When on is charged in court of committing a crime with 'unidentified persons' - how can one even answer or defend against such charges. Charges must be clear and contain all material particulars. Just because such practices have been ongoing for a long time, it does not make it right - and when wrongs are made aware, then we are obligated to correct and improve the state of affairs in our commitment to the upholding of justice.
November 8, 2017
Why charge women over Jong Nam murder, while 4 at large
By Charles Hector
Accused persons have a right to know all material particulars of the criminal charge.
Therefore, Malaysians Against Death Penalty and Torture (Madpet)
states that since the four other suspects in the murder of Kim Jong Nam
have now been revealed in court, the charges against the two women on
trial must be amended to include the names of this alleged co-accused to
ensure a fair trial.
Being made liable for the actions of four unknown persons, when names
are not known, is grossly unjust especially in a trial for a murder
that carries the mandatory death penalty.
It was reported that an investigating officer, who is a prosecution
witness, had named Hong Song Hac, 34 (who was known as Mr Chang), Ri Ji
Hyon, 33 (who was known as Mr Y), Ri Jae Nam, 57 (who was called
Hanamori), and O Jong Gil (who was known as James) as being untraceable
until now.
The two women on trial – Indonesian Siti Aisyah and Vietnamese Doan
Thi Huong – were charged in court on Oct 2, 2017 for the murder of Jong
Nam on Feb 13 with nerve agent VX at low-cost carrier terminal, klia2.
The charge sheet said that four other individuals still at large are
“accomplices” of the said women in the murder of Jong Nam, but no names
were given.
The Star had reported that according to the charge sheet, Doan was
charged with killing Jong Nam, who is the estranged half-brother of
North Korean leader Kim Jong Un, along with Siti Aisyah and four other
unidentified individuals.
They are being charged with murder (section 302 of the Penal Code),
which carries the mandatory death penalty. In the said charge, section
34 of the Penal Code is said to be part of the charge.
Section 34 of the Malaysian Penal Code, states that “When a criminal
act is done by several persons, in furtherance of the common intention
of all, each of such persons is liable for that act in the same manner
as if the act were done by him alone.”
This means, even though Siti Aisyah and/or Doan Thi Huong did not
even know who these four unidentified individuals are or what they did,
they may be made liable for the acts and/or wrongdoings of the
unidentified four as well.
Hence, the not naming of alleged accomplices in the charge sheet is
highly prejudicial to any accused person in any criminal trial, and it
seriously undermines the accused person’s ability to defend oneself and
enjoy the right to a fair trial.
On the other hand, it may give an unfair advantage to the
prosecution, which could even charge the individuals to improve the
chance of winning given the fact that not naming does not restrict the
prosecution’s case to just persons named in the charge.
If the charge can specifically state the number of other persons,
surely their names would reasonably be known by the prosecution, and
therefore should be in the charge. If actual names are not known,
nicknames or other identifying features could alternatively be included.
A criminal charge, as a matter of principle, should be clear and
disclose all material particulars to enable the accused to be able to
effectively defend oneself and get a fair trial.
In criminal cases, the prosecution also has the duty of pre-trial
disclosure as this is critical to the defendant’s right to a fair trial.
To enable the accused to properly prepare a defence he/she must be
made aware of all the evidence against him, including also evidence
favourable to him that may have come forward during an investigation.
A disclosure must be made before the trial starts to enable the
accused and/or his/her lawyer necessary time to do their own
investigation, maybe even interview potential prosecution witnesses or
other witnesses identified during the investigation stage.
Hence, the sudden naming of these four suspects by a prosecution witness during the trial also prejudices the accused person/s.
In a criminal trial, it is never to be competition between the
prosecution and the accused, but a quest for truth and justice. No one
wants an innocent person to be convicted and sentenced, even in a high
profile case like this murder of this North Korean.
We recall the execution of Gunasegar Pitchaymuthu(35), Ramesh
Jayakumar (34), and Sasivarnam Jayakumar (37) in March 2016, and note
that this was also another case where they were charged with murder
together with “one other still at large” under section 302 of the Penal
Code and read together with Section 34 of the Penal Code.
Before even the “one other still at large” was arrested and tried,
the two of them had been executed defying logic for surely the third
person’s presence would have been vital when that “one other still at
large” was tried for the same murder.
The charging of persons of committing a crime with unidentified
persons must stop. The practice of inserting section 34 of the Penal
Code as part of the criminal charge involving more than one person must
not become a norm but should be limited to only to cases where there is
real evidence of common intention.
Therefore, Madpet calls for the charges against Siti Aisyah and Doan
Thi Huong to be immediately amended to provide names of the “four other
unidentified individual”.
