In the Last Room
Who waits on death row? A 29-year-old has been sentenced to die by hanging for killing his girlfriend’s stepfather. He has one last chance to stay alive: a pardon from the King.
( Esquire Malaysia )
Prisoners on death row, and their plight, have often been romanticised, especially in the United States and in popular culture. The last walk, the last supper, the last request. No matter what a man has done in his life, no matter how hardened a criminal, we wouldn’t think of denying him his last wishes. Perhaps it’s because these things, in the end, are what humanise the condemned. And perhaps it’s because death, in the way only it can, offers a kind of absolution.
But during a man’s last walk, all bets are off. In Malaysia, death sanctioned by the state is carried out by hanging, and when a man is finally led to his death, he might wear the numbed look of the long condemned and walk with some measure of dignity, even courage, to the noose; he might even ask the hangman to hasten his execution and be done with it. Or he might have to be dragged with force, kicking and screaming, over the trapdoor that will usher him — if all goes according to plan — straight into the arms of the other world. A man likely doesn’t know how he will go, until he does.
In Malaysia, the death penalty applies mandatorily to anyone who is convicted of murder; narcotic trafficking; and discharging a firearm while committing certain specified offences (such as house-breaking) with intent to harm or kill — even if, in the end, no one is injured or killed. There has been some debate, which has gained traction in recent years, on whether the mandatory death penalty should apply to all of these offences — and indeed, whether the death penalty should be ordered discretionally by judges, or if it should even exist at all. But leaving, for a moment, that debate and thinking within the boundaries of our current legal system, what is the question we should ask to determine whether a man deserves to be sent to the gallows? Is it simply a matter of guilt and innocence — if it were ever simple — or is it this: that even when the evidence is clear enough to convict a man of cold-hearted murder, is there, at the same time, enough evidence of a heart to save his life?
PREMEDITATED MURDER, OR IN THE WRONG PLACE AT THE WRONG TIME?
November 11, 2003. It was like any other evening, and it’s probable that parallel domestic scenes were playing out in many households along the residential streets of Taman Subang Mewah in Subang Jaya, a largely middle-class suburb flanked by runways of industrial parks. It was a Tuesday, still light outside, somewhere between 7PM and 8PM — about the time when families sit down for dinner, when television sets go on, and it was no different for one particular family, who lived in a double-storey terrace house at the end of a row of similar houses.
The stepfather, a German-born Australian, was having dinner with his Malaysian wife of three years and her two daughters from a previous marriage, Li Yin and Li Mun, aged 14 and 16 respectively. We don’t know what kind of family they were — if they were usually chatty at dinner or if they mostly sat in silence while they ate — but at this time, there were no signs of family drama. At about 10PM, both girls retreated to their bedrooms upstairs, while the couple stayed downstairs to watch television. At 11PM, it was still like any other night — except, perhaps, for a phantom phone call. The stepfather answered, but on the other end of the line was silence. He didn’t think too much of it, and he and his wife retired upstairs to bed.
As the rules of teenage rebellion dictate, when the elders go to bed, the young ones come out to play. What were the sisters thinking when they decided to sneak out that night with their friends? It wasn’t the first time they had done so. Surely, they were all just thinking about having some innocent fun. Nothing out of the ordinary, for a teenager. They’d come home, crawl into bed, and no one would be the wiser. It could still have been like any other night.
Then midnight came, along with the first signs that all was not as it should be. At the last minute, the older sister Li Mun aborted her plan to sneak out — her parents had woken up, she told her friends from her window. Li Yin, unperturbed, climbed out of the window and left the house anyway, and went with Li Mun’s friends to a nearby coffee shop. One of these friends would later testify that on their way there she had seen Li Yin in an embrace with a boy — later revealed to be Li Yin’s boyfriend of three months — outside the house, before they went their separate ways.
Back at the house, also at about midnight, the mother heard a knock on the master bedroom door, but no one was there. Feeling something was amiss, she went to check on her younger daughter, but when she opened Li Yin’s bedroom door she glimpsed a boy sitting on the bed, illuminated only by the light from the staircase, who jumped up to attack her, wielding a weapon she couldn’t make out. Shocked and frightened, she quickly shut the door. But worried about her daughter, she opened it again a few seconds later. This time, she didn’t see anyone, but she thought she heard someone hiding behind the door.
