There is much that deserves comment in the recent incident of the ‘Datuk T’ trio comprising of Datuk Shazryl Eskay, Tan Sri Abdul Rahim Thamby Chik and Datuk Shuib Lazim. They pleaded guilty to a charge of screening a pornographic video at the Carcosa Hotel on 21 March 2011 between 10.00 and 12.00 pm pursuant to section 292 of the Penal Code.
The first is that the Attorney General’s Chambers (AGC) chose to prosecute them with a lighter offence.
Section 292 of the Code provides a maximum of 3 years and/or fine as punishment. Section 5 of the Film Censorship Act 2002 also makes it an offence to possess, display or exhibit (amongst others) a pornographic film. The punishment under that Act however is a minimum of RM10,000.00 and a maximum of RM50,000.00 and/or a maximum imprisonment of 5 years.
Of course which provision to charge them with is at the Attorney General’s absolute discretion. But the question is why didn’t he charge them with the heavier provision to deter budding pornographers from doing the same as Datuk T?
The second is that the way the Deputy Public Prosecutor (DPP) conducted the case was unusual.
Datuk T were charged with a criminal offence. Since they were charged in the Magistrates’ Court, it would have ordinarily been handled by the state prosecution (as opposed to the prosecution team from HQ in Putrajaya).
According to media reports, the DPP who handled the case was Dato’ Kamaludin bin Mohd Said, the head of the Appellate and Trial Division in the AGC (last checked today). If it had to be handled at all, it should have been by the head of the Wilayah Persekutuan prosecution section, Puan Raja Rozela binti Raja Toran, or Datuk Tun Abd Majid bin Tun Hamzah, the head of prosecution of the AGC.
But the point really is that there was no sensible reason why the head of another division had to handle a Magistrates’ Court case where the accused were going to plead guilty. To send Dato’ Kamaludin is a slur of Puan Raja Rozela and Datuk Tun Abd Majid.
The third is about the brief facts of the case prepared by the DPP.
Brief facts are prepared by the DPP when an accused pleads guilty. They should simply state the ingredients that comprise the offence. In Datuk T’s case, it appeared straightforward. They were charged with the offence of displaying pornography. The brief facts only needed to state that on 21 March 2011, the 3 accused displayed/exhibited an obscene movie at the Carcosa Hotel to a group of people. They are at liberty to plead guilty to those facts.
However, Dato’ Kamaludin was reported in TMI to have read out the following during his recitation of the brief facts:
Results of the analysis by experts from Dartmouth College, Handover, New Hampshire in the US verified the authenticity of the video, that there was no tampering or any act of super-imposing and that it originated from a DVR camcorder taken from Datuk Shazryl.
Experts from Dartmouth College also carried out a facial recognition analysis on the man in the video and found that it resembled Anwar Ibrahim.
Those statements have no relevance to the charge against Datuk T. It was completely unnecessary. Who was in the video was immaterial to the charge of displaying/exhibiting pornography. Whether the video was tampered or not was irrelevant. Only that sex occurred in the video was of relevance.
From a legal standpoint, including those facts was an act of gross incompetency. What now appears likely is that this would have been avoided if the AGC had appointed somebody from the prosecution division to conduct the case. But even then it is hard to imagine that Dato’ Kamaludin, a senior officer, would handle the case so amateurishly. Only he knows why he had to set out all those matters although we have excellent suppositions considering the personalities involved.
The fourth is that Tan Sri Abdul Rahim’s counsel kept harping on the fact that the person in the video is Dato’ Seri Anwar Ibrahim. As discussed earlier – this was irrelevant.
Datuk Seri Shafee Abdullah, a highly experienced and knowledgeable lawyer should no doubt be aware of this. His conduct and words however suggest that Datuk T’s trial was an occasion to publicise an expert report purportedly confirming that the person in the video clip was Dato’ Seri Anwar Ibrahim. His entire line of submission supports this and is a curiosity in itself. The report states as follows:
Abdul Rahim’s lawyer Datuk Seri Muhammad Shafee Abdullah, who also submitted on that point today, told reporters later that according to the experts’ report, they were 99.99 per cent certain that the man in the video is Anwar.
In the June 4 report, prepared by Professor Hany Farid and Professor Lorenzo Torresani, it was stated that the institution had studied a video from a camcorder in a room and copied to a thumbdrive, a video from a surveillance camera taken in a room and extracted directly from a DVR, a video from a second camcorder taken outside an elevator, 320 images of one person named as “Mr X”, 26 images of one person named as “Mr Y” and 4,423 images of “Malaysian people”.
The report concluded that based on the study, “Mr X” is the same man in pictures provided to them by the local authorities, which were of Anwar.
“The conclusion states very clearly that Mr X is Anwar. They cannot say directly that Mr X is Anwar because they do not know him, but they concluded that it is 99.99 per cent certain from their facial recognition analysis that the man in the video is the same as the man in the pictures (of Anwar) shown to them,” said Shafee.
As such, he told the court that Anwar should be charged under sections 192, 193 or 199 of the Penal Code for lodging a false report, denying his identity in the video.
