Media Statement – 13/9/2024
Yusoff Rawther Ought To Be Immediately DISCHARGED As Prosecution Reportedly Admitted That Investigation Yet To Be Completed
High Court Judge Should Use Supervisory And Revisionary Powers To End This Injustice Fast
With regard the charging of Muhammed Yusoff Rawther at the Magistrate Court on 12/9/2024 for the offence of Drug Trafficking, there is a great concern that injustice may have occurred, and JUSTICE may demand his immediate DISCHARGE.
Yusoff was reportedly charged under Section 39B(1)(a) of the Dangerous Drugs Act, which 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. The alleged offence was committed on 9/9/2024.
It was reported that the ‘…Deputy public prosecutor Mohd Sabri Othman asked the court to set a mention date pending the results of the substances which has been sent to the Department of Chemistry to be analysed…’ (New Straits Times, 12/9/2024)
How could a person be charged for a drug offence, even before the Department of Chemistry had confirmed that the substance was a dangerous drug? Worse, as the charge was drug trafficking, and the prosecution was most likely relying on the legal presumption, the weight of drugs is crucial in determining whether one is charged for the lesser offence of drug possession, or the more serious offence of drug trafficking? Do the police and/or prosecution have actual evidence of drug trafficking, or are they simply relying on the legal presumptions?
MADPET (Malaysians Against Death Penalty and Torture) is of the stance that no one should be ever charged in court, until and unless the prosecution verily and honestly believe that they do already have sufficient evidence needed to convince the court of the guilt of the accused beyond reasonable doubt.
This is the principle that has long been accepted by the courts. In the Malaysian case of Public Prosecutor V. Tan Kim San [1980] CLJU 66[1980] 1 LNS 66, the late Harun J said
The principle is that a person should not be charged in Court until the investigation into the case against him has been completed and there is prima facie evidence to prosecute him of the charge. In other words, a person should not be put in peril of a criminal trial unless the prosecution is able to prove the case against him. To do otherwise is an injustice. It is unjust because of the social stigma that immediately attaches to a person once he is charged in Court. He is deserted by his friends. His business is affected. His creditors close on him. His family is ashamed. He is mentally tormented awaiting trial. And last but not least, he has to incur the expense of engaging Counsel. There is no consolation in the fact that he may eventually be shown to be innocent of the charge. The damage has been done.
In that Tan Kim San’s case too, it was stated that ‘…When the case came up for trial, the prosecuting officer applied for a postponement of at least six months on the ground that investigations had not been completed, whereupon the learned Magistrate postponed the trial to 16 & 17 July 1980.’
This moved the Judge Harun to action. He said that he ‘…sent for the records of this case under s. 35 of the Courts of Judicature Act as it appeared to me that an important matter of principle and procedure is involved here.’
Section 35 CJA deals with the general supervisory and revisionary jurisdiction of High Court, which also states that ‘…the High Court shall have general supervisory and revisionary jurisdiction over all subordinate courts, and may in particular, but without prejudice to the generality of the foregoing provision, if it appears desirable in the interests of justice, either of its own motion or at the instance of any party or person interested, at any stage in any matter or proceeding, whether civil or criminal, in any subordinate court, call for the record thereof, and may remove the same into the High Court or may give to the subordinate court such directions as to the further conduct of the same as justice may require…’
Therefore, MADPET calls on the High Court to exercise its supervisory and revisionary powers, to consider Muhammed Yusoff Rawther’s case, and ensure that no injustice is done.
MADPET believes that Yusoff Rawther ought to be immediately DISCHARGED and released from detention. This must be done fast to end injustice. A Discharge or Discharge Not Amounting To An Acquittal(DNAA) still allows the person to be re-charged later, if needed.
DDA’s Unjust Legal Presumptions Ought to Be Repealed
In the Dangerous Drugs Act 1952, there are legal presumptions that can cause great injustice, which really should be repealed.
Section 37(d) Dangerous Drugs Act 1952 states, ‘ any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug;’ Are the police simply relying on this legal presumption?
It is always better and safer to confirm through independent investigation to confirm that Yusoff Rawther is really guilty. How easy for someone else to place drugs on property of another, and call the police who comes and finds the drugs? How difficult, nay impossible, for any person, more so a lay person, to investigate and proof that someone else ‘trapped’ them or the drug was not theirs?
Section 37 (da) states that ‘any person who is found in possession of- (i) 15 grammes or more in weight of heroin; (ii) 15 grammes or more in weight of morphine;… otherwise than in accordance with the authority of this Act or any other written law, shall be presumed, until the contrary is proved, to be trafficking in the said drug; Hence, it all depends of WEIGHT of the drugs, and how can there be confirmation, if according to the reported words of the Deputy Public Prosecutor, says that they are still waiting for the analysis results from Department of Chemistry.