She ran back to the master bedroom and told her husband what had happened. He rushed to Li Yin’s room, and a moment later, she heard him cry out in pain. When he came stumbling back, his face had been slashed, but he ran downstairs again after telling her to stay in the room and call for help. However, nervous about what was transpiring, the mother opened her bedroom door again, and this time, saw another boy — not wielding a weapon — running down the stairs. She slammed the door shut and locked herself in.
Ten minutes later, she heard Li Mun, who said she had been asleep, call out for her at the door and they both rushed downstairs. They found the stepfather lying at the bottom of the stairs in a pool of blood, naked except for his blue shorts. A post-mortem would confirm the cause of death: multiple cut wounds — 23, to be exact — to the face, head and neck. One injury in particular — a gaping, horizontal incised wound 17CM long on the upper back of his neck — was fatal on its own, completely severing the spinal cord.
Later, following the trail of blood from the stairs into Li Yin’s room, the police would find a 22-inch-long parang on the window ledge, stained with blood that matched the deceased’s.
In a surprising turn of events, the two sisters and the two boys — Li Yin’s boyfriend Johnny and his friend Derek — were charged with murder. However, the trial judge decided at the close of the prosecution’s case that there was insufficient evidence against the sisters, and acquitted them. The two boys, however, had to prepare their defence. They were innocent, they insisted.
The distraught mother was unable to identify the boys she had purportedly seen in her house that night, and the prosecution based its case against them primarily on circumstantial evidence. According to prosecution witnesses: the boys had been in the vicinity of the deceased’s house around the time of the murder; and a group of friends who had picked Johnny and Derek up from a petrol station 1KM away from the deceased’s house claimed to have seen bloodstains on the boys’ shirts and heard one of the boys say that they had unintentionally killed someone.
Johnny and Derek claimed it was not blood, but dirt. And further in their defence, the boys admitted they had been in the vicinity at the time, but had not committed the murder. Johnny said the only thing he had done wrong was to try to help his girlfriend. He said she had complained of troubles with her stepfather — that he restricted her freedom, abused her, and sometimes took advantage of her — and she had asked him for help. The boys said they had promised to help her run away, but did not promise to beat up her stepfather. In fact, they said there was someone else involved called Ivan, a gangster. The boys’ lawyers also pointed out that there were gaps and inconsistencies in the prosecution’s case, and that the key element of a premeditated intention to kill on their part, and their motive for it, had not been satisfactorily proven — nothing had been stolen from the house.
The Shah Alam High Court, though not convinced Ivan existed, agreed with the defence that the intention to kill had not been made out, and that in all probability, the deceased had attempted to chase after the boys as they fled after the first, unfatal attack. In 2006, the court declared the boys guilty, but of a reduced charge of manslaughter — not murder — which holds a lesser sentence of 10 years in prison. The judge also said it was impossible to determine with any certainty as to which of the two boys, specifically, was the attacker.
The trial judge’s decision, however, was overturned by the Court of Appeal, which reinstated the charge of murder in 2009 and convicted both boys — a decision later reinforced by the Federal Court, the highest court in the land for criminal appeals.
Derek, being 16 at the time of the crime, escaped the gallows. Johnny, being 18 and legally an adult, wasn’t so lucky.
LIFE ON DEATH ROW
At 28, Johnny still looks as he did at 18 — glasses (by which he was identified as a suspect) and all. His hair is cropped closer to his scalp these days, but otherwise he maintains the boyish features that make it difficult to believe he’s done something that has incarcerated him here: in handcuffs and a red-and-white inmate uniform that marks out those who have come to the end of the line — or, as they say in Malaysia, bilik akhir (“the last room”), which Johnny simply refers to as “BA”.
As of August 31, 2012, there were 930 prisoners on death row — 725 of whom had pending appeals in court, and 205 of whom were awaiting a pardon from the Yang di-Pertuan Negeri. Johnny is one of the 205. Having exhausted all appeal options, a pardon is the only thing standing between his dreams and certain death.
As much as he can, though, he tries not to think about that — which is hard. It’s not as if his daily routine keeps him busy.
Every morning, he wakes up at about 7AM, early enough for the head count: “If I miss it, I have to stay in my cell for a week,” which, in light of the paltry two half-hour blocks he has every day to escape the confines of his cell, would be a considerable sufferance.
At about 7:30AM, the warden brings him breakfast: “Monday, Wednesday, Friday and Sunday, we have roti — on Sundays, we get extra egg. Tuesday and Saturday, we have kanji [porridge]. Thursday, we get bubur kacang hijau.”
