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114 Malayan Law Journal [2017] 6 MLJ [41] Firstly, on Reyes, we noted that the Constitution of Belize contains s 7 which reads: ‘No person shall be subjected to torture or to inhuman or degrading punishment or other treatment’. We do not have similar provision in our Federal Constitution. Secondly, after the amendment to the Federal Constitution, vide Act A566, which repealed the provisions concerning appeals from the Federal Court to the Privy Council with effect from 1 January 1985, any decision of the Privy Council would not be binding on us but would only be of persuasive authority. Thirdly, to accede to the invitation of learned counsel that we follow the current international trend and hold that the mandatory death sentence is degrading and unconstitutional would result in us departing from the decisions in Ong Ah Chuan and Public Prosecutor v Lau Kee Hoo [1983] 1 MLJ 157; [1983] CLJ Rep 336. Fourthly, it is trite that the function of the court is to apply the law and if at all the present law is disproportionate, cruel, inhuman, or degrading the initiative to change should come from the Legislature. [42] In fact, the answer to the constitutional issue mounted by learned counsel for the appellant is found in Lau Kee Hoo where the Federal Court had to consider whether or not the mandatory death sentence provided under s 57(1) of the Internal Security Act 1960 is ultra vires and violates arts 5(1), 8(1) and 121(1) of the Federal Constitution. A B C D E [43] In answering the question in the negative, Suffian LP said at pp 338 and 340 which we respectfully endorse: First, we considered the argument based on art 5(1) which provides: F No person shall be deprived of his life … save in accordance with law. Thus it will be seen that the Constitution itself envisages the possibility of Parliament providing for the death penalty, so it is not necessarily unconstitutional. That this is so is fortified by reference to art 42 which deals with the power of the Yang Dipertuan Agong, a Ruler and Governor to grant pardons, reprieves and respites. There is a campaign inspired from some Western countries to abolish the death penalty on the ground that it is cruel, but there is no provision in our Constitution corresponding to art VIII of the American Constitution prohibiting ‘cruel and unusual punishment’, nor similar to the provision contained in s 2(b) of the Constitution of Trinidad and Tobago which was considered by the Privy Council in Micheal de Freitas v Benny [1976] AC 239. Nor does our Constitution contain any provision prohibiting ‘torture or inhuman or degrading punishment’ like s 60 of the Constitution of Rhodesia and Nyasaland which was considered by the Privy Council in Runyown v The Queen [1967] AC 26. Mr Karpal Singh did not however seek to argue that the penalty in question was cruel or unusual or was tantamount to torture or was inhuman or degrading; but simply because, as earlier stated, it was said to contravene certain provisions of our Constitution. In parentheses it may be remarked that one would not expect Parliament to countenance torture or any punishment that is inhuman or degrading; that as regards the death penalty which has existed here for well over a century, while it may G H I

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LETITIA BOSMAN

CASE BRIEF

Jurisdiction

Malaysia

Nationalities

South African

Case Title: Letitia Bosman (f) (Federal Court Criminal Appeal No. 05-76-04/2017(J))

Gender: Female

Religious Group at Offence: Unknown

Vulnerable/ Marginalised Group

Foreign National
Minorities: Gender

Jurisdiction - Geolocation

Latitude: 4.2105

Longitude: 101.9758

Jurisdiction - Geolocation (linked CASE BRIEF): Malaysia

Contributing TRP Partner

Malaysian Centre for Constitutionalism and Human Rights (Malaysia)

Latest Country's Death Penalty Status

Retentionist

Case Current Status: Closed: Commuted

Year when sentenced to Death Row: 2010s: 2015

Rights Allegedly Violated

Fair Trial and Due Process: Excessive and disproportionate punishment

Nature of Offences for Death Penalty

Drug Crime

Case Background (300 words max): In Letitia Bosman v Public Prosecutor, on 29 March 2017, Letitia Bosman, a South African, was convicted for drug trafficking under Section 39B(1)(a) of the Dangerous Drugs Act 1952 and sentenced to death. She was caught at Senai International Airport with methamphetamine hidden in her luggage. Bosman claimed she was an innocent carrier, alleging that a man named George had given her the bag in New Delhi.

The issues are thus (1) whether the mandatory death sentence under Section 39B(2) was unconstitutional; and (2) whether the trial judge had erred in handling presumptions of possession and trafficking.

The Court of Appeal upheld her conviction and sentence, rejecting the argument that the mandatory death penalty was unconstitutional. The Court of Appeal affirmed the trial judge’s decision, as there was no miscarriage of justice in handling the evidence or presumptions under the Dangerous Drugs Act. The court found Bosman’s defense about the bag and George’s involvement to be inconsistent and an afterthought.

In Letitia Bosman v Public Prosecutor and Other Appeals (No 1), on 13 August 2020, the appellant issued a constitutional challenge to the mandatory death penalty for drug trafficking and murder under Section 39B of the Dangerous Drugs Act 1952 and Section 302 of the Penal Code. Four appellants, including Bosman, argued that the mandatory death penalty was unconstitutional for violating Articles 5(1), 8(1), and 121 of the Federal Constitution.

The issues are thus (1) whether the mandatory death penalty usurps judicial discretion and violates the doctrine of separation of powers; (2) whether the penalty violates the right to a fair trial by denying the opportunity for mitigation; and (3) whether the death penalty is arbitrary, cruel, and disproportionate.

