Muhammed Yusoff Rawther was brought to the Magistrate Court
on 12/9/2024(Thursday) - and charged for DRUG TRAFFICKING under Section
39B of the Dangerous Drugs Act 1952, an offence that still carries the
DEATH sentence..hence the High Court is the court with jurisdiction to try criminal cases of offences that carry the death penalty. At the Magistrate Court, the charge was only read - but no PLEA was taken, as this will happen at the High Court who has the jurisdiction to TRY the case. No application for BAIL was made, based on media reports, and again we ask WHY?
Thus, immediately thereafter, on the same day or the day after, he should have been taken to the High Court and charged - BUT that is not happened yet until this day(3/10/2024) - and the question is WHY?
The legal principle, accepted also in Malaysian courts, 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...'
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. -The legal principle as to when one should be CHARGED, Arrested and released on Police Bail - The Case of PP v Tan Kim San, judgement of late Supreme Court Judge Harun Mahmud Hashim
Charging a person pre-maturely is a GROSS INJUSTICE and, in this case, there is reason to believe that this is exactly what had happened..
WHY?
'...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...'- NST, 12/9/2024
1 - The fact that prosecutor ADMITTED that investigations not yet completed. They were still waiting for the '...results of the substances which has been sent to the Department of Chemistry to be analysed...'
Hence, the prosecution is YET TO CONFIRM that it was dangerous drugs. So, reasonably the charging now with the offence of DRUG TRAFFICKING is WRONG and premature, and going against the accepted principle of NO CHARGING until investigations complete, and the prosecution is convinced they can prove him guilty beyond reasonable doubt.
2 - The fact that the prosecution applied for another mention date at the Magistrate, which was set for November 12 - confirms the WRONGFUL PREMATURE CHARGING. The prosecution should have immediately brought the case to the High Court and charged him for this offence that carries the death penalty...
Maybe, after they get the results - they may drop the charge, because what they thought was drugs turn out to be sugar, flour or some other powder?
Maybe, after they get the results - the results may show that WEIGHT of the drugs was less than what was required to be charged for DRUG TRAFFICKING - so they may alter the charge and charge him maybe for the lesser offence of DRUG POSSESSION.
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.
DISCHARGE(DNAA)
for Yusoff Rawther - No person to be charged until investigation
complete ## still waiting for '..results of the substances which has
been sent to the Department of Chemistry to be analysed..'
However, to date, NO High Court Judge has done so yet. In the Tan Kim San case too, it was a Magistrate Court case, then High Court Judge Harun called up the case for revision - The Judge can call up a case for REVISION on his/her own motion, or there can be application by the accused or the prosecution for revision - so, make the application for REVISION Yusoff Rawther(and/or his lawyer) - not done.
This is also a case, where the Attorney General/Public Prosecutor can use his powers to discontinue criminal proceedings, so that Yusoff is immediately DISCHARGED - given a DNAA. If, and when prosecution completes their investigation and are of the opinion that they have sufficient evidence to prove a Prima Facie case, or that Yusoff is guilty beyond a reasonable doubt in court, then the AG/PP has the power to CHARGE him again or RE_CHARGE him. But, the Attorney General/Public Prosecutor has not yet used his power to end this injustice that Yusoff Rawther faces now - languishing in detention.
On the other hand, Yusoff Rawther has applied for REVISION but then he has filed another application...
Yusoff has filed an originating summons, dated September 27, seeking a court order to declare Section 41B unconstitutional. ... challenging the constitutionality of Section 41B of the Dangerous Drugs Act 1952, which prohibits bail for drug trafficking charges, according to his lawyer, Rafique Rashid Ali.
His lawyer may have a different opinion and strategy, but me(as a lawyer) feel that on 12/9/2024, Yusoff should have applied for BAIL, and if the Magistrate refused it on the ground that it an 'non-bailable' offence, then maybe an appeal or an application that denial of bail is unconstitutional...But, in this case, media reports suggest that NO BAIL application was made, and neither did the Magistrate deny bail on the grounds that it was a 'non-bailable' offence.
