Our client was sentenced to death on a Wednesday morning.
He walked into the Kuala Lumpur courtroom holding a bible in his hand, handcuffed along with two other men. They were his casemates, arrested with him 3 years ago before undergoing trial for the same drug trafficking charge together with our client.
We approached them as they sat in the dock, our client being in the middle of the three. Some words were exchanged between us and I tried to portray some reassurance from the top half of my face not covered up by a face mask.
There was a bad feeling in my gut the night before but I had held out hope that the learned judge would see our point and order for an acquittal. However, with the benefit of hindsight, even before we knew what the learned judge's decision was, the signs were already there.
Her face upon walking out from the door behind her bench as the jarring sound of the buzzer echoed across the courtroom was somber and stern. She peered at the language interpreter, asking not once but twice, if he was capable of understanding her words and interpreting them for the benefit of our client and his casemates. She had placed a strong emphasis on the importance of his service.
It was pouring rain outside. Whilst the learned judge was reading aloud her decision to the public gallery, the sound of thunder had chimed in between the pauses of her cadence for dramatic effect.
As legal advocates, we could already tell what the decision would be even before the learned judge has finished reading out her judgment in full. In that moment, we are passersby watching a train-wreck in slow motion, wondering if the passengers inside are aware of their impending demise.
Upon delivering her decision, the bailiff barely manages to call for those in attendance at court to stand as the learned judge rises from her bench and quickly disappears into her chambers without a word further.
Our client is smiling but the disappointment in his eyes is clear.
There is an exchange of words but it is brief before he is led out of the courtroom along with the two other men as we watched silently.
We pack our stuff and head back to the office just like any other Wednesday. We were going to finish up some pending work and play badminton in the evening.
I wish that I could say that the world stood still when the decision was made but for the Court and even for us, it was simply the order of business. Our client was not a household name. He was no politician that the media would hound over every morning at the grand entrance of the Kuala Lumpur Court Complex, waiting for his picture to be taken. His entrance and exit was instead by way of a cramped truck, waiting for him to enter or leave as he is escorted through the bottom levels of the court, chained up with many others.
Our client now joins the long list of individuals that have been put on death row for the offence of drug trafficking. It would probably be close to two years from now before his appeal is heard. The reality is that even if he were acquitted on that Wednesday, he would have been re-arrested by Immigration Officers and would likely be moved back to prison pending an appeal from the prosecution.
Perhaps the most tragic part of it all would be that his case is one that involves an agent provocateur (a person that actively provokes another to commit a crime). If it had not been for the enticement of this agent provocateur, it is debatable whether there would have been any crime in the first place.
Out of client confidentiality, I am not at liberty to disclose the exact facts of the case and the extent of our client’s involvement but it does make one ponder if the actions of the police in entrapping others for offences involving the capital punishment is a practice that we should continue to adopt and encourage going forward especially when the testimony of the police officer involved is inconsistent and suspicious.
Apparently, the death sentence for an offence of drug trafficking is a ”discretionary” one but as seen under Section 39B, there is a list of factors that must be considered before life imprisonment could be given in the alternative. A “discretionary” death sentence does not necessarily provide an unfettered discretion to the court but merely narrows down the circumstances upon which the death sentence must be granted, hence, the court’s hands in the matter are quite tied-up.
In this scenario, the mere involvement of an agent provocateur had excluded our client from the possibility of being sentenced to life imprisonment. One might believe that police entrapment would have been a good mitigating factor for a less severe sentence but under our law, the opposite is true.
I will save the debate on the death sentence for another day.
As I rummage through the documents we have received from the prosecution, placing them neatly into a cardboard box along with copies of the various bundles and submissions that we have filed in court, I stumble on a note, handwritten by our client. I am not in the position to disclose its contents but they were the words of a hopeful man, harbouring within the evenly spaced letters floating slightly above the horizontal line of the paper, the emotions of a fellow human being.
I place the note back in its place and shut the cardboard box tight, scribbling the name of our client with black ink on the top and side of the box before carrying it to the back of our office, placing it right next to an empty rubbish bin.
It waits there to be shipped off to another storage room, away from anyone’s sight, collecting dust and biding its time.
Artwork by Alain Pilon - Illustration