Datuk Seri Shafee’s submission was quite clearly gunning for Dato’ Seri Anwar.
It is not clear how the fact that the person in the video is Dato’ Seri Anwar or not is a mitigating factor. For Shafee to make such a submission is unprecedented and misguided. If any, he should be telling that to the AGC and not the Magistrates’ Court because the power and discretion to prosecute resides with the Attorney General, not the Court.
It is also not clear from the news report whether Datuk Seri Shafee has forwarded that finding of the experts to the AGC. If he hasn’t he should if he seriously wants something done about it.
The fifth is for the Magistrate to screen the whole 21 minute video clip in open court.
This is unusual and seems to perpetrate the offence all over again. It is common in the circumstances involving such material for the Court to convene in camera (without members of the public) so as not to embarrass the victim or the people in the video.
The reason purportedly given by the Magistrate to do so was “to ensure that the evidence had not been tampered with”. But as explained above, whether or not the clip was tampered or not was irrelevant. The only thing of relevance is whether the clip contained obscene material.
As there were no allegations of tampering there was no need to do that. More importantly, if there were, an expert report should have been prepared to opine against that because the Magistrate, Tuan Aizatul Akmal Maharani, is not competent to confirm this. Further, the Magistrate could confirm that there was obscene material in the clip by only viewing a bit of it without going through the whole clip.
The sixth is the sentence passed on the trio. A fine totalling RM5,500.00 for all of them is a travesty. Let us consider another portion of the brief facts which Malaysiakini reports as follows:
The court also heard how Shazryl met Shuib and Rahim to expose the sex tape.
Shazryl had met Shuib at the end of February with the recording in his pendrive, with a video said to be of Anwar engaging in various sex acts with a Chinese national.
They then decided to meet Rahim, considering that the recording was “sensitive” and had “national interest”, before all three agreed to screen the video to journalists.
Rahim then called one Kamarulail Sulaiman to book a room at Carcosa Seri Negara, an exclusive hotel in the hilly outskirts of Kuala Lumpur, while Shazryl contacted a senior reporter from The Star to round up the other reporters at the hotel for a story of “high national interest”.
“(The person) then invited other reporters, who then turned up to spread the word to other reporters,” said the statement of facts.
Clearly the entire crime was carefully planned and pre-meditated. There were various discussions and others who were called in to abet and facilitate their crime.
During Tan Sri Abdul Rahim’s counsel’s submission in mitigation, there was no report of him regretting his actions. Instead their collective submission indicated that they were defiant and convinced that they did it for public benefit. If that was not perverse enough, it was submitted that they did not profit from exhibiting the video.
There does not seem to be anything reported by way of reply by the DPP. One submission that would have amply rebutted that grotesque line of submission was that if Datuk T truly believed that to be Dato’ Seri Anwar and felt it was an offence they should have lodged a police report or a report with the Malaysian Anti-Corruption Commission. The Magistrate if he were better would have thought of that himself but that would be expecting too much of him.
There are many other smaller issues that can be held up and picked apart about the proceedings but there would be little benefit in that.
What I have merely sought to do here is to point out some of the more glaring features about the proceedings (as culled from news reports) that a person with a few years of legal knowledge and practice may question after reading the reports. It also makes one wonder who was actually on trial at the proceedings – Datuk T or Dato’ Seri Anwar Ibrahim.
What I would take away from this is that so long as you can ensure you get a return of more than RM5,500.00 in displaying a pornographic movie, you are likely to earn a profit.
And that if you were going to exhibit or display a pornographic movie, you best have Dato’ Seri Anwar Ibrahim (or at the very least, someone that looks like him) in it because that would appear to mitigate your sentence.
It now seems appropriate that the 3 criminals used the monicker ‘Datuk T’ because the proceedings so clearly demonstrated the travesty and tragedy of the Malaysian legal system and Malaysian politics.
Fahri Azzat is appalled at the perverse sentence received by ‘Datuk T’ since he regularly sees kids with more of a future served a more punishing sentence for a far a lesser offence. He is contemplating quitting legal practice to become a pornographer since the fine is only RM5,500.00 per movie. He may even get a lower fine if the movie he exhibited or displayed were titillating enough. Oh yeah, in case you are wondering, he is not a supporter of Dato’ Seri Anwar Ibrahim in case you were wondering.
Fahri Azzat practices the dark arts of the law. Although he enjoys writing and reading, he doesn't enjoy writing his own little biographies of himself. Like this one. He wished somebody else would do it for him. He has little taste in writing about himself in third person. He feels weird doing it. But the part he finds most tedious is having to pad up the lack of his accomplishments, or share some interesting facts about his rather uneventful life, as if there were some who found that oh-so-interesting; as if he were some famous person, like Michael Jackson. When he writes these biographies, the thought, 'Wei, Jangan Perasaan- ah!' lights up in his head. So he usually just lists what he got involved with, positions he held and blah, blah. But this time. Right here. Right this very moment. Uhuh. This one. This one right here. He's finally telling it like it is.
Posted on 30 June 2011. You can follow any responses to this entry through the RSS 2.0.
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