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SUKMA DARMAWAN SASMITAAT MADJA
&
MUNAWAR AHMAD ANESS
VS
MAHADIR N THE KUCU'S

THANK YOU
aquamarine_18@hotmail.com

SUKMA DARMAWAN SASMITAAT MADJA, who was detained for 12 days,  and
MUNAWAR AHMAD ANESS, who was detained under Section 73(1) of the
Internal Security Act (ISA), were suddenly brought to two different
Sessions Court in Kuala Lumpur, charged, convicted and sentenced on
19.9.98 for the offence of outrages on decency under Section 377D Penal
Code, which carries a maximum sentence of 2 years imprisonment. Both of
them pleaded guilty and were sentenced to six months imprisonment..
WHERE DID THE "LAWYERS" COME FROM?
Normally, when a person is arrested and detained by the police, it is
the family of the detainees that appoint the lawyers because the
detainee himself has no opportunity to do so. were denied access to
their family members and the lawyers appointed by their respective
families. In these cases, however, suddenly the two are brought to court
and a lawyer is already representing. When and how did they appoint the
said lawyers? Were these lawyers his friends, or were they his lawyers
before?
After they were sentenced, both Sukma and Munawar were whisked off by
the police. To date, I believe, that the family and their lawyers have
still not had access to the two..
 
WHY DID THEY PLEAD GUILTY?
The charge of sodomy is a difficult charge for the prosecution to prove,
and it is usual that one will claim trial rather than plead guilty. So,
why did the two after being arrested and detained, without access to
their families or the lawyers appointed by their respective families,
plead guilty on the said date?
The Star (20/9/98) reports that Munawar "was seen trembling when the
facts of the case was read out to him.  Although one of the court police
officers passed Munawar a jacket, he continued shaking. During
mitigation, Munawar asked the judge Lim Yee Lan to allow him to go to
the toilet." The Star report also said that after shouting at the lawyer
his family had appointed had left, Munawar was heard saying "No, no, he
caught me by surprise, I didn't ask him to come." (who was he speaking
to). What was the reason for Munawar's behavior? Was it because his
conscience was disturbing him because he had betrayed a friend by
telling lies, or was it because of sins of sodomy that he had committed?
Were they forced into making the said confessions and/or admiting to the
charge and facts of the case..
 
CHARGED BASED ON A UNVERIFIED STATEMENT?
Normally, persons will be charged in court after the police has
completed its investigation. Note that the police has the power to
require the attendance of a person, who may or has information relating
to the   said investigation. Here, what is odd is that the police did
not even call in and/or question the Anwar, who was the alleged
"accomplice" in this crime, and who was named in the said two charges..
Did the investigating officers visit the site of the alleged offence to
verify the said confessions? Since there is no mention of this, it can
be implied that they did not..
This new development in our courts would mean that in the future, if a
person were to go to the police and confess "I had been sodomized by
Mr..
B", the person will be automatically be charged with the offence under
section 377D. Surely the police has the duty to investigate the said
allegations and  to ensure that it is not a false confession. Surely
Mr..
B should have been called in, at the very least to get a statement from
him. Surely, the facts of the case had to be verified. And after
investigations, if the person had made a false report or statement to
the police, the said person could be charged with an offence..
 
WHY WAS ANWAR NOT CHARGED TOGETHER?
When two persons are involved in what amounts to an offence, they are
usually charged together. Here Anwar who, according to the said charges
is the person who apparently committed an offence under section 377A,
which carries a sentence of imprisonment which may extend to twenty
years, and will also be liable to whipping. At that time, he was still a
free man, not arrested and detained yet..
 
