Malaysians Against Death Penalty and Torture (Madept) 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 for the murder of Kim Jong-nam must be amended to include the names of these alleged co-accused to ensure a fair trial (BBC News, 6 November 2017).
Being made liable for the actions of four unknown individuals, 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 (who was known as Mr Chang), 34, Ri Ji Hyon (who was known as Mr Y), 33, Ri Jae Nam, (who was called Hanamori ), 57, and O Jong Gil (who was known as James) as being untraceable until now (BBC News, 6 November 2017).
The two women on trial, Indonesian Siti Aisyah and Vietnamese Doan Thi Huong, were charged in court on 2 October 2017 for the killing of Kim Jong Nam on 13 February 2017 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.
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“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” (The Star, 2 October 2017).
They are being charged with murder under 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 or wrongdoings of the unidentified four as well.
Hence, not naming the alleged accomplices in the charge sheet is highly prejudicial to any accused person in any criminal trial, and it seriously undermines the accused’s ability to defend themselves 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 chances of winning given the fact that not naming them does not restrict the prosecution’s case to just those named in the charge.
If the charge can specifically state the number of other individuals, 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 be included.
A criminal charge, as a matter of principle should be clear and disclose all material details to enable the accused to be able to effectively defend themselves and get a fair trial.
In criminal cases, the prosecution also has a duty for pre-trial disclosure as this is critical to the defendants’ right to a fair trial. To enable the accused to properly prepare a defence, they must be made aware of all the evidence against them, including evidence favourable to them that may have come forward during the investigation.
Disclosure must be before the trial starts to give the accused or their lawyer enough time to do their own investigation, maybe even to 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 trial also prejudices the accused individuals.
In a criminal trial, it is never meant to be a 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 the 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 read together with section 34 of the Penal Code.
Before even the “one other still at large” could be arrested and tried, the three accused were executed, defying logic for surely their presence would have been vital when that “one other still at large” is tried for the same murder.
The charging of those 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 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 the names of the “four other unidentified individuals”.
Madpet also calls for a stop to the practice of charging individuals with criminal acts along with unnamed or unidentified individuals. rsons. Charges must contain material personal details, including the identity of accomplices, to ensure that all accused individuals have the right to a fair trial.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet).
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