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Thursday, April 30, 2020

The case of the two 'MCO fishermen' ends well

Malaysiakini

It was a Thursday. The second day of April. The two men got off their Honda cub motorcycle, by the pond. They began fishing with their fishing rods. They hoped their catch would feed their families.
Poh Wah, 56 years and Chee Wei, 45 years, are daily wage earners. They do house repairs. They had no work and no income for 14 days since March 18 when the Covid-19 movement control order came into effect.
Policemen spotted the duo fishing. The High Court judge who heard their case on appeal wrote that they “gracefully tendered their friendly advice to the duo” to stop fishing and go home. The duo refused.
The judge added,, “If they had heeded to the advice and moved away from the fishing pond to home, they would not have succumbed to the arms of the law.”
The duo was arrested. They were charged in the Sungei Siput Magistrates Court the next day. They pleaded guilty. They were sentenced to three months imprisonment. They began serving their time.
There was a public outcry, for these were “fishermen” – as reported in headlines. The general public didn’t know the details about the “advice” given to them by the police and their refusal to comply.
The public only knew that they were too poor to pay any fine which might be imposed and so were compelled to accept a prison term. The public felt the punishment was excessive.
The case of the duo became the flag-bearer for the movement for a proportional punishment. A retired judge of the Court of Appeal spoke to the media two days after they were sentenced. He reminded High Court judges that they could call for a review of cases by lower courts.
A judicial commissioner (in common parlance, a “probationary High Court judge”) in Taiping, decided to look into the case. He “called for the records of the Sungei Siput Magistrates court with regard to the matter.”
In parallel, the young National Legal Aid Foundation (Yayasan Bantuan Guaman Kebangsaan, YGBK) lawyer acting for the duo applied to the same High Court to revise the decision of the lower court.
On April 8, Judicial Commissioner Muniandy Kannyappan heard the case. He revised the sentence handed out to the duo. He released them from incarceration – they had already spent six days in prison.
On April 29 (yesterday), he released his written judgment – which I quoted from above. As a layman, I found the following three paragraphs instructive with respect to speedy action by a judge, the need to punish defiance and choosing between sentencing options:
“[10] The pivotal issue is, is the sentence meted out proper in the circumstance of the case? The sentence passed may border on harshness or in the language of the CPC, of excessive severity, (see section 307(1) CPC) which plainly befits an appellate intervention. But the rigours of an appeal could be time demanding as there is a process which has to be adhered to, by which time the sentence meted may turn academic as the accused persons would have completed serving the sentence of imprisonment passed. ...”
“[12] The aim of the regulations is to promote public good as the rakyat is prostrating before the state and its machinery to alleviate the looming pandemic of Covid-19. Thus the conduct of its people has to be befitting and not to act in defiance to the state who is responsibly enforcing MCO via its law enforcement mechanism.”
“[30] In the premise, it would be appropriate for subordinate court judges to be mindful of all available sentencing options available in our penal system of justice, so as to afford an accused person justice in all sense of its attributes, as otherwise, it would be a right denied under the law.”
Paragraph 30 is music in my ears – especially since the judge put it in bold; it’s the only paragraph he put in bold. He said, in a judgment, what the attorney general should have said in statements or directives.
The judge sentenced the duo – who “committed violations which are not minor or trivial” – to public service at the Perak Compulsory Attendance Centre for “three months for four hours each day.”
The judge even said it is “unfathomable, for the accused persons as violators to remain in an overcrowded prison, where social distancing is near to an impossibility.”
I believe the magistrate erred tragically in this case, as dozens of magistrates have erred in thousands of MCO cases over the past 40 days.
I believe the attorney-general failed to intervene when he could have.
I also believe this judge has restored public confidence that some members of the judiciary are able to temper justice with mercy.
There is still much that is wrong with the sentencing of MCO violators. I hope the public will continue protesting, and that judges will continue to address issues with sentencing.
I hope the 11 new MCO detention centres will be un-utilized. I hope Poh Wah and Chee Wei have lots of work, catch lots of fish and obey the law.

RAMA RAMANATHAN is Citizen Action Group on Enforced Disappearance (CAGED) spokesperson. - Mkini

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