Then, it’s “hygiene” time, as he puts it. There are washing facilities built into his cell, so he’ll take a shower, maybe wash his clothes; but as he’s not allowed outdoors, “the prison officers will help us hang our clothes to dry.” But mostly, he adds, “We do things ourselves. Like my pillow, I made it myself. We only get a blanket. I used the stuffing from the tilam (mattress) and I made a pillowcase.”
“And then I pray,” he says. “I’ve always been a Buddhist.” In fact, according to lawyer Joshua Tay, who is helping Johnny with his pardons application, he spends at least 40 minutes praying every day and can recite the Buddhist chants by heart.
At 10AM, he gets his first “social” of the day, if it can be called that. The barriers dividing the inmates are removed, and they’re allowed to extend their confines and socialise in groups of six, but just for half an hour, and just marginally — never further than the six inmates’ collective cells and the hallway that spans the cells’ length. “There’s not much we can do anyway,” he says. “We can only jog in the hallway, or we can play chess or carom.”
Lunch is served at about 11AM. “It’s usually fish — ikan cencaru, or what we call jacket fish, because they never remove the skin. And ikan kembung. Usually just these two kinds. With vegetables, rice and soup.” He seems to enjoy describing the detail of what he eats, and Tay describes how once, the prison warden had offered Johnny a treat — a whole starfruit, instead of the usual sliver of watermelon — and how his eyes had lit up like a boy’s.
“Basically, in my cell, I eat, drink, sleep, read and pray. And I sometimes listen to music on my Walkman.” But mostly, he reads — a habit he’s picked up more fervently in prison because “there’s nothing else to do.” His sister brings him new reading material every fortnight — mostly Chinese novels he’ll share with other inmates, and sometimes magazines about fishing, an activity he was very fond of. “That was such a long time ago,” he says. “Everything was such a long time ago.”
At 2PM: another head count. Then at 3PM: another half an hour “out” to mix with his row mates, most of whom, he says, are on death row for drug trafficking or murder. “But we don’t really talk about what we’re in here for, or what’s going to happen. For me, I don’t like to think about the past. There’s no point. We talk a lot of rubbish. We don’t really talk about anything personal. I guess you can say I’m a little bit poyo, you know… A bit sombong. I don’t really talk to people. I only talk when I need to.”
Then dinner is served — early, between 5:30PM and 6PM. And then it’s back to killing time.
But it wasn’t always like this. Before he was sentenced to death in 2009, when there was still a glimmer of hope that he would rejoin society, he was allowed to study — he took his SPM and passed, but failed his STPM; he was allowed out in the sun to play sepak takraw or football with the other inmates; and he was allowed to work in prison — “I used to be a tailor and a carpenter.” But then, all his “privileges” were taken away, and he was persona non grata, as far as the system was concerned. He had wanted to re-sit his STPM, but he wasn’t allowed to. From the authorities’ point of view, if you were going to be hanged anyway, what was the point?
Whether it’s just an outward show of bravado, Johnny seems to be taking it all in his stride, strumming what must be a precarious balance between hope and realism. “In 2010, I was supposed to be let out of prison, but in 2009, they gave me the death sentence. I cried then; of course I did. But what can you do? I can only accept what the judge said. So I just try to relax,” he says, matter-of-factly. At the same time, he still hopes that one day, he might be reunited with his family, that he might get to hug them again, and not communicate with them over the phone, separated by a glass partition. “I am drafting a letter to the Sultan for a pardon, but I don’t know what is going to happen. I could go anytime, and to be honest, if that happens, I am prepared.”
“Two people were executed earlier this year,” he says, “one for drug trafficking and one for murder.” He is clear-eyed about what will happen if his application for a pardon is rejected. “Yes, I hear it from the more experienced people here. The day before, they take your weight and height” — so that the correct rope length can be estimated, his lawyer says, in order that the head snaps cleanly, but is not decapitated from the body — “and then you see your family for the last time, and when they leave, the warden will ask you if you have any last requests… Maybe KFC, maybe a cigarette.”
Similarly, Johnny’s sister says she and their mother try to balance their expectations, to save themselves more pain. “My mother and I, we have been through so much, we don’t want to be disappointed,” she says. “Bad things happen, and in a way, maybe it is fated. As long as it is not a death sentence, anything but a death sentence, and I can accept it. At least we can still see him, even if it’s just through the glass.” As she says this, she starts to cry.
