the discovery of a knife;
knives were discovered many years ago. It leads to the discovery of the
fact that a knife is concealed in the house of the informant to his
knowledge, and if the knife is proved to have been used in the
commission of the offence, the fact discovered is very relevant. But if
to the statement the words be added 'with which I stabbed A.' these
words are inadmissible since they do not relate to the discovery of the
knife in the house of the informant."
[64] In
the instant case, as a result of the information given by P.W. 27, the
police discovered the Proton Wira car. Therefore, that fact the Proton
Wira car was parked at the road near the police station to the knowledge
of P.W. 27 is admissible. The fact that "Apek" had put a shotgun in the
car is not admissible as the police did not find any shotgun in the
car. In any event, as I said earlier, P.W. 27 is not an accused person.
It can only apply to an accused person who has made a confession which
resulted in the discovery of a fact.
[65] There is also a further reason why the statement of P.W. 27 is not admissible under section 27.
In the statement of P.W. 27 that was taken down by P.W. 24 and
reproduced in the police report (P158), P.W. 27 had said as follows:
Kunci kereta ada di Balai Polis Miri.
The
police witnesses did not explain the significance of this statement.
However, the car was parked just outside the Miri Central Police Station
and from the plain meaning of the words uttered by P.W. 27, the car was
for some reason already in the custody of the police as the keys were
in the police station. Therefore, it cannot be said to have been
discovered as a consequence of the information given by P.W. 27.
As
there is no other evidence to link the car to the accused, the finding
of GSR in the car cannot be considered to constitute another strand of
circumstantial evidence.
Chain of evidence
[66] Counsel for the 1st
accused submitted that there was a break in the chain of evidence
relating to the exhibits analysed by the Chemist (P.W. 12) because her
assistant (Hamidon) had access to the strong room where the exhibits
were kept. Furthermore, the assistant also handled the exhibits. Hamidon
was not called as a witness. Counsel for the 1st accused
submitted that there could have been tampering or contamination of the
exhibit and he urged the court to draw an adverse inference. I see no
merit in this submission. It is purely speculative. The chemist cannot
be expected to work without assistants. Counsel for the 1st
accused did not establish through cross-examination that there was
contamination or tampering with the exhibits. In fact, P.W.12 strongly
denied the suggestion of counsel. For the same reason, counsel for the 1st
accused suggested that there was tampering or contamination in respect
of the exhibits handled by P.W. 17 who is the chemist who collected all
the samples. The reason is that another chemist by the name of Mohd
Fazli also had access to the strong room. I see no merit in this
submission for the same reasons given earlier.
[67] Counsel for the 1st
accused suggested that there was a mix-up of exhibits in relation to
the analysis of the face mask because no handing over receipts between
P.W. 12 and P.W. 17 were tendered in evidence. Both witnesses disagreed
with the suggestion that there was no proper handing over. I see no
merit in this suggestion merely because the receipts were not tendered.
Case to answer by 1st accused
[68] In conclusion, the prosecution has adduced strong circumstantial evidence to link the 1st accused to the murder of the deceased. To recapitulate, the 1st
accused had handled the murder weapon at about the same time when the
deceased was murdered. He had tested the weapon the day before the
murder in a secluded spot. He came the following morning to pick up the
weapon. After the weapon was returned, P.W. 25 heard there was a murder.
DNA evidence linked the 1st accused to the face mask found inside the shot gun bag. The former longhouse chief (P.W. 20) said the 1st
accused had threatened them and did not like the fact the deceased
assisted longhouse residents to defend their land. The shotgun is a
powerful weapon that is lethal if fired at short range. The forensic
medical specialist said that death was immediate. Therefore, the shotgun
must have been fired with the intention of causing death or knowledge
that it will cause death under limb (c) of section 300 of the Penal Code.
