Change of Judge in Sexual Assault suit filed by Yusoff Rawther against PM Anwar Ibrahim may raise questions? Can't the same Judge still hear the case?

Now, the Judge had been assigned the case, and everything is ready for the hearing to be on June 16 to 19 and June 23 to 25, and now the Judge is transferred. 

Can not the Judge come down and still hear the case on the dates fixed for TRIAL? A new Judge may simply mean a further delay in the TRIAL ..

In my opinion, a transfer does not prevent the said Judge from continuing to hear the case - that will also be best for public perception > no doubts about any claims 'judge choosing' more so when the case involves claims that current Prime Minister Anwar Ibrahim sexually assaulted Yusoff Rawther, Anwar's former aide.

In this case, we have reached at last the fixing of trial dates, and all documents apparently had been filed for trial to commence. Personally, it would have been best that the trial began sooner, and ended fast - settling once and for all whether our PM was guilty as alleged or not?? This is a matter of GREAT Public Interest as it involves our sitting Prime Minister...and the sooner it ends the better.

For Anwar, since it is inadvertently linked to public perception following his previous 'sodomy' conviction - the allegation of sexual assault of a man is very important as it will go towards affecting public perception. BEST solution was to proceed to trial, and end matters fast. BEST if it was resolved before the drug trafficking charges against Rawther emerged...

The case was filed in 2021 - and the question is WHY has the case not proceeded with trial and ended sooner? Justice delayed is justice denied...

Yusoff filed the suit against Anwar in 2021, claiming that he had been sexually assaulted at the PKR president’s home in Segambut in October 2018....Anwar denied the claim and filed a countersuit.

Yusoff Rawther had since lately been charged for drug trafficking, and also possession of imitation firearms - and has been languishing in detention since ____. 

When he was first charged for drug trafficking, it was in the Sessions Court > the prosecutor, according to media report, asked for another mention date as they were still waiting for the Chemistry Department Report - ODD, because reasonably one should get the report first that will confirm whether the substance was a dangerous drug and what type, and also the weight of the drug that will determine whether one is charged for drug trafficking or the lesser offence of drug possession? 

The legal principle is that prosecution will charge no one in court UNTIL they are confident they have sufficient evidence to prove a persons guilt on a prima facie case or beyond reasonable doubt. So,in my opinion, they should have waited for the Chemistry Department Report before charging.

He was charged in the Magistrate’s Court here last Sept 12 on a charge of trafficking 305 grams of cannabis. Then, on 12/11/2024(2 months later), the Magistrate ordered the case to be transferred to the HIGH Court. WHY? In my opinion, it should immediately been transferred to the High Court on 12th September or a few days later - because only the High Court has the jurisdiction to try offences that carry the DEATH sentence. 

39B  Trafficking in dangerous drug (Dangerous Drugs Act 1952)

(1) No person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Malaysia-

(a) traffic in a dangerous drug;

(b) offer to traffic in a dangerous drug; or

(c) do or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug.

(2) Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence against this Act and shall be punished on conviction with death or imprisonment for life and shall, if he is not sentenced to death, be punished with whipping of not less than twelve strokes.

Anyway, Yusof was also charged for an offence on imitation firearms - same day/time?

He also pleaded not guilty to a charge of possessing two imitation firearms by the roadside near a condominium on Jalan Bukit Kiara at 9.25am the same day.

Was he set up? That is the question that lingers in some people's minds? Is it because Yusoff had the audacity to make allegations against Anwar...and to sue him...I hope it is NOT TRUE - we do not want to cultivate FEAR that prevents people to HIGHLIGHT wrongs and violations of human rights committed by the RICH and powerful. Stand up for your rights.

Will the incarceration in prison IMPACT on Yusoff Rawther's ability to prepare for his legal suit against Anwar? Will it pressure him to DROP his suit against Anwar? Is it MESSAGE to Malaysians to not accuse or challenge some in courts?

 

 

New judge to hear ex-research assistant’s civil suit against Anwar

V Anbalagan

-17 Jan 2025, 10:57 AM

Justice Johan Lee will be transferred to the High Court in Alor Setar effective next month.

Yusoff Rawther filed a suit against Anwar Ibrahim in 2021.

PETALING JAYA:

A new judge will hear former research assistant Yusoff Rawther’s civil lawsuit against Anwar Ibrahim, lawyer Rafique Rashid Ali said today.

Rafique, who is appearing for Yusoff, said Justice Johan Lee would be transferred to the High Court in Alor Setar effective next month.

“The judge said he was looking forward to hearing the case and disposing of it expeditiously. He had attempted to bring forward the trial dates,” Rafique told FMT after a case management today.

Last year, Johan fixed June 16 to 19 and June 23 to 25 for the hearing.

