Pakatan Harapan government's(or AG's) strategy of amending charges, to facilitate releases of persons in detention during trial by reason of unavailability of the right to bail because they were charged with offences, listed as security offences under SOSMA, fails and is still UNJUST. SOSMA should be repealed. See earlier post:- Hanipa and Tommy Thomas - Ignorant about SOSMA? Delay means langusihing without Bail until trial over?
The amended charges were read out to 56 out of the 57 men as one of them had his charge withdrawn by the prosecution and given a discharge not amounting to an acquittal. Forty-two of them pleaded guilty, while 14 claimed trial to the amended charges. - Sosma charge revised – 42 freed(Star)
After waiting more than 1 year in detention for their trial to start, ONLY 42 persons pleaded guilty to the amended charge, which carried a maximum 3 year sentence if convicted. If one pleads guilty, the sentence normally will be one third(1/3) the sentence, i.e. in this case it will be 1 year or less.
Many, who have already spend more than a year in prison, would have jumped at the opportunity, even if innocent, and pleaded guilty as it means they can go home.
What is interesting is that 14 did not plead guilty to the amended charge, and claimed trial. Now, that the charge has been amended, they will also now be entitled to BAIL.
The fact that 14 did not plead guilty raises the possibility that maybe all are really innocent, and they have all been falsely charged.
DID THE PUBLIC PROSECUTOR'S PLAN FAIL? If they all pleaded guilty, then no accusation of wrongly charging people...In any event, will they be compensated by the government for the 'additional unnecessary time' they spend in prison?
SOSMA REALLY MUST BE REPEALED - the amending of charges to 'encourage' guilty pleas so that victims of SOSMA could be speedily released from detention is just not fair or just.
SUSPECTS AND ACCUSSED persons must always be presumed innocent until proven guilty in a court of law.
The right to BAIL is a right of all accused persons. When after a trial, a person who has languished in detention is a victim of grave injustice. Worse still, in Malaysia, there is no provision for COMPENSATION for such accused persons for his loss of liberty.
We all know that the police can arrest people because they 'SUSPECT' them of committing a crime...and so many get released after investigations...
We all know that a person can charged for a crime because the police/prosecution believe they are guilty...but all this is irrelevant for ultimately only the Judge after a full trial decides whether a person is guilty or not.(Even then judge's can be wrong, because an Appellate Court may overturn the conviction). Now, so many cases where people have been charged of an offence, the courts decide otherwise...i.e. that they are NOT GUILTY.
Recently, we saw media reports with headlines that read,'42 walk free after a year’s detention under Sosma' and 'Sosma charge revised – 42 freed'. It creates confusion. There are no offences in the SOSMA Act, so no one can be charged under SOSMA. SOSMA merely list certain offences in other Acts as being 'security offences'
SOSMA defines as security offence in the First Schedule of the Act as being :-a) ALL offences under Chapter VI, VIA and VIB of the Penal Code;b) Offences under Part IIIA Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007; andc) Offences under Special Measures Against Terrorism in Foreign Countries Act 2015.
Thus, when anyone is charged of committing any of these listed 'security offences'(as SOSMA defines), the case will be tried at the High
Court, and Bail is denied by law to the accused. This means such accused person
will have to languish in detention until their trial is over.
13 Bail (SOSMA)
(1) Bail shall not be granted to a person who has been charged with a security offence.
Now, these 57 persons were originally charged under Section 130V of the
Penal Code
for being a Member of an organized criminal group, which is an offence under Chapter VIB of the Penal Code, and as such are 'security offences according to SOSMA - so they were denied bail, and had to stay in detention until their trial was over.
Remember if you are charged in court for certain offences, that SOSMA list as 'security offences', by law, you are denied bail. The Prosecution cannot offer bail. Neither can the judge. Parliament decided that BAIL will not be available - thus ousting the judge's ability or discretion to grant bail.
Whether BAIL is to be granted really should be up to the Judge alone, after hearing the prosecution and accused persons submission. This is one of the reason why SOSMA must be repealed. Parliament through SOSMA has wrongly removed judicial discretion in bail applications.
Over 1 year in detention before trial starts?
The 57 have apparently been in detention(in prison) for over a year.
One wonders why their trial is not over by now. Normally, courts will prioritize and speed up trials of accussed persons who are detained without bail. In some cases, they have no right to bail like those charged for such 'security offences', and in other cases where they may be entitled to bail - but simply cannot afford the bail money.