Although there is no evidence of the manner the shot was fired because
of absence of eye-witnesses, all the above pieces of evidence if
combined together, leads to the irresistible inference that it was the 1st accused who had shot the deceased on that fateful morning. I therefore reject the contention of counsel for the 1st accused that the evidence only casts mere suspicion against the 1st accused. I hereby call upon the 1st accused to enter his defence upon the said charge of murdering the deceased.
Case against abettors
[69] The 2nd accused, 3rd accused and 4th accused have been charged with abetting the murder of deceased by the 1st accused. The definition of abetment is provided in section 107 of the Penal Code. The provision (shorn of Explanations and Illustrations) reads as follows:
A person abets the doing of a thing who--
(a) instigates any person to do that thing;
(aa) commands any person to do that thing;
(b)
engages with one or more other person or persons in any conspiracy for
the doing of that thing, if an act or illegal omission takes place in
pursuance of that conspiracy, and in order to the doing of that thing;
or
(c) intentionally aids, by any act or illegal omission, the doing of that thing.
[70]
It behoves the prosecution to tender evidence to satisfy any one of the
limbs of the above mentioned definition. The prosecution should tender
evidence to prove that the abettors had either instigated the 1st
accused or had commanded him or had conspired with him or aided him in
the murder of the deceased. However, during the trial sufficiently
cogent circumstantial evidence was not given to support the abetments
charges against all the said three accused persons. I shall address the
evidence that was tendered against each of the three accused persons
separately.
Evidence against 2nd accused - Lie Chang Loon
[71] The 2nd
accused was only mentioned by the prosecution witnesses in relation to
his arrest by the police, his identification by the investigating
officer in court and the testing of his blood sample for the purpose of
developing a DNA profile. It goes without saying that this type of
evidence cannot by any stretch of the imagination connect him to the
murder of the deceased in the instant case. No witnesses came forward to
say that the 2nd accused had even in some remote manner instigated, commanded, conspired or aided the 1st
accused to murder the deceased. There is no forensic evidence or any
other circumstantial evidence that can connect him to the murder of the
deceased either. In the premises, the case of the prosecution against
the 2nd accused is a complete non-starter.
Evidence against 3rd accused - Chin Wui Chung
[72] The 3rd
accused was also mentioned by prosecution witnesses during the trial
for the same reasons, i.e. he was arrested, a blood specimen was taken
from him and he was identified in court. Apart from that, the only
mention of the 3rd accused was made by P.W. 20 (Jambali anak
Jali). I had referred to his evidence earlier when dealing with the
circumstantial evidence against the 1st accused. P.W. 20 said that the 1st accused and 3rd accused had entered their land to threaten the longhouse residents. No other evidence linking the 3rd accused to the crime of abetting the murder of the deceased was adduced.
[73] I had called for the defence of the 1st accused based on various pieces of circumstantial evidence including forensic evidence. The 1st accused is charged with the principal offence of murder. The 3rd accused is charged with abetting him. In the premises, the prosecution must adduce evidence that the 3rd accused had either instigated or commanded or conspired with or aided the 1st accused to murder the deceased. The single piece of evidence to incriminate the 3rd accused was that he was together with the 1st
accused when the longhouse residents were threatened. This evidence is
plainly insufficient to satisfy the ingredients of the offence of
abetment in the murder of the deceased. It can only cast suspicion which
cannot satisfy the test of a prima facie case. Moreover, the
evidence in question is circumstantial evidence and the principle is
that a case predicated on circumstantial evidence alone must
irresistibly and unerringly point to the guilt of the accused person and
must also exclude any other explanation.
Evidence against 4th accused - Lee Chee Kiang
[74] The 4th
accused was mentioned by three witnesses in this trial, P.W. 19, P.W.
20 and the investigating officer, P.W. 28. However, none of the
witnesses who mentioned him gave an iota of evidence to connect him to
the crime in question. The prosecution did not tender any forensic
evidence either to support the charge of abetment. I shall consider
their evidence below.