Lawyer Navpreet Singh, who appeared for Anwar, said the trial could not be expedited as counsel for the parties did not have common free dates.

“However, almost all trial documentation has been submitted in court,” he said.

Yusoff filed the suit against Anwar in 2021, claiming that he had been sexually assaulted at the PKR president’s home in Segambut in October 2018.

Yusoff, the grandson of the late Penang consumer advocate SM Mohamed Idris, sought, among others, special, general, aggravated and exemplary damages, as well as interest, costs and other relief deemed fit by the court.

Yusoff alleged that following the incident, he was accused of plotting against Anwar to damage his political career. He also said the accusations had affected his mental health.

Anwar denied the claim and filed a countersuit.

Yusoff was placed under remand at Sungai Buloh prison after he was charged with trafficking 305g of cannabis in a vehicle in front of the Kuala Lumpur contingent police headquarters’ surau at 10.15am on Sept 6 last year.

Bail is disallowed for such an offence.

He was also charged with possessing two replica pistols near a condominium at Jalan Bukit Kiara at 9.25am on Sept 6. - FMT, 17/1/2025

Ex-research assistant Yusoff Rawther’s drug trafficking case transferred to High Court, firearm charge mention set for Dec 13

The Magistrate’s Court here today ordered a drug trafficking case involving Muhammed Yusoff Rawther to be transferred to the High Court. — Picture by Ahmad Zamzahuri

Tuesday, 12 Nov 2024 5:15 PM MYT

KUALA LUMPUR, Nov 12 — The Magistrate’s Court here today ordered a drug trafficking case involving a politician’s former research assistant to be transferred to the High Court.

Magistrate M. S Arunjothy decided this following an application by Deputy Public Prosecutor Izzat Amir Idham.

Lawyer Muhammad Rafique Rashid Ali, representing Muhammed Yusoff Rawther, did not object to the prosecution’s application.

Muhammed Yusoff was charged in the Magistrate’s Court here last Sept 12 on a charge of trafficking 305 grams of cannabis, but no plea was recorded as the case is under the jurisdiction of the High Court.

Then on Oct 9, he was charged with possession of imitation pistols at a roadside near a condominium in Bukit Kiara, Brickfields here at 9.25 am last Sept 6.

The charge, under Section 36(1) of the Arms 1960, provides imprisonment for up to one year or a maximum fine of RM5,000 or both if convicted.

The case came up for mention before Magistrate S. Mageswary during which Izzat Amir requested the court to fix a new date for mention.

“We want to examine whether this firearm possession case should be tried together with another case facing the accused, which is drug trafficking. We request a date, if allowed a month from today,” said Izzat.

Muhammad Rafique said the defence did not object to the prosecution’s application and requested to be supplied with a copy of the charge made against his client.

Magistrate Mageswary then set Dec 13 for mention. — Bernama - Malay Mail, 12/11/2024

Anwar’s ex-aide Yusoff Rawther wins RM200,000 in defamation suit

FMT Reporters

-19 Oct 2022, 07:34 PM

Judge also orders Anwar Ibrahim’s press secretary Tunku Nashrul Tunku Abaidah to publish an apology within 45 days from today.

The judge said Yusoff Rawther had proved his claim on the balance of probabilities. (Bernama pic)

SHAH ALAM:

The sessions court here has ordered Anwar Ibrahim’s press secretary Tunku Nashrul Tunku Abaidah to pay RM200,000 in damages for defaming Yusoff Rawther.

Judge Ishak Bakri Yusof said Yusoff, a former research assistant to Anwar, had proved his claim on the balance of probabilities.

Yusoff’s solicitors Messrs Haniff Khatri Abdulla, in a statement issued this evening, said the defendant was also ordered to pay RM25,000 in costs to Yusoff.

The statement said Tunku Nashrul is to publish an apology within 45 days from today and that the content must be acceptable to Yusoff.

Tunku Nashrul is to also withdraw his defamatory media statement issued on June 10, 2019.

Yusoff filed a suit on Sept 12, 2019, saying the media statement by Tunku Nashrul had lowered his reputation in the eyes of the public.

Apart from the defamation suit against Tunku Nashrul, Yusoff had filed an action against Anwar’s then political secretary Farhash Wafa Salvador Rizal Mubarak, claiming compensation for injuries allegedly sustained after an assault.

Yusoff had also filed a suit against Anwar, the PKR president, accusing him of sexually assaulting him 10 days before he won the Port Dickson by-election on Oct 13, 2018.

Yusoff claimed to have suffered serious physical, psychological and social trauma as a result of the incident.

