With regard to the charging of Yusoff Rawther at the Magistrates’ Court on 12 September for drug trafficking, there is a great concern that injustice may have occurred, and justice may demand his immediate discharge.
Yusoff was reportedly charged under Section 39B(1)(a) of the Dangerous Drugs Act, which provides for a penalty on conviction of death or imprisonment for life and, if he is not sentenced to death, whipping of no fewer than 12 strokes. The alleged offence was committed on 9 September.
Deputy public prosecutor Mohd Sabri Othman reportedly asked the court to set a mention date pending the results of the substances, which had been sent to the Chemistry Department to be analysed.
How could a person be charged for a drug offence, even before the Chemistry Department could confirm that the substance was a dangerous drug?
Worse, as the charge was drug trafficking, and the prosecution was most likely relying on the legal presumption, the weight of drugs is crucial in determining whether one is charged for the lesser offence of drug possession or the more serious offence of drug trafficking? Do the police or the prosecution have actual evidence of drug trafficking – or are they simply relying on the legal presumption?
The stance of Malaysians Against Death Penalty and Torture (Madpet) is that no one should be ever charged in court unless prosecutors honestly believe they already have sufficient evidence needed to convince the court of the guilt of the accused beyond reasonable doubt.
This is the principle that has long been accepted by the courts. In the Malaysian case of Public Prosecutor v Tan Kim San [1980], the late Harun J said:
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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.
In that Tan Kim San’s case too, it was stated that:
When the case came up for trial, the prosecuting officer applied for a postponement of at least six months on the ground that investigations had not been completed, whereupon the learned Magistrate postponed the trial to 16 & 17 July 1980.
This moved Judge Harun to action. He said that he “sent for the records of this case under Section 35 of the Courts of Judicature Act as it appeared to me that an important matter of principle and procedure is involved here”.
Section 35 deals with the general supervisory and revisionary jurisdiction of High Court, which also states:
… the High Court shall have general supervisory and revisionary jurisdiction over all subordinate courts, and may in particular, but without prejudice to the generality of the foregoing provision, if it appears desirable in the interests of justice, either of its own motion or at the instance of any party or person interested, at any stage in any matter or proceeding, whether civil or criminal, in any subordinate court, call for the record thereof, and may remove the same into the High Court or may give to the subordinate court such directions as to the further conduct of the same as justice may require…
Therefore, Madpet calls on the High Court to exercise its supervisory and revisionary powers, to consider Yusoff Rawther’s case and ensure that no injustice is done.
Madpet believes that Yusoff Rawther ought to be immediately discharged and released from detention. This must be done fast to end injustice. A discharge or discharge not amounting to an acquittal still allows the person to be re-charged later, if needed.
Repeal unjust legal presumption
In the Dangerous Drugs Act 1952, there are legal presumptions that can cause great injustice, which really should be repealed.
Section 37(d) of the act states:
… any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug…
Are the police simply relying on this legal presumption?
It is always better and safer to confirm through an independent investigation that Yusoff Rawther is really guilty. How easy is it for someone else to place drugs on the property of another, and call the police who comes and finds the drugs? How difficult, nay impossible, is it for any person, more so a lay person, to investigate and prove that someone else ‘trapped’ them or the drug was not theirs?
Section 37 states that:
… any person who is found in possession of-
(i) 15 grammes or more in weight of heroin;
(ii) 15 grammes or more in weight of morphine;… otherwise than in accordance with the authority of this Act or any other written law, shall be presumed, until the contrary is proved, to be trafficking in the said drug;
Hence, it all depends on the weight of the drugs. How can there be confirmation if, according to the reported words of the deputy public prosecutor, they are still waiting for the analysis results from Chemistry Department?
Madpet advocates for the repeal of such legal presumptions in dangerous drugs cases. The onus should be placed on prosecution to prove all the elements of the crime. The weight of the drugs alone should never be considered as evidence of drug trafficking.
How many people who were truly not involved in any drug trafficking activity or were victimised by drugs found in their possession caused by others have been executed or are still languishing in prison?
Madpet calls on any judge in the High Court to act fast in exercising their powers of revision to ensure that the injustice suffered by Yusoff Rawther is ended as soon as possible.
In the case of Sabri Umar, a documented Indonesian migrant worker who was wrongfully detained, charged and convicted for being illegally in Malaysia, he had to suffer detention and imprisonment for almost four months and was wrongfully whipped five times before he was finally freed in July 2022, thanks to High Court Judge Lim Hock Leng of the Tawau High Court, who exercised his revisionary powers.
Thus, any High Court judge must act fast to end this injustice. – Madpet
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture.
- Tegakkan maruah serta kualiti kehidupan rakyat
- Galakkan pembangunan saksama, lestari serta tangani krisis alam sekitar
- Raikan kerencaman dan keterangkuman
- Selamatkan demokrasi dan angkatkan keluhuran undang-undang
- Lawan rasuah dan kronisme