[75] P.W. 19 is a private medical
practitioner. He is also the Member of Parliament for Miri. He told the
court that the victim is his special assistant. P.W. 19 said the victim
had been involved in assisting villagers in a land dispute with the Tung
Huat Plantation company in Bekelit. P.W. 19 said both he and the victim
had been threatened. He said a man who called himself "Ah Lek" said
that he is a friend of Datuk Stephen Lee and had threatened to kill him.
The threat was made over the phone. P.W. 19 lodged a police report.
P.W. 19 said a few weeks before that incident, the 4th accused met him in a coffee shop and asked for his help as the longhouse people had been seen coming to his clinic. The 4th
accused told P.W. 19 that he had bought the land in dispute for RM10
million. P.W. 19 said he will help but did not know what he can do.
After that, the said "Ah Lek" threatened P.W.19 over the phone. Then 4th accused came to see him to apologize for Ah Lek's behavior. The 4th accused even offered to bring the said "Ah Lek" to the police station. That was the sum of P.W. 19's evidence.
[76] P.W. 20, the former headman from Sungai Bekelit Bekenu also mentioned the 4th accused. He did not say anything incriminating against the 4th accused as he only said that he can identify him. During cross-examination, he admitted that he can identify the 4th accused only because he saw his pictures in the newspapers.
[77] The final mention of the 4th accused was by the investigating officer, P.W. 28. The terse statement of P.W. 28 was that he arrested the 4th accused at the KLIA on 13th December 2016 at 8 p.m. He identified the 4th accused in court. P.W. 28 did not say anything else about the 4th accused in his evidence in chief. He did not even relate the circumstances that led to the arrest of the 4th accused at the KLIA. As I said at the outset, no reason was given why the 4th accused was arrested much later than the other accused persons.
[78] Thus the evidence of the investigating officer (P.W. 28) and P.W. 20 in respect of the 4th
accused are not in the least incriminatory. Their evidence does not
even cast suspicion on him in respect of the offence of abetting the
murder of the deceased.
[79] P.W. 19 had given evidence that the deceased had been threatened. However, he never said that the 4th
accused had threatened the deceased. He only said the deceased was
threatened in relation to his work of defending the interests of the
longhouse residents in a land dispute with the Tung Huat Plantation
Company. The prosecution did not tender any evidence in respect of the
ownership of this company. In any event, the charge of abetment is
directed at an individual, namely the 4th accused. Even if
the evidence of P.W. 19 is viewed as a strand of circumstantial
evidence, it is only one strand of evidence which on its own cannot
satisfy the test of a prima facie case. The question to ask would be whether if the defence of the 4th
accused is called based on the evidence of P.W. 19 alone, would the
court be prepared to convict him if he remains silent? The evidence of
P.W. 19, at its highest, can only cast suspicion of the 4th accused. To my mind, without other circumstantial evidence to connect the 4th accused to 1st
accused or to the other accused persons in respect of the murder of the
deceased, the evidence of P.W. 19 is plainly insufficient to establish a
prima case against the 4th accused.
[80] In conclusion, the prosecution has failed to establish a prima facie case against the alleged abettors, i.e. the 2nd accused, the 3rd accused and the 4th accused. In the premises, I shall discharge and acquit the 2nd accused, the 3rd accused and the 4th accused without calling for their defence.
[81] As for the 1st accused, I had found that the prosecution has established a prima facie case. I therefore call upon him to enter his defence on the charge of murder of Bill anak Kayong.
(RAVINTHRAN PARAMAGURU)
Judge
High Court
Kota Kinabalu, Sabah
Date of Grounds of Judgment
:
6 JUNE 2017
Date of Delivery of Decision
:
6 JUNE 2017
Date of Hearing
:
18 JANUARY 2017
7 - 10 MARCH 2017
13 - 15 MARCH 2017
28 - 31 MARCH 2017
25 MAY 2017