Anwar, however, denied the claim, and the matter is still pending in court. - FMT, 19/10/2022

Anwar’s aide must pay RM80,000 in damages to Yusoff Rawther

FMT Reporters

-05 May 2023, 07:02 PM

High Court dismisses Tunku Nashrul Tunku Abaidah’s appeal on liability but reduces quantum.

The High Court has ordered Tunku Nashrul Tunku Abaidah to publish an apology to Yusoff Rawther and withdraw a defamatory media statement issued in June 2019. (Bernama pic)

SHAH ALAM:

The High Court has dismissed an appeal against liability by Anwar Ibrahim’s press secretary Tunku Nashrul Tunku Abaidah for defaming Yusoff Rawther over an alleged assault.

Justice Khadijah Idris, however, allowed Tunku Nashrul’s appeal on quantum and reduced the damages awarded by a sessions court last year from RM200,000 to RM80,000.

She also awarded Yusoff, a former research assistant to Anwar, RM6,000 in costs.

Yusoff’s lawyer Haniff Khatri Abdulla said the judge delivered her decision via email today after hearing submissions on Feb 21 this year.

Haniff, who was assisted by Nurul Huda Razali, said the High Court also maintained an order that Tunku Nashrul must publish an apology on terms acceptable to Yusoff.

Tunku Nashrul, represented by Azwar Manab, is to also withdraw his defamatory media statement issued on June 10, 2019.

Yusoff filed the suit on Sept 12, 2019, saying the statement by Tunku Nashrul had lowered his reputation in the eyes of the public.

Tunku Nashrul had issued the statement to deny allegations of an assault which Yusoff claimed had taken place in Anwar’s office.

The remarks were made in the wake of a police report lodged by Yusoff, who claimed that he was physically attacked by Anwar’s then political secretary, Farhash Wafa Salvador Rizal Mubarak.

Yusoff also filed a separate civil suit against Farhash, claiming compensation for injuries sustained during the alleged assault. However, both parties settled the suit out of court last year.

Yusoff, who worked at Anwar’s bungalow office in Bukit Gasing, Petaling Jaya, also filed a suit against the PKR president accusing him of sexually assaulting him 10 days before Anwar won the Port Dickson by-election on Oct 13, 2018.

Yusoff claimed to have suffered serious physical, psychological and social trauma as a result of the incident. Anwar, however, has denied the claim.

The matter is pending in court. - FMT, 5/5/2023

 

Farhash to take legal action against Yusoff Rawther for slander

FMT Reporters

-13 Dec 2019, 04:27 PM

The political secretary to Anwar Ibrahim says this is in relation to what Yusoff said on Facebook.

Farhash Wafa Salvador Rizal Mubarak says Muhammad Yusoff Rawther’s statement is slanderous.

PETALING JAYA:

PKR president Anwar Ibrahim’s political secretary has instructed his lawyers to take legal action against Muhammad Yusoff Rawther for “slander and subjudice”.

Farhash Wafa Salvador Rizal Mubarak said this was in connection with what Yusoff, a former research assistant in Anwar’s office in Petaling Jaya, had said on a Facebook page called “Solidariti buat Muhammad Yusoff Rawther” on Dec 4.

“I was previously advised not to comment to avoid interfering in the police investigation into Yusoff’s allegations.

“But after reviewing the transcript of a recent press conference by Yusoff, his statement is slanderous,” said Farhash in a press statement.

Due to that, Farhash said he had instructed his lawyer to take appropriate legal action against Yusoff.

Bukit Aman’s Classified Criminal Investigation Unit this week launched a probe under Section 354 of the Penal Code, based on a police report lodged by Yusoff against Anwar on Dec 7.

Section 354 pertains to the use of criminal force to outrage a person’s modesty.

Anwar yesterday spent two hours at the Bukit Aman police headquarters. Police also accompanied him to his home in Bukit Segambut, as part of an investigation into a sexual misconduct complaint against him.

Yusoff was summoned twice to Bukit Aman, accompanied by his lawyer, Haniff Khatri Abdulla.

In his police report, Yusoff attached a statutory declaration, in which he claimed that Anwar had attempted to sexually assault him at his private residence in Bukit Segambut, Kuala Lumpur.

Anwar has strongly denied the claim, calling it baseless and politically motivated. - FMT, 13/12/2019

I’m no longer involved in politics or govt, says Farhash

FMT Reporters

-19 Mar 2024, 04:28 PM

The businessman responds to a jab by a PAS MP on his previous role as a political aide to Anwar Ibrahim.

Businessman Farhash Wafa Salvador Rizal Mubarak emerged as the substantial shareholder of a technology services provider after acquiring an indirect interest of 15.9% in the company.

PETALING JAYA: 

 

Farhash Wafa Salvador Rizal Mubarak says he is no longer actively involved in politics or in the current administration.