PREMATURE DISCLOSURE OF NAME OF SUSPECTED OFFENDER - WHY?
The police released this information about Anwar's name to the court..
What was also odd was that the police also allowed the name of Anwar to
be disclosed to the media. This is not normal  since the said Anwar was
not in police custody. A premature disclosure would give him the
opportunity to escape the hands of the law and/or possibly interfere
with police investigations. The police should have obtained an order to
prevent disclosure of Anwar's name. Why was this not done?
The similar situation happened in the Nalla case. The said Anwar was
still a free man, so why did the police and the office of the Attorney
General disclose the name and the nature of their investigations against
the former Deputy Prime Minister?  This is all very  odd..
>From the actions of the police and the office of the Public Prosecutor
(Attorney General), there could only be two possible motives that I
could think of. One, by the disclosure, the police hoped that other
potential witnesses and/or complainants, who on knowing that the police
was investigating Anwar on such charges would come forward - but then
there was such no call for any witnesses to come forward by the police..
Two, the police and the Public Prosecutor was interested to defame the
man - but then, for what purpose. To date, Anwar has still not been
charged with any of the offences which the police had said that they
were investigating..
 
DEFECTIVE CHARGE?
The charges do not state the exact time and date when the alleged
offences were to have taken place. In the case of Munnawar's charge, all
that is said is that in the case of Munawar it happened "in the month of
March 1993, at night", and in the case of Sukma, it happened "in the
month of April 1998, at night". This is odd, because the Criminal
Procedure Code requires that the charge contain such particulars as to
time and place. This was certainly an offence that occured on a
particular day, and at a particular time so why were these facts left
out..
 
OVERCONFIDENT PROSECUTION
Another point that was odd in this case was the fact that the
prosecution was ready with the typed out facts of the case on the first
day the accused is charged. Normally, on the first day the accused is
brought to court and the charge is read to him. After that he is asked
whether he pleads guilty or claims trial. When the accused pleads
guilty, another date is fixed for the sentencing. This is done so that
the prosecution is able to prepare the facts of the case and any other
exhibits that they would want to tender in court. Normally, except for
clear cut cases like traffic summonses, the prosecution would not have
prepared the Facts of the Case because the prosecution would not know
whether the accused would plead guilty or not..
 
WHY SESSIONS COURT, NOT MAGISTRATES COURT?
Both persons were charged in different courts, being the Sessions
Courts, on the same day. The first question is why were they charged in
the Sessions Court and not the Magistrate's Court, which is the normal
practice. The Magistrate's Court has the jurisdiction to try all
offences for which the maximum term of imprisonment provided by law does
not exceed ten years imprisonment and this offence under section 377D
carried a maximum of penalty of imprisonment which may extend to two
years only..
 
MITIGATION OR WHAT?
With regards to the mitigation, it is odd that the learned counsels for
Sukma and Munawar had it apparently typed out and ready, for if not how
would one explian the fact that the full transcript was carried in the
local media. This is not the normal practice. Further, if they really
had to type out the said mitigations, it is also strange why no cases
were cited. It is also difficult to understand why the said lawyers
dwelled so much on Anwar, for after all the mitigation was for their
clients..
It is also odd, that your own lawyer in mitigation confesses to the fact
that the accused had committed   more than the one offence for which the
accused had been charged for and as the facts of the case. The said
counsel,  in his mitigation states that "the immoral activities took
place in Anwar's car and in his house".  The charge says "in his house"
, and the facts of the case says that it "took place in a small room
close to the library on the first floor of the house". Why did Munawar's
counsel in mitigation admit to two offences (one in the car and one in
the house) or was it one continous offence which started in the car and
ended in the house? In mitigation, the lawyer representing the accused
should bring out mitigating factors(reasons for a lower sentence) that
the court should consider before the sentence is passed. What Munawar's
lawyer apparently did was raise a aggravating factor. Why?
It was also odd that in mitigation, the lawyers seem to be bringing out
facts of the case in greater detail. For example, in the case of
Munawar, it was stated that "Anwar Ibrahim used to call the accused on
the phone and take the accused out for a drive at the Bukit Kiara area..
After two or three drives, Anwar Ibrahim started making advances..." Why
was the said lawyer adding "juicy details" during mitigation? Details of
the offence are tendered by the prosecution during the presentation of
the Facts of the Case not by the accused's lawyer during mitigation..
 