The Federal Court, by a majority of 8-1, dismissed the appeal, ruling that the mandatory death penalty is constitutional. The court emphasized that it is Parliament’s role to decide punishments, not the courts. The dissenting judge argued that the mandatory death penalty is disproportionate and arbitrary, suggesting it should be replaced with a discretionary sentencing framework. The court maintained that Malaysian law does not incorporate international standards on cruel or degrading punishment unless expressly adopted.

The Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of The Federal Court) Act 2023 was introduced and took effect on 12 September 2023 to confer the Federal Court the jurisdiction to undertake the resentencing of the prisoners who have been sentenced to death or being imprisoned for natural life. An application for resentencing was filed on behalf of Letitia Bosman in the Federal Court.

An application for resentencing was filed in the Federal Court. In this application, the Federal Court took into account amongst others, the individualised mitigating circumstances of the Applicant which include the fact that the Applicant is remorseful, and she has repented. The Federal Court accepts the principle that the Applicant’s remorse as a mitigating factor that might earn her the court’s compassion.

The Applicant’s death sentence was commuted, and she was sentenced to 30 years from the date of arrest.

Defence Arguments (200 words max.): In the High Court of Malaya, the defence denied any knowledge concealed in the brown trolley bag bearing the appellant's name, claiming the defence of innocent carrier. The defence was rejected.

In the Court of Appeal, the defence submitted that (a) there was no finding by the learned trial judge at the end of the prosecution case as to whether he had relied on the presumption of possession under s 37(d) of the Act or the presumption of ttafficking under s 37(da) of the Act whereas at the end of the defence case, the judge failed to make a finding as to which presumption had or had not been rebutted on the balance of probabilities; (b) the learned trial judge had failed to appreciate the evidence on George and despite good Alcontara notice being given, the prosecution failed to investigate George; and (c) the mandatory death sentence for trafficking in dangerous drugs provided for by s 39B(2) of the Act was unconstitutional as it violated arts 5(1) and 8 of the Federal Constitution and it was arbitrary, disproportionate and failed to take into account the appellant’s individual mitigating circumstances. In relation to this submission, the appellant relied on the Privy Council’s decision in the case of Reyes v The Queen [2002] UKPC 11 (‘Reyes’s case’).

The appellants mounted their challenge on four fronts: (a) that it was part of judicial power to determine the measure of punishment and that by prescribing a mandatory death sentence and removing the court’s discretion to impose any other sentence appropriate for a given case, Parliament had usurped judicial power under Art 121 of the Federal Constitution thereby violating the doctrine of separation of powers; (b) the mandatory death penalty violated an accused’s right to a fair trial under Art 5(1) of the Federal Constitution by effectively denying him of the opportunity to make a plea in mitigation for an appropriate sentence to be imposed; and (c) the mandatory death penalty was arbitrary, cruel and barbaric and violated the proportionality principle housed in the ‘equal protection’ limb of Art 8(1) of the Federal Constitution.

Judgement with Headnotes (200 words max): The Court of Appeal upheld her conviction and sentence, rejecting the argument that the mandatory death penalty was unconstitutional. The Court of Appeal affirmed the trial judge’s decision, as there was no miscarriage of justice in handling the evidence or presumptions under the Dangerous Drugs Act. The court found Bosman’s defense about the bag and George’s involvement to be inconsistent and an afterthought. The Federal Court, by a majority of 8-1, dismissed the appeal, ruling that the mandatory death penalty is constitutional. The court emphasized that it is Parliament’s role to decide punishments, not the courts. The dissenting judge argued that the mandatory death penalty is disproportionate and arbitrary, suggesting it should be replaced with a discretionary sentencing framework. The court maintained that Malaysian law does not incorporate international standards on cruel or degrading punishment unless expressly adopted. An application for resentencing was filed in the Federal Court. In this application, the Federal Court took into account amongst others, the individualised mitigating circumstances of the Applicant which include the fact that the Applicant is remorseful, and she has repented. The Federal Court accepts the principle that the Applicant’s remorse as a mitigating factor that might earn her the court’s compassion.

Legal Representation Received

Pre-trial: Unknown
Trial: Unknown
Appeal: Unknown
Second Appeal: Unknown

Legislation Related to the Offence(s): Section 39(B) of the Dangerous Drugs Act 1952

Judicial Precedents: Leow Nghee Lim v. R [1955] 1 MLRH 614; [1956] 1 MLJ 28 (refd)

Ong Ah Chuan v. PP [1980] 1 MLRA 283; [1981] 1 MLJ 64 (refd)

PP v. Abdul Manaf Mohamad Hassan [2006] 1 MLRA 319; [2006] 3 MLJ 193; [2006] 2 CLJ 129; [2006] 4 AMR 477 (refd)

PP v. Abdul Rahman Akif [2007] 1 MLRA 568; [2007] 5 MLJ 1; [2007] 4 CLJ 337 (refd)

PP v. Lau Kee Hoo [1982] 1 MLRA 359; [1983] 1 MLJ 157; [1983] CLJ (Rep) 336 (refd)

Reyes v. The Queen [2002] UKPC 11 (refd)

Teh Hock Leong v. PP [2008] 1 MLRA 548; [2010] 1 MLJ 741; [2008] 4 CLJ 764 (refd)

Toh Ah Loh & Mak Thim v. R [1948] 1 MLRH 143; [1949] 1 MLJ 54 (refd)

Case Brief Entry Status: Entry in Progress

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Letitia_Bosman_v_Public_Prosecutor (1).pdf
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Letitia_Bosman_v_Public_Prosecutor_and_other_appeals_No_1_.pdf505.61 kB

Death Penalty Defence - Asia

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LETITIA BOSMAN

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