He made the statement after a PAS MP took a swipe at him over his stake in a company providing technology services.

“I am fully focussed in the business and corporate world,” he said in a statement.

Yesterday, in the Dewan Rakyat, Pasir Mas MP Ahmad Fadhli Shaari called for an allocation to be set aside for students to expose them to financial management.

“We want to churn out students who are as great as a former aide to the prime minister who has emerged as a substantial shareholder of Heitech Padu Bhd,” he said referring to Farhash.

Last week, Farhash emerged as the company’s substantial shareholder after acquiring an indirect interest of 15.9% (16.1 million shares) in the technology services provider.

Farhash is also the chairman and director of several companies, including 7-Eleven Malaysia Holdings Bhd and Apex Equity Holdings Bhd.

Farhash went on to explain that the shares he held in HeiTech Padu was through Rosetta Partners Sdn Bhd, a private vehicle which he co-owns with Sultan Muhammad V, the Sultan of Kelantan.

“Owning shares is also part of an investment strategy that Sultan Muhammad V and I adopted to help Bumiputera firms.” - FMT, 19/3/2024

 

Selangor Sultan Ought To Exercise Pardon Powers To Commute Death Sentence Of Sirul Azhar To Be The Same As Azilah Hadri, As They Were Jointly Charged For The Altantuya Murder(MADPET)

 

Media Statement – 17/1/2025

Selangor Sultan Ought To Exercise Pardon Powers To Commute Death Sentence Of Sirul Azhar To Be The Same As Azilah Hadri, As They Were Jointly Charged For The Altantuya Murder

Justice demands that Courts should be empowered to impose same sentence/decisions on co-accused of the same crimes eventhough they are not before the Court

MADPET (Malaysians Against Death Penalty and Torture) calls for the commutation of the death sentence of Chief Inspector Azilah Hadri and Corporal Sirul Azhar Umar Chief Inspector Azilah Hadri and Corporal

In 2009, the Shah Alam High Court convicted ex police officers, Chief Inspector Azilah Hadri and Corporal Sirul Azhar Umar Azilah for the murder of Altantuya Shaaribuu on 18/10/2006, and sentenced them to death. Then in 2013, the Court of Appeal overturned the conviction, and released both of them. On appeal in 2015, the Federal Court overturned the Court of Appeal decision, and restored the conviction for murder, and the death sentence on both of them. Interestingly, Sirul Azhar who was in Australia then, and was not present at the Federal Court in 2015.

After the release following the Court of Appeal’s decision, Sirul had left for Australia and was there when the Federal Court restored the death sentence. He chose not to return to Malaysia after being sentenced to death.

Abolition of Mandatory Death Penalty, and Court Review of Death Sentence

Malaysia abolished the mandatory death penalty vide the he Abolition Of Mandatory Death Penalty Act 2023, that came into force on 4/7/2023.

Then, after the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction Of The Federal Court) Act 2023 came into force, it was open for those on death row to apply to the Federal Court to review the death sentence. However, sadly, not everyone on death row filed this application to review the death sentence.

Same Sentenced For All Charged With Jointly Committed Crimes?

In the case of persons charged for crimes committed together with others, justice demands that equal treatment be accorded for all, especially those committed for conspiracy crimes, and this means if the death sentence is commuted to imprisonment and whipping for one, the same outcome should apply to all involved in the said crime, irrespective of whether they applied for their death sentence be reviewed or not.

However, there may be different sentences if and when there is clear evidence that their contribution in the commission of the crimes is different, or some other relevant mitigating/aggravating factors.

Azilah’s sentence commuted – so must Sirul’s sentence

On Azilah’s application to review the death sentence, the Federal Court, it was reported on 10/10/2024,  decided to reduce or replace his sentence with imprisonment of 40 years and 12 strokes of the cane.(Malay Mail, 10/10/2024).

It must be noted that Chief Justice ‘Tengku Maimun made it clear that the Federal Court’s decision today is not a review of Azilah’s conviction of Altantuya’s murder. Instead, the judge said the Federal Court was only exercising its discretion in reviewing Azilah’s death sentence in line with Act 847 — or the law known as the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023(Malay Mail, 10/10/2024).

Therefore, justice demands that the death sentence of Sirul also be now reduced to imprisonment of 40 years and 12 strokes of the cane. This will be consistent with Article 8(1) of the Federal Constitution that states, ‘All persons are equal before the law and entitled to the equal protection of the law.’

Precedence of use of Pardon Powers to ensure equal treatment of convicts

This principle, was also acknowledged in past cases, where some appealed, and others did not although all convicted for the same joint crime and sentenced the same.