Madpet also calls for a stop of the practice of charging persons for
criminal acts with unnamed and/or unidentified persons. Charges must
contain material particulars including the identity of accomplices to
ensure that all accused persons have the right to a fair trial.
Charles Hector is a coordinator with Malaysians Against Death Penalty and Torture (Madpet). - FMT News, 8/11/2017
See full statement below, and also some media reports referred to in the statement:-
MADPET - Name the 4 Unidentified Individuals in the Kim Jong Nam Murder Charge to ensure fair trial for Siti Aisyah and Hong Song Hac
Media
Statement – 8/11/2017
Name the 4 Unidentified Individuals in the
Kim Jong Nam Murder Charge to ensure fair trial for Siti Aisyah and Hong Song
Hac
Accused persons have a right to know all
material particulars of the criminal charge
MADPET(Malaysians
Against Death Penalty and Torture) states that since the 4 other suspects in
the murder of Kim Jong Nam have now been revealed in court, the charges against
the 2 women on trial for murder Kim Jong Nam must be amended to include the
names of these alleged co-accused to ensure a fair trial.(BBC News,
6/11/2017). Being
made liable for actions of 4 unknown persons, when names are not known, is
grossly unjust especially in a trial for murder that carries the mandatory
death penalty.
It
was reported that an investigating officer , a prosecution witness, had named Hong
Song Hac, 34(who was known as Mr Chang),
Ri Ji Hyon, 33(who was known as Mr Y), Ri Jae Nam, 57(who was called Hanamori ), and O
Jong Gil (who was known as James) as being the until now.(BBC News, 6/11/2017)
The
2 women on trial, being Indonesian Siti Aisyah and Vietnamese Doan Thi Huong, were
charged in court on 2/10/2017 for the killing Kim Jong Nam on Feb 13 with nerve
agent VX at Kuala Lumpur International Airport.
The charge sheet said that four other individuals still at
large are ‘accomplices’ of the said women in the murder of Kim Jong
Nam, but no names
were given.
‘According to the charge sheet, Doan was charged with
killing Kim Jong-nam, the estranged half-brother of North Korean leader Kim
Jong-un, along with Indonesian Siti Aisyah, 25, and four other unidentified
individuals…’(Star,
2/10/2017)
They are being charged with murder (section 302 Penal Code),
which carries the mandatory death penalty. In the said charge, section 34 of
the Penal Code is said to be part of the charge.
Section
34 of the Malaysian Penal Code, states that "When
a criminal act is done by several persons, in furtherance of the common
intention of all, each of such persons is liable for that act in the same
manner as if the act were done by him alone.”
This means, even though Siti Aisyah and/or Doan Thi Huong did
not even know who these 4 unidentified individuals are or what they did, they may
be made liable for the acts and/or wrongdoings of the unidentified 4 as well.
Hence, the not naming of alleged accomplices in the charge
sheet is highly prejudicial to any accused person in any criminal trial, and it
seriously undermines the accused person’s ability to defend oneself and enjoy
the right to a fair trial. On the other hand, it may give an unfair advantage
to the prosecution, who could even change the individuals to improve the chance
of winning given the fact that not naming do not restrict the prosecution’s
case to just persons named in the charge.
If the charge can specifically state the number of other
persons, surely their names would reasonably be known by the prosecution, and
therefore should be in the charge. If actual names are not known, nick names or
other identifying features could alternatively be included.
A criminal charge, as a matter of principle should be clear
and discloses all material particulars to enable the accused to be able to
effectively defend oneself and get a fair trial.
In criminal cases, the prosecution also has the
duty for pre trial disclosure as
this is critical to the defendant's right to a fair trial. To enable the accused to properly prepare a defence he/she
must be made aware of all the evidence against him, including also evidence
favourable to him that may have come forward during investigation. Disclosure
must be before the trial starts to enable the accused and/or his/her lawyer necessary
time to do their own investigation, maybe even interview potential prosecution
witnesses or other witnesses identified during the investigation stage.
Hence, the sudden naming of these 4
suspects by a prosecution witness during trial also prejudices the accused
person/s.
In a criminal trial, it is never to be
competition between the prosecution and the accused, but a quest for truth and justice.
No one wants an innocent person to be convicted and sentenced, even in a high
profile case like this murder of this North Korean.
We recall the execution of Gunasegar Pitchaymuthu(35), Ramesh
Jayakumar(34), and Sasivarnam Jayakumar(37)
in March 2016, and note that this was also another case where they were charged for murder together with ‘one other
still at large’ under section 302 of the Penal Code and read together with
Section 34 of the Penal Code. Before even the ‘one other still at large’ was
arrested and tried, the 3 of them had been executed defying logic for surely
their presence would have been vital when that ‘one other still at large’ was being
tried for the same murder.
