25 March 2019

On 11 March 2019, Siti Aisyah, the Indonesian woman accused of killing Kim Jong-nam, the half-brother of North Korea’s leader in Kuala Lumpur airport in 2017, was freed after charges against her were dropped.  The Malaysian DPP informed the Malaysian High Court that they withdrew the murder charge against Siti Aisyah only, and the Court made a decision of “discharging not amounting to an acquittal or DNAA” under Section 254 of the Malaysian Criminal Procedure Code.  This decision (DNAA) was made because the DPP has not completed its case when requesting such order.  Therefore, the charges against Siti Aisyah can be revived at a later date when evidence against her can be strengthened although in reality it is unlikely for the DPP to do such an action.

The other co-defendant, Doan Thi Huong who is a Vietnamese female, remains on trial as the DPP only requested for Siti Aisyah’s discharge.  The notable issue here is that no reasons for such different treatment were given by the DPP.

Since Siti Aisyah’s release, there has been a huge public outcry made against the Malaysian government and the DPP for not applying DNAA to Doan Thi Huong in the same manner it was applied to Siti Aisyah. From the public views, it is huge discrimination while the two very important representatives for the executive power of the Malaysian government with the responsibility to protect the law on behalf of the people failed to give a clear explanation. Specifically, Malaysia’s Attorney General did not give any specific reason for the decision to continue the charge and Malaysia’s Prime Minister Mahathir, though responded to such public reactions, said that the DPP only followed the “rule of law” although he said that he does not know in detail the reasons.

The question that draws the most attention of the public is that, in fact, is it to say that Doan Thi Huong has not received equal treatments in terms of private international law which she should have enjoyed under the said “rule of law” in Malaysia, or that all calls for dropping the charges against Doan Thi Huong are simply sentimental requests that lack logical and legal grounds?

Thus, this paperwill examine why Doan Thi Huong should be entitled to the discharge like Siti Aisyah in various legal perspectives.

Ms. Siti Aisyah was released by Malaysia Court

Common Intention to Murder – Malaysian Penal Code

In August 2018, the Court accepted the prosecution’s case that the two women, in a common intention with four other North Korean individuals[1] still at large against whom no murder charges have been made, had caused the death of Kim Jong-nam and therefore asked the two women to enter their defence.  Since Siti Aisyah has been discharged without a guilty verdict, the issue is whether the common intention to carry out the killing of Kim Jong-nam can be applicable to Doan Thi Huong who will be the only defendant in this trial.  In other words, now she is the only person charged for murdering Kim Jong-nam in a “common intention”.

Then, it is necessary to find out how a common intention is defined under the relevant criminal laws in Malaysia.  Article 34 of the Malaysian Penal Code defines a common intention as follows:

“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.” Thus due to legal logic, it could be vice versa, that the discharge applied to one person could also be applied to the rest of the persons who have the common intention to commit a crime.

There are a few things that can be observed from the above definition and the known facts of the alleged murder of Kim Jong-nam.

  • Firstly, the prosecutions should have proved and charged both women of murder in a similar manner, instead of proving and accusing one person and discharging the other only because of the strategic relationship between the two countries. Strategic relation is only a political-economic concept describing the importance of geopolitical relations between two countries. However, it does not carry any judicial meaning in the proceedings. This means, according to the international rule of law, to the Penal Code of Malaysia or of any other country, there is no provision providing that the good political-economic relationship of the two countries should be the basis for criminal liability exemption to an individual. There is simply no legal causality between a citizen – who commits an offence- and a country – a person who has no criminal misconduct and is not liable for criminal liability.
  • Secondly, and more importantly, a decision of an acquittal to (or a discharge of) one person (e.g., Siti Aisyah) among the persons with common intention, and the legal reasoning for such decision should be applied to the other person (e.g., Doan Thi Huong) in the same manner because the identical legal status of the two defendants with the common intention is the main basis for the legal principles and of Article 34 of the Penal Code on common intention as cited above..
  • Finally, the culpability of the two women would have been identical if the court had accepted the prosecutions of the DPP (might be a death penalty under Article 302 of the Malaysian Penal Code), and thus, the discharge of Siti Aisyah should have been applied to Doan Thi Huong as well, as a person with the “common intention of all”.

Therefore, the DPP’s decision to only discharge Siti Aisyah seems legally and logically groundless. It appears that Doan Thi Huong was not treated equally in terms of the legal proceedings. Of course, we should not exclude the possibility that, in the record of investigation and prosecution, there might be evidence against Doan Thi Huong which does not exist for Siti Aisyah’s case, however, until now, nothing like that has been mentioned by the Malaysian DPP when answering the press about the reasons for not dropping the charge against Doan Thi Huong.

