How case could proceed

Indonesian Siti Aishah leaves a Sepang court after she was charged with the murder of North Korea Kim Jong Nam, in Malaysia on Mar 1, 2017.
Indonesian Siti Aishah leaves a Sepang court after she was charged with the murder of North Korea Kim Jong Nam, in Malaysia on Mar 1, 2017. PHOTO: REUTERS

The two women charged with murdering Mr Kim Jong Nam have said they believed they were merely participating in a prank. Police, however, say the duo knew the liquid they smeared on the victim's face was poisonous, as they immediately went to wash their hands.

Meanwhile, investigators have acknowledged that four North Korean suspects could have given the two women the toxin, making those suspects possible masterminds of the crime. Here is a quick look at how the case could proceed:

Q What happens if intention to commit murder is not proven beyond a reasonable doubt?

A Intent is crucial to the definition of murder in Malaysia's Penal Code. If it is not established, then the court must acquit the defendants. "If the accused didn't know the liquid was poisonous, it means they were innocent. You have to charge the masterminds instead," said human rights lawyer and lawmaker N. Surendran.

Q Can the suspects be convicted on a lesser charge?

A According to established criminal lawyer Amer Hamzah Arshad, the prosecution is entitled to amend the charge at any point in the proceedings. Or at the end of the prosecution's arguments, the judge may decide that the defence should answer for a different offence. This includes culpable homicide, also known as manslaughter, whereby the act causing death was due to provocation, an attempt to defend a person or property in good faith, or done in the heat of the moment.

"If the defence is called for a murder charge, but there is a new development in the case, even at that stage, the prosecution can amend the charge. But for murder, it is sufficient to invoke knowledge that an act can cause grievous harm, even if it is not necessarily premeditated," he added.

An even lesser crime of causing death by negligence also exists.

Q What is the punishment that the two women face?

A Malaysia has a mandatory death sentence for murder. Culpable homicide can carry a punishment of up to 30 years in jail and a fine. Death by negligence comes with a maximum sentence of two years in jail and a fine.

Q Are there avenues for appeal?

A Both parties may appeal against the High Court verdict to the Court of Appeal, and finally to the Federal Court. But they must provide sufficient grounds for the higher court to listen to the appeal.

Shannon Teoh

A version of this article appeared in the print edition of The Straits Times on March 02, 2017, with the headline 'How case could proceed'. Print Edition | Subscribe