HANGED BY HIS LAWYER

AN INCONVENIENT OVERVIEW OF AN INCONVENIENT TRUTH

In a long line of tragedies involving the interpretation of Malaysia’s most extreme of laws, the Dangerous Drugs Act 1952 (Act) a prominent Malaysian criminal lawyer defending a person charged with possession under the Act (and subsequently sentenced to death by hanging) failed to raise a critical question relating to the definition of key words used in the Act to bring a finding of guilt against the defendant, his client. The critical words being “Care” and “Control”.  

The Federal Court of Malaysia as a consequence of this failure by the defence amongst its other desultory and negligent conduct, confirmed the death sentence on an individual as recently as reported in the Nutgraph on 5 August 2009.

CRITICAL STEPS TO THE NOOSE- TWO MAGIC WORDS NOT UNDERSTOOD

A critical question the defendant’s lawyer ought to have raised at his trial and subsequently at the appeal is this. Where in the Act is a definition of the two critical words “Care” and “Control”  given? and where and by what authority if not in a definition within the Act are those words “Care” and “Control” legitimately adopted to have been given such a narrow interpretation and lethal effect by the court?

It is common practice in common law jurisdictions that where, an Act fails to define words to give it a special meaning so narrow as the meaning ascribed to the Federal Court’s interpretation of the two critical words  in this case, “Care and Control” and, absent any other special meaning given within the definition of the Act, the English language dictionary must be used to find the precise or broader meaning of the words it was given by the court.

In doing so the court is expected to give the benefit of any doubt in the meaning, reading it down, to favour the accused. The defence did not ask for  a definition and the court did not pursue the matter further to cure a possible defect in the interpretation of the two critical words. 

There are of course other means of ‘discovering’ any special meaning given to a word or words other than in a dictionary. And these include the common law, judicial definition (usually found in precedent like the word “reasonable” is) or other common usage meaning such as words used in industry and commerce which do not coincide with its dictionary meaning. Again the court did not visit the issue as the defence did not raise it as an issue at the primary court or appeal level.

PROOF AND THE BENEFIT OF DOUBT IN A CIVILIZED LEGAL SYSTEM

For the offence to have been proved to the criminal standard of “beyond reasonable doubt”, the accused must have demonstrated an indisputable level of physical care and control of the drugs said to be in his possession in order to have satisfied the mental and physical elements required by the Act proving his guilt on the charge under the Act. 

In order for the physical elements of the offence to have been proved to the required standard (beyond reasonable doubt)  the prosecution would have been required to present compelling irrefutable evidence of the defendant’s conduct, such that he it could be demonstrated the defendant acted in a way to prevent or limit the police’ ability to seize or recover the drugs (cannabis) from his “Care” and “Control” at the time of his arrest.

In the alternative, the prosecution (police) must prove he resisted or prevented their attempts at seizure of the drugs by the exercise of “Control” over the drugs thereby demonstrating the critical “Care” and or “Control” element over the drugs. They did not. There appears to be no evidence produced by the prosecution to establish either “Care” or “Control” by the defendant within their ordinary meaning of these two words. Yet this man must hang and his lawyers remain deafening silent.

CARE AND CONTROL- SERIOUS LAPSES IN THE DEFENCE ARGUMENTS (OR WAS THERE ONE?)

“Care” and “Control” could also have been proved by demonstrating that the defendant had special access such as a key to a special compartment in the car in which the drugs were kept or concealed (under the driver’s seat in this instance) which they would not otherwise have had access to but for this feature of “Control”.

There is nothing to suggest from the police evidence that this was indeed the case.  The drugs were simply found by police as they allege under the driver’s seat. 

By merely sitting over a cache of drugs there is evidence but no compelling proof “beyond reasonable doubt” that the defendant had “Care” or “Control” over the drugs. The fact that the car was registered in his name and therefore belonging to him at the time of his arrest cannot of itself render him guilty of the offence of possession of drugs. It is merely evidence that he owned the car.

The prosecution must have relied on a very human reaction of  fear in these circumstances to support their very weak case against the alleged offender. His subsequent conduct must be assumed to have been driven by mortal fear of being arrested (for whatever reason).  That evidence of itself ought to have been rebutted and attacked by the defence which did not occur.

It would appear that lawyers acting for this particular individual, like many of their counterparts in the legal profession who represent people charged  in similar unfortunate situations, put in only a cursory defence. It is likely the defendant did not have the necessary financial resources or status in society to have commanded more than a cursory defence of his life.

CHARDONNAY LEFTIES-CHRISTIANS OTHER LOUD MOUTHS AND THE COLOUR OF JUSTICE

None of the “outraged Christians”, the advocated of Human Rights, the cosmetic opposition fighting for cheap economic gains, the Lim Kit Siangs or Theresa Kok’s  have said anything of value about these cases or come to the defence of these pathetic wretched human beings that lie behind them awaiting a date with an executioner. 

There is a fatal flaw in the way legislation is drafted in places like Malaysia. It’s even more disturbing that the public in Malaysia can go to war over the ISA and over fictions of the constitution, yet remain silent about the death penalty and the negligence of the legal profession in Malaysia. Much of this can be attributed to their ignorance of the NGO community, who remain stoically disaffected by this ultimate sanction on  human life. That sanction being the death penalty. 

Teoh Beng Hock and Kugan are dead believed to have been executed extra judicially. This individual and many more like him who languish in prisons in Malaysia and other countries that still enforce the death penalty appear to attract no attention their cases deserve. The denial of any attention for death row prisoners is perhaps because the “moral minority” in Malaysia’s NGO sector  appears to be driven by a queer morality that values  human life in terms of its economic and social status rather than for the universally accepted and much touted principals of Human Rights.

Gopal Raj Kumar

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