BAIL is a right that should be accorded to all accussed persons. WHY? Because simply because all persons should be presumed innocent until proven guilty. Bail is denied because some may be 'flight risk' but then nowadays courts can hold on to their passports, and could also impose other conditions. If someone tries to tamper with witnesses or evidence, bail could be denied. If someone, fails to turn up in court, bail could be revoked.
Now, if an accussed person is denied bail(or cannot afford bail), justice demands a speedy trial ...
PLEADING GUILTY does not mean that one is really guilty?
PLEADING GUILTY - Well, if one were to go to court, it is not uncommon for many people to simply plead guilty BUT this really does not mean that they are really Guilty. Many, especially the poor.
AMENDING CHARGES AFTER MORE THAN A YEAR IN DETENTION
The original charge against the 57 was under Section 130V of the Penal Code(see below for this section), i.e. 'being a Member of an organized criminal group', and, if convicted carried the sentence '...imprisonment for a term of not less than five years and not more than twenty years...'
On the day, fixed for the start of the trial, the charge was amended to Section 43 Societies Act 1966, i.e. being a member of an unlawful society, which if convicted carried the sentence '...imprisonment for a term not exceeding three years or to a fine not exceeding five thousand ringgit or to both..'
According to media report, 42 pleaded guilty and 14 pleaded not guilty and claimed trial. For 1, the case was withdrawn and he was given 'a discharge not amounting to an acquittal.'
The 2 sections referred above are as follows...
130V Member of an organized criminal group(Penal Code)
(1) Whoever is a member of an organized criminal group shall be punished with imprisonment for a term of not less than five years and not more than twenty years....
43 Penalties on member of unlawful society(Societies Act 1966)
Any person who is or acts as a member of an unlawful society or attends a meeting of an unlawful society or who pays money or gives any aid to or for the purposes of an unlawful society shall be guilty of an offence and shall be liable, on conviction, to imprisonment for a term not exceeding three years or to a fine not exceeding five thousand ringgit or to both.
SOSMA should be repealed immediately. Pakatan Harapan's delay to review the law is unacceptable - because obviously, they already should have reviewed the law when the committed to the repeal of SOSMA in their Election Manifesto. Some of the other promises, could be delayed because only after becoming government did they realise that our financial position was worse that what they believed before...That reason cannot really be used for the delay in repealing the bad laws like SOSMA, POCA, Sedition Act, etc...
See related earlier posts:-
Hanipa and Tommy Thomas - Ignorant about SOSMA? Delay means langusihing without Bail until trial over?
ANWAR finally speaks out on SOSMA - weakly calling for 'remedial action' not strongly calling for REPEAL?
Mohd Azis Jamman '...firmly believes that the law[SOSMA] is good' - REMOVE HIM FROM CABINET?
Siapa arahkan SOSMA digunakan untuk kes Maria? AG Apandi Ali kena nasihat kerajaan buat yang betul?
42 walk free after a year’s detention under Sosma
Posted on 6 September 2018 - 06:18pm
Last updated on 6 September 2018 - 07:52pm
Last updated on 6 September 2018 - 07:52pm
Pix for representational purposes only. — AFP
KAJANG: Forty-two suspected members of the
notorious Gang 360 Devan, who were detained under the Special Offences
(Special Measures) Act 2012, walked free today after a special court at
Kajang Prison Court Complex sentenced them to a year's jail from the
date of arrest.
The 42 men, aged between 23 and 63, pleaded guilty to an amended
charge under Section 43 of the Societies Act 1966. They were detained
for more than a year.
Another 14 claimed trial after the charges were read out before High
Court judge Datuk Abdul Halim Aman. One was given a discharge not
amounting to an acquittal as the prosecution team withdrew the charge
against him.
Deputy Public Prosecutor Muhammad Iskandar Ahmad informed the court
that the prosecution had amended the charges from Section 130V of the
Penal Code to Section 43 of the Societies Act 1966.
Under the amended charge, the men faced a maximum of three years
imprisonment or RM5,000 fine, or both, for being members of an unlawful
society.
They were previously charged for being members of an organised
criminal group and could have been jailed between five and 20 years if
found guilty.
"I hope all of you have repented your crimes. And many of you are
senior citizens or have many to support. You are lucky to be offered the
amended charge and not an alternative charge," the judge said in his
ruling.
The special court convened here in Kajang Prison for the first time
in Peninsular Malaysia due to strict security measures, before this a
similar special court convened at the Kota Kinabalu Central Prison to
hear the Lahad Datu intrusion in 2016.