In the case of Nik Hassan Nik Hussin & Anor v. PP [1947] 1 LNS 74; [1948] 1 MLJ 74 where two out of five defendants of the same crime appealed and the Court quashed their convictions, the Court made an open recommendation to the Governor to grant the remaining three, a free pardon. Thereafter, the then Governor of the Malayan Union granted a free pardon to the other 3. Justice was served equally.

In the Nik Hassan’s case, it is clearly stated in the written judgment  as to what Court hopes be done to the other 3 who did not appeal – ‘In the above circumstances, the appeal of each of the two appellants was allowed and inasmuch as the same considerations apply to the convictions of the first, fourth and fifth accused, who have not appealed, a recommendation will be made to His Excellency the Governor to grant a free pardon to each of them.’ This is a good and just practice, that ought to be adopted by Malaysian judges, if and when their judgement will affect conviction and/or sentence of others, not then before the court.

As the offence, and the case happened in the State of Selangor, the Sultan of Selangor has the power to exercise his pardon powers and commute the death sentence of Sirul Azhar to imprisonment of 40 years and 12 strokes of the cane.

Thus, MADPET calls upon the Ruler of Selangor to use his pardon powers and commute the death sentence of Sirul Azhar to imprisonment of 40 years and 12 strokes of the cane, as is now the sentence of the person charged together with him, Azilah, of the crime of murder.

MADPET calls on Prime Minister Anwar Ibrahim, the Selangor Menteri Besar, the Attorney General/Public Prosecutor and/or the Chief Justice to move the Selangor Ruler to exercise his pardon powers to ensure that Sirul Azhar’s sentence is also commuted to be the same as is the sentence of co-conspirator of same crime; and

MADPET also calls for the government to enact laws to empower the courts the power to apply the same decision to others charged with the same joint offences, even though they may not have appealed or are not before the court then. This would be better, than to rely on King/Rulers exercise of their pardon powers – as the King/Rulers in the exercise of the prerogative of mercy best not be considering matters of evidence relating to convictions and/or sentences imposed by court.

Charles Hector

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

 

### Statement was reported in Malaysiakini at this time..

Group urges S'gor ruler to commute Sirul's death sentence

Published:  Jan 17, 2025 7:41 PM

⋅

Updated: 6:41 PM

Summary

• Malaysians Against Death Penalty and Torture (Madpet) urges the Selangor ruler to pardon and commute the death sentence imposed on Sirul Azhar Umar, one of the men sentenced over Altantuya Shaariibuu’s murder.

• Its spokesperson Charles Hector says it will be in line with Article 8(1) of the Federal Constitution which guarantees equality before the law.

---

Malaysians Against Death Penalty and Torture (Madpet) has urged the Selangor ruler to pardon and commute the death sentence imposed on Sirul Azhar Umar.

The former cop was sentenced to death over the murder of Mongolian national Altantuya Shaariibuu.

“Madpet calls on Prime Minister Anwar Ibrahim, the Selangor menteri besar, and the attorney-general to appeal to the ruler to exercise his pardon powers to ensure that Sirul’s sentence is also commuted as what his co-conspirator received,” its spokesperson Charles Hector said in a statement today.

In 2015, the Federal Court overturned Sirul (above) and his co-conspirator Azilah Hadri’s acquittal by the Court of Appeal and restored their conviction and death penalty.

Altantuya Shaariibuu

However, Sirul fled to Australia in 2015 and has remained there ever since. The country has a policy of not extraditing foreigners facing the death penalty in their home country, in line with its international human rights obligations.

On Oct 10 last year, the Federal Court allowed Azilah’s application to commute his death sentence to 40 years imprisonment and 12 strokes of the rotan, effective from the date of his arrest.

However, Sirul has not applied for a resentencing, meaning that his death sentence is technically applicable.

On that note, Hector said commuting Sirul’s sentence to what Azilah received would be consistent with Article 8(1) of the Federal Constitution which states that all persons are equal before the law and entitled to the equal protection of the law.

“We also urge the government to enact laws to allow the courts to apply the same decision to others charged with joint offences, even if the parties involved may not have filed a review for their sentencing.

“However, we may consider different sentencing if and when there is clear evidence that their contribution in the commission of the crimes is different, or considering other relevant mitigating/aggravating factors.” - Malaysiakini, 17/1/2025

 

Altantuya’s convicted killer Azilah avoids death penalty as Federal Court reviews sentence to 40 years and 12 strokes of cane

Former police commando Azilah Hadri is pictured after the Federal Court decided to replace his death sentence with 40 years of imprisonment and 12 strokes of the cane in Putrajaya October 10, 2024. — Picture by Yusof Mat Isa

By Ida Lim

Thursday, 10 Oct 2024 12:51 PM MYT

• Former police commando Azilah Hadri’s death sentence for the 2006 murder of Altantuya Shaariibuu was commuted to 40 years in prison and 12 strokes of the cane by the Federal Court.
• The Federal Court’s decision, chaired by Chief Justice Tun Tengku Maimun Tuan Mat, reviewed Azilah’s sentence under Malaysia’s new sentencing laws, but did not revisit his murder conviction.
• Azilah’s lawyers presented mitigating factors, including a letter from Altantuya’s father supporting the reduced sentence, and claimed Azilah was following orders from then-deputy prime minister Datuk Seri Najib Razak.
• The earliest Azilah could be released from prison, based on good behaviour, is 2034, when he will be 58 years old.

