A 34-year-old Kenyan woman escaped the gallows when the Court of Appeal overturned her conviction and death sentence for trafficking 3,747.63 grammes of syabu and sentenced her to 20 years' jail instead on a lesser charge of possession.
Justice Dato' Hj Mohd Zawawi Salleh, Vernon Ong Lam Kiat and Datuk Dr. Prasad Sandosham Abraham allowed Judith Achieng Odoyo's appeal Monday.
In its decision the court held that there were some serious misdirection made on the part of the trial judge.
The court, however, held that after reviewing the entire evidence, they were satisfied that there were some evidence to support a conviction under a reduced charge.
"However in the circumstances of the case, we are of the firm opinion that this is a proper case for the court to exercise its discretion to substitute the conviction under Section 39B (1) (a) of the Dangerous Drugs Act (DDA) 1952 to one Section 39A(2) of DDA," held Mohd Zawawi.
Judith appeared calm upon hearing the decision.
Trafficking drugs under Section 39B(1)(a) of the DAA 1952 carries the death penalty while Section 39A(2)(r) of the same Act provides imprisonment for life or for a term of not be less than five years, and whipping of not less than ten strokes.
The appellate court ordered Judith to serve the 20 years imprisonment from the date of her arrest on Sept 13, 2011. The court also told Judith that she was very lucky to have her conviction substituted. "We welcome foreigners as tourists in Malaysia but if they commit an offence they will be dealt with according our law," said Mohd Zawawi, who also told Judith to thank her counsel.
Judith, a former college student in Nairobi, Kenya was on August 13, 2012 sentenced to death by the High Court here after she was found guilty to trafficking the drugs at 8.45am on Sept 13, 2011 at the passenger examination special unit in Terminal 1 of Kota Kinabalu International Airport (KKIA), here.
Earlier, counsel Hamid Ismail representing Judith raised 5 grounds of appeal which were grouped into four, among others, were that the failure by the trial judge to subject the prosecution's evidence to maximum evaluation; the breach of the double presumption rule; the improper treatment of the appellant's defence and the failure by the trial judge to make finding whether the appellant had rebutted the presumption of trafficking at the end of the trial.
Meanwhile, during mitigation Hamid requested for a sentence of 20 years jail while Deputy Public Prosecutor Tetralina Ahmad Fauzi urged the court to impose the maximum sentence of 30 years taking into consideration of the drug's weight and that Judith was not eligible to whipping being a woman.
Source: Daily Express, September 8, 2015
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