As part of the security measures, the family members were brought
here via a bus and no communication devices were allowed into the room
where members of media and family watched the live proceedings.
Gang 360 Devan is said to be a splinter of the notorious Gang 36,
which has been linked to a spate of violent crimes, and even high
profile murders. - Sun Daily, 6/9/2018
Sosma charge revised – 42 freed
KAJANG: A total of 42 men – originally accused of being members of organised crime group “Geng 360 Devan” – were freed after a special court sentenced them to a year’s jail to run from the date of arrest on a reduced charge of being members of an unlawful society.
“During mitigation, most of the accused were remorseful and said they won’t take part in such activities again. If this is indeed sincere, then this is for their own good,” said High Court judge Justice Abd Halim Aman.
The 42 men were part of a group of 57 who were originally charged under the Security Offences (Special Measures) Act 2012 (Sosma).
The 57 men, aged between 23 and 63, appeared before a special court for Sosma offences at the Kajang Prison Complex yesterday.
This is the first time the special court convened in the peninsula, due to strict security measures as Sosma offences involve national security and the number of accused persons involved in the case is overwhelming.
Yesterday was initially fixed for the first day of trial.
However, DPP Muhamad Iskandar Ahmad told the court that the prosecution was amending the charges.
“The prosecution wishes to amend the charges from Sosma to Section 43 of the Societies Act 1966,” he said.
According to the amended charge sheet, the men were accused of joining “Geng 36”, which is an unlawful society, at MV Empayer Sdn Bhd at No. 1-B, Jalan Perniagaan Masria 1, Pusat Perniagaan Masria, Batu 9, Cheras, between 2013 and 2017.
The offence under the Societies Act for being members of an unlawful society carries a maximum three years’ imprisonment or a maximum fine of RM5,000 or both upon conviction.
The men were initially charged under Section 130V of the Penal Code, which carries imprisonment ranging from five to 20 years if convicted.
The amended charges were read out to 56 out of the 57 men as one of them had his charge withdrawn by the prosecution and given a discharge not amounting to an acquittal.
Forty-two of them pleaded guilty, while 14 claimed trial to the amended charges.
Justice Abd Halim then gave a discharge not amounting to an acquittal to the 14 men on the original Sosma charges.
He said they would still be held temporarily to await instructions from the prosecution team.
“The magistrate will take over the cases (of the 14 men) after this,” he said.
A special room for live viewing of the proceedings was set up for family members and the media.
Each of the accused persons was allowed the attendance of one family member.
Only 10 reporters were allowed to cover the proceedings viewable through a projector and a screen.
Those attending the proceedings in the separate room were subjected to a body search. They were also not allowed to bring in any mobile or recording device.
Previously, a special court for Sosma offences was convened at the central prison in Kota Kinabalu for the Lahad Datu intrusion case in 2016. - Star, 7/9/2018
However, DPP Muhamad Iskandar Ahmad told the court that the prosecution was amending the charges.
“The prosecution wishes to amend the charges from Sosma to Section 43 of the Societies Act 1966,” he said.
According to the amended charge sheet, the men were accused of joining “Geng 36”, which is an unlawful society, at MV Empayer Sdn Bhd at No. 1-B, Jalan Perniagaan Masria 1, Pusat Perniagaan Masria, Batu 9, Cheras, between 2013 and 2017.
The offence under the Societies Act for being members of an unlawful society carries a maximum three years’ imprisonment or a maximum fine of RM5,000 or both upon conviction.
The men were initially charged under Section 130V of the Penal Code, which carries imprisonment ranging from five to 20 years if convicted.
The amended charges were read out to 56 out of the 57 men as one of them had his charge withdrawn by the prosecution and given a discharge not amounting to an acquittal.
Forty-two of them pleaded guilty, while 14 claimed trial to the amended charges.
Justice Abd Halim then gave a discharge not amounting to an acquittal to the 14 men on the original Sosma charges.
He said they would still be held temporarily to await instructions from the prosecution team.
“The magistrate will take over the cases (of the 14 men) after this,” he said.
A special room for live viewing of the proceedings was set up for family members and the media.
Each of the accused persons was allowed the attendance of one family member.
Only 10 reporters were allowed to cover the proceedings viewable through a projector and a screen.
Those attending the proceedings in the separate room were subjected to a body search. They were also not allowed to bring in any mobile or recording device.
Previously, a special court for Sosma offences was convened at the central prison in Kota Kinabalu for the Lahad Datu intrusion case in 2016. - Star, 7/9/2018
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