PUTRAJAYA, Oct 10 — Former police commando Azilah Hadri will no longer have to face the death penalty over Mongolian model Altantuya Shaariibuu’s 2006 murder, as the Federal Court has decided to reduce or replace his sentence with imprisonment of 40 years and 12 strokes of the cane.

Chief Justice Tun Tengku Maimun Tuan Mat, who chaired the Federal Court’s three-judge panel, delivered the panel’s unanimous decision to allow Azilah’s application to commute his death sentence to jail time and caning instead.

“We set aside the death sentence and substitute it with imprisonment for 40 years from the date of arrest, November 1, 2006, excluding the period the applicant was released by the Court of Appeal and 12 strokes,” she said after the panel left the courtroom for about 42 minutes to deliberate on the decision.

Earlier in her brief decision, Tengku Maimun made it clear that the Federal Court’s decision today is not a review of Azilah’s conviction of Altantuya’s murder.

Instead, the judge said the Federal Court was only exercising its discretion in reviewing Azilah’s death sentence in line with Act 847 — or the law known as the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023.

Azilah’s lawyers had presented two documents to the Federal Court: a letter from Altantuya’s father Shaariibuu Setev which supported the replacing of Azilah’s death sentence with imprisonment; and Azilah’s supplementary affidavit for his application for his death sentence to be commuted.

Azilah’s supplementary affidavit had included his entire 2019 statutory declaration claiming to have received instructions from then deputy prime minister Datuk Seri Najib Razak for Altantuya’s 2006 murder.

In delivering the Federal Court’s decision, Tengku Maimun said the prosecution had not challenged the two documents presented by Azilah’s lawyers, and said Azilah’s additional affidavit provides a “strong mitigating factor” and reason for the Federal Court to exercise its discretion in favour of Azilah.

She also said Azilah’s additional affidavit provides grounds for the Federal Court to apply the principle of proportionality in deciding the sentence that should be imposed on Azilah.

After also noting the letter from the “victim’s father” which supported Azilah’s application for the death sentence to be reduced to imprisonment, Tengku Maimun then said the Federal Court allowed the replacement of the death sentence with imprisonment and caning for Azilah.

The other two judges on the Federal Court panel are President of the Court of Appeal Datuk Abang Iskandar Abang Hashim and Federal Court judge Datuk Nordin Hassan.

Following the Federal Court’s decision, Azilah’s lawyers J Kuldeep Kumar and Athari Bahardin confirmed to reporters that the earliest that their client can expect to be released from prison is in 2034.

This calculation is based on Azilah’s lawyers taking into account the typical one-third remission or reduction of jail term for prisoners on good behaviour, and also the 16 years and three months that Azilah had already spent in jail since his November 1, 2006 arrest; and also, after excluding a period of one year and four months during 2013 to 2015 when Azilah was acquitted by the Court of Appeal.

Azilah will be 58 years old in 2034.

Azilah, now 48, has been on the death row in prison for the past nine years, after the Federal Court in 2015 decided to uphold his conviction.

Azilah was aged 30 and the chief inspector with the police’s special action unit (UTK) when he was charged in 2006 with the murder, and was aged 39 when the Federal Court decided that both he and fellow police commando Sirul Azhar Umar are guilty of the crime.

At the time of Azilah’s conviction for murdering Altantuya, the punishment under the Penal Code’s Section 302 was a mandatory death sentence. This means the courts had no discretion to hand down alternative sentences.

After Malaysia changed its laws last year, the courts can now choose to decide whether to sentence a person who committed murder with either the death penalty; or between 30 to 40 years of jail and at least 12 strokes of the cane.

Following the changes to Malaysian law, prisoners in Malaysia who were sentenced to death for murder — including Azilah — had applied to the Federal Court to review their sentences and to consider replacing it with a minimum 30-year imprisonment and caning.

Azilah’s lawyers had presented two documents to the Federal Court: a letter from Altantuya’s father Shaariibuu Setev which supported the replacing of Azilah’s death sentence with imprisonment; and Azilah’s supplementary affidavit for his application for his death sentence to be commuted. — Picture by Azinuddin Ghazali

What Azilah and the prosecution argued

Besides reading out Altantuya’s father’s letter to the Federal Court, Azilah’s lawyer Kuldeep this morning listed mitigating factors that the court should consider, including his Sarawak-born client’s upbringing where he came from a family of hardship and was a good student.