MITIGATION OR QUALIFIED PLEA?
The offence under section 377D of the Penal Code is committed when a
person "commits, or abets the commission of, or procures or attempts the
commission by any person of, any acts of gross indecency with another
person...". One commits the said offence when one participates in the
act voluntarily and with consent. If a person was forced into doing the
act against his will, or without his consent, or because of fear of hurt
or death to himself or to some other person, then surely the person
cannot be guilty of an offence under section 377D..
What comes out in the mitigation of Munawar was that he participated in
the said act because of fear that he might lose his job, "for fear that
he might lose everything financially" and "due to the status pressure
exerted by Anwar" and if that is the case, this will amount to a
qualified plea and the court should have at that stage rejected the plea
of guilty and set down the matter for trial. If this was the case this
man is most probably not guilty of an offence under section 377D..
It is a cardinal principle in law that any plea of guilty must be
completely unreserved, unqualified and unequivocal. Even if the accused
has pleaded guilty and admitted to the facts of the case, but in
mitigation what was stated amounted to a qualified plea, then the court
should have rejected the plea of guilty and entered a plea of "Not
Guilty". It clearly should have been done in Munawar's case but why was
it not done?
 
A CONFESSION WAS TENDERED DURING MITIGATION-WHY?
In the case of Sukma, one interesting point was that the counsel in the
middle of his submission  "tendered a confession made by Sukma to the
court as an exhibit". No lawyers, that I consulted,  have never heard of
this being done before. During mitigation, one might tender a medical
report to support the point that the accused is of poor health but not a
"confession". Factors that are usually brought out during mitigation are
the age of the offender, the fact that the accused had repented, the
effect of the conviction on him, the fact that by pleading guilty the
accused had saved the court's time, etc.. NOT the tendering of a
confession (or was it the caution statement made by the accused while he
was in police custody). This is very odd..
Note that the Evidence Act states that a confession made by a person
whilst in the custody of the police is not admissible, unless it was
made in the immediate presence of a Sessions Court Judge or Magistrate..
Similarly a confession made as a result of inducement, threat or promise
having reference to the charge against the accused person, proceeding
from a person in authority, and giving the accused person  reason to
belive that by making it he would gain any advantage or avoid any evil
of a temporal nature in reference to the proceeding against him. What I
have stated about the Evidence Act is not exhaustive. In any event, we
have to wonder whether what was tendered was a "confession", and if it
was, when was it actually made and why was it made especially since
Sukma was going to plead guilty anyway?
 
CONCLUSION
At the end of the day, all that one can say about these two cases, which
were produced in court on a Saturday morning at 11.00am and disposed
quickly, raises a lot of unanswered questions. The timing of the arrest
and the said charges are also questionable, especially since it happened
at a time when the Malaysian people were demanding proof for the
allegations of "low morals" made by the PM. Was the charging of the two,
the guilty plea and subsequent conviction done only to jsutify the
allegations made by the Prime Minister for the sacking and expulsion of
Anwar from the Cabinet and UMNO? The words of the Perak Menteri Besar,
Tan Sri Ramli Ngah Talib which was reported in The Star(20/9/98) seems
to support this belief: "They pleaded guilty in a formal court of law
before a judge hence this confirms the truth of the matter"..
But, one has to disagree since the truth of the matter with regards to
Anwar can only be established once he has had the opportunity for a fair
trial before a truly independent judge, who will hear and decide on this
case without fear and favour. But, is this possible? All we can do is
hope that the answer is "YES"..
 
 
_____________________________________
Notes:-
The charge against Sukma
SUKMA DARMAWAN SASMITAAT MADJA
CHARGE
"That you in the month of April 1998, at night, at the Offcial Residence
of the Deputy Prime Minister at No 47, Jalan Damansara, in the Federal
Territory of Kuala Lumpur, committed an act of gross decency with one
Datuk Seri Anwar Ibrahim by allowing the said Datuk Seri Anwar Ibrahim
to introduce his penis into your anus and you had thereby committed an
offence punishable under Section 377D of the Penal Code."
 
The charge against Munawar
MUNAWAR AHMAD ANESS
CHARGE
That you in the month of March 1993, at night, at No. 8, Jalan Setia
Murni 1, Bukit Damansara, in the Federal Territory of Kuala Lumpur,
committed an act of gross indecency with one Dato' Seri Anwar Ibrahim
by allowing him to introduce his penis into your anus and you had
thereby committed an offence punishable under section 377D of the Penal
Code"..