Accused persons have a right to know all material particulars of the criminal charge
MADPET(Malaysians Against Death Penalty and Torture) states that since the 4 other suspects in the murder of Kim Jong Nam have now been revealed in court, the charges against the 2 women on trial for murder Kim Jong Nam must be amended to include the names of these alleged co-accused to ensure a fair trial.(BBC News, 6/11/2017). Being made liable for actions of 4 unknown persons, when names are not known, is grossly unjust especially in a trial for murder that carries the mandatory death penalty.
It was reported that an investigating officer , 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 the until now.(BBC News, 6/11/2017)
The 2 women on trial, being Indonesian Siti Aisyah and Vietnamese Doan Thi Huong, were charged in court on 2/10/2017 for the killing Kim Jong Nam on Feb 13 with nerve agent VX at Kuala Lumpur International Airport.
The charge sheet said that four other individuals still at large are ‘accomplices’ of the said women in the murder of Kim Jong Nam, but no names were given.
‘According to the charge sheet, Doan was charged with killing Kim Jong-nam, the estranged half-brother of North Korean leader Kim Jong-un, along with Indonesian Siti Aisyah, 25, and four other unidentified individuals…’(Star, 2/10/2017)
They are being charged with murder (section 302 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 4 unidentified individuals are or what they did, they may be made liable for the acts and/or wrongdoings of the unidentified 4 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, who could even change the individuals to improve the chance of winning given the fact that not naming do 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, nick names or other identifying features could alternatively be included.
A criminal charge, as a matter of principle should be clear and discloses 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 for 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 investigation. Disclosure must be 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 4 suspects by a prosecution witness during 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 for 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 3 of them had been executed defying logic for surely their presence would have been vital when that ‘one other still at large’ was being 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 1 person must not become a norm, but should be limited to only to 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 identity of accomplices to ensure that all accused persons have the right to a fair trial.
For and on behalf of MADPET
(Malaysians Against Death Penalty and Torture)