EMMANUEL JAMES KALU

CASE BRIEF
Jurisdiction
Nationalities
  • Togolese
Case Title
Emmanuel James Kalu (Federal Court Criminal Appeal No. 05-147-06/2016(B))
Age at Offence
35
Age Group at Offence
Adult (18 to 59)
Gender
Male
Religious Group at Offence
Christian
Vulnerable/ Marginalised Group
  • Foreign National
  • Socio-economic Status
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: 2014
Rights Allegedly Violated
  • Torture: Death row phenomenon
  • Torture: Solitary confinement
Nature of Offences for Death Penalty
  • Drug Crime
Expert Evidence
  • Forensic/Medical evidence: Chemistry/Toxicology/Drug analysis
Case Background (300 words max)

Emmanuel was charged with one charge for drug trafficking under section 39B of the Dangerous Drugs Act 1952. In 2012, he was stopped by the police at the arrival hall of KLIA. His passport was inspected and a physical examination revealed nothing incriminating, but he appeared to be nervous. This led the police to take him to a hospital, where he underwent an X-ray examination - which showed foreign objects in his abdomen. He was subsequently detained and arrested. He excreted 60 capsules (631.94g of Methamphetamine) in the next three days, and these capsules were sent to the chemist. A prima facie case was established, he was found guilty and sentenced to death by the High Court.

Emmanuel’s testimony was that he became friends with Andy before his trip to Malaysia, who introduced him to his friend, Kalu in Cotonou. Needing to provide for an ailing mother who was hospitalized, Kalu offered him business opportunities and gave him 400 USD. After a week, he went to Cotonou again, and was asked to swallow some capsules this time. He was told that the capsules were imported from China and to be used to clean gold. He was told to transport it and give it to Kalu’s brother in Malaysia.

However, this defense had failed to raise reasonable doubt as his statement was contradictory to his testimony, where he initially stated that the capsule contained medicine and the mastermind was another person named Efvin - no explanation was given for these contradictions.

His conviction and sentence by the High Court was affirmed by the Court of Appeal and Federal Court. Following the Applicant’s resentencing hearing on 2024, his death sentence was set aside and substituted with an imprisonment term of 30 years from the date of his arrest (in 2012) and 12 strokes of whipping.

Defence Arguments (200 words max.)

The defense counsel raised three issues for his appeal, noting that the search conducted by way of his excrement tantamount to an intrusive search as outlined in the Fourth Schedule of the Criminal Procedure Code (CPC), all of the subject matter i.e drug capsules) were discovered by way of intrusive search; and the photograph exhibits did not show the face of the person defecating and discharging the capsules.

The defense relied on these cases:- Azizan Yahaya v. PP [2013] 2 MLRA 297; [2013] 1 MLJ 180; [2012] 8 CLJ 405; Balachandran v. PP [2004] 2 MLRA 547; [2005] 2 MLJ 301; [2005] 1 CLJ 85; [2005] 1 AMR 321; Ganapathy Rengasamy v. PP [1998] 1 MLRA 11; [1998] 2 MLJ 577; [1998] 2 CLJ 1; [1999] 1 AMR 1; Alcontara Ambros Anthony v. PP [1996] 1 MLRA 47; [1996] 1 MLJ 209; [1996] 1 CLJ 705; [1996] 1 AMR 817; Mohamad Radhi Yaakob v. PP [1991] 1 MLRA 158; [1991] 3 MLJ 169; [1991] 1 CLJ 311; Mat v. PP [1963] 1 MLRH 400; [1963] 1 MLJ 263; and PP v. Bayati Heidar [2014] 4 MLRH 131; [2014] 2 CLJ 915.

In Emmanuel’s resentencing appeal, the appellant’s written submission had stated his socio-economic status - low income and being sole breadwinner in supporting a sick mother. Being in financial desperation, he accepted the offer of someone who offered him promises of a business opportunity, given 400USD in advance and remaining hospital expenses will be fully paid after delivery. Unfortunately, the hospital expenses were not paid, leading to his mother’s death. He suffers from immense regret and the death row phenomenon. He shows positive prospects of reform and rehabilitation, learning more about Christianity and hopes to spread the gospel and lessons from his experiences back in Nigeria.

Judgement with Headnotes (200 words max)

The appeal court held by the decisions in the High Court, stating that the defense counsel failed to prove prosecution’s case - with arguments that the case was adhering to the Fourth Schedule of CPC and there was no merit in the argument of the photographs exhibit.

In 2024, the resentencing of his death sentence was set aside and substituted with an imprisonment term of 30 years from the date of his arrest (in 2012) and 12 strokes of whipping.

Legal Representation Received
  • Pre-trial: Unknown
  • Trial: Unknown
  • Appeal: Unknown
  • Second Appeal: Unknown
Legislation Related to the Offence(s)

Section 39B of the Dangerous Drugs Act 1952

Judicial Precedents

For the resentencing application, the defense counsel relied on:

  1. Court of Appeal in Alowonle Oluwajuwon Gilbert v Public Prosecutor (Criminal Appeal No. B-05-260-08/2021) [Tab 2, Applicant’s Bundle of Authorities (ABOA)] - for the principle of sentencing in discretionary capital punishment cases for only the most exceptional cases, i.e., the "rarest of the rare" cases.

  2. Rajendra Prasad v State of Uttar Pradesh 1979 AIR 916 [Tab 5, ABOA], Indian Supreme Court - for the proposition of “death row phenomenon” despite it not having legal recognition in Malaysian courts

  3. The Privy Council in Lockhart v R [2011] UKPC 33, [Tab 3, ABOA] - compelling argument to prepare psychiatric report to evaluate prospect of reform. However, despite the absence of a report, it can be used as an additional support to show how the appellant has shown ways that they are able to reform and rehabilitate.

Case Brief Entry Status
Complete
Language of Case Materials
  • English