MADPET advocates the repeal of such Legal Presumptions in Dangerous Drugs cases, and that the onus is placed on prosecution to prove all the elements of the crime. Weightage of drugs alone should never be considered as evidence of drug trafficking. How many persons who are truly not involved in any drug trafficking activity, or have been victimized by drugs found in their possession caused by others have been executed, or are still languishing in prison.
MADPET calls on any judge in the High Court to act fast in exercising their powers of revision to ensure injustice suffered by Muhammed Yusoff Rawther is ended soonest. In the case of Sabri Umar, a documented Indonesian migrant worker who was wrongfully detained, charged and convicted for being illegally in Malaysia, he had to suffer detention/imprisonment almost 4 months and was wrongfully whipped 5 times before he was finally freed in July 2022 thanks to High Court Judge Lim Hock Leng of the Tawau High Court exercising his revisionary powers. Thus, any High Court judge must act FAST to end this injustice.
Charles Hector
For and on behalf of MADPET (Malaysians Against Death Penalty and Torture)
Note : -
Yusoff Rawther charged with trafficking cannabis [WATCH] – NST, 12/9/2024 – ‘Deputy public prosecutor Mohd Sabri Othman asked the court to set a mention date pending the results of the substances which has been sent to the Department of Chemistry to be analysed.’
Tawau High Court acquits wrongfully imprisoned, caned Indonesian worker – Vibes, 24/7/2022
Yusoff Rawther charged with trafficking cannabis [WATCH]
KUALA LUMPUR: Muhammed Yusoff Rawther, the former research assistant to Prime Minister Datuk Seri Anwar Ibrahim, proclaimed his innocence today after being charged at the magistrate's court with trafficking 305g of cannabis last week.
"I am innocent. I am framed by those in power."
Yusoff, 31, was charged with trafficking cannabis at 10.15am in front of the carpark of Kuala Lumpur police contingent headquarters surau on Sept 6.
The charge under Section 39B(1)(a) of the Dangerous Drugs Act punishable under Section 39(B(2) carries a life sentence, and no fewer than 12 stokes of the rotan.
He nodded and said he understood the charge before magistrate M.S. Arunjothy.
However, no plea was taken from Yusoff as drug trafficking cases are under the jurisdiction of the High Court.
Deputy public prosecutor Mohd Sabri Othman asked the court to set a mention date pending the results of the substances which has been sent to the Department of Chemistry to be analysed.
The court set Nov 12 for mention.
Yusoff was represented by lawyer Muhammad Rafique Rashid Ali.
Rafique will hold a press conference on the matter later today.
Earlier, Yusoff arrived at the court complex under heavy police security today.
He was heard uttering profanities at a certain politician as he was led into the complex lock-up.
It was reported that Yusoff was arrested last Friday after police allegedly found two pistols and 305g of ganja in the car he was travelling in.
Rafique said Yusoff was detained around 9.30am on the same day.
Rafique had said the case, initially investigated under the Arms Act 1960, was being under the Dangerous Drugs Act after the remand application under the former was rejected.
He said Yusoff denied any connection to the pistols and drugs, claiming that the items were planted to frame him by individuals with personal vendettas.
The High Court fixed a seven-day trial from June 16 next year. - NST, 12/9/2024
Tawau High Court acquits wrongfully imprisoned, caned Indonesian worker
Lawyers argue that Sabri Umar had valid passport, work pass from company
Updated 2 years ago · Published on 24 Jul 2022 8:00AM
KOTA KINABALU – The Tawau High Court has acquitted an Indonesian migrant worker who was wrongfully detained, charged and caned.
Sabri Umar was acquitted by judge Lim Hock Leng last Friday after lawyers from the legal firm Messrs Kang Advocates, representing Indonesia’s Tawau consulate, argued that Sabri was in possession of a valid Indonesian passport and had a work pass from a company, Fu Yee Corporation.
He was arrested on April 5, and convicted by the sessions court under Section 6(1)( c) Immigration Act 1959/63 on April 19, where he was sentenced to 11 months of imprisonment and five strokes of the cane.
He was unrepresented at the time.
However, Sabri managed to file a wrongful dismissal claim in the Industrial Relations Department on April 19 seeking reinstatement.
However, prior to his appeal being heard, Sabri was caned in the Tawau Prison on June 23.
On Friday, Sabri’s legal team told the court that he had only pleaded guilty on April 19 after being misled that he would be deported to Indonesia on May 4 if he were to plead as such.
His lawyers also argued that though Sabri pleaded guilty, the sessions court did not check that Sabri had a valid passport, in pleading to the high court to set aside the conviction.
The case grabbed the attention of many parties after 46 civil organisations issued a statement crying foul over Sabri’s wrongful caning, as it was against the Section 311 of the Malaysian Criminal Procedure Code that prohibits caning until the appeal is heard and decided upon.
The groups and organisations led by Malaysians Against Death Penalty and Torture urged the Malaysian government to apologise, and abolish caning as a corporal punishment in the country. – The Vibes, July 24, 2022
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