Should we abolish death penalty?

Many countries in the world have abolished the death penalty, but, why Malaysia still cling on to death penalty as a form of punishment when many other countries had done away with it? We have several offences in statutes that provided for death penalty in Malaysia which include, murder and waging war against the King under the Penal Code, kidnapping for ransom under section 3 of the Kidnapping Act 1960 and trafficking dangerous drugs under 39B of the Dangerous Drugs 1952. Upon being found guilty, most death penalties are mandatory and the trial Judge has no discretion at all when come to sentencing to consider other range of possible sentences such as imprisonment in accordance with the circumstances of each and individual case. The sentence of death has been fixed by Parliament. It has been argued before the court that the death penalty is unconstitutional as it takes away the discretionary power of the Judges when passing sentences. No amount of mitigation put forward and sympathy from judges could this be changed. In handling criminal cases, the worst fear is that judges may hang an innocent person accused who never committed the crime charged. The famous case of Karthigesu some […] read more

Trafficking In Dangerous Drugs and Murder Cases, Which One Is Easier to Defend?

Trafficking In Dangerous Drugs and Murder Cases, Which One Is Easier to Defend? To a defence lawyer nothing is easy when defending clients accused for trafficking in dangerous drugs and for murder cases. The simple reason is that the life of a prisoner is in the hands of the lawyer and the only sentence available in law is death by hanging. There is no alternative to plead to save the prisoner’s life however skillful is the defence lawyer. To a layman, the question always been asked is that, “Why defend a drugs trafficker? “Why defend a murderer?” The prejudice was always great and unjustified, but, to a lawyer a job has to be done to ensure that the prisoner has a fair trial and that if convicted, it must be based on credible evidence proved beyond reasonable doubt by the prosecutor and that it was not a fixed up case. Witness Telling Lies! Prosecution Fixed Up Case? How can a lawyer be able to know that evidence has been fixed up against the prisoner or the witness was telling a lie? Very impossible! A lawyer may suspect lies been told and evidence been fixed up, but could not prove them. What the law requires in such circumstances is proof and nothing, but, suspicions […] read more

Constitutionality of Death Penalty

The issue on the constitutionality of death penalty had previously been argued before the Privy Council in the case of Ong Kee Chuan v. Public Prosecutor [1981] 1 MLJ 64 PC. In actual fact this was a case of appeal from Singapore under the Misuse of Drugs Act 1973 to the Privy Council. However, the Privy Council in their judgment ruled that the death penalty was constitutional. Now, cases are no more heard before the Privy Council in the United Kingdom and therefore the highest court where litigants could be heard now in all legal matters are before the Federal Court only. By Voon Lee Shan in the Federal Court In the Federal Court sitting at Kuching on 1st October, 2012 the issue on the constitutionality of the death penalty was again raised before five judges in the Federal Court Criminal Appeal Case No: 05-234-09/2011(Q) in Chung Ngee Hong v. Public Prosecutor in a dangerous drugs case under section 39B(2) of the Dangerous Drugs Act 1952 which carries the mandatory sentence of death upon conviction. Death Penalty Arbitrary, Unfair or Unjust It was argued before the Federal Court that the death penalty under the Dangerous Drugs Act 1952 is arbitrary, unfair […] read more

Human Rights And Presumptions As An Aid In Criminal Prosecutions

Human Rights And Presumptions As An Aid In Criminal Prosecutions Human rights are commonly understood as an inalienable fundamental right to which a person is inherently entitled because he or she is a human being. The concept of human right has universal application and human rights come with them natural rights or as a legal right in both, but, what is meant by “right” has always been controversial and subject to debate. Such “right” includes the right not to be tortured, the right to remain silent, the right to a fair trial, the right to own property, the right to an adequate standard of living and the right of equal protection and equal treatment and equality before the law. The concept of human rights also came with it the right to be presumed innocence until proven guilty, by a court of competent jurisdiction to try the case. Such a right of being presumed innocence is also a legal right under the law. In a trial the prosecution has the legal duty and burden to prove the case against the accused person and the standard of proof is proof beyond reasonable doubt. When charged in court, as said earlier, human rights demand that all accused persons should be given equal protection […] read more

Death Penalty under the Dangerous Drugs Act 1952

In most countries, drugs offences are not considered as sufficiently serious to warrant the imposition of the death penalty. However, in this country, drug trafficking carries the only sentence available under the law, that is, the mandatory death penalty. It gives not room for judges to apply any discretion in the case. The difficulty in defending drugs trafficking cases is caused by a number of crushing presumptions found in section 37 of the Act. For example, a person in the care or management of a premise shall be deemed to be the occupier of the premise and when dangerous drugs exceeding a certain minimum amount are found in the said premise, the occupier found in the premise shall be presumed to be trafficking in dangerous drugs. In drugs trafficking cases, the big players involved in the supply chain most often than not were unknown and not caught, but, those peddling with the drugs in the streets usually got caught. Many were innocent carriers but were sentenced to death with the help of the presumptions clauses in the Act. In drugs cases, one should not discount that there could be people being wrongly convicted caused by undetected lies of testimonies of […] read more

Evidence of Drugs Analysts, can they be challenged?

The Position in Malaysia In Malaysia the evidence of identification of illicit drugs were done by government chemists and under section 399(1) of the Criminal Procedure Code, reports prepared by government chemists could be admitted as evidence provided ten clear days been given to the accused person before the commencement of the trial. If served less than ten days the report should be objected to when the prosecution wanted to tender it as evidence. It has been observed that although always been challenged, it was rare for the courts in the country not to accept the evidence of government chemists as accurate. Their reports when introduced were assumed to be accurate as to the identity of the illicit drugs seized and tendered in court. Can Evidence of Drug Analysts Be Challenged? However, advancement of science does not mean that the accuracy of drugs analysis and drugs identification by government chemists as drugs analysts could not be challenged and be disputed at all. In the United States and UK, crime labs have been subjected to too much criticism in the past decade, much of it because of DNA evidence that has shown that many prisoners were innocent. In many instances, prisoners […] read more