PUTRAJAYA: A former despatch clerk convicted of trafficking 43.4kg of cannabis escaped the gallows today on technical grounds following an appeal.
This is because the trial court in Kuala Lumpur three years ago failed to explain the three options available to the accused when Hafizzulah Abdul Samad was ordered to enter his defence.
Judge Zaleha Yusof, who chaired a three-member Court of Appeal bench, said the appeal must be allowed as the mandatory requirement under Section 173 (ha) of the Criminal Procedure Code was not complied with.
“We agree with the counsel that conviction is not safe and the appeal must be allowed,” said Zaleha, who sat with Zabariah Yusof and Yew Jen Kie.
Earlier, counsel Ranjit Singh Sandhu argued that the trial court had failed to explain to Hafizzulah that he could give a sworn testimony from the witness stand, an unsworn statement from the dock, or exercise his right to remain silent.
“The notes of proceedings during the trial revealed that the three options which are mandatory requirements under the law were not read and explained to my client,” said Ranjit who was assisted by Shamser Singh Sidhu.
The lawyer said any attempt to exclude the three options would also be a fundamental denial of a fair trial guaranteed under the Federal Constitution.
“The penalty for trafficking is a death sentence but the constitution states that life can only be taken away in accordance with law,” he said.
Deputy public prosecutor Asmah Musa however said the oversight was not fatal and that the conviction was based on facts.
Hafizzulah, 35, is said to have committed the offence at a parking lot near the Kuala Lumpur Education Department at Persiaran Duta on Feb 20, 2014.
The High Court found him guilty and sentenced him to death on March 25, 2016.