Transwoman charged twice for same crime, lawyer says

A transwoman from the Philippines was charged twice for the same crime of disrupting traffic in the nude on Jalan Sultan Ismail, Kuala Lumpur, her lawyer said yesterday.

On March 20, Kent Carburnay Acuin pleaded guilty to climbing on top of a car and "behaving impolitely" (berkelakuan tidak sopan) the week before.

She pleaded guilty under Section 14 of the Minor Offences Act 1955, and paid the RM100 fine.

However, Acuin was charged again for the same crime the next day – but this time, under Section 509 of the Penal Code for intending to insult the modesty of any person. 

This provision carries a maximum jail sentence of five years, a fine, or both upon conviction.

Acuin's lawyer, Samantha Chong, has written to the Attorney-General's Chambers to have the second charge dropped.

"One cannot be punished or tried twice for the same offence," Chong said. "It is double jeopardy."

According to Article 7(2) of the Federal Constitution, "a person who has been acquitted or convicted of an offence shall not be tried again for the same offence, except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was acquitted or convicted."

'Case has gone viral'

As Chong (below) explained, deputy public prosecutor Rajdeep Singh sought an adjournment in the second trial to obtain instructions from his superiors "because the case had gone viral."

Footage of Acuin climbing on top of a Honda City car on March 13 was widely circulated on social media, with the incident also being reported in various news outlets.

The case is set for mention on April 9.

Chong said that her client has been remanded since March 13, and was physically assaulted while in detention.

The lawyer added that Acuin faces further detention in an immigration detention centre if the second trial proceeds, as her tourist visa lapsed on March 24.

'Help us bring her home'

Acuin's family is now distressed because she is the sole breadwinner, her sister Marlou told Malaysiakini.

"Kent has been supporting her four younger siblings in their schooling. Without her, the family is in hardship.

"She may have gone against your laws, but she has already been punished. Please help us bring her home," Marlou pleaded. 

The family also apologises on her behalf.

Transgender rights advocate Elisha Kor Krishnan believes that Acuin is being discriminated against because of her gender identity.

Elisha, whose NGO Pertubuhan Kesihatan dan Kebajikan Umum Malaysian helped to pay the RM100 fine, said she was dismayed to find that Acuin could not be freed.

"It is unreasonable and unfair! Maybe just because, as a transgender, she does not fit into the standard?" - Mkini