The
charging of persons of committing a crime with unidentified persons must stop.
The practice of inserting section 34 of the Penal Code as part of the criminal charge
involving more than 1 person must not become a norm, but should be limited to
only to cases where there is real evidence of common intention.
Therefore, MADPET calls for the
charges against Siti
Aisyah and Doan Thi Huong to be immediately amended to provide names of the ‘four
other unidentified individuals’;
MADPET also calls for a stop of the
practice of charging persons for criminal acts with unnamed and/or unidentified
persons. Charges must contain material particulars including identity of
accomplices to ensure that all accused persons have the right to a fair trial.
Charles Hector
For and on behalf of MADPET
(Malaysians Against Death Penalty and Torture)
*
Kim Jong-nam murder: North Korea suspects named in court
A senior police
officer has told a trial in Malaysia that four North Korean men were
involved in killing the half-brother of North Korea's leader, Kim
Jong-un.
Two women, from Indonesia and Vietnam, are standing trial for the murder of Kim Jong-nam.
He died in February at Kuala Lumpur airport after highly toxic VX nerve agent was rubbed on his face.
The women have pleaded not guilty and say they were tricked.
They say they thought they were taking part in a TV prank. They face death by hanging if convicted.
An
investigating officer named four North Korean men in court on Monday,
saying they had fled Malaysia after the murder. It is the first time
they have been named in court, although their names had previously been
known in connection with the investigation.They were known to the two women on trial, he said, but only by pseudonyms:
- Hong Song Hac, 34, was known as Mr Chang
- Ri Ji Hyon, 33, was known as Mr Y
- Ri Jae Nam, 57, was called Hanamori
- O Jong Gil was known as James
CCTV
footage of the men seen around the airport after the incident on the
day of the murder was shown in court. They were seen changing their
clothes before departing.
They had entered Malaysia between late
January and early February and three of the men left Kuala Lumpur for
Jakarta, according to the main investigating officer, Wan Azirul Nizam
Che Wan Aziz, but he added he could not recall the destination of the
fourth.
More CCTV footage showed some of the North Korean suspects
meeting a North Korean embassy official and an official from the
national airline Air Koryo at the airport's main terminal shortly after
the attack. - BBC, 6/11/2017
Naran
Singh (right) and Hisyam Teh Poh Teik (left) lawyers for Vietnam Doan
Thi Huong speak to journalists on the first day trial.
SHAH
ALAM: The defence team of Doan Thi Huong, the Vietnamese woman accused
of killing Kim Jong-nam, says that they were kept in the dark over the
identities of four other individuals accused of the same crime.
One of the lawyers for Doan Thi Huong, 29, said it was unfair for the
prosecution not to disclose their details as this would create a
disadvantage for the defence.
"Even before this, we requested for their particulars on more than
one occasion, but they refused to disclose it. We do not understand
why," said lawyer Hisyam Teh Poh Teik at Shah Alam High Court compound
when the court was adjourned for recess on Monday.
According to the charge sheet, Doan was charged with killing Kim
Jong-nam, the estranged half-brother of North Korean leader Kim Jong-un,
along with Indonesian Siti Aisyah, 25, and four other unidentified
individuals.
Both women were charged separately under Section 302 of the Penal
Code, which carries the mandatory death sentence upon conviction.
Asked if High Court judge Justice Azmi Ariffin deemed the names "irrelevant", defence counsel Salim Bashir said no.
"He only said that the non-disclosure of the four individuals does not prejudice the defence case," he said.
Another lawyer, Datuk Naran Singh, said that was raised during their argument in court Monday morning.
"Our client was charged with four others – sharing common intention to cause the death of the deceased.
"We are entitled to know their identities, the law says so. But the judge was not persuaded by that," he said.
Meanwhile, Siti Aisyah's lawyer Gooi Soon Seng said their defence team shared the same concerns.
"We object to the charges on the grounds of common intention," he said.
Both Doan and Siti Aisyah were charged with with murdering Jong-nam
at KLIA2 on Feb 13 by smearing his face with VX, a chemical the United
States describes as a weapon of mass destruction.
On March 16, the then Inspector-General of Police Tan Sri Khalid Abu
Bakar said the police had obtained an Interpol red notice for the arrest
of four North Koreans believed to be involved in the killing.
The four North Koreans sought were Rhi Ji-hyon, 33; Hong Song-hac, 34; O Jong-gil, 55, and Ri Jae-nam, 57.
They entered the country separately days before the incident and
left for Jakarta from KLIA2 just after Jong-nam's assassination. - Star, 2/10/2017
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