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Why charge women over Jong Nam murder, while 4 at large

November 8, 2017

Group against death penalty says practice of charging persons for criminal acts with unnamed and/or unidentified persons must stop as it is unfair to accused.

FMT LETTERS

jongnam2By 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 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 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).

The views expressed are those of the author and do not necessarily reflect those of FMT.

 


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