Minister's brother is spared from death row fate

MALAYSIA:

Minister's brother is spared from death row fate


The younger brother of Federal Entrepreneur and Cooperative Development Minister escaped the hangman's noose when the High Court here freed him from a charge of trafficking cannabis, Friday.

Mohd Jusnaidi Omar, 36, was also discharged and acquitted by Judge Datuk Ian HC Chin of a charge of being in possession of methamphetamine (syabu).

The judge in his judgement held that the prosecution's failure to call the accused's 2nd wife Nurul Ashikin to testify in the hearing was the main reason for the discharge and acquittal of the accused of the charges against him.

Jusnaidi, a project coordinator from Selangor, was charged with trafficking in 1,011.04gm of cannabis and being in possession of 23.98gm of syabu at 10am on May 20, 2007 at Terminal 2, Low-Cost Carrier Terminal (LCCT) in Tanjung Aru here.

The drug trafficking charge, under Section 39B(1)(a) of the Dangerous Drugs Act (DDA), carries a mandatory death sentence on conviction.

The second charge of syabu possession was framed under Section 12(2) of the (DDA) and punishable under Section 39A (1)" of the DDA, which carries a jail term of between 2 and 5 years and whipping between 3 to 9 times on conviction.

Justice Chin said Nurul was not called by the prosecution and the accused took advantage to attribute her as being the person responsible for packing the bag in which the drugs were found.

When Mohd Jusnaidi and Nurul were arrested on arrival at the LCCT, Mohd Jusnaidi was pulling a bag where the drugs were found by police.

Making his defence under oath from the witness box on June 16, this year, Mohd Jusnaidi told the court that he did not know anything about the drugs.

He said it could be that Nurul wrongly packed the drugs into the bag.

Jusnaidi also testified that Nurul's cousin by the name of Ella and her boyfriend, who were staying with them in his apartment, were involved in drugs activities.

Justice Chin said it was not the transportation of the drugs only that the prosecution must be concerned with, it was also proving facts which were necessary and which the prosecution could easily anticipate the accused might assert in an attempt to shift the blame to others regarding the drugs.

"The prosecution must close all the doors to which the accused can escape.

This is also to deny the accused any opportunity to assert facts with no contradiction from the prosecution evidence," the judge said.

He also held that the prosecution had also failed to examine Mohd Jusnaidi as to what he had said in his statement to the police.

The judge said it was because it was exculpatory in which case the prosecution must call evidence during their case to pre-empt or contradict what the accused said in his statement.

"This made calling Nurul the more imperative as she will be the very important witness as to what went on in the apartment and thereafter their arrival at Kota Kinabalu before the police arrested them."

"If the accused testimony is not exculpatory but his testimony is in conflict with his statement, then the statement could be used to impeach him.

Neither was done as would normally be with regard to the cross-examination of an accused," the judge said.

Mohd Jusnaidi was defended by Counsel Zahir Hussein Shah while the prosecution was conducted by Deputy Public Prosecutor Gan Peng Kun.

(source: Daily Express)