Kuldeep also noted that his client had took on various public duties in the past while with the police’s UTK, including escorting and ensuring the security of VIPs and VVIPs such as the Yang di-Pertuan Agong, then prime ministers Tun Dr Mahathir Mohamad and Tun Abdullah Badawi and then deputy prime minister Datuk Seri Najib Razak, and heads of states such as Russia’s Vladimir Putin and the late Saudi ruler King Abdullah.

Kuldeep also cited certificates of appreciation signed by Dr Mahathir and one such certificate signed by then inspector-general of police Tan Sri Mohd Bakri Omar in 2005 over Azilah’s service, while also noting Azilah’s other achievements when he was serving in the police force.

“It is our humble submission, this is not a criminal killer, he is not a criminal, ordinary murderer. He is not a criminal, he has no propensities to commit crimes. The applicant has on numerous occasions conveyed his deep regret on this tragic event that has led to loss of an innocent woman’s life,” he argued.

Kuldeep argued that Azilah would not be a “threat to society” if his death sentence is reduced to imprisonment and whipping and after he serves his sentence, noting that Azilah had dutifully attended the Federal Court hearings and also the Federal Court proceeding in 2015 when it delivered its decision to uphold his conviction and death sentence.

“It is undisputed that the murder of Altantuya Shaariibuu was not for purposes of sexual gratification nor was it a hired assassination job. Also no evidence to show he was a serial killer, hired assassin, and he did not benefit monetarily and had no benefit in killing. The prosecution failed during trial to prove any motive on that,” he argued.

Kuldeep argued that his client had no connection at all to Altantuya and had no motive to kill this woman who was a “complete stranger” to him.

Citing Azilah’s 2019 statutory declaration, Kuldeep said that his client had claimed to have been informed by then deputy prime minister Najib and his aide de camp DSP Musa Safri that Altantuya was a foreign spy who exposes national secrets and that was why he had carried out what he believed to be a covert operation to safeguard national secrets.

Kuldeep said police officers are trained to carry out instructions from their superiors and the statutory declaration shows Azilah’s “state of mind” when he committed the murder, and that his client had not raised this in trial previously as he was told he could not disclose this covert operation.

He argued his client should be spared from the gallows to enable him to be rehabilitated and be allowed to return to society.

Kuldeep also argued that the sentence imposed on his client should be proportionate, as the prosecution did not file an appeal when the High Court acquitted political analyst Abdul Razak Baginda—who was charged with abetting the murder—without calling for him to enter defence. Kuldeep said Abdul Razak was however found liable for RM5 million in compensation together with others in a civil lawsuit by Altantuya’s family on the same facts.

Also when arguing on the need for proportionality in sentencing, Kuldeep highlighted that the Australia-based Sirul had taken advantage of the system and is now a “free man” there.

“If the death sentence is given to Azilah alone, he will be the only man put to death. And that would also mean, Australian laws, the authorities and police will never be able to bring Sirul back to face justice. Sirul will walk away as a free man,” he argued.

Deputy public prosecutor Datuk Mohd Dusuki Mokhtar, who is also the head of the Attorney General’s Chambers’ appellate and trial division, argued that “public interest” should be the most important factor when the court sentences a convicted person.

“This case has shocked the conscience of our community. The way it was committed, in a gruesome manner, the victim was shot and then blown up in pieces, has shown the gravity of the offence, where it has also shown the gruesomeness without due regard of life of human being,” he argued, adding that the “brutal” murder had also attracted a lot of attention and that Altantuya was a foreign citizen.

While acknowledging that Kuldeep’s argument of Azilah following orders as a police officer as trained could be a possible mitigating factor, Dusuki stressed that public interest in this case should override the fact that he was implementing orders from his higher ups.

Dusuki said the way the murder was carried out showed that Azilah had a guilty mind when executing the murder, and that he should have made some inquiries first instead of immediately carrying out the murder on the pretext that Altantuya was allegedly a foreign spy.

When responding to Kuldeep’s arguments about Sirul, Dusuki said the procedure applicable in Malaysia has to be followed and the fact that Azilah is in Malaysia now cannot be avoided, and left it to the court to balance the facts against the public interest.

“Only Azilah is now before this court, so I can’t in fact comment on the other party or the other accused person who is now in Australia. But we got to deal with this case first, and maybe other forum we can deal with other issues. Maybe in other times, maybe in some other times,” he said.