As it, Malaysian law already do provide that a person accused of non-bailable offence MAY be released on bail. In fact, there may be several applications for bail at different stages of the trial.. As I mentioned earlier, even for unbailable offences, bail is possible. The only hurdle is when Parliament in law says that Bail Shall Not Be Granted as it does in SOSMA - here too, the matter may still be challenged. A primary principle is the presumption of innocence until proven guilty in court after a fair trial. Hence, no 'punishment' or deprivation of liberty unless there is some exceptional reason of flight risk, tampering of evidence,..that is based on some reasonable evidence. With the availability of modern technology, like electronic tracking - the justification for the denial of bail is significantly diminished. The fact that trials take a long time in Malaysia, which means a prolonged detention - and an grave miscarriage of justice when and if the courts find the accused not guilty. Justice really demands a speedy trial for those languishing in detention - trials of such persons should be done within 3-6 months maximum... Note a person in detention is also prejudiced as he cannot easily prepare for his Defence...
388 When person accused of non-bailable offence may be released on bail [CRIMINAL PROCEDURE CODE]
(1) When any person accused of any non-bailable offence is arrested or detained without warrant by a police officer or appears or is brought before a Court, he may be released on bail by the officer in charge of the police district or by that Court, but he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for a term which may extend to forty years:
Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of that officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) An officer or a Court releasing any person on bail under subsection (1) or (2) shall record in writing the reasons for so doing.
(4) If at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of the offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
(5) Any Court may at any subsequent stage of any proceeding under this Code cause any person who has been released under this section to be arrested and may commit him to custody.
See also:-
Yusoff Rawther should have been brought to the High Court immediately to be charged with? Fumble on Bail Application? Expedite Yusoff's case against Anwar..
Yusoff Rawther, compared with Police assault of e-hailing driver Ong - Is there a policy to protect police that commit crimes? Should Yusoff be DNAAed - as investigation not completed?
The legal principle as to when one should be CHARGED, Arrested and released on Police Bail - The Case of PP v Tan Kim San, judgement of late Supreme Court Judge Harun Mahmud Hashim
Ex-research assistant Yusoff Rawther challenges ‘no bail’ rule in drug law, seeks co
KUALA LUMPUR, Oct 2 — Former research assistant Muhammed Yusoff Rawther is challenging the constitutionality of Section 41B of the Dangerous Drugs Act 1952, which prohibits bail for drug trafficking charges, according to his lawyer, Rafique Rashid Ali.
Yusoff, currently held in Sungai Buloh prison while awaiting trial, is charged under Section 39B(1)(a) of the Act for trafficking 305g of cannabis, according to a report published yesterday in Free Malaysia Today.
He was arrested on September 6 in a car park near the Kuala Lumpur police headquarters, and no plea has been recorded.
Rafique argues that the no-bail provision in Section 41B creates an injustice, especially for defendants with legitimate defences or unique circumstances requiring the court’s consideration for bail.
“Section 41B stipulates that no bail shall be granted for certain drug-related offences. This is unfair in cases where a defendant has a strong defence or special circumstances that necessitate bail,” Rafique said in a statement.
Yusoff has filed an originating summons, dated September 27, seeking a court order to declare Section 41B unconstitutional.
He argues that the provision limits the court’s ability to assess whether bail should be granted, despite any extenuating circumstances.
“Through the originating summons, Yusoff is seeking an order to declare Section 41B of the Dangerous Drugs Act 1952 as unconstitutional, as it limits the existing powers of the court in deliberating or granting bail,” Rafique added.
The court has scheduled case management for October 23 to deliberate on the matter.
Despite
the stringent legal framework, Rafique confirmed he will be applying
for bail for Yusoff, citing concerns over his client’s security. - Malay Mail, 2/10/2024
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