Doan Thi Huong was at the Supreme Court Shah Alam on 14 Mar

Principle of Equality under Constitution of Malaysia

Fundamental rights are an essential part of modern constitutions.  The insertion of provisions on fundamental rights in constitutions was a post Second World War development.  Most of the framers of new constitutions in Asia and Africa after their independence from western imperialists countries had adopted the principles of the Universal Declaration of Human Rights by the United Nations (1948) when drafting their constitutions.  This UN Declaration proclaims, among other things, an equal treatment and protection before the law (Article 7), right to an effective remedy by the competent courts for acts violating the fundamental rights (Article 8), and full equality to a fair and public hearing by an independent and impartial courts (Article 10).

The provisions on fundamental liberties in the Constitution of Malaysia (Article 5 to 13) are reflective of these post Second World War movements among the newly-independent countries in Asia and Africa.  In particular, Article 8 of the Constitution of Malaysia provides the principles of equality.

  1. (1) All persons are equal before the law and entitled to the equal protection of the law.

     (3) There shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of any State.

It has been repeatedly reported that the Malaysian government might have caved in to diplomatic pressure from the Indonesian government to release the Indonesian woman although the Malaysian government denied such allegation.  Despite their denial, it is quite difficult to shut out a suspicion that Malaysia’s government/DPP favoured the Indonesian woman because of their diplomatic relationship with Indonesia and the President’s diplomacy for the election while the Vietnamese defendant is not entitled to such decision because the diplomacy is not good enough?

Sentencing Disparity between Equally Culpable Co-Defendants

One of the widely accepted principles in criminal law is that individuals who play similar roles in the same criminal scheme should receive similar sentences.  As reviewed earlier in this paper, in the beginning Siti Aisyah and Doan Thi Huong have been treated equally culpable by the DPP before the Court.  None of these two were considered an accomplice of the other, but both of them were treated as principal offenders with a common intention of the alleged murder.  Due process would require similar sentences to be imposed on these two women,  however, the Malaysian DPP did not treat these two women equally in the end.

Doan Thi Huong was at the latest court in Malaysia

In general, culpability is one of the main factors in deciding sentences of the defendants within the sentencing range given by the laws and sentencing guidelines.  Unlike other common law jurisdictions, Malaysia does not have sentencing guidelines, and so Malaysian judges have wide discretion in sentencing practices.  For the case of Doan Thi Huong, however, their discretion in sentencing has no room to play because it is mandatory death penalty for a murder if she is found guilty.  As a result, the potential sentence disparity between Doan Thi Huong and Siti Aisyah would be extremely dramatic (death penalty vs discharge) if Doan Thi Huong is found guilty.

In other common law jurisdictions, judges take into account sentencing disparity as a mitigating factor if such disparity is significant, dramatic or gross.  In the U.S., for instance, the court held that, while the prosecutors had offered tactical reasons accounting for the sentencing disparity, such a “dramatic disparity” warranted leniency of the other co-defendant.[2]  In this U.S. case, one of the co-defendants received four years whilst the other co-defendant received a death penalty which reduced to a life imprisonment.  In the Doan Thi Huong case, sentencing disparity is even more “dramatic” than this U.S. case, but unfortunately the Malaysian law does not have any room for leniency towards Doan Thi Huong.

We note that the Malaysian DPP had not given any reasons for withdrawing charges against Siti Aisyah but not against Doan Thi Huong.  In some common law jurisdictions, the sentencing court often ruled that the lesser sentence received by a co-defendant can be a mitigating circumstance if there was not a sound basis provided for the disparate treatment between the co-defendants.[3]

The sentencing disparity discussed in the above cases was mainly due to the decisions of the accused persons before the court (e.g., pleading guilty or not guilty, or plea bargaining).  There is no such thing happened in the Doan Thi Huong case.  Both Doan Thi Huong and Siti Aisyah pleaded not guilty.  If Doan Thi Huong is found guilty and sentenced a death penalty, criticisms across the globe for this unwarranted injustice will be inevitable.  As the Malaysian Court does not have any discretion to mitigate Doan Thi Huong’s sentence from a death penalty, the only recourse to correct this injustice is for the Malaysian DPP to withdraw all charges against her.