After emphasising that public interest should be the most important factor, he then left it to the Federal Court to decide on Azilah’s sentence. - Malay Mail, 10/10/2024

NIK HASSAN BIN NIK HUSSIN & ANOTHER v. PUBLIC PROSECUTOR HIGH COURT, KELANTAN WILLAN, CJ MALAYAN UNION;   MURRAY-AYNSELY, CJ SINGAPORE;   CAREY, J CRIMINAL APPEAL NO 67/47 4 SEPTEMBER 1947

PENAL CODE, s 402-Assembling with others for the purpose of comitting gang Robbery-Conspiracy-Evidence Enactment s 10.

Counsel: For the respondent-CM Sheridan (Crown Counsel)

JUDGMENT Willan CJ: The Judgement of the Court was delivered by: These two Appellants were convicted in the High Court at Kota Bharu of assembling with others for the purpose of committing gang robbery contrary to s. 402 of the Penal Code and were sentenced to five years RI each. They appealed against these convictions and sentences. Their appeals were allowed and the convictions quashed. The allegation of the prosecution was that at about 1.30 a.m. on 10 December 1946, nine men assembled at a hut on a piece of high ground under scrub for the purpose of committing robbery at the house of one Sulaiman about 100 to 200 yards distant. The first witness called by the prosecution at the trial of five of the nine men gave evidence that at about 6 o'clock pm. on the evening in question, as he was fishing in a water-channel about 200 yards distant from the said hut, one Derahman came and told him to stop fishing and go home as people were going to commit a robbery at Sulaiman's house. The second witness called by the prosecution, having seen some eight men about midnight in the neighbourhood of the hut, called others to investigate and ultimately the Penghulu of the district was sent for and arrived with fifty men. One man was found outside the hut and arrested. He was the second of the five men charged and is the first appellant, Nik Hassan. When the Penghulu ordered the arrest of this man, about eight others ran out of the hut. The Penghulu's 50 men gave chase and about 400 yards away a second man was caught in a bush. He was the first accused of the five charged and convicted and has not appealed. It is alleged that on being captured he gave the names of others accompanying him to the Penghulu. The learned Judge properly rejected this evidence. The remaining three men charged and convicted were arrested at 7 a.m. next morning on the road. They had arrived at a certain man's house about three miles from the hut in question at about 2 a.m. and had slept in this man's house for the remainder of the night. The house of one of these three men (their spokesman) was about five miles from where they slept. There are varying accounts as to weapons carried by the nine men-parangs of one kind or another and one gun. A gun was found in a water-course through which the fugitive men are alleged to have run, about 9 days later. This was at a spot about 60 yards from the hut in question. That is a precis of the evidence on which the prosecution relied. Now the statement made by Derahman to the first witness as to people being about to commit a robbery was admitted in evidence possibly on the assumption that Derahman was one of the witnesses being called. Section 10 of the Evidence Ordinance provides: Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons, in reference to their common intention after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a Party to it. The Derahman who is alleged to have given the warning was not one of the accused men and was not called as a witness. The evidence given by the 1st witness as to what Derahman said to him is therefore merely hearsay and is inadmissible. Excluding this evidence, there is nothing to indicate for what purpose the persons were assembled at the hut. This element of the crime alleged is therefore entirely dependent on suspicion, and is not proved. The first appellant admits having been in the hut with the first accused (who has not appealed) but he gives an explanation consistent with his innocence of their presence and denies the presence of any others. The Penghulus fifty men only caught these two of the nine they allege were there. As against the 2nd appellant, there is merely a suspicion based on the fact that he slept for the later part of the night in question at a house three miles away from the hut and five miles from his own home. He also gives a plausible explanation of why he and the remaining two persons (Accused 4 and 5 in the High Court trial) slept at that house and he alleges that the time of their arrival there was 9.30 p.m. and not "about 2 a.m." as alleged by their host, who admittedly had no time-piece. In his grounds of judgment the learned trial Judge says: In this case five men are charged with assembling for gang robbery. On the evening before the incident an independent witness (the first witness) was told to leave his fishing and go home because there was going to be a robbery near the spot. This was tendered as antecedent evidence of the existence of a conspiracy. I think it was admissible but, in view of the subsequent evidence, not important. It would seem therefore that the learned trial Judge misdirected himself as to what Derahman said being admissible. In the above circumstances, the appeal of each of the two appellants was allowed and inasmuch as the same considerations apply to the convictions of the first, fourth and fifth accused, who have not appealed, a recommendation will be made to His Excellency the Governor to grant a free pardon to each of them.* Appeal Allowed. Convictions Quashed. Foot Note:- Only two out of five persons convicted having appealed, HE the Governor of the Malayan Union was pleased to grant a free pardon to the other 3rd Edn. MLJ. [1947] 1 LNS 74