Categorised | News

Fed Crt confirms gallows for drug trafficker

PUTRAJAYA, 5 Aug 2009: The Federal Court today upheld the death sentence imposed on a part-time pirate taxi driver for trafficking 937.8g of cannabis nine years ago.

A three-person bench presided by Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum, Chief Judge of Malaya Tan Sri Arifin Zakaria, and Federal Court Judge Datuk Hashim Yusoff dismissed M Kathavarayan’s final appeal to quash his conviction and death sentence.

Kathavarayan, now 60, was convicted and sent to the gallows by the Alor Star High Court on 29 Oct 2003 after he was found guilty of trafficking the drugs on Jalan Muktamar, Taman Sultan Abdul Halim, Alor Setar, on 31 May 2000. 

The Court of Appeal had on 12 March 2008 dismissed his appeal to overturn the High Court decision.

Justice Malanjum, in his judgement, said the court agreed with the High Court’s finding that the prosecution had proved the physical aspect of the possession based on the evidence that Kathavarayan was alone in the car and the plastic bag was placed under the driver’s seat, and that he was also the owner of the vehicle.

“The High Court judge made a clear factual finding that the appellant was in physical care and custody of the yellow bag containing the drugs,” said Justice Malanjum.

He said on the issue of trafficking, the High Court judge had relied on Section 37 of the Dangerous Drugs Act 1952, which was a presumption provision for trafficking in drugs when a person was found to be in possession of 200g or more of cannabis.

“In this case, the appellant was factually found to be in possession of 937.8g [of cannabis] when he was apprehended by the police. He had custody and control of the yellow plastic bag containing the drugs and he knew about it,” he said.

Kathavarayan was represented by counsel Karpal Singh and Sangeet Kaur Deo, while Deputy Public Prosecutor Eddie Yeo appeared for the prosecution. — Bernama

Post to Twitter Post to Google Buzz Post to Delicious Post to Digg Post to Facebook Post to StumbleUpon



2 Responses to “Fed Crt confirms gallows for drug trafficker”

  1. Gopal Raj Kumar says:

    Another in a long line of tragedies in the interpretation of Malaysia’s most extreme of laws, that being the Dangerous Drugs Act 1952.

    A prominent criminal lawyer as the one defending this wreteched individual ought to have raised a critical question which he has failed to in this trial.

    The question is this. Where in the Act is the definition of the two critical words, “care” and “control”, given such a narrow interpretation.

    Where an Act fails to define words to give it a special meaning so narrow as the meaning ascribed to the High Court’s findings involving the words used here — care and control — [this question] is of vital importance [to] the accused’s defence.

    Absent a special meaning within the definition of the Act, the English language dictionary must be used to find the exact or broader meaning of the words with special needs to give the benefit of the doubt to the accused.

    The definition of care and control, based on the facts of this case, when applied in its proper linguistic context negates the finding of the court.

    The accused must have demonstrated an indisputable level of physical care and control within the scope of the mental element required to satisfy the commission of the offence he is charged with.

    Unless of course the court is satisfied that the police arresting him at the time led to compelling evidence that the accused prevented their taking of the drugs (cannabis) thereby demonstrating his care and control of the drugs. Alternatively, they must prove he resisted their seizure of the drugs by exercising “control” over it.

    The interpretation of the latter could also be that he had keys to a special compartment in which the drugs were lodged or concealed under the seat.

    By merely sitting over the drugs there is no evidence he had care or control over the drugs. The fact that the car was registered in his name and therefore belonged to him cannot of itself render him liable to the offence of possession. That’s merely the physical component of the offence. Unless when tried with the mental element, the prosecution beyond reasonable doubt is able to link the two elements with evidence, the conviction needs to be overturned.

    There is a fatal flaw in the way legislation is drafted in places like Malaysia. It’s even more disturbing that the publc in Malaysia can go to war over the ISA but remain stoicly disaffected by this ultimate sanction of a human being.

    Perhaps its the class and race of the individual concerned that does matter in Malaysian popular culture. And to remain indifferent would produce the same results the Teoh affair has produced by others being silent over the Kugan affair.

    Remember this saying: “But for the grace of God, there go I.”

  2. Gopal Raj Kumar says:

    “Unless of course the court is satisfied that the police arresting him at the time led to compelling evidence that the accused prevented their taking of the drugs (cannabis) thereby demonstrating his care and control of the drugs. Alternatively, they must prove he resisted their seizure of the drugs by exercising ‘control’ over it.”

    Unless you [...] have an idea of what it is the writer means by his [or her] statement, you create an injustice by misrepresenting the writer with the type of sensless edit you have introduced in the above paragraph. And clearly that’s neither fair to your reputation as a publication nor is it fair to me as a reader and poster on The Nut Graph.

    The above paragraph was meant to and should have read in its original form:

    “Unless of course the court is satisfied that the police arresting him at the time LED compelling evidence that the accused prevented their taking of the drugs (cannabis) thereby demonstrating his care and control of the drugs. Alternatively, they must prove he resisted their seizure of the drugs by exercising ‘control’ over it.”

    The term led here refers to the police leading evidence at the man’s trial. Not the meaning you have ascribed to the paragraph with “led” to which makes the whole paragraph meaningless.

    You do not have to publish this rebuke from me but please when editing, by either adding or subtracting from a comment, make sure that the edit or change is necessary because of a [grammatical] flaw; factual, legal or spelling error.

    In any event, if you do tamper with someone else’s work, you carry the burden of any consequences that may arise from the posting because of your intervention in the original to the extent you are altering the substance of the post.


Most Read (Past 3 Months)

Most Comments (Past 3 Months)

  • None found

Advertisement


<

Advertisement


  • The Nut Graph

 

Switch to our mobile site