Procedural Fairness and Due Process

Due process is a very important concept of law in common law jurisdictions and in modern international law. In short, the guarantees of procedural fairness and due process of law are important elements of the right to equality before the court and tribunals and to a fair trial, which is guaranteed in international human right law.  In particular, this right is guaranteed at Article 14 of the International Covenant on Civil and Political Rights (ICCPR), a multilateral treaty adopted by the United Nations General Assembly through Resolution 2200A (XXI) on 16 December 1966.

We do not wish to draw any correlation between this and discriminatory treatment for Doan Thi Huong. However, the fact is that, whilst 172 countries including Vietnam and Indonesia are parties to the ICCPR, Malaysia is one of 19 countries which have not signed the ICCPR although there have been calls from the Malaysian National Human Rights Commission for acceding to the Covenant.

Realization of procedural fairness and due process requires that the administration of justice is able to guarantee a set of specific rights and that it can ensure that no one will be deprived, in procedural terms, of his or her right to claim justice.  In particular, this right encompasses, among other things, the guarantee of equality and of non-discrimination between the parties to the proceedings. Accordingly, at least Doan Thi Huong should be informed of the reasons for such different treatment between her and Siti Aisyah so that she can prepare for her defence but one of these rights, unfortunately, has been enforced.

Due to what can be observed publicly and from the media, the DPP’s decision to only discharge Siti Aisyah seems legally and logically groundless under the Penal Code of Malaysia itself.  Under this international law on human rights regarding equality before the court, Doan Thi Huong should be immediately released as her charge was identical to Siti Aisyah.  Or, at least she should be informed of the reasons for such different treatment between her and Siti Aisyah so that she can prepare for her defence for upcoming trial which should be guaranteed under the principle of procedural fairness and due process.  None of these, unfortunately, has been observed.

We hope Malaysia will make a fair and respectful decision on Doan Thi Huong’s case

Due to what can be observed publicly and from the media, the Malaysian DPP’s decision to only discharge Siti Aisyah seems legally and logically unsound under the Malaysian Penal Code. Furthermore, it also seems against the principles of the international human rights laws which have been codified in the Constitution of Malaysia.  This raises grave concerns for not only infringement of Doan Thi Huong’s individual rights but also the accountability of Malaysia as one of the leading states in the region.

To sum up, due to the international human rights laws regarding equality before the court, due to the procedural fairness and due process, Doan Thi Huong should be immediately released as her charge was identical to that of Siti Aisyah, and so were the general legal principles, the Universal Declaration of Human Rights by the United Nations, the due process of law and the equal protection of the law.

Today, the trial is taking place in Kuala Lumpur, we hope Malaysia will make a fair and respectful decision on Doan Thi Huong’s case, not only because she is Vietnamese but also because the principle of fairness and the due process are standards of human rights and of the rule of law that the United Nations Charter and the vast majority of nations and human beings in this modern days have always appreciated and called for practice for a better world.

Click here to get the Korean version.

VCI Legal

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Editor’s Note

After publishing of our opinions on the trial of Doan Thi Huong on 1 April 2019, the trial took place in Kuala Lumpur on the same day.  During the trial, Malaysian prosecutors offered an alternative charge of “voluntarily causing hurt by dangerous weapons or means”[4] to Doan Thi Huong.[5]  She accepted this lesser charge and was sentenced to three years and four months and might be released sometime soon in May 2019 with a usual sentence reduction.[6]  It seemed that she had no option but to accept this lesser charge.  However, she still deserves the equal treatment and should be able to walk free without any guilty verdict like Siti Aisyah.  The only news that cheers us all up is that she will come home soon this May.

These opinions were published by Tuoi Tre Newspaper. Please find the link below for further information:

https://tuoitre.vn/y-kien-luat-su-doan-thi-huong-phai-duoc-tra-tu-do-theo-luat-malaysia-20190331225203001.htm?fbclid=IwAR0nMhf3D3LMwFdRTXrCqjZkevbuHLIraLO3dsZ1iomPaysg9RUtkPov-80

 

[1] https://www.apnews.com/5c233c9637a84ba4a33eaf2e0561c979

[2] State v. Marlow, 163 Ariz 65 (1989).

[3] State v Gerlaugh, 144 Ariz. 449 (1985).

[4] Section 324 of the Malaysian Penal Code.

[5] https://www.straitstimes.com/asia/se-asia/kim-jong-nam-murder-vietnamese-woman-escapes-gallows-pleads-guilty-to-lesser-charge

[6] https://www.theguardian.com/world/2019/apr/01/kim-jong-nam-trial-malaysia-prosecutors-lower-charge-trial-doan-thi-huong


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