“With our family, he’s always been a good boy and shows concern for everyone,” she continues. “But he found it difficult when my father passed away in 2005. My brother was 15, and he had only finished his PMR. It affected him very badly. Other than that, he never gave us any problems or issues we had to settle. The only thing was that he never liked to study.”
These days, Johnny would do it differently. If he were to be pardoned, he would like to catch up on lost time and finish his studies — maybe continue where he had left off 10 years ago, when he had been studying a hotel management course at college, and had been about to start an internship.
His friends have kept a distance, but his mother and his sister continue to fight his corner, and advise him simply to look ahead. “It’s not that I would mind his friends coming to visit, but they have never asked,” his sister says. “Even if they wanted to, I would try to tell my brother that this world is very realist. Some friends might not mind your past, but some will look down on you. I told him, if you’re able to come out of prison in the end, then you should just start a new life.”
THE LAST REPRIEVE
Since 2001 until August 31 last year, 41 prisoners were granted pardons: six had their death sentences reduced to imprisonment for the duration of their natural life; 33 had death reduced to life imprisonment (a minimum of 20 years in jail before they’re eligible for parole); one early release; and one immediate release.
For those sentenced to death row, making an application for a pardon is a matter of course — a default right. The petition may be prepared by the condemned himself, his relatives, with the help of prison authorities, or through his legal counsel. Lawyer Joshua Tay relays to me a conversation he had with a prison officer, who told him that no one is hanged until there is a decision from the Pardons Board. Tay asked, “So does that mean that if a prisoner doesn’t make a petition, he’ll never be hanged?” The officer said, “I’m not sure. I only know that we can only hang if and when the Pardons Board rejects an application. Even then, we have to wait until the Sultan signs a warrant to hang. Because of this, sometimes there are people who sit in the bilik akhir for 20 years.”
Who are the people with the power to decide the ultimate fate of a convicted criminal? The Federal Constitution provides that the board for each state or federal territory should consist of the Attorney General, the chief minister or mentri besar, and not more than three members appointed by the Yang di-Pertuan Agong or Yang di-Pertuan Negeri. They are appointed for a term of three years and stand eligible for reappointment, but may resign at any time. Andrew Khoo, co-chairman of the Bar Council Human Rights Committee, says that the three members are usually “distinguished members of society”, barring members of the Legislative Assembly or the House of Representatives.
A Pardons Board must meet in the presence of the Yang di-Pertuan Agong or Yang di-Pertuan Negeri, and as chairman, he has the discretion to decide when to call for a board sitting. The ruler will also decide whether he’ll issue a pardon on the recommendations of the Board, who will have all the legal documents, personal petitions from the accused, his family, and possibly his counsel (if he retains one) at their disposal. Before tendering their advice, a Pardons Board must also consider the Attorney-General’s written opinion.
Apart from this, however, not very much else is known about how a Pardons Board works. Several lawyers Esquire spoke to lament the lack of transparency, even those who are making an application for a pardon on behalf of a client. We don’t know how often they sit, by what criteria the members are appointed, or by what criteria they make their decisions. An appointed member of the Selangor Pardons Board, who preferred not to be named, told Esquire: “There isn’t a straightforward answer. It’s a combination of the facts and the law, and the petition itself from the prisoner. The best way to put it is: a decision is made on the basis of social conscience, whether sustained incarceration or capital punishment imposed is in the interests of society. We take this as a very serious responsibility.”
Tay thinks that because no criteria are laid down, anything goes; and he thinks that a personal, human appeal from the prisoner himself has the best chance of succeeding. Because in Malaysia, the death penalty applies mandatorily to murder, judges have no leeway to convict an accused while taking into account any reasons for mitigation during sentencing. In Malaysia, there’s no such thing as mitigation of a death sentence. Instead, in our system, mitigation in a death penalty case really only comes into consideration at the pardons stage, and this perhaps leaves some room for human compassion, which has arguably been absent from the criminal system since trial by jury — instead of a single judge, like today — was abolished in 1995 after the notorious Mona Fandey case.
Still, some lawyers say the process is far from satisfactory. Edmund Bon, a lawyer known for his human rights work in legal circles, says that the decisions of a Pardons Board should be open to judicial review, or at least, that the process by which it arrives at its decision should be available to, if not the public, then at least the condemned and their legal counsel. The famous lawyer and Democratic Action Party (DAP) National Chairman Karpal Singh, too, had also complained about the inherent unfairness to the condemned in allowing the Attorney-General (who is also the public prosecutor), but not the defence counsel, to sit on the Pardons Board.
THE CURRENT STATE OF PLAY
The Malaysian government does not publish statistics relating to the death penalty publicly, but in response to a parliamentary question in April 2011, the then home minister Datuk Seri Hishammuddin Hussein revealed that since 1960, 441 persons had been hanged in Malaysia: 78 for murder, 228 for drug trafficking, 130 for the illegal possession of firearms; four for waging war against the king; and one for kidnapping. The last two offences do not, by law, mandate the death sentence, but judges are free to use their discretion when applying it. On July 9, 2013, DAP politician and Kluang MP Liew Chin Tong also said in a statement to parliament that a total of 964 people were sitting on death row — of these, 912 were male and 52 female; 647 were Malaysians and 317 foreigners.
The way in which a state administers the death sentence — or indeed, if it even has one at all — speaks to the way its society thinks about good and evil. Is death imposed as a just ending for a demonic act — the whole an-eye-for-en-eye philosophy many have called archaic; or is it imposed as the final curtain for someone who can never be recalled from the brink, who is ultimately irredeemable? If it’s the latter, how do we judge? Can our justice system, or any justice system in the world, ever reach such a level of perfection as to say that it is impervious to human wish-thinking, incompetence and abuse? Bon says the only right answer is no. “We are in a position to see that the criminal justice system is not foolproof, even in the most advanced legal systems like the US and the UK, what more in our country,” he says. “Just look at the number of cases where an appeal court has overturned the original conviction for an indication.”
For this reason, the Malaysian Bar Council has, for many years, been actively campaigning to abolish the death penalty — but incrementally. “The end goal is to abolish the death penalty entirely. However, to reach it, we’ll face a lot of resistance,’ Bon says. “The Bar Council has said we’ll take a step-by-step approach to encourage more acceptance. First step: a moratorium on the death penalty pending a review. The next step is to look at what crimes we can start giving discretion to judges to decide whether or not to apply the death sentence. Because it’s unconstitutional to make the death penalty mandatory. You cannot tie the hands of judges when it comes to life and death.”
The Malaysian government has not offered a firm response to this. In 2010, the then law minister Datuk Seri Mohamed Nazri Abdul Aziz welcomed the abolishment of the death penalty, but said that public support was crucial to changing the law; however, in March 2012, he said in a written response in Parliament to Karpal Singh that the government had no immediate plans to do so, insisting that Malaysia still needs the death penalty as a deterrent for serious crimes. Police statistics contradict this, however: also in a written answer to Singh, then home minister Datuk Seri Hishammuddin Hussein said that the arrests of drug dealers had increased between 2009 and 2011, with an increase of 745 arrests between 2009 and 2010. Then, in July 2012, the Attorney General’s Chambers announced that it was considering proposing an amendment to the Dangerous Drugs Act 1952 to give judges the discretion on whether or not to impose the death sentence on drug “mules”, but no such move has yet been made. Bon says it would be the right move: “The death penalty should be abolished with regards to drug trafficking because most of the ones caught are just runners; you’re not hitting the kingpins.”
Most recently, in July this year, the Bar Council reported that its findings from a public opinion survey of 1,535 Malaysians citizens, carried out in collaboration with the UK-based Death Penalty Project, suggest that would be little public opposition to the abolition of the mandatory death penalty. As much of the unwillingness of the Malaysian government to abolish the death penalty is perceived to be due to the support of the Malaysian public for it, the Bar Council is hoping that this will serve as an impetus for the law to be changed.
In the 2012 film The Paperboy, Matthew McConaughey plays an idealistic reporter who takes it upon himself to investigate a murder in an effort to exonerate a convicted man on death row due to inconsistencies in the evidence. He succeeds, only to realise, to his own fatal detriment, that the man had indeed committed the deed. But equally, it can go the other way: someone you think is guilty might, in fact, be innocent — and there are plenty of real-life stories to pay testament to this, such as the American case of Cameron Todd Willingham, who was executed in 2004 for murdering his three young children by arson, when, in fact, it was just a tragic accident. This goes to show that, with the exception of cases where suspects have been caught red-handed, sometimes it’s impossible to know.
As the late writer and philosopher Albert Camus, an outspoken critic of capital punishment, said: “We know enough to say that this or that major criminal deserves hard labour for life. But we don’t know enough to decree that he be shorn of his future — in other words, of the chance we all have of making amends.”
Names of all those involved in the case have been shortened, changed or withheld at the request of their respective lawyers and representatives.