Death Penalty imposed for Drug Trafficking - Does not Malaysia already have an alternative sentence to death?

Well, those still charged with 'drug trafficking' are being sentenced to death, despite the amendment to the Dangerous Drugs Act in that allows the court to not sentence a person to death... 

Remember that section 37 presumption about 'trafficking' - if you are found with above a certain quantity of drugs like 15 grammes or more in weight of heroin or morphine, you are presumed to be a trafficker. If some 'enemy' places this in your room, car, etc without your knowledge  ... and the police catches you with the drugs, you are presumed to be a 'trafficker' - and you have to prove in court that the drugs were not use - an onerous and near impossible task really.... ABOLISH SUCH LEGAL PRESUMPTIONS, AND PROSECUTION SHOULD BEAR THE BURDEN OF PROVING ALL ELEMENTS OF THE CRIME - just like in all other criminal offences.

The new amendment that came into force in March 2018, now allows the court to impose also an alternative sentence other than the death penalty. 

(2A) In exercising the power conferred by subsection (2), the Court in imposing the sentence of imprisonment for life and whipping of not less than fifteen strokes, may have regard only to the following circumstances:

(a) there was no evidence of buying and selling of a dangerous drug at the time when the person convicted was arrested;

(b) there was no involvement of agent provocateur; or

(c) the involvement of the person convicted is restricted to transporting, carrying, sending or delivering a dangerous drug; and

(d) that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia.

[(2A) Ins. Act A1558:s.2]

BUT, the problem is that the COURT can only consider a fixed number of circumstances as stated in section 39B(2A) - i.e. (a) OR (b) OR (c)  .... this is not too bad, but then comes the AND that mandatory (d) - that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia.

Has he assisted? YES - but then maybe no sufficient to lead to the 'disrupting drug trafficking activities within or outside Malaysia'. Who decides on this - the enforcement agency or the judge?

An innocent person naturally will not be able to assist any enforcement agency ...

In a criminal trial, should an innocent person simply PLEAD guilty or simply admit his involvement  - just to evade the death penalty?

In any criminal trial, a person found guilty can APPEAL to higher courts - to the Court of Appeal, and thereafter to the Federal Court, if needed. Why should he compromise his appeal rights - just to save his life...

Is the conviction EVIDENCE of guilt in drug trafficking cases - not really, because the very existence of them 'legal presumptions' that shifts the burden of disproving the presumptions itself is UNJUST....and, as such that law results in violation of one's right to a fair trial.

Should anyone be sentenced to DEATH when the crime committed does not directly result in any death or grievous injury? There are too many HUMAN actors in the administration of justice - and humans are not perfect and do make mistakes - hence, the Death Penalty should be abolished..

 

Maybe, this recent death penalty was imposed for a crime committed before March 2018 - so the new law does not apply yet.....not enough facts known from news report..

 

But, the question is whether all now in death row - waiting to be hanged should have their sentences commuted to life imprisonment or imprisonment - the fastest way to do is by the enactment of a NEW Act.

 

After, Malaysia too is moving towards the abolition of the death penalty...we now seem to have a MORATORIUM on executions pending abolition... 

Kuala Lumpur High Court sentences widower to death for drug trafficking

Thursday, 22 Apr 2021 04:12 PM MYT

Judicial Commissioner Datuk Azhar Abdul Hamid handed down the sentence to Shahfary Sabri, 47, after finding that the defence had failed to raise reasonable doubts against the prosecution case.— Reuters pic

Subscribe to our Telegram channel for the latest updates on news you need to know.

---

KUALA LUMPUR, April 22 — A widower was sent to the gallows by the High Court here today after he was found guilty of trafficking 149.5 grams of methamphetamine three years ago.

Judicial Commissioner Datuk Azhar Abdul Hamid handed down the sentence to Shahfary Sabri, 47, after finding that the defence had failed to raise reasonable doubts against the prosecution case.

The father of six was charged with trafficking the drugs in a hotel room here on October 19, 2018, under Section 38B(1)(a) of the Dangerous Drugs Act 1952 and punishable under Section 39B(2) of the same law, which provides the mandatory death sentence upon conviction.

The prosecution called a total of five witnesses while the accused was the sole defence witness who testified at the trial which began on September 3, 2020.

Deputy public prosecutor Annur Atiqah Abd Hadi prosecuted, while Shahfary was represented by lawyer Haris Salleh Hamzah. — Bernama - Malay